To address the issue of whether killing Osama bin Laden by military forces of the United States of America was lawful under international law, it is important to address his death by drawing focus from international law. In fact, the death of Bin Laden has raised several strange legal issues. The first issue, where the US forces legally right to make entry into Pakistani territory and raid their perceived enemy without getting permission from Islamabad? Second, could it be possible that Bin Laden’s death in hands of the US forces amounted to a war crime?
Analysis of Osama’s Death under the International Law
Drawing from the UN Charter, Article 2 (4), it was not legally right for the US to launch an operation on Pakistani soil without seeking permission from that government since the country was never at war with the United States. In essence, it was important for the United States to adhere to its international obligations. Even though both al Qaida and Washington were regarded to be at war with each other, the role played by the Pakistani government in hosting Osama Bin Laden was not a valid reason for the United States to launch its raid operations on Pakistani soil. This can be regarded as violating Pakistani sovereignty, which presents some legal problems (Mron 45).
Moreover, issues of territorial sovereignty are more complex than those of war crimes. The analysis of the issues of war crimes is more straightforward as witnessed with the Rome Statute, Article 8 that the conflict nexus, which is regarded as the seminal provision as defined in international law on war crime (Starke 59). Focusing on such conflict nexus, it can be ascertained without a doubt that al Qaida, as well as the United States Government, were at war. The Rome Statute is important in this analysis because provides a detailed list that contains what constitute war crimes and provisions that outline command responsibility as well as defences used in international law.
It is clear from the international law that in analyzing the killing of Bin Laden by the United States Government, the potential danger posed by him ought to exist objectively while the perceived threat must incorporate some potentially negative consequences, which can be regarded as imminent as well as unlawful. According to various scholars of law, someone’s right to make use of force as a means of defence against potential attacks from terrorists cannot be taken as absolute but should be necessary to facilitate repel of the planned attacks as well as taking into account the proportionality of the potential threat (Milanovic 65).
Focusing on international law, the danger that Bin Laden posed as the mastermind of the global terrorist network that was linked with the responsibility of several attacks can be analyzed to have existed objectively. Bid Laden made use of videotapes warnings that were issued through Al Jazeera to send warning alerts to the US government, and these were good signs of imminent terrorist attacks looming ahead. According to any legal statute, the act of terrorism is regarded as unlawful. Other issues that came up as a result of killing Bin Laden by the United States can be regarded to be more problematic than one could imagine (Passman 58).
First, was it that the United States obtained some information on the messengers of Osama’s identities through Guantanamo detainees’ torture? Second, did Osama arm himself during the raid? Then, why was Bin Laden killed, if he never posed some immediate threat to Navy SEALs?
It is important to recall that Bin Laden had been indicted in 1998 before the United States district court of Manhattan, and the purpose of this indictment was the conspiracy plan to launch a terrorist attack on the United States defence installations. According to the argument put forward by many legal scholars, once a person has been put under indictment, the aim is to capture him/her and bring him/her to the court of law for trial purposes (Milanovic 71). Therefore, the object is not meant for executing the person summarily once he/she has been indicted.
Analysis of Bin Laden’s killing under the rules of PIL
The first issue, is it lawful under the rules of PIL to engage in targeted killings of individuals, especially those who are regarded as threats to international peace and security? Killing people are perceived to be a threat to international peace and security was first witnessed in the domains of tyrannicide. In their views, ancient scholars who included Cicero and Aristotle viewed this as a natural right of the people who are oppressed by their unjust leaders, who could also be regarded to be threats to international peace and security. Therefore, killings of such leaders were justified for the sake of obtaining peace and security. However, other groups of scholars held a completely different view regarding such killings. For instance, “medieval as well as modern scholars, who included Grotius and Aquinas, argued that such killings are unlawful” (Green 49).
In their defence, they argued that “killing an enemy, especially one who is viewed as a threat to the international peace and security by treachery is unlawful”. Moreover, late modernity went ahead by arguing that it is unlawful to carry out such killings as the only means to discourage and stop such acts since it is ironical in the sense that the terrorists use various tactics in carrying out their missions, and the best way could be indicting them. Let us borrow a bit from the United States and the international law, which have declared such assassinations illegal.
