Osama bin Laden's Death

The Assault

Abottabad, Sunday night, beginning Monday. In most parts of the world it is still Sunday, the first of May. In Pakistan, the first hour of the second day of the month. Still dark, but a sudden noise makes Osama bin Laden wake up. He knows they are coming to kill him. He holds to his wife. He cannot see his killers, but they can see him; one of them aims at his forehead and splits it open, as he is later to say, in the shape of a V, and he sees his brain spilling out.

The soldier zip-ties Osama's screaming widow to her bed. He notices a two or three year old child, screaming, crying, in shock. "I didn't want to hurt him, because I'm not a savage. There was a lot of screaming, he was crying, just in shock. I didn't like that he was scared. I picked him up and put him next to his mother" [1].

Apart from that of bin Laden himself (54), the assault also claims the lives of Khalid bin Laden, Arshad Khan, his brother Abrar and Abrar's wife Bushra, all aged 23-33.

Probably 2010, certainly watching TV, (c) purportedly by the U.S. Government

What happened that night in Abottabad? How is this assault to be judged in legal, in moral, in political terms? Was it vengeance, an act of legal justice, or was it an act of war, a crime?

Fundamentally, of course, the killing of a person is prohibited by law, and it is considered a serious crime. Normally, therefore, to kill a person is seen as unlawful and unjust. To be in accordance with the law, the killing has to occur under exceptional circumstances:

• in peacetime, to kill a person can be justified as
  • an act of self-defense against an imminent threat or
  • judicial execution of a death sentence.

• in wartime, to kill a person can be justified
  • against an enemy engaged in hostilities
  • against an enemy not engaged in hostilities qua his membership in a hostile armed group (i.e.: in times of war, even mass killings are tolerated as long as they concern enemy troops).

A look into the dominant political discourse reveals a strong conviction that what had happened in Abottabad should be qualified not as a crime, but an act of justice.

• President Obama: "And on nights like this one, we can say to those families who have lost loved ones to al Qaeda’s terror: Justice has been done."

• UN Secretary General Ban Ki-Moon: "Personally, I am very much relieved by the news that justice has been done."

• German chancellor Angela Merkel, daughter of a protestant pastor: "Ich freue mich darüber, dass es gelungen ist, Bin Laden zu töten."

Nevertheless the question remains: which one of the possible justications of a killing could apply to the events in Abottabad?

Legal Justifications

Political leaders all over the world have an oath of office binding them to the laws of the land - and, directly or indirectly, to international law. Therefore, the primary legitimation of officially ordered killings should be a legal one.

Law of Peace

• Was it self-defense? There was no immiment threat by bin Laden to those who broke into his home. Much to the contrary: the soldiers were the intruders and if bin Laden as owner had defended his house against the intruders and had killed one or more of them, he would have had a better case going for him than George Zimmerman had against Trayvon Martin.

• Was it a lawful penal execution? Certainly not. There had been no verdict, no accusation, no trial, no judge, no defense, there had been nothing but an organized killing on foreign grounds - without the foreign government having been asked for consent nor even informed.

Law of War

According to Ambos and Alkatouta (2012) the law of war does not justify the killing. While international law is rather permissive with regard to (even mass) killings, its justifications do not spread all the way to cover the killing of bin Laden under the given circumstances.

• First of all, they argue, the privileged legalization of killings of members of an armed enemy group qua membership (i.e. regardless of their concrete actions) does not apply to the elimination of bin Laden, since that would have required bin Laden to be a member of an "organised armed group" in the sense of the law.

• • U.S.: there is an (international or noninternational)

armed conflict (‘war on terror’) with Al Qaeda; Al Qaeda is an organized armed group. Therefore, members of that group may be killed qua membership, i.e. even when they are not involved in hostilities at the time of the killing.

• • International Humanitarian Law (IHL) does not cover this point of view. While written IHL does not define an "armed conflict", it is commonly accepted that - as far as international relations are concerned, ‘an armed conflict exists whenever there is a resort to armed force between States’ (cf. common Article 2 of the Geneva Conventions GC I–IV). In a non-international armed conflict, there should at least be protracted violence between organized armed groups, i.e. groups whose members should not be protected by civilian immunity and thus should constitute legitimate military targets. A teleological interpretation would restrict the definition of an organized armed group in order not to justify the killing of people who (1) remain civilians during most of the time and do not exercise a so-called ‘continuous combat function’ and who therefore (2) should only lose their immunity for the duration of their combat function.

"To put on an equal footing soldiers of regular armed forces with civilians who are part of irregular, non-state armed groups – at least with regard to the loss of immunity from attacks – requires something more than mere membership, namely continuous preparation, execution or command of ‘acts or operations amounting to direct participation in hostilities’. Yet, once a civilian is recruited, trained and equipped for that purpose he qualifies as a de facto combatant ‘even before he or she first carries out a hostile act’. - The flipside of this increased risk imposed on de facto combatants is that such risk cannot be imposed upon persons who do not directly participate in hostilities."

Given the far-reaching consequences associated with the loss of (civilian) immunity from military attack, the requirements to convert a group of terrorist criminals into a party to a conflict governed by IHL should be strict. Thus, the respective group’s features ought to resemble those of a state as the paradigmatic party to a conflict.

The group must demonstrate a minimum degree of collectivity and central organisation, be organised in a hierarchic manner, and – as required by Additional Protocol II – it should have the capacity ‘to carry out sustained and concerted military operations’. Admittedly, one may apply with certain flexibility the classical criteria that qualifies an organised armed group in situations of asymmetric warfare; in particular, as indicated above, the lack of a stable territorial control may not be invoked as a definitional prerequisite of an armed group. In fact, it is plausible to argue that the flexibility of new terrorist/armed groups adds to their strength and constitutes part of their military tactics. Yet, all this flexibility cannot replace the – still reasonable – criteria of a military-like internal hierarchical structure and the capacity ‘to carry out sustained and concerted military operations’. While, with the attacks of 11 September 2001, Al Qaeda has shown this organisational structure and its capacity to pose a military threat, and it has therefore rightly been regarded as an organised armed group (like the military branches of the Hezbollah and the Hamas),68 years later – and in any case at the time when bin Laden was hunted down by the US Special Forces – Al Qaeda’s activity had slowed down; it therefore no longer posed a serious military threat, nor did it have a centralised military command structure. Worldwide attacks which are attributed to, or claimed by, the network might have occurred to bin Laden’s satisfaction but not under his control.69 He did not, like the commander of an organisation within the meaning of IHL, dispose of direct authority on subordinated individuals.

