Was killing Osama bin Laden legal?

(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. 

(An interesting book. One for a future commentary.) 

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.

Libyan Targeting

(On top of Norfolk's only hill, a Tornado GR4 armed with Storm Shadow stirs.)

I'm not involved in the targeting for the on-going operations in Libya. But all of the evidence is that those who are taking the care that I would expect, especially when it comes to so-called "collateral damage". Indeed, I was thrilled when I heard this morning that the RAF aborted a pair of Tornados when there were concerns that there were civilians in the area. It might be 1,500 miles from home, but if you're not certain, then you take the bombs 1,500 miles home again - and this is exactly what I would expect from the US forces, France and the other allies involved.

Bravo. Genuinely excellent - BZ to the crews.

But there are a three issues I wanted to deal with tonight. First, what is collateral damage? Second can we target Gaddafi personally? Third, what happens next? 

Is this legal?

Collateral Damage

It is said that the truth is the first casualty in war. This may be true, but personally, there are two other things that annoy me. Firstly, to all of the journalists out there any armoured vehicle with a gun is not necessarily "a tank". (See below). Second, lots of ill-informed nonsense about "collateral damage", ostensibly an Orwellian term for killing innocent civilians. 

So what is "collateral damage"? 

There are four kinds of damage that military action can occasion on a target. Primary Damage, Secondary Damage, Collateral Damage and War Crimes. 

Primary Damage occurs when a legitimate military target is attacked and damaged. Legitimate military targets are defined by Article 52(2) of the 1st Additional Protocol to the Geneva Conventions, 1977. Art 52(2) states:

"2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage."

So the test is two-fold: not only must the target offer an "effective contribution to military action" but if the attack is successful, it must offer a " definite military advantage". I would argue that Art 52(2) is customary international law, and therefore binding on all States.  

"Secondary Damage" is the damage inflicted on a legitimate military target within the ambit of Art 52(2) caused by an attack on something else. So if you attack a weapons dump in a barracks, and the force of the blast destroys some military vehicles, it's "Secondary Damage" and legal.

  

"Collateral Damage" is damage inflicted on a civilian object (or civilian) - in the course of attacking a legitimate target under Art 52(2). So if you're attacking an ammunition dump, and as the bomb goes in, the proverbial "schoolbus full of nuns" drives by, then sadly this is "collateral damage".

The point of discrimination, though, is that if you were to aim at the "schoolbus full of nuns" then you'd be committing a war crime, the fourth type of damage.

 (Not a tank - a BMP-1 Armoured Personnel Carrier)

  

Can we target Gaddafi personally?

An interesting question. 

OP 4 of UNSCR 1973 is explicit in allowing States

"to take all necessary measures, notwithstanding paragraph 9 of resolution 1970 (2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya". 

This must include targeting that is in concert with international law, specifically Art 52(2) of AP 1, above. 

 ("My agent is holding out for Ali-G to play me in the biopic.... these negotiations are like way too stressful.")

So can we "get Gaddafi"? 

Because we don't like him? No. 

Because (to borrow a phrase) he's an "evil doer"? No, that's what the ICC referral was for.

Colonel Gaddafi and his immediate advisors (notably his sons Saif and Khamis) are exercising military command roles, and therefore if they were killed, it is likely to have a "definitive military advantage". As such, provided that they were targeted as part of the command and control apparatus, then I believe that it is legal to do so. 

(Also not a tank - an Italian Oto-Melara Palmaria 155mm self-propelled howitzer. Do keep up at the back.)

What happens next?

It's unclear. The appearance of - please note - French airpower appears to have saved Benghazi from a Gaddafi armoured column on Saturday afternoon, and the continuing attacks on the Gaddafi forces' equipment will be having an effect. But not only does UNSCR 1973 explicitly ban occupying troops, the free Libyan forces bravery is not matched by training and organisation. So expecting them to be able to take on the regular Libyan forces under Saif Gaddafi and Khamis Gaddafi is asking a lot, even with air superiority and close air support. 

(Tornado GR4 with dual-mode Brimstone)

But this picture released by the British RAF is interesting. It shows an RAF Tornado GR4 carrying dual-mode (laser and radar) guided Brimstone missiles - a UK development of the American Hellfire system, designed to kill Russian tanks near the Fulda Gap. Brimstone can be used in an autonomous mode, and is designed to kill ex-Soviet tanks. If - and this is a big if - the UK wanted to do so, it could, under UNSCR 1973, use this to attack Gaddafi armoured forces anywhere in Libya, and specifically in Tripoli. If the regime loses the ability to control Tripoli, then it will collapse much faster. 

(A tank! Finally! In this case, a former Soviet T-55.)

So what if Iran gets THE bomb....?