Notwithstanding the illegality of such killings, following international law, some scholars have strongly argued for the emerging right to carry out such killings, especially at the time of armed conflicts. This defence is based on the States ability to apply the use of force for self-defence that can be used as a justification for the perceived use of force. Despite this argument, it is important to follow international law, which provides that the use of force on such targeted persons must not only be proportional to the perceived threat but also necessary.
In this aspect, the use of force on such persons should be aimed at reducing the use of force, which out to be in proportion to the threat posed by the targeted individuals. It is also important to note that the use of force to carry out such killings of the targeted individuals does not only deny that individual their right to justice, but also some few civilians as well, who might be caught in the process. On the same breadth, such killings can only be regarded as legal once they meet the required proportionality test (Green 57).
Let us now draw our focus to the Israeli Supreme Court which is regarded as one court among the few, which has directly adjudicated this issue on the legality of such killings of those targeted individuals. Therefore, let us look at the analysis of the Israeli Supreme court with a view of gaining some useful insights on this issue.
The position of the Israeli Supreme Court
It can be admitted that Israeli’s action in the Palestinian conflict left many people dead, about 300 targeted persons, as well as 150 innocent civilians, died in the process, and hundreds of people were wounded. Consequently, the Israeli Supreme Court termed such Intifada as a perceived armed conflict of international magnitude. In fact, this act can be regarded as de facto recognition, and not de jure in recognition of the Palestinian state, as a means of negotiation between the Israeli and the Palestinian Authority to achieve mutual recognition as well as peaceful co-existence (Starke 47).
As a result of logic, the Israeli Supreme Court considered the insurgents who were struggling for state power in those territories to be prosecuted under the law of war. In its ruling, the Israeli court applied the law of conflict and ruled that the targeted individuals who are threats to international security and peace, also labelled as terrorists, are regarded as civilians about the law of armed conflict. In its argument, the ruling bench decided that such groups of individuals should only be attacked on the condition that they are directly participating in terrorist activities, and the perceived terrorism attacks must be viewed as proportional as well as necessary. Furthermore, the Israeli Supreme Court came in to provide a broad definition to the concept of direct participation and included ancillary activities plus bomb manufacturing on armed conflict.
Drawing from the provisions of the international humanitarian law, there are only two classes of individuals recognized in conflict areas, and these comprise civilians plus combatants. According to international law, combatants are required to put on some distinctive identifications as well as uniforms, and failure to do this is considered to be going against the law. It is such distinctive identifications that enabled the Israeli Supreme Court to identify the perceived terrorists as illegal combatants. Contrary to international law statutes, the Israeli court permitted their civilians to engage indirectly in armed combat, especially in conflict zones, arguing that they might be fairly attacked. In its provision, international law allows civilians to be engaged directly in combat to make it possible for legal targeting in the perceived zones of conflict (Kokott 83).
Justifications of the US and UK attacks
Moreover, the US and the UK have also been engaged in these types of attacks in targeted killings of persons, especially those who are regarded as threats to international security and peace. In an attempt to analyze this issue, the focus will be on some of the justifications that states provide for their actions. In their argument, the United States and the United Kingdom claim that the threat posed by these groups of individuals at times concerns matters of national security, which are purely local as well as internal issues that warrant the use of national law.
Therefore, in dealing with these groups of people, the two countries have sought to determine when to apply international law or domestic law, and in certain cases, they have resorted to domestic laws that might support the killing of such individuals. In most cases, these are internal arrangements that are domestically debated by the respective governments to reach some levels of internal agreements. For instance, the US would argue that in killing those targeted individuals who interfere with international peace and security, the states are trying to protect their sovereignty and ensure that external attacks are kept at bay (Printer 63).
The US and the UK at times engage in such killings as a matter of self-defence, though this argument is quite irrelevant according to IHL analysis. It can be argued that targeted killing is a form of ad Bellum, a consideration that cannot be placed under the IHL analysis framework but should be placed under human rights analysis. Drawing from this factual argument, it can be ascertained that targeted killings done by use of unlawful forces under jus ad Bellum cannot be justified, following human rights law (Portmann 54). However, the US and the UK, to some extent, are afraid to articulate the arguments on human rights law because it is viewed as rigid as well as inflexible, and since they do not want their targeted killing policy to be rendered invariably unlawful they are very reluctant to adopt the argument.