While, admittedly, the traditional criterion of some form of territorial control, notwithstanding its recognition in Additional Protocol II, has lost importance in light of the new ‘asymmetric’ and highly dynamic conflicts in the so-called ‘new wars’, it still serves as a useful indicator61 for the existence of an ‘organisational policy’. Be that as it may, from the above it follows that what is clearly required in terms of internal organisation is a centralised military command and a chain of command from top to bottom. These criteria are not met by a loose and decentralised terrorist network such as Al Qaeda. Al Qaeda lacks the required hierarchic, centralised command structure; as far as is known, it is a global interconnected network of a decentralised character, operating on different continents and in different countries by way of loosely interconnected cells. There is no headquarters and command structure.

While it is beyond dispute that an armed conflict between the Karzai government and the Taliban takes place in Afghanistan, the international or non-international nature of this conflict is less clear. One may consider the NATO-led International Security Assistance Force as an extension of the Karzai government and thus as a party on the government side in its non-international armed conflict against the Taliban; or one may argue that the alliance is an actor which internationalises the conflict. Be that as it may, what is of relevance for the spillover argument is that the Taliban, or at least a part of it, has been an ally of Al Qaeda. As may be recalled, the NATO war against the Taliban government in Afghanistan, authorised by the UN Security Council after September 11,76 was waged because the then Taliban government offered Al Qaeda a safe haven and thus made Afghanistan an accomplice in international terrorism incurring state responsibility. Thus, at that time, one could have plausibly argued that the war against Afghanistan was in fact a war against the Taliban, as the then Afghan government, and Al Qaeda, as its ally, so that an armed conflict between NATO and the Taliban/Al Qaeda existed. Yet, this situation changed with the fall of the Taliban government and the retreat of its forces and, above all, Al Qaeda to Pakistan and other countries. At the current state of affairs, given the Taliban and Al Qaeda presence in Pakistan, one could qualify, at best, the conflict between Pakistan and the Taliban operating on Pakistani territory as a noninternational armed conflict (although Pakistan itself does not engage, by and large, in armed operations against Taliban or Al Qaeda terrorists and, in any case, only speaks of a ‘law enforcement operation’).

As for the involvement of the US, one would have to argue, with a view to an armed conflict between the US and Al Qaeda in Pakistan, that the conflict in Afghanistan, in geographic terms, ‘spills over’ to Pakistan and thus the US carries the fight against the Taliban (and Al Qaeda) in Afghanistan to Pakistan, fighting the same parties there.81 Yet, this would misread the spillover argument and ignore the facts on the ground. To be sure, while an armed conflict, meeting the Tadić criteria, may entail ‘spillover effects’ such as those caused by the retreat of one of the parties to the conflict into the territory of a neighbouring state,83 the extraterritorial reach of such a conflict always reverts to that of the original territory – a ‘spillover conflict’ cannot exist independently.84 In this case, the location where the killing took place (Abbottabad) is not only situated outside a reasonable ‘spillover’ area (about 160 kilometres away from the Afghan border), but also outside the actual Pakistan battle zone.

Thus, we are, in fact, not concerned with a simple extension of the Afghan conflict involving the Taliban into neighbouring Pakistan, but with the US claim of a worldwide ‘war’ against Al Qaeda irrespective of any territorial link whatsoever.

Following this view means proclaiming a worldwide ‘war on terror’87 involving all states in which terrorists reside without a formal or substantive armed conflict between these host states and the state waging this war on terror, namely the US. Our whole

In this sense, and in particular in favour of a qualification of the military operations in Afghanistan and in Pakistan’s tribal lands as one single non-international armed conflict in Afghanistan, see Dinstein (n 74); similarly stressing that the US views Afghanistan and Pakistan militarily ‘as a single theatre of operations’: C Christine Fair and Seth G Jones, ‘Pakistan’s War Within’ (2009) 51 Survival 161, 161. For a separate conflict between the US and Al Qaeda: Geoffrey Corn, ‘Making the Case for Conflict Bifurcation in Afghanistan: Transnational Armed Conflict, al Qaida and the Limits of the Associated Militia Concept’ in Schmitt (n 71) 181, 190ff. 84 In this vein, denying an armed conflict between a state and an international terror network because of the impossibility to determine the conflict’s territorial spread, see Matthew J Machon, ‘Targeted Killing as an Element of US Foreign Policy in the War on Terror’, thesis, US Army Command and General Staff College, Fort Leavenworth, 2006, 52. See generally for the geographic dimension of an armed conflict: Tribunal Militaire d’Appel Suisse, Fulguence Niyonteze, Jugement d’appel, 1A, B, III, ch 3, B; ICTR, Prosecutor v Akayesu, Judgment, ICTR-96-4-T, Chamber I, 2 September 1998, [635]–[636]. 85 Abbottabad lies outside Pakistan’s Federally Administered Tribal Areas where the conflict takes place: see Sean D Murphy, ‘The International Legality of US Military Cross-Border Operations from Afghanistan into Pakistan’ in Schmitt (n 71) 109, 111. For a broader approach, however, see Beth Van Schaack, ‘The Killing of Osama Bin Laden & Anwar Al-Aulaqi: Uncharted Legal Territory’ (2012) 14 Yearbook of International Humanitarian Law (forthcoming) (‘from a territorial or combat activity perspective, the contention that the armed conflict with al Qaida extended at a minimum to the events in Abbottabad is defensible given the degree of cross-border hostilities already’). 86 Contesting a ‘spillover’ effect from Afghanistan even: Dinstein (n 74) 53ff (‘Actions taken by the United States and numerous other countries against al Qaeda and diverse groups of terrorists in far-flung parts of the globe, beyond the borders of Afghanistan and its environs, do not constitute an integral part of the inter-state war raging in Afghanistan’). See, however, Chesney, who claims that if the US is in an armed conflict with Al Qaeda, IHL is applicable wherever its members can be found: Robert Chesney, ‘Who May be Killed? Anwar al-Awlaki as a Case Study in the International Legal Regulation of Lethal Force’ (2010) 13 Yearbook of International Humanitarian Law 3, 38. 87 In this vein, indeed, see the Supreme Court of the US in Salim Ahmed Hamdan v Donald H Rumsfeld and Others 548 US 557 (2006), in particular the dissenting opinion of Judge Thomas, 43, arguing that the conflict occurs in the territory of more than one party to it, precisely ‘in various nations around the globe’. See also the recent statement of Secretary of State Hillary Clinton: ‘The United States reserved the right to attack anyone who it determined posed a direct threat to US national security, anywhere in the world’ (quoted by Andrew Bacevich, ‘Scoring the Global War on Terror from Liberation to Assassination in Three Quick Rounds’, TomDispatch, New York, 19 February 2012, available at http://www.tomdispatch.com/post/175505/tomgram% 3A_andrew_bacevich%2C_uncle_sam%2C_global_gangster.

