(Osama bin Laden, now the subject of more conspiracy theories than Elvis.)
I write this after a delightful evening discussing this subject with some students at Bennington College, to whom and in particular to Professor Eileen Scully, I'm very grateful - it was good fun. Before we start, I should stress that this post considers only whether the US action in killing Osama bin Laden (OBL*) was legal, and not whether or not it was a good idea from a policy perspective.
To do this, we need to break the question into two elements:
Question 1: Was it legal to kill bin Laden at all?
Question 2: If so, was it legal to kill him in Pakistan?
Q1: Was OBL a Combatant?
The first consideration that must be satisified is whether OBL was a combatant in an armed conflict, in order to invoke the Law of Armed Conflict (LOAC). Without this nexus of conflict, the targeted killing of OBL would be illegal - murder.
(An armed attack. RIP.)
Fortunately, determining that OBL was involved in a conflict of some sort after his 1996 Declaration of War on the United States, and that 9/11 attacks is reasonably straightforward, though the kind of armed conflict is open to debate. LOAC recognises two categories of conflict, each with different definitions of combatants: International Armed Conflicts governed by the 1st Additional Protocol to the Geneva Conventions (AP I, 1977), and Non-International Armed Conflicts governed by the 2nd Additional Protocol to the Geneva Conventions (AP II, 1977).
Combatant Status under AP I - International Armed Conflict
War between States represents the classical form, preferably with armies of two or more competing sides fighting pitched battles, usually resulting in clear winners and losers. Under the formulation, both sides began the war holding territory, and from the 18th Century onwards, armies generally wore uniforms and had a clearly discernible chain of command. Wars of this sort still take place, of course - the initial invasion of Iraq in 2003 is a good approximation of the classical case, in which one force overwhelms and occupies another country, and imposes direct rule for a period. In this sense, it would've looked familiar to European diplomats negotiating the Peace of Westphalia in 1648.
Who is a combatant in these interstate conflicts? Simply, anyone who is not in the military as defined in Article 43 of AP I. And if you're not a combatant you must initially at least be treated as a civilian, and would therefore be immune from direct attack. But being a combatant is a privileged status itself - it means that you're entitled to PoW Status, something explicitly denied to spies (AP I, Article 46) and mercenaries (AP I, Article 47).
The major attraction for lawyers is that combatants who are not prisoners, shipwrecked or otherwise hors d'combat are always specifically targetable. Any attack must meet the test of distinction, military advantage and proportionality, but this is true of all attacks: the important point is that in an international armed conflict the status of the combatant is constant for long periods of time.
Combatant Status under AP II - Non-International Armed Conflict
By contrast, the (much shorter) AP II is specific for those internal conflicts that rise above the minima of
"internal disturbances and tensions, such as riots, isolated and sporadic acts of violence"
described in Art 1(2) of AP II. AP II recognises that in many civil wars and rebellions, the rebels are frequently part-time combatants, and therefore AP II details in Art 13(3) that
"Civilians shall enjoy th[is] protection ... unless and for such time as they take a direct part in hostilities."
In other words, in the limiting case, the point at which a guerilla puts down her weapon, she loses combatant status and reverts to civilian status. In doing so, she cannot be targeted and therefore cannot be legally killed.
As a result, determining what constitutes direct participation in hostilities (DPH) is critical, and has resulted in a significant ICRC study published in 2009. (This study is not without controversy, but Art. 13(3) is clear enough for our purposes.)
Was OBL a combatant? Did he take a direct participant in hosilities?
It's clear that depending on the extent which OBL was involved in command and control (C2) and AQ fundraising (presumably determined by intelligence) one could make a case for that though he appears to have been holed in his Abbottabad Compound, he was involved in directing, funding and inciting attacks on western targets. Indeed, assuming that the courier network wasn't there exclusively to collect take-out pizzas, it is pretty likely that OBL had a direct role in hostilities.
If proved, this role would confirm OBL's status as a combatant in AP I, and for the period in which he was undertaking these activities, a combatant under AP II. As a result, I assess that given sufficient evidence, it could reasonably conclude that OBL was a combatant, and that irrespective of your characterisation of the type of conflict, OBL could be a legitimate target.
Naturally, once OBL became a legitimate target, any attack on him would need to meet the normal criteria of discrimination of civilians, military advantage and proportionality before it could be considered legal. And the reports that President Obama elected to send in ground forces in a much riskier attack rather than simply bombing the compound strongly suggests to me that these criteria were being very carefully weighed in the US decision-making process, and that the US elected to expose their forces to greater risk to ensure that the attack itself was proportionate, precise and legal. Good for them.
(Pakistani Foreign Minister Salman Bashir, Harrumpher-in-Chief.)
Q2: Was it legal to kill OBL in Pakistan?
With Pakistani Foreign Minister Salman Bashir, his diplomats and security leaders harrumphing that killing OBL in Pakistan 'violated Pakistani sovereignty' and was by implication illegal, it is important to assess these claims.
The first point is that there is no doubt that Pakistan's sovereignty was violated by US forces; they flew in in the middle of the night, didn't stop to have their passports stamped, engaged in a 40 minute firefight, killed a number of people, collected (ie, stole) a large amount of documents and electronic equipment, jumped into their helicopters (again, without having their passports stamped leaving Pakistan) and flew away into the night back to Afghanistan. This is a pretty major violation of Pakistani sovereignty.
But sovereignty is not absolute.
Pakistan has an obligation - in common with all other States - to ensure that its' territory is not used by non-State actors for the planning and commissioning of illegal activities, including terrorism. If it does not, there are two effects: first, under Article 8 of the International Law Commission's Draft Articles on State Responsibility, the State takes legal responsibility for these actions, and second, the State that is threatened can invoke the doctrine of "Self-Help" to remove the threat IF ALL OTHER AVENUES HAVE FAILED.**
Given that the Government of Pakistan in general - and elements of the Pakistani public sector, notably the military and the ISI spy agency in particular - have had a "complex" relationship with salafist jihadis since the 1980s (ranging from sponsorship, funding and training to full-blown conflict against them depending on the time, place and level of threat to Pakistan), it would be unsurprising if the US were to conclude that Pakistan was either unwilling or unable to confront OBL in his Abbottabad compound. Worse, given that the Pakistani security network was either incompetent or colluding with OBL, the US could not have had any confidence that simply providing a name and address would result in a successful Pakistani arrest operation. Consequently, the temporary violation of Pakistani sovereignty, whilst non-trival, was in my view justified, and that therefore the attack was legal as legitimate self-help.
Overall, then, on the narrow question of whether OBL was a legitimate target I would argue that he probably was, and that the manner in which the US conducted the operation in Pakistan was also legal.
*Yes, I know the other transliteration is Usama and therefore UBL. I prefer Osama and OBL, and it's my blog. Points? Questions? I thank you.
**Ang, this is for you. We can argue about self-help later.