Therefore, both the US and UK can take the lives of the targeted individuals, following human rights law on the condition that they are capable of showing the necessity for carrying out such acts. In their justification, the achievement of self-defence through the use of force to kill the targeted individuals who are threats to international peace and security cannot be realized without necessarily watering down the so-called human rights, which appear to be too rigid and inflexible (Kretzmer 52).
Ordering military forces involved to try and arrest Bin Laden
This analysis presents an account of whether the situation would be different if the military forces involved in the operation were ordered to try and arrest Osama Bin Laden, with killing only as a last resort. The position would rather be different since Osama had already been indicted before, and the best way was to arrest him and charge him following international law for constituting war crimes. Arguably, killing would be the last resort since its legality is subjected to various rules such as human rights law, IHL, and jus ad Bellum (Fisher 72).
Drawing arguments from jus ad Bellum, it is not clear whether the Pakistani government had permitted the United States to launch an operation attack on its soil. If such consent was not granted to the US government by the Pakistani counterparts, then there is no validity in arguing that Bin Laden was killed to achieve self-defence, and the best option was trying to arrest him. In case, it was expected that Pakistan was meant to have raised the issue of jus ad-bellum, but unfortunately, there is a lack of strong political will for the Pakistani government to come out and say that they were the ones hiding Osama for that long, and yet the United States had no power to interfere with their sovereignty by launching an attack on its soil.
Indeed, for the arrest to be successful the Pakistani government was meant to give support to the US soldiers by revealing Bin Laden’s hideout and using its state machinery to facilitate the capture, but since they failed in this it could be argued that they were in support of Osama and would not possibly hand him over to the US authority (Kokott 94).
On the contrary, IHL’s position on the killing was that it was properly executed, and the argument for arrest might not suffice at this level. IHL ascertained that jus in bellum could not apply in this case since the killing of Bin Laden was never done in line with any form of lawfully cognizable and armed conflict, and a better view could be evidenced in the sense that Osama was a legal target since he was a leader of some organized armed terror group, which took part in some non-international armed conflict, often referred to as ala Hamadan. Though this stands to be tested for truth, it is possible that Bin Laden was either armed or had dangerous weapons in his possession during the raid, thus posing some imminent threat to the US soldiers, and this could hinder the arrest order to be executed during the operation (Printer 37).
Some legal scholars might tend to argue that Bin Laden had a right to be tried through a court of law, just like any other individual, and should not have been killed without a fair trial. Importantly, international human rights law does not grant permission to states to kill persons deliberately if they are found to have enough justification, but Bin Laden was one of the most dangerous persons whose killing could help in protecting the lives of other innocent people. It can as well be argued that Osama was killed in a fierce firefight, and probably it was not possible to capture him alive (Shirley 56).
In addition, there is no tangible evidence that Bin Laden had tried to surrender to facilitate his arrest before he finally fell by the bullet. The same facts give support to Bin Laden’s killing as opposed to his arrest because he had been on the hideout, probably in Alaska, and not in Abbottabad to avoid arrest. Therefore, the situation would be much different upon Bin Laden’s arrest because there is a high possibility that he could have escaped or his organized troops might have engaged in revenge attacks to facilitate his release (Saul 58). This would have left many innocent people dead, though subject to debate, killing Osama would be a better option rather than arresting him (Saul 32).
Issue on violation of state sovereignty
In this analysis, the focus will be on whether carrying out an action like Bin Laden’s example, without the consent of the territorial state would constitute a violation of state sovereignty. Indeed, such actions would constitute a violation of state sovereignty. In this analysis, the ad bellum principle that is derived from the United Nations Charter, article 2, and it refrains members from engaging in activities that violate rules contained in international relations, barring them from “carrying threats and using force against political independence and integrity of the concerned states” (Aust 42).
Therefore, the United States launching of the operational attack on Pakistani soil, without consent from that government would constitute a violation of state sovereignty. This could be termed as a boundary or territorial violation (The International Jurist 1).
The United States entered Pakistan to capture or even kill the perceived enemy, Osama bin Laden. In fact, this was done without the consent of the Pakistani government because the same government objected to the US action, terming it as unauthorized and unilateral. On the other hand, the US supported this territorial violation, arguing that they could not provide the Pakistani government with advanced information because it could compromise the mission of the operation. In their defence, the US government carried out the raid without informing the government of Pakistan since they had a strong feeling that the country was neither capable nor willing to contain and suppress Bin Laden’s threat. Unfortunately, international law has come in handy to regulate such violations posed by the United States on the Pakistan territory.