The whole planet would thus become a battlefield without bounds, and the classic understanding of an armed conflict linked to state territory and involving a specific military confrontation would lose all its restraining and humanising force.

2.4 COMBATANT AND CIVILIAN STATUS Let us, for the sake of argument, assume that there exists an armed conflict between the US and Al Qaeda. Would the killing of bin Laden then have been lawful? Here one must start from the basic assumption that only individuals holding the status of combatants can, under certain circumstances, lawfully be killed during an armed conflict. While this status does not exist formally in a non-international armed conflict,89 there can be no doubt that civilians do take part in hostilities in such conflicts and that they then are – for all practical reasons, notwithstanding the rather terminological dispute with regard to the notion of combatancy90 – to be qualified as (de facto) combatants or ‘fighters’.91 (De facto) combatants include ‘fighting members’92 of a state’s armed forces93 as well as fighting members of organised armed groups within the meaning of IHL.94 They lose immunity from attacks on a permanent basis by holding their status, even when not participating directly in hostilities.95 The status is not necessarily limited to fighters carrying arms or military strategic planners. Some scholars argue that, for instance, communication and logistic experts who are integrated in the group or armed forces and under the same hierarchic order are also (de facto) combatants.96 Targeting such (de facto) combatants may even be 88 See Solis, The Law of Armed Conflict (n 7) 217 (the ‘characterization of the US-al Qaeda conflict as “Global War on Terrorism” does not mean that an actual war is in progress’); and Rudolf and Schaller (n 25) 18 and 25 (dismissing a worldwide armed conflict against Al Qaeda and questioning whether the fight against terrorists should be called a ‘war’ simply because one cannot cope with them by the means of law enforcement (at 24)). In the same vein, Philippe Sands questions ‘that anyone associated with al-Qaeda in any country in the world can be taken out, can be executed’: see Aiden Lewis, ‘Osama bin Laden: Legality of Killing Questioned’, BBC News, 12 May 2011, available at http://www.bbc.co.uk/news/world-south-asia-13318372. See also Paulus and Vashakmadze (n 55) 119 (‘so called “war on terror” is not an armed conflict as such, independently of time and space’), 124 (‘no legal notion of a general or global “war on terror”’). 89 Neither GC I–IV, common art 3, nor AP II mentions combatant status (both n 12). 90 Van Schaack (n 85) (‘there is no consensus on whether the notion of combatancy and true status-based targeting exists in NIACs’). 91 Kretzmer (n 10) 34. 92 AP II (n 12) art 9; AP I (n 11) art 43(2), and GC III (n 11) art 33(1) exclude religious and medical personnel from (de facto) combatant status. See also Ipsen (n 45) 101. 93 AP I (n 11) art 43(2). 94 With regard to international armed conflicts, participants in a levée en masse hold a status similar to combatants: GC III (n 11) art 4(A)(6)). They are, however, of little relevance in current practice: see Anthony Rogers, ‘Combatant Status’ in Elizabeth Wilmshurst and Susan Breau (eds), Perspectives on the ICRC Study on Customary International Humanitarian Law (Cambridge University Press 2007) 101, 113; Ipsen (n 45) 93. 95 Yoram Dinstein, The International Law of Belligerent Occupation (Cambridge University Presspermissible when they are not on duty, for example when sleeping or playing with their comrades, 97 provided that no collateral damage in violation of the proportionality principle is caused.98 If one follows the ‘organisational’ definition of a (de facto) combatant – that is, if one derives the status from membership of a state’s armed forces or an organised armed group within the meaning of IHL – members of Al Qaeda could be considered as (de facto) combatants qua membership and thus be attacked in accordance with IHL only if Al Qaeda were to be qualified – in contrast to the position defended above (in Section 2.2) – as an organised armed group. While this construction may be in the interest of the state which fights such a group (and is interested in targeting its members), the flipside to this view is that the (de facto) combatant status entails certain rights, in particular ‘the right to participate directly in hostilities’ (Article 43(2) AP I) and, under certain conditions, the status of a prisoner of war (Article 4(A)(2) GC III). Indeed, in order to avoid the obligation to grant this status, the US under the George W Bush administration99 qualified Al Qaeda members as ‘unlawful combatants’100 – permitting their targeting but refusing to grant them any rights. This approach means that a third category, in addition to civilians and (de facto) combatants, has been reinvented,101 which converts the respective individuals into nonpersons without rights: a kind of modern hostes humani generis.102 Individuals belonging to other groups or collective entities not amounting to organised armed groups in the sense of IHL – that is, members of criminal, including terrorist, groups – are clearly civilians under IHL. Article 50(1) AP I defines ‘civilian’ in opposition to (formal) combatants within the framework of an international conflict, but the idea underlying this distinction – the 97 Wolfgang Richter, ‘Kampfdrohnen versus Völkerrecht? Zum “Drohnenkrieg” in Afghanistan und Pakistan’ (2011) 24 Humanitäres Völkerrecht-Informationsschriften 105, 110. This also counts true for members of organised armed groups who forfeit their combatant status by disrespecting IHL: see Jensen (n 10) 49. 