The White House did make a somewhat equivocal statement implying (not explicitly stating) that an effort had been made to take Osama bin Laden alive. But Radio Netherlands on May 2 assumes the operation was “an extrajudicial killing” and asks if such actions are “allowed under international law.” The report notes that the US State Department had offered a reward of up to $25 million for “information leading directly to the apprehension or conviction.” The report adds rhetorically: “[B]ut is that a license to kill?”
The US legal framework on the war on terror is unclear. While the US government does not condone extrajudicial killings, the US maintains that senior members of al-Qaeda are “enemy combatants”. As the laws of war only cover killings of combatants by combatants—does the term “enemy combatants” in modern warfare mean a blanket privilege to commit violence in the name of counter-terrorism?
Dutch professor of international law Geert-Jan Knoops is quoted as saying the bin Laden hit was illegal: “Under international law, he must be arrested and handed over to the US to stand trial. The US regards itself as being in a state of war against terror and therefore as having the right to eliminate its enemies on the battlefield. But the laws of war do not permit this sort of action. Naturally, no court in the world will tick off the Americans for this. What’s remarkable is that Obama justifies this killing—while he said earlier that he aims to restore law in the US.”
Radio Netherlands also cites a recent report (no exact title or date given) by the Congressional Research Service of the Library of Congress outlining the legal ambiguity surrounding the US government’s rules on assassination. President Ronald Reagan issued an executive order in 1981 prohibiting assassination, directly or indirectly—and specifically singling out the “Intelligence Community.” Some have interpreted the order to refer to only heads of state. But three days after the 9-11 attacks, the House and Senate passed joint resolutions authorizing the president to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” The Congressional Research Service report states: “The breadth of authority might be viewed as sufficient, insofar as US responses to September 11, 2001 are concerned—to encompass actions that might otherwise be prohibited under the assassination ban.”
Radio Australia meanwhile reports that the woman killed in the raid may have been a wife of bin Laden rather than a “human shield” as originally reported—or, perhaps the wife was being used as a “human shield.” The report again quotes White House counter-terrorism adviser John Brennan’s equivocal statement. In Radio Australia’s paraphrase: “Brennan says the US special forces had been prepared to take bin Laden alive but resorted to force when the terrorist mastermind resisted.” But the actual Brennan quote is considerably slipperier: “If we had the opportunity to take bin Laden alive if he didn’t present any threat, the individuals involved were able and prepared to do that.”
See our last post on the Osama bin Laden hit.