(Trinty Test, Almagordo, July 1945. This one actually did change the world.)

There's been more of the on-again, off-again rumblings about whether or not Israel or the US or the rest of us should attack Iran if the new sanctions fail to stop Iran producing a nuclear weapons this week Weekly Standard ,The Atlantic, and Foreign Policy proffer a range of views.

President Obama has described an Iranian nuclear weapon as "unacceptable".

To no-one's surprise, Israeli PM Netanyahu has made clear that he'd be happy to attack Iranian nuclear targets to ensure that Israel remains the only nuclear weapons state in the Middle East.

But what actual difference would a nuclear Iran make? If it achieved it, what evidence is there that Iran would attack anyone?

I should make quite clear up front that I am not in favour of nuclear proliferation by any State; quite the reverse, I applaud Obama's declared intent of working towards nuclear zero - including all of the verification challenges that go with that.

Before we begin, a definitional point: being able to conduct a nuclear test is not the same as producing an operational nuclear weapon. The initial American thermonuclear test (Ivy Mike, 1952, the darkly hilarious contemporary classified film is here) was a 62t experiment, built over several months.

And so it was with India's "Peaceful Nuclear Explosion" of 1974 (also known as "Smiling Buddha") - a 1400kg device which India could not at the time deliver to target (except in a shipping container). Therefore, even if Iran were to stage a nuclear test, this is not definitive proof that it has a deliverable nuclear weapons capability.

So, what difference would a nuclear armed Iran make?

Let's assume that Iran wishes to acquire nuclear weapons, and despite sanctions succeeds in perfecting a bomb design small enough to fit onto a domestically produced ballistic missile. Let's also assume that it manages to deploy enough - say 25 operational warheads - in hardened shelters sufficient to survive a conventional attack.

Not being an intelligence analyst, I am left as an historian to point out that this level of development was not achieved by the USA until the early-1960s with the deployment on Minuteman I ICBMs; and the US in the 1950s had considerably more weapons technology expertise than is apparent in Iran's domestic military programmes public displayed today.

And to make this doomsday tomorrow, let's assume that the Iranians can do all of this by the end of 2011.

What changes?

Well, not much until the Iranians decide to:

(i) engage in nuclear blackmail,
(ii) attack another state (e.g. Israel) or
(iii) dish them out to non-state actors (e.g, Hezbollah).

But why would President Ahmadinejad - or any other Iranian leader - want to do something as suicidally stupid as any of these options?

If the Islamic Republic is determined to do anything, it is determined to survive. And regime survival is incompatible with a nuclear counter-strike if Iran attacks someone else. But having a bomb is sensible if it means that other people don't attack you.

In other words, good ol' Cold War deterrence.

"Ah", I hear you cry - "but the Iranians are nuts! They're fanatics and have a global domination ideology".

Hmm. Didn't we say the same (& worse!) about the Soviet Union? Godless Communism and all of that?

The point for me is that though a nuclear armed Iran is unwelcome because any proliferation is unwelcome, and Iran's acquisition of a viable nuclear capability could bounce Saudi Arabia into have a Sunni/Arab bomb to deter a Persian/Shiite bomb, there is no rational reason for Iran to attack anyone with nuclear weapons. To do so would only be to invite massive retaliation.

Moreover, military action to stop an Iranian nuclear weapon is likely to shore up the (unpopular) Iranian regime, is unlikely to have UN Security Council sanction, and would therefore be manifestly illegal, and there is no guarantee of success. In short, even if military action is a "cure" (which to me seems very unlikely), it is likely to be worse than the "disease" of an Iranian nuclear weapon.

If the Iranians want a deliverable nuclear capability, they will at some point get it. By all means make this as difficult and expensive as possible, but rely on deterrence to keep the peace.

And remember, the only thing that bullies like less than losing is being ignored - how have nuclear weapons helped Kim Jong Il's North Korea? (Other than landing him a leading role in Team America, of course.... "so ronrey... so ronrey...")

I'll be back with more on the UK's SDSR in the next few days.

Update: Interesting piece from RUSI - airstrikes won't work and invading Iran is a seriously bad idea, people:

Starting out all over again

Well, here we are. I started this blog back in 2008, and never did anything with it - and when I did think about doing something with it, I was constrained by work.

So, in the spirit of fresh starts, here's a new blog.

What do I want to cover? Well, it's going to reflect public policy issues and international law, and we'll start with an analysis of the ICJ Kosovo decision over the weekend, and then move onto an assessment of the UK's options in the on-going Strategic Defence and Security Review (SDSR).

I don't really have any idea whether anyone will read these musings, but if you've got this far, thank-you, and I hope to turn it into a place for conversation.

Cheers,

Toby