98 AP I (n 11) arts 51(5)(b) and 57(2). The expected military advantage must be of greater advantage than the unavoidable loss of uninvolved civilians: see Amichai Cohen and Yuval Shany, ‘A Development of Modest Proportions, The Application of the Principle of Proportionality in the Targeted Killings Case’ (2007) 5 Journal of International Criminal Justice 310, 312; Nils Melzer, Targeted Killing in International Law (Oxford University Press 2008) 303. 99 Office of the US Press Secretary, White House Fact Sheet, 7 February 2002, ‘Status of Detainees at Guantanamo’, available at http://www.whitehouse.gov/news/releases/2002/02/20020207-13.html; Response of the US dated 21 October 2005 to the inquiry of the UNCHR Special Rapporteur pertaining to detainees at Guantanamo Bay, 8 August 2005, 5, available at http://www.asil.org/pdfs/ilib0603211.pdf. 100 For a thorough study that is critical of this third category, in particular with regard to international armed conflicts, see Wieczorek (n 56) 125. For civilian status according to the Israel Supreme Court, see Targeted Killing (n 6) para 26 (‘An unlawful combatant is not a combatant, rather a “civilian”’). In favour of this category for purely semantic reasons: Katharina Parameswaran, Besatzungsrecht im Wandel: Zur heutigen Bedeutung des Besatzungsrechts (Nomos 2008) 95; Dominika Švarc, ‘The Use of Military Force in the Fight against Terrorism: International Legal Framework’ (2006) 6 ISIL Yearbook of International Humanitarian Law and Refugee Law 142, 162; Bothe (n 95) 69. For: Michael L Gross, ‘Assassination and Targeted Killing: Law- Enforcement, Execution or Self-Defence?’ in David Rodin (ed), War, Torture and Terrorism (Wiley-Blackwell 2007) 83, 84 (these persons are ‘certainly no civilians’). 101 The term ‘unlawful combatant’ was originally introduced to describe concealed German saboteurs in the US: see US Supreme Court, Ex parte Quirin, US Reports 317 (1942), 1 (4, 31). 102 Similar to criminals against humanity, see Kai Ambos, ‘Crimes Against Humanity and the ICC’ in Leila Nadya Sadat (ed), Forging a Convention for Crimes Against Humanity (Cambridge University Press 2011) 279, 282, referring to David Luban’s approach. 354 ISRAEL LAW REVIEW [Vol. 45:2 relevance of organisation for assigning combatant status – must, for reasons of logic and consistency, also be applicable in a non-international conflict.103 This means that membership-based status is predicated on the existence of an armed organised group within the meaning of IHL. Clearly, adherents worldwide share Al Qaeda’s ideology and may even have maintained contacts in the network and among each other. Yet, these followers do not depend in their actions on Al Qaeda, nor can they be directly controlled by it.104 The mere membership in what is at best a loosely organised group cannot make the member lose his civilian status.105 Civilians enjoy broad protection,106 in particular against (deliberate) killing which may amount to a war crime.107 Only if they ‘take a direct part in hostilities’108 do they lose their protection and may become legitimate military targets during their participation.109 Hence, permanent protection from targeted killings inures for the benefit of only those civilians who do not participate directly in hostilities.110 In other words, while organised armed groups in the sense of IHL take, as a collective entity, per definitionem, a direct part in hostilities, this is not the case with other groups that, for the purpose of IHL, are only an association of individuals whose immunity from attack is to be decided on an individual, case by case basis. 103 AP I (n 11) art 50(1) reads as follows: ‘A civilian is any person who does not belong to one of the categories of persons referred to in Article 4A(1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.’ Civilians are therefore all persons who are not combatants – apart from ordinary civilians, members of the police, spies, UN Blue Berets, franctireurs, mercenaries, employees of private security companies and unorganised insurgents. Concerning the aspect of legitimacy that the term civilian carries with it, see Kenneth Watkin, ‘Warriors Without Rights? Combatants, Unprivileged Belligerents, and the Struggle Over Legitimacy’, Humanitarian Policy and Conflict Research, HPCR Occasional Paper, 2005, 6. 104 In the same sense, Lubell (n 55) 119. 105 Richter (n 97); see, however, Watkin (n 45) 666, who regards the loss of civilian status as possible under these circumstances. 106 For non-international conflict, see AP II (n 12) art 13. 107 ICC Statute (n 37) arts 8(2)(b)(i) and 8(2)(e)(i). 108 AP I (n 11) art 51(3). This Article is not subject to any reservation by the parties: see Djamchid Momtaz, ‘La participation directe des personnes civiles aux hostilités’ in Andreas Fischer-Lescano and others (eds), Frieden in Freiheit - Peace in Liberty - Paix en liberté: Festschrift für Michael Bothe zum 70. Geburtstag (Nomos 2008) 493, 496; Julie Gaudreau, ‘Les réserves aux Protocoles Additionnels aux Conventions de Genève pour la protection des victimes de la guerre’ (2003) 849 International Review of the Red Cross 143. See also AP II (n 12) art 13(3) with regard to non-international armed conflicts. 109 See Stefan Oeter, ‘Das militärische Vorgehen gegenüber bewaffneten Widerstandskämpfern in besetzten Gebieten und internen Konflikten: “direct participation in hostilities” und der Schutz der Zivilbevölkerung’ in Fischer-Lescano and others (n 108) 503, 503; Helen Keller and Magdalena Forowicz, ‘A Tightrope Walk Between Legality and Legitimacy: An Analysis of the Israeli Supreme Court’s Judgment on Targeted Killing’ (2008) 21 Leiden Journal of International Law 185, 210. 110 In the same sense, Anthony PV Rogers, Paul Malherbe and Bruno Doppler (eds), Fight it Right: Model Manual on the Law of Armed Conflict for Armed Forces (International Committee of the Red Cross 1999) 171; Michael N Schmitt and others, The Manual on the Law of Non-International Armed Conflict (2006) 4; UN Secretary- General’s Bulletin, Observance by United Nations Forces of International Humanitarian Law, UN Doc ST/ SGB/1999/13, 6 August 1999, s 5.2; as well as several military manuals, for example: Handleiding Humanitair Oorlogsrecht (2005), para 805; Zentrale Dienstvorschrift 15/2 der Deutschen Bundeswehr (1992), para 501; New Zealand Defence Manual 112, Attack Rule No 517(3); The Commander’s Handbook on the Law of Naval Operations of the US Navy/Marine Corps/Coast Guard, NWP 1-14M, MCWP P5800.7, s 11.3 (1995). 