International law gives guidelines on relevant factors to consider before deciding to carry out a raid in a foreign territory. It is this kind of territorial violation, which led to a serious strain in the relationship between the United States and Pakistan, and this could be avoided simply by not carrying out the raid on Pakistan soil. This would as well put Pakistan in a position of engaging in the use of force against another state, which might be attempted to violate its territorial rights under unlawful determination (Passman 72). This would be a costly venture for the country, but its implementation is worth taking.
However, few legal scholars have come to shed light on certain standards needed to be followed when a country is unable and unwilling to suppress threats, especially terrorism activities. This brings in some other issues that need to be debated. For instance, what duration would Pakistan require before responding to the United States proposal? What would be the likely action to be taken by the United States once they realize that Pakistan might not respond adequately to the perceived threat? These are some of the issues linked to the violation of state sovereignty that requires comprehensive scrutiny, and such analysis would require some standard tests to be put in place (The International Jurist 1).
Several states and legal scholars would agree that the test of unable and unwilling is the best standard for evaluating the violation of state sovereignty, especially the use of force under this context. For example, it had been witnessed several times when Israel invoked the standard test of unable or unwilling to justify the use of force, specifically in Lebanon against Palestine Liberation Organization (PLO) and Hezbollah. Despite these facts, every state administrators need to confirm whether another country is unable or unwilling to suppress and manage the threat before engaging the use of force in that particular territory without consent (Pickard 39).
In sum, some issues need to be thoroughly addressed before engaging in the use of force without consent since it constitutes a violation of the sovereignty of that particular state. Issues such as self-defence might fail to find some relevant meanings in International Human Rights Law (IHRL) which advocates for human rights and dignity. It is not only stated sovereignty that is violated, but also fundamental human rights.
For instance, when a non-state launches its attack in pursuit of some perceived threats without the consent of the victim state due to the inability and unwillingness of the latter, the use of force leads to the loss of lives of many innocent individuals. Such operations are deemed as destructive, though some states argue that provisions in human rights law must be watered down a bit to carry out target killings of those individuals who are perceived to be threats to international peace and security.
It has also been ascertained that killings of individuals who pose threats to international peace and security are allowed under the rules of PIL. Though this is contrary to International Human Rights Law, it is acceptable to some extent that such executions are carried out to prevent the loss of lives amongst innocent individuals. Following, this analysis, it was justifiable to raid Pakistan to kill or apprehend Osama bin Laden. There have been several issues surrounding the killing of Bin Laden since according to human rights law, ordering for arrest and prosecution before the law was the best option owing that Osama had dignity and rights to face trials, just like any other human being.
However, there is little evidence showing that the US troops had the intention of killing Osama bin Laden and not apprehending him. Whatever is in the public domain can be regarded as mere speculation since there was no sign of surrender on the part of bin Laden during the raid. If there were such surrender, then arrest would be possible. This left the soldiers with the option of killing Osama. The Pakistani government voiced its concern that the United States had violated the sovereignty of that state. This government on its part argued that the US government did not seek their consent before launching that operation.
This debate provokes the analysis of unwillingness or unable test to the use of force by a non-state on a victim state. The US government thought it wise that such consultations were not necessary since they might jeopardize the entire process of operation. The Pakistan government had never shown any sign of cooperating with the government of the United States, and the only possible solution the US government was left with was the application of force without the consent of that state owing that it had failed in suppressing the perceived threat, Osama bin Laden.
Countries such as the US and the UK have frequently engaged in several attacks and targeted killings of those individuals who are perceived to be threats to international security and peace. In their argument, this is done to protect their territories and the rights of their citizens. In addition, some of those targeted attacks and killings are done for the sake of self-defence, but this can only be lawful under international law once such acts are proved to be necessary and proportionate.
However, International Human Rights Law (IHRL) holds a different view about this issue. IHRL does not support the targeted killing of certain individuals who are perceived to be threats to international security and peace, arguing that it violates the fundamental rights of individuals. Therefore, IHRL supports the arrest and trial of the individuals in a court of law, and not killing them since they have rights just like any other human being. Victims who have suffered in the hands of such individuals can seek justice through a court of law. It was not legally right according to International Human Rights Law (IHRL) to kill Osama bin Laden, though this is subject to scholarly discussion and criticism.
