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.
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Holder: bin Laden killing “lawful”
US Attorney General Eric Holder said May 4 that the killing of Osama Bin Laden by US forces was lawful and justified. Testifying before the US Senate Judiciary Committee, Holder said that the shooting of Bin Laden was “consistent with our values,” and that the soldiers who killed him “conducted themselves totally appropriately.” In a prepared statement, Holder said:
Holder also expressed concerns that Bin Laden’s death may prompt attempts at retaliation. (Jurist, May 4)
Human Rights Watch issues non-statement on Osama hit
From Human Rights Watch, May 2:
Not a word about the legality (or lack thereof) of what appears more and more like an extrajudicial execution.
Amnesty International raises questions on Osama hit
Amnesty International shows greater courage and integrity than HRW, at least raising some questions about the hit—even if it saves for last those that most urgently need to be raised. Their May 4 statement:
Human Rights Watch issues more equivocation
More from Human Rights Watch, May 4:
So where did HRW “call on the US government to provide that information”? If there is a third press release in which they did this, it is not readily found on their website…
UN special rapporteurs want full account of bin Laden killing
From the UN Commission for Human Rights May 6:
State Department defends bin Laden killing
US State Department legal adviser Harold Koh on May 19 defended the killing of Osama bin Laden, saying it was “consistent with the laws of armed conflict and US military doctrine” in a brief statement published on OpinioJuris.org. Koh referenced a speech he made in March 2010 defending the use of predator drones to kill US targets where he argued that al-Qaeda is an imminent threat to the US, giving the US authority to defend itself using lethal force, which means targeting high-level al-Qaeda leaders. Koh explained that the Obama administration is dedicated to the principles of distinction, meaning limiting attacks to military objectives, and proportionality, meaning limiting the death of civilians and damage to civilian property. In his recent statement, Koh said that materials collected during the bin Laden raid confirm suspicions that bin Laden remained an imminent threat to the US and its citizens and that his failure to submit to an appropriate surrender authorized the troops use of lethal force:
Former US Supreme Court Justice John Paul Stevens also recently commented on the killing of Bin Laden during remarks at Northwestern University, saying the killing was legally justified and that he was proud of the US Navy SEALs who carried out the mission. (Jurist, May 20)
Two days earlier, White House press secretary James Carney said that the bin Laden hit was a “kill mission.”