2012] HAS ‘JUSTICE BEEN DONE’? 355 With regard to the killing of bin Laden this means that, even on the assumption of the existence of an armed conflict between the US and Al Qaeda (and thus the applicability of IHL), his killing could only be considered to be lawful qua membership of an organised armed group in the sense of IHL if Al Qaeda were to be qualified as such a group. For the reasons given above (in Section 2.2) we do not think that such a conclusion can reasonably be drawn with regard to Al Qaeda. This means that bin Laden – or any other member of this network – must be treated as an individual who can only be targeted if he or she personally participated directly in hostilities.111 Going further, some authors claim, based on the postulates of humanity112 and military necessity, 113 that even a direct participant in hostilities has first to be arrested, if possible, before lethal force is used.114 However, while ethically this appears to be a more sound position, it does not find support in the international lex lata; indeed, there is no explicit prohibition115 on attacking a civilian who participates directly in hostilities; instead, IHL deprives fighters of their immunity from attack.116 The question of bin Laden’s immunity from attack must not be confused with the question of his responsibility under national or international criminal law. There is no doubt that mere membership of terrorist organisations such as Al Qaeda can be criminalised and is, in fact, criminalised in most national jurisdictions.117 Apart from that, there is little doubt that bin Laden’s individual criminal responsibility with regard to a number of terrorist acts of Al Qaeda could have been established in a criminal trial. All this is, however, irrelevant as to the legality of his killing under IHL. If one assumes, contrary to the view of the authors, that an armed conflict 111 Boor (n 65) 101. 112 AP I (n 11) art 1(2) reads as follows: ‘In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.’ See also Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep 226, [78]. 113 AP I (n 11) art 57(3) reads as follows: ‘When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.’ 114 Melzer (n 48) 81; Nils Melzer, ‘Targeted Killing or Less Harmful Means? – Israel’s High Court Judgment on Targeted Killing and the Restrictive Function of Military Necessity’ (2006) 9 Yearbook of International Humanitarian Law 87, passim; Solis, The Law of Armed Conflict (n 7) 542 derives this principle from international human rights law and advocates its application also during armed conflict. See also Targeted Killing (n 6) para 60 (‘Harming such civilians, even if the result is death, is permitted, on the condition that there is no other less harmful means’). 115 Of course, the situation changes if one requires not only the absence of a prohibition but a positive authorisation to kill by international (humanitarian) law; for this even more humanist position, see Albin Eser, ‘Tötung im Krieg: Rückfragen an das Staats – und Völkerrecht’ in Ivo Appel, Georg Hermes and Christoph Schönberger (eds), Öffentliches Recht im offenen Staat. Festschrift für Rainer Wahl (Duncker & Humblot 2011) 665ff; see also Gerd Hankel, Das Tötungsverbot im Krieg – ein Interventionsversuch (Hamburger Edition 2011). 116 Rudolf and Schaller (n 25) also consider that there is no obligation in armed conflict to use the least harmful means (at 21), such as arrest (at 26). In a similar vein, Van Schaack (n 85): ‘IHL countenances the use of deadly force against the adversary as a first resort as compared with peacetime law enforcement scenarios.’ See also n 109. 117 Thus, for example, s 129a of the German Criminal Code (Deutsches Strafgesetzbuch, Bundesgesetzblatt I, 3322) foresees up to ten years of imprisonment for founding, participation or membership in a ‘terrorist organisation’. s 129b applies to foreign organisations. For a thorough study of this type of organisational responsibility, see Ioannis Morozinis, Dogmatik der Organisationsdelikte (Duncker & Humblot 2010). 356 ISRAEL LAW REVIEW [Vol. 45:2 between the US and Al Qaeda exists, the only relevant question is whether he was still directly participating in hostilities. 2.5 DIRECT PARTICIPATION IN HOSTILITIES While the questions surrounding modalities, duration and threshold of direct participation in hostilities are still highly contentious,118 it is generally agreed that the participant needs to accomplish acts which by their nature or purpose are likely to cause harm119 to military personnel or equipment of the adversary.120 Attacking or trying to capture members or weapons of the enemy armed forces, laying mines, planting or detonating bombs or sabotaging military lines of communication are all well-known examples of direct participation.121 The deployment to or retreat from places where the mentioned activities are carried out are also included in the definition of direct participation.122 Also, if harm is caused otherwise (to non-military targets), by killing civilians for example, direct participation still exists123 as long as the violence is linked to the conflict.124 On the other hand, immunity from attack can be renewed if the participants in question definitely and credibly withdraw from military activity, for example by handing over their weapons,125 or by a long period of non-participation.126 It is more controversial whether a short-term abstention from the fighting can qualify as a (definitive) withdrawal.127 The participant cannot walk through a ‘revolving door’,128 thereby losing and regaining protection as he 118 Jelena Pejic, ‘“Unlawful/Enemy Combatants”: Interpretations and Consequences’ in Michael N Schmitt and Jelena Pejic (eds), International Law and Armed Conflict: Exploring the Faultlines, Essays in Honor of Yoram Dinstein (Martinus Nijhoff 2007) 335, 337; ICC, Prosecutor v Bahar Idriss Abu Garda, Decision on the Confirmation of Charges, ICC-02/05-02/09, Pre-Trial Chamber I, 8 February 2010, [80] (‘neither treaty law nor customary law expressly define what constitutes direct participation in hostilities’). 