Did the U.S. violate international law by killing bin Laden? David Scheffer, former U.S. Amb. at Large for War Crimes Issues, weighs in

ONLY ON THE BLOG: Answering today's four OFF-SET questions is David Scheffer, the Mayer Brown/Robert A. Helman Professor of Law Director, Center for International Human Rights, at Northwestern University School of Law.

Scheffer, the U.S. Ambassador at Large for War Crimes Issues from 1997 to 2001, is author of the forthcoming book, "All the Missing Souls: A Personal History of the War Crimes Tribunals." (Princeton University Press.) He teaches international human rights law, international criminal law, and corporate compliance and the social mandate.

Today's news: Relatives of Osama bin Laden want proof that the terrorist leader is dead and are calling for an investigation into how he was killed, according to Jean Sasson, an author who helped one of bin Laden's sons write a memoir. "They just really want some answers, and they would just really like to know what exactly happened, why they weren't called," said Sasson, who worked with Omar bin Laden to write a memoir entitled "Growing Up bin Laden."

Her comments come a day after a statement was provided to The New York Times from Omar bin Laden and his brothers - "the lawful children and heirs" of the notorious al Qaeda leader. The statement argued that if bin Laden has been "summarily executed," "international law" might have been "blatantly violated" and that U.S. legal standards were ignored. The statement cites the trials for late Iraqi President Saddam Hussein and late Serbian strongman Slobodan Milosevic, but Osama bin Laden didn't get a "fair trial" or "presumption of innocence until proven guilty by a court of law."

Did the United States violate international law by killing bin Laden? (What does Article 51 of the United Nations charter say? What kind of protections do leaders of international terrorist organizations have?)

Whether the United States violated international law in the killing of Osama bin Laden depends not only on how one defines what has been going on since September 11, 2001, but also how this particular operation was carried out on Pakistani territory. 

The popular and patriotic narrative is that the United States is at war with Al Qaeda; Osama bin Laden commands Al Qaeda; thus under the law of war bin Laden is a legitimate target for a lethal assault regardless of his personal situation (armed or unarmed, awake or sleeping) at any particular time.  

If one assumes that any of the hundreds of U.S.-guided drone attacks on Pakistani territory against Al Qaeda leadership are legal, then firing an assault weapon point-blank at bin Laden in his Pakistani home and thus minimizing civilian casualties should be legal as well. 

The more complicated view is that bin Laden is under federal indictment for terrorist attacks against U.S. civilians and government personnel on U.S. territory and at diplomatic and military targets in various parts of the world—attacks that violate federal antiterrorism law—and as a matter of law enforcement should be captured and brought to trial, preferably before a federal criminal court in the United States. 

Despite the certainty with which proponents of either view argue their respective policies, the fact is that the United States has been pursuing both agendas for almost a decade:  waging war and enforcing antiterrorism law.  The Afghan and Iraq wars and various military strikes in Pakistan and Yemen testify to the logic of a war. 

The stack of federal indictments against Osama bin Laden and his fellow terrorists, the apprehension of indicted fugitives, and various hearings and prosecutions in federal courts despite the tug of Guantanamo and its tainted military commissions, demonstrate that federal criminal law is alive and kicking, although sometimes under great stress. 

But on May 1^st in Abbottabad, the war agenda trumped the law enforcement agenda without any clear explanation of why an indicted fugitive (Osama bin Laden) could not have been captured and prosecuted as an international terrorist or, for that matter, as a war criminal.

According to CIA Director Leon Panetta, the Navy Seal 6 team acted under a “kill order” and under rules of engagement permitting bin Laden to be captured alive if he unambiguously showed his will to surrender.  I think the outcome—his killing—might have been the same but with much stronger legal grounds if the order had been reversed: “Capture bin Laden but kill him if necessary.” 

It is so dangerous to second guess the courageous actions of the Navy Seal 6 team.  But I suspect that instead of an order to fire immediately on bin Laden to kill him, the alternative “capture but kill if necessary” order would have afforded the commando with his finger on the trigger a split second to decide whether bin Laden could be safely captured or was likely resisting capture and posing a threat, thus necessitating the kill option. 

Special operations teams have captured, rather than killed, war criminals for many years in the Balkans and in Africa for trials before international criminal tribunals and so the skills exist at least to attempt apprehensions.   Even then, the question arises whether a shot to the head rather than to the leg (as was accomplished with bin Laden’s wife a second or two earlier) was actually necessary to neutralize the threat but prevent a live capture. 

At least the United States could have rightly said to the world, “Our intention was to bring Osama bin Laden to justice before a court of law but that opportunity did not present itself under the circumstances presented to us at that moment and in that situation.”  As it now stands, that “kill order” represents the clear U.S. intention and it rendered the federal indictments that always presume an attempted capture, meaningless.

 Article 51 of the U.N. Charter states that nothing in the “Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” 

The Obama Administration’s strongest argument is that the assault on bin Laden was an inherent act of self defense in the war against Al Qaeda and that the Security Council has not taken any measures that would countermand that action.  The fact that Pakistani sovereignty had to be violated in order to carry out the act of self-defense remains mired in what kind of secret or other understandings the United States has had over the years with Islamabad about the drone attacks and other actions against Al Qaeda and the Taliban on Pakistani territory.

Leaders of international terrorist organizations have the full protection of due process and the right to criminal trials if they are being pursued by law enforcement agencies acting to enforce criminal indictments.  Just like any police operation, however, law enforcement officers will seek capture of suspects while also defending themselves.  However, when a terrorist organization falls under the law of war, for example, in an armed conflict with one or more governments, then that kind of protection may be trumped by the terrorists’ combatant status and all the risks that entails in the theater of war. 

That remains the paradox of Al Qaeda and its leaders (including the late bin Laden), who were under both federal indictment and were targeted leaders of a combatant force in hostilities described as a war by the U.S. Government.

In the view of international lawyers, did bin Laden declare war on the United States? Did he commit war crimes?

One can easily interpret bin Laden’s statements and actions over the decades as effectively a declaration of war against the United States.  I doubt many judges would construe the combined evidence very differently.  Bin Laden could have been prosecuted for war crimes, particularly the War Crimes Act of 1996 in federal courts, but to do so might have undermined the prosecutor’s ability to successfully prosecute him on separate terrorism charges under U.S. law.

Do bin Laden’s sons have any standing when they point to the trials of Saddam Hussein and Slobodan Milosevic?

We have demonstrated in the last two decades the ability to investigate, track, capture, prosecute, and often convict major war criminals, including Saddam Hussein and Slobodan Milosevic (who died before the Yugoslav Tribunal’s judgment), for atrocity crimes that actually took more lives than those attributable to Osama bin Laden’s orders. 

That process continues today in the international and hybrid war crimes tribunals.  It is not surprising that some will argue that an apprehension and trial of bin Laden was just as plausible as it has been for so many war criminals brought to justice since 1995.  But even if that argument is made, the precise facts of what transpired in bin Laden’s home on May 1 remain critical in arriving at any accurate conclusion.

Is the assassination of bin Laden likely to have an impact on international law?

I think it will sharpen the debate about how to manage such “take down” operations in the conflated environment we so often find ourselves in today: a violent and uncertain terrain bordered by the law of war on one side and by federal antiterrorism and international criminal law on the other side.