The international approval of eliminating “terrorist number one” Osama bin Laden by the American special forces possesses some contradiction between the norms of international law and the state laws of leading countries. The wording of the international consensus on the legality of this murder required additional efforts on the part of American lawyers. The military operation was carried out on the territory of a sovereign state in peacetime. Nevertheless, most specialists and experts on international law as well as the UN representatives supported Barack Obama’s actions due to Osama bin Laden’s status.
Many world leaders and high-ranking officials have expressed various views on the American landing in Pakistan, most of which were supportive to the Obama’s actions. Russian Foreign Minister Sergei Lavrov called the US operation to destroy bin Laden justified from the point of view of international law (Arielli, 2018). The Foreign Minister recalled that after the terrorist attacks on September 11, 2001, the UN Security Council adopted a resolution in which it recognized the United States’ right to self-defense in accordance with Article 51 of the UN Charter (Arielli, 2018). According to this article, any act of aggression, even indirect, against a UN member state gives the right to individual or collective self-defense (Arielli, 2018). UN Secretary-General Ban Ki-Moon, in turn, called the elimination of bin Laden “a turning point in our common global war against terrorism”, adding that he personally “was very pleased that justice overtook one of the inspirers of international terrorism” (Jose, 2016). Thus, despite the controversial actions of Barack Obama, he received support from the world community.
The legal basis for the operation to eliminate bin Laden requires further clarification. Particularly, the U.S. order 1976 prohibits the commission of murders by the US special services (Banka & Quinn, 2018). Presidents Ford, Carter, and Reagan have consistently improved the document prohibiting the planning and execution of political assassinations in any form (Banka & Quinn, 2018). Concerning bin Laden, Harold Koch, chief legal adviser on international law at the US Department of State theoretically circumvents the law of 1976, saying that “under national law, the use of hostilities to target specific hostile leaders in self-defense or armed conflict is legitimate and cannot be considered as “murder” (Soufan, 2017, p. 203). The US Attorney General Eric Holder indirectly confirmed the formality of the use of the term “self-defense” in this case (Soufan, 2017). He admitted that the special forces were tasked with “shoot or capture” bin Laden (Soufan, 2017, p. 156). According to the Attorney General, the group had no reason to believe that the terrorist would surrender.
The only reason for bin Laden’s assassination in such a situation could be the suspicion that the terrorist may wear a “suicide belt”. However, this version’s reliability is easy to assess if it is taken into account that the main argument in its favor was the long-standing oral assurances of bin Laden himself not to surrender alive. Other American legal experts justify the legality of bin Laden’s elimination by the fact that he was in a state of war with the United States, which he declared in 1998.
John Bellinger, the chief legal adviser of the US State Department in the administration of George W. Bush, believed that the decision to carry out the operation had a regular factual basis. From the perspective of domestic law, the right to conduct such a procedure is enshrined in a 2001 law approved by the Congress (Soufan, 2017). It allows the use of U.S. military forces against al-Qaeda. In terms of international law, the lawyer believes that the United States acted within the framework of its right to defense since it is at war with al-Qaeda. At the same time, Bellinger does not exclude that the Obama administration will be criticized in the future in connection with such use of force (Soufan, 2017). Despite the legal basis for the operation, senior management remained concerned about the negative perception of military action by the United States.
Other US lawyers agree with Bellinger that bin Laden’s assassination was legally justified. “The administration’s use of the right to use force in this operation, by the 2001 Parliamentary Act, as well as following the US Constitution, can most accurately be classified as an act of self-defense,” says John Rusdan, from 2002 to 2004, Deputy Adviser for legal issues of the CIA (Soufan, 2017). According to former CIA lawyer Jeffrey Smith, the 1976 order, which prohibits the commission of assassinations by the US special services, cannot be applied in this case since the US is waging war against al-Qaeda (Tramontano, 2018). The US Attorney General has combined these two main legal arguments, calling the operation” carried out in self-defense” against “a military objective, which is such by law” (Tramontano, 2018). Subsequently, it became known that CIA Director Leon Panetta notified several lawmakers about the operation in the city of Abbottabad without the approval of the White House.
Lawyers have also debated whether the SEAL’s attack to kill bin Laden was legal. The laws of war require accepting any surrender offer that is physically possible to admit (Kalmanovitz, 2020). The lawyers discussed possible problems of shooting bin Laden legally if it turns out that he is ready to surrender. For example, if the militants next to him open fire or try to activate the suicide belt hidden under his clothes, launching an attack and shooting the enemy forces will be legally and logically justified. However, in total surrender, the US military would not have the right to start shooting. Thus, the American lawyers observed all the legal subtleties associated with the attack on bin Laden.
The final legal question was whether the United States could drown bin Laden at sea to prevent Islamist attempts to build his tomb. The Geneva Convention states that enemies who have fallen in battle should, “if possible,” be buried in accordance with their religion, which in the case of Islam means in the ground, with the head turned towards Mecca, in graves marked traditionally (Springer, 2018). However, some Islamic texts allow the deceased’s burial at sea when the death occurred during the journey. Admiral Crawford’s note draws attention to this exception; it emphasizes that burial at sea is religiously acceptable and not a heresy (Jose, 2016). Legal scholars also considered it prudent to question the government of Saudi Arabia, bin Laden’s homeland, and the remains actually belonged to bin Laden. If not, the funeral would take place at sea. As expected, they received a negative response from the Saudis.
The US military mission to eliminate Osama bin Laden in Pakistan has a legal basis. Despite the international ban on military operations on a sovereign state’s territory in peacetime, Barack Obama’s actions were conditioned by the importance of the goal. American lawyers on the eve of the landing of the special forces have collected enough legitimate arguments in favor of the soldiers’ actions. To achieve this goal, the rhetoric was mainly used to eliminate the global threat of terrorism. World-class politicians and lawyers endorsed the US action ex-post.
References
Arielli, N. (2018). From Byron to bin Laden. Harvard University Press.
Banka, A., & Quinn, A. (2018). Killing norms softly: US targeted killing, quasi-secrecy and the Assassination Ban. Security Studies, 27(4), 665-703. Web.
Jose, B. (2016). Bin Laden’s targeted killing and emerging norms. Critical Studies on Terrorism, 10(1), 44-66. Web.
Kalmanovitz, P. (2020). The laws of war in international thought. Oxford University Press.
Springer, P. J. (2018). America’s captives: Treatment of POWs from the Revolutionary War to the War on Terror. University Press of Kansas.
Soufan, A. (2017). Anatomy of terror: From the death of bin Laden to the rise of the Islamic State. WW Norton & Company.
Tramontano, M. (2018). Insecure hegemony: The cultural construction of ‘righteous retaliation in the hunt for Osama bin Laden. City University of New York.