119 Jean-François Quéguiner, ‘Le principe de distinction dans la conduite des hostilités’, thesis, University of Geneva, 2006, 326–27 (‘une menace directe et immédiate pour le belligérant adverse’). 120 ICTR, Prosecutor v Baglishema, Judgment, ICTR-95-1A, Trial Chamber I, 7 June 2001, [104]; Eric David, Principes de droit des conflits armés (4th edn, Bruylant 2008) 286. 121 Wearing a uniform, a distinctive sign and using weapons is sufficient according to Jan Roemer, Killing in a Gray Area Between Humanitarian Law and Human Rights (Springer 2010) 50. For further examples, see ICTY, Prosecutor v Strugar, Judgment, IT-01-42-A, Appeals Chamber, 17 July 2008, [177]. 122 Anthony Rogers, Law on the Battlefield (Manchester University Press 2004) 11–12. 123 Roemer (n 121) 55; David Kretzmer, ‘Civilian Immunity in War: Legal Aspects’ in Igor Primoratz (ed), Civilian Immunity in War (Oxford University Press 2007) 84, 91; Michael N Schmitt, ‘The Interpretive Guidance on the Notion of Direct Participation in Hostilities: A Critical Analysis’ (2010) 1 Harvard National Security Journal 5, 28. 124 For a detailed analysis of the belligerent nexus, see Frederik Strømme Legernæs, ‘Incompetent Resistance? Core Aspects of Civilian Direct Participation in Hostilities’, thesis, University of Oslo, 2009, 26. 125 Héctor Olásolo, Unlawful Attacks in Combat Situations: From the ICTY’s Case Law to the Rome Statute (Martinus Nijhoff 2008) 115. 126 In detail, Michael N Schmitt, ‘Targeting and International Humanitarian Law in Afghanistan’, in Schmitt (n 71) 307, 317. 127 Kai Ambos, ‘VStGB Vorbemerkungen §§ 8 ff’, in Wolfgang Joecks and others, Müncher Kommentar zum Strafgesetzbuch (1st edn, CH Beck 2009) 620, marginal note 42 with further references. 128 Term used for the first time byWHays Parks, ‘Air War and the Law of War’ (1990) 32 Air Force Law Review 1, 118. In detail, Yuval Shany, ‘Israeli Counter-Terrorism Measures: Are they “Kosher” under International Law?’ 2012] HAS ‘JUSTICE BEEN DONE’? 357 fancies;129 in other words, ‘a farmer by day and a fighter by night’ is regarded as directly taking part in hostilities, meaning he is a ‘fighter’ (fulfilling a continuous combat function) for the purpose of IHL.130 If one applies these principles to bin Laden, everything depends on his role and activity in the last months before his killing. Clearly, there is some room for speculation since precise and reliable information is lacking. While bin Laden certainly in the distant past participated directly in hostilities when he was still an active fighter on the battlefield or as an important strategist operating in and from Afghanistan,131 more recently he seems to have turned into a mere spiritual leader of Al Qaeda and had no further influence on concrete military operations.132 Isolated and hidden in his Pakistani refuge,133 bin Laden seemed no longer capable of filling the position of a military leader,134 regardless of his formal status or function within the network. His resignation from military activities might not have been voluntary, but it was definite nevertheless. Therefore, even the widest possible interpretation of what constitutes direct participation in hostilities cannot include bin Laden, at least as far as his role is known to the general public. Note that even if, despite the opposing indicia, one qualifies bin Laden as a legitimate military target, his killing would also have been illegal if he voluntarily surrendered or was otherwise hors de combat.135 Also, the killing must be genuinely targeted and collateral damage avoided to the extent possible.136 in Michael N Schmitt and Gian Luca Beruto (eds), Terrorism and International Law: Challenges and Responses (Nagard 2002) 96, 104. 129 Melzer (n 98) 353. 130 In detail Dewi Williams, ‘Tata, što si Ti radio u Velikom ratu’ – Izravno ucˇešće u neprijateljstvima i moguće rješenje za složsenu pravnu poziciju’ (‘Daddy, What did YOU do in the Great War?’ Direct Participation in Hostilities, a Possible Solution to a Fraught Legal Position’) thesis, University of Split, 2008, 830. 131 For an illustration, see Adam Robinson, Bin Laden (Arcade 2001) 266. 132 According to Alain Chouet, former head of the French secret service DGSE, ‘Osama bin Laden has not had any operational capacity since quite a while’ (quoted by Bletry, Verdier and Tallès (n 65)). See also Burke (n 65) 28ff and 293ff; Victor Korewa, La lutte contre le terrorisme d’Al-Qaida: Perspectives stratégiques (Connaissances et Savoirs 2008) 109 (‘Al-Qaida does not depend on bin Laden with regard to organisation and legitimacy’ (translation from French)); Van Schaack (n 85) (‘it is fair to query whether he still exercised any operational leadership at the time he was killed’); dissenting: Peter L Bergen, ‘Al-Qaeda, the Organization: A Five-Year Forecast’ (2008) 618 The Annals of the American Academy of Political and Social Science 14, 16; Corine Lesnes, ‘Saisi à Abbottabad, le journal d’Oussama Ben Laden est un “trésor” pour la CIA’, Le Monde, Paris, 13 May 2011, 8. This has recently been confirmed by bin Laden’s private documents, seized by the US during the Abbottabad raid and released through the West Point Combating Terrorism Center. The corresponding publication (Nelly Lahoud and others, ‘Letters from Abbottabad: Bin Laden Sidelined?’, Harmony Program, 3 May 2012, available at http://www.ctc.usma.edu) states that ‘the tone in several letters authored by bin Laden makes it clear that he was struggling to exercise even a minimal influence over [Al Qaeda’s affiliates]’ (13) and ‘On the basis of the 17 declassified documents, bin Laden was not, as many thought, the puppet master pulling the strings that set in motion jihadi groups around the world’ (52). According to Kretzmer (n 123) 93, general strategic analysis during armed conflict – as opposed to the effective selection of military targets – is not equal to direct participation in hostilities. 