Last thoughts on the ‘kill-or-capture’ order of Bin Laden

Briefingat the White House by Press Secretary Carney:

The team had the authority to kill Osama bin Laden unless he offered to surrender; in which case the team was required to accept his surrender if the team could do so safely. The operation was conducted in a manner fully consistent with the laws of war. The operation was planned so that the team was prepared and had the means to take bin Laden into custody. There is simply no question that this operation was lawful. Bin Laden was the head of al Qaeda, the organization that conducted the attacks of September 11, 2001. And al Qaeda and bin Laden himself had continued to plot attacks against the United States. We acted in the nation’s self-defense. The operation was conducted in a way designed to minimize and avoid altogether, if possible, civilian casualties. And if I might add, that was done at great risk to Americans. Furthermore, consistent with the laws of war, bin Laden’s surrender would have been accepted if feasible.

UN Special Rapporteur Martin Scheinin says the operation was lawful, and did not violate international law.

“The United States offered bin Laden the possibility to surrender, but he refused. Bin Laden would have avoided destruction if he had raised a white flag”, Scheinin said on Tuesday.According to Scheinin, apprehending a dangerous criminal like Osama bin Laden means that one must be prepared to use force. He noted that killing is permissible under international law only if the person being apprehended resists, and if there are no other means available.Scheinin said that the United States was prepared for the possibility of catching bin Laden alive, noting that the operation involved a commando raid on his hiding place, and not a missile strike.

Later the UN Special Rapporteur issued a joint statement together with Chris Heyns, the Special Rapporteur on extrajudicial, summary or arbitrary executions:

“Acts of terrorism are the antithesis of human rights, in particular the right to life. In certain exceptional cases, use of deadly force may be permissible as a measure of last resort in accordance with international standards on the use of force, in order to protect life, including in operations against terrorists. However, the norm should be that terrorists be dealt with as criminals, through legal processes of arrest, trial and judicially decided punishment.

Actions taken by States in combating terrorism, especially in high profile cases, set precedents for the way in which the right to life will be treated in future instances.

In respect of the recent use of deadly force against Osama bin Laden, the United States of America should disclose the supporting facts to allow an assessment in terms of international human rights law standards. For instance it will be particularly important to know if the planning of the mission allowed an effort to capture Bin Laden.

It may well be that the questions that are being asked about the operation could be answered, but it is important to get this into the open.”

Mary O’ Connel elaborates at Foreign Policy:

The question turns on one critical factor: President Obama’s orders to the Navy SEAL team that carried out the raid on bin Laden’s compound in Abbottabad. Orders to kill, not capture, bin Laden would be difficult to defend legally. But top counterterrorism adviser John Brennan stated Monday that the SEALs were under orders to capture bin Laden if they could. CIA chief Leon Panetta has implied, on the other hand, that the team was under orders to kill, with the option to capture if he attempted to surrender. If Panetta is correct, the legal case is weakened but can still be defended.
(…)The ECHR considered a case in
1995 with parallels to the bin Laden raid. In McCann v. The United Kingdom, the court found that members of the
elite British SAS used excessive force when they killed IRA members in Gibraltar who were suspected of preparing a bombing. The court found that the operatives should have attempted to arrest the terrorists, instead of shooting them based on intelligence they possessed that the suspects were preparing to use explosives. If the suspects had resisted arrest or attempted to escape, authorities then would have had had the right to resort to lethal force.

This is the law that applied in bin Laden’s case. On May 2, no fighting was going on in Pakistan that would rise to the level of “armed conflict” as defined under international law; Pakistan had to suspend major military operations against militant groups in the country’s tribal areas after the floods of 2010. And despite what some commentators have argued, under international law there is no right to engage in cross-border military force based on the argument that a state is unable or unwilling to deal with the threat themselves. The correct choice of law, therefore, was peacetime law.

The discussion continues at Opinio Juris here and EJIL Talk here.