The Israeli court held that individuals can be indirectly engaged as combatants to discourage unfair killings in conflict zones. This is contrary to provisions of international law. However, it can be ascertained from the previous discussion that the Israeli government had violated the rule on state sovereignty when it applied the use of force without the consent of Lebanon so as suppress threats from Hezbollah and Palestine Liberation Organization (PLO). The use of force without consent is applicable in cases whereby a state is regarded as unable or unwilling to suppress the threat.
The Research Trail
First, in this research work, I adopted the strategy of finding information by use of scholarly journals and books that cover public international law. Some of these materials were available since the links were provided. In doing this, I would first of all look for the issue that needs to be analyzed. For example, in addressing issue 1, is it lawful under the rules of PIL to engage in targeted killings of individuals, particularly those who are regarded as threats to international peace and security? Under this issue, I would begin by looking for the definition of the abbreviation PIL to gain some insightful information on it. Then, I would find the meaning of the phrase “targeted killings”, making use of relevant legal journals and books. Finally, I would read through provisions under international law regarding international peace and security.
Second, in doing this assignment I needed to come up with a list of selected keywords to facilitate searching for relevant information. Among the keywords used in the list are Osama bin Laden, public international law, Israel’s action on Palestinian conflict, violation of state sovereignty, international human rights law, jus ad bellum, proportion and necessary, unwilling or unable, rules of PIL, and Israeli Supreme Court among others.
Third, I made a list of information that is considered relevant in carrying out this research. This was a listing of full bibliographic details, which include legal journals, books, and online blogs. These mainly covered some current events in American political history, public international law and issues on human rights law. The bibliographic material details were listed according to the alphabetical order, starting with the author’s surname, and then followed by the first name. The titles of these books were italicized, followed by the town publication, and then the publishing company. Finally, it was the year of publication, and then the medium of publication, that is either electronic or print. It is important to note that this account on the bibliographic listing was done according to the MLA style of writing as per the requirement of this assignment.
Fourth, I had the task of outlining some steps that I used to uncover some of the relevant information that could be required in doing this assignment. The initial step was to get a keyword from the issue to be analyzed. The question posed by the examiner provided a guide on what information to write on this paper. Therefore, I analyzed the examiner’s questions carefully to get the keyword. I began by skimming through the question, reading carefully to understand the required concept, and then reading a third time for thorough comprehension before embarking on the search for information. I read carefully the links provided before I embarked on additional materials from my search to write a detailed and comprehensive paper that meets the required standards.
Fifth, I reflected on the usefulness of every material that I listed for doing this research assignment. Besides, to effectively deliver on this research, I assessed the qualities of the materials listed, according to their authority, reliability, objectivity, and relevance. This assessment enabled me to have confidence in the quality of the paper. In fact, during this reflection process, I found out that some sources did not have adequate information, thus dropping them.
Others were not relevant and current to be applied in this research. I was also forced to ignore non-authoritative sources from individuals whose academic qualifications could not be ascertained, and I disregarded such information as mere ‘gossip’ that lacks academic authority. In my analysis and reflection, I avoided any kind of information that could originate from Wikipedia since this cannot be used for any academic writing because the authors’ information from this site is had to verify for credibility and authority.
Sixth, I took the final step in doing this research. Here, I considered some of the crucial changes that I would incorporate once asked to undertake another research process. Therefore, some of the changes I would recommend in carrying out this research include the change in format and writing style, and this could incorporate either the use of Chicago or Oscola formats since they are more relevant and frequently used in writing law papers than the MLA format. Moreover, I would avoid the use of internet blogs since the credibility of information contained in them are hard to ascertain. Therefore, I would recommend the use of legal journals and books in doing this research.
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Kokott, Juliane. “The Burden of Proof in Comparative and International Human Rights Law.” Journal Review 184.1 (1998): 23-102. Print.
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Shirley, Scott. “International Law and the Use of Force”. Law Journal on International Human Rights Law 217.28 (2010):13-116. Print.
Starke, Joseph. “An Introduction to International Law”. Law Review on Issues under International Law 53.1 (1963):22-124. Print.
The International Jurist. “Perspective on International Law, Comparative Law and Human Rights”. TIJ analysis of International Law, 2012. Web.