133 Bin Laden’s compound in Abbottabad had neither phone nor internet connection: see Schmidle (n 2). 134 See, however, Schmidle, ibid, claiming that ‘he had been developing plans to assassinate Obama and Petraeus’. 135 AP I, art 41 and GC I–IV, common art 3(1) (both n 11). According to Vincent-Joël Proulx, ‘If the Hat Fits Wear it, if the Turban Fits Run for Your Life: Reflection on the Indefinite Detention and Targeted Killings of Suspected Terrorists’ (2005) 56 Hastings Law Journal 801, 884 (targeted killings deny the victim the right to surrender). 136 See n 98 and accompanying text. 358 ISRAEL LAW REVIEW [Vol. 45:2 3. LEGALITY OF KILLING BIN LADEN DURING PEACETIME If, as argued in this article, the US is not at war with Al Qaeda, the applicable legal regime is exclusively that of peacetime. Thus, lethal force against any person, be it an ordinary citizen or a terrorist suspect, is, as a rule, prohibited by both criminal law and international human rights law,137 including customary international law.138 International human rights law does not distinguish between a targeted or untargeted killing, or between a killing executed by an unmanned drone or otherwise.139 Of course, the ban on the use of lethal force is not absolute. It knows two exceptions. First, international law does not prohibit the – still widely practised140 – death penalty as long as it is imposed after a fair trial by ‘a competent court’.141 A premeditated killing, before a trial or on the basis of a summary, unfair trial, is illegal. It constitutes an extrajudicial or extralegal execution or killing.142 The second exception follows from an e contrario interpretation of Article 6(1) ICCPR.143 The provision prohibits the ‘arbitrary deprivation’ of one’s life. This is generally understood as allowing for the use of lethal force in the defence of oneself or others or of imminent danger to oneself or others.144 The underlying general principles of criminal law, relevant to determine individual 137 Universal Declaration of Human Rights, UNGA Res 217A(III), UN Doc A/810 (1948), 10 December 1948, art 3 (‘Everyone has the right to life, liberty and security of person’); ICCPR (n 27) art 6(1) (‘Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life’); American Declaration of the Rights and Duties of Man (n 28) art 1 (‘Every human being has the right to life, liberty and the security of his person’). 138 Rudolf and Schaller (n 25) 14. With regard to US domestic law, see also Executive Order 12333 of the US President concerning intelligence activities (last amended in 2008), art 2.11 of which reads as follows: ‘No person employed by or acting on behalf of the United States Government shall engage in or conspire to engage in assassination.’ 139 Hélène Tigroudja, ‘Assassinats ciblés et droit à la vie dans la jurisprudence de la Cour suprême israélienne’ in Christian Tomuschat, Evelyne Lagrange and Stefan Oeter (eds), The Right to Life (Martinus Nijhoff 2010) 267, 274; Charli Carpenter and Lina Shaikhouni, ‘Don’t Fear the Reaper’, Foreign Policy, 7 June 2011, available at http://www.foreignpolicy.com/articles/2011/06/07/dont_fear_the_reaper. 140 Amnesty International points out that 60% of the world’s population lives in a country which practises capital punishment, in total one third of the world’s countries, available at http://www.amnesty.name/en/death-penalty/ numbers. 141 ICCPR (n 27) art 6(2) reads as follows: ‘In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.’ 142 UN Human Rights Council, Interim Report on the Worldwide Situation in regard to Extrajudicial, Summary or Arbitrary Executions submitted by Philip Alston, Special Rapporteur, UN Doc A/61/311, 5 September 2006, paras 33–45. 143 See n 27. 144 Kai Ambos, ‘Defences in International Criminal Law’ in Bartram S Brown (ed), Research Handbook on International Criminal Law (Edward Elgar 2011) 299, 307ff with further references. See also the Code of Conduct for Law Enforcement Officials, art 3, which read permissible when they are not on duty, for example when sleeping or playing with their comrades, 97 provided that no collateral damage in violation of the proportionality principle is caused.98 If one follows the ‘organisational’ definition of a (de facto) combatant – that is, if one derives the status from membership of a state’s armed forces or an organised armed group within the meaning of IHL – members of Al Qaeda could be considered as (de facto) combatants qua membership and thus be attacked in accordance with IHL only if Al Qaeda were to be qualified – in contrast to the position defended above (in Section 2.2) – as an organised armed group. While this construction may be in the interest of the state which fights such a group (and is interested in targeting its members), the flipside to this view is that the (de facto) combatant status entails certain rights, in particular ‘the right to participate directly in hostilities’ (Article 43(2) AP I) and, under certain conditions, the status of a prisoner of war (Article 4(A)(2) GC III). Indeed, in order to avoid the obligation to grant this status, the US under the George W Bush administration99 qualified Al Qaeda members as ‘unlawful combatants’100 – permitting their targeting but refusing to grant them any rights. This approach means that a third category, in addition to civilians and (de facto) combatants, has been reinvented,101 which converts the respective individuals into nonpersons without rights: a kind of modern hostes humani generis.102 Individuals belonging to other groups or collective entities not amounting to organised armed groups in the sense of IHL – that is, members of criminal, including terrorist, groups – are clearly civilians under IHL. Article 50(1) AP I defines ‘civilian’ in opposition to (formal) combatants within the framework of an international conflict, but the idea underlying this distinction – the 97 Wolfgang Richter, ‘Kampfdrohnen versus Völkerrecht? Zum “Drohnenkrieg” in Afghanistan und Pakistan’ (2011) 24 Humanitäres Völkerrecht-Informationsschriften 105, 110. This also counts true for members of organised armed groups who forfeit their combatant status by disrespecting IHL: see Jensen (n 10) 49. 98 AP I (n 11) arts 51(5)(b) and 57(2). The expected military advantage must be of greater advantage than the unavoidable loss of uninvolved civilians: see Amichai Cohen and Yuval Shany, ‘A Development of Modest Proportions, The Application of the Principle of Proportionality in the Targeted Killings Case’ (2007) 5 Journal of International Criminal Justice 310, 312; Nils Melzer, Targeted Killing in International Law (Oxford University Press 2008) 303. 99 Office of the US Press Secretary, White House Fact Sheet, 7 February 2002, ‘Status of Detainees at Guantanamo’, available at http://www.whitehouse.gov/news/releases/2002/02/20020207-13.html; Response of the US dated 21 October 2005 to the inquiry of the UNCHR Special Rapporteur pertaining to detainees at Guantanamo Bay, 8 August 2005, 5, available at http://www.asil.org/pdfs/ilib0603211.pdf. 100 For a thorough study that is critical of this third category, in particular with regard to international armed conflicts, see Wieczorek (n 56) 125. For civilian status according to the Israel Supreme Court, see Targeted Killing (n 6) para 26 (‘An unlawful combatant is not a combatant, rather a “civilian”’). In favour of this category for purely semantic reasons: Katharina Parameswaran, Besatzungsrecht im Wandel: Zur heutigen Bedeutung des Besatzungsrechts (Nomos 2008) 95; Dominika Švarc, ‘The Use of Military Force in the Fight against Terrorism: International Legal Framework’ (2006) 6 ISIL Yearbook of International Humanitarian Law and Refugee Law 142, 162; Bothe (n 95) 69. For: Michael L Gross, ‘Assassination and Targeted Killing: Law- Enforcement, Execution or Self-Defence?’ in David Rodin (ed), War, Torture and Terrorism (Wiley-Blackwell 2007) 83, 84 (these persons are ‘certainly no civilians’). 101 The term ‘unlawful combatant’ was originally introduced to describe concealed German saboteurs in the US: see US Supreme Court, Ex parte Quirin, US Reports 317 (1942), 1 (4, 31). 102 Similar to criminals against humanity, see Kai Ambos, ‘Crimes Against Humanity and the ICC’ in Leila Nadya Sadat (ed), Forging a Convention for Crimes Against Humanity (Cambridge University Press 2011) 279, 282, referring to David Luban’s approach. 354 ISRAEL LAW REVIEW [Vol. 45:2 relevance of organisation for assigning combatant status – must, for reasons of logic and consistency, also be applicable in a non-international conflict.103 This means that membership-based status is predicated on the existence of an armed organised group within the meaning of IHL. Clearly, adherents worldwide share Al Qaeda’s ideology and may even have maintained contacts in the network and among each other. Yet, these followers do not depend in their actions on Al Qaeda, nor can they be directly controlled by it.104 The mere membership in what is at best a loosely organised group cannot make the member lose his civilian status.105 Civilians enjoy broad protection,106 in particular against (deliberate) killing which may amount to a war crime.107 Only if they ‘take a direct part in hostilities’108 do they lose their protection and may become legitimate military targets during their participation.109 Hence, permanent protection from targeted killings inures for the benefit of only those civilians who do not participate directly in hostilities.110 In other words, while organised armed groups in the sense of IHL take, as a collective entity, per definitionem, a direct part in hostilities, this is not the case with other groups that, for the purpose of IHL, are only an association of individuals whose immunity from attack is to be decided on an individual, case by case basis. 103 AP I (n 11) art 50(1) reads as follows: ‘A civilian is any person who does not belong to one of the categories of persons referred to in Article 4A(1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.’ Civilians are therefore all persons who are not combatants – apart from ordinary civilians, members of the police, spies, UN Blue Berets, franctireurs, mercenaries, employees of private security companies and unorganised insurgents. Concerning the aspect of legitimacy that the term civilian carries with it, see Kenneth Watkin, ‘Warriors Without Rights? Combatants, Unprivileged Belligerents, and the Struggle Over Legitimacy’, Humanitarian Policy and Conflict Research, HPCR Occasional Paper, 2005, 6. 104 In the same sense, Lubell (n 55) 119. 105 Richter (n 97); see, however, Watkin (n 45) 666, who regards the loss of civilian status as possible under these circumstances. 106 For non-international conflict, see AP II (n 12) art 13. 107 ICC Statute (n 37) arts 8(2)(b)(i) and 8(2)(e)(i). 108 AP I (n 11) art 51(3). This Article is not subject to any reservation by the parties: see Djamchid Momtaz, ‘La participation directe des personnes civiles aux hostilités’ in Andreas Fischer-Lescano and others (eds), Frieden in Freiheit - Peace in Liberty - Paix en liberté: Festschrift für Michael Bothe zum 70. Geburtstag (Nomos 2008) 493, 496; Julie Gaudreau, ‘Les réserves aux Protocoles Additionnels aux Conventions de Genève pour la protection des victimes de la guerre’ (2003) 849 International Review of the Red Cross 143. See also AP II (n 12) art 13(3) with regard to non-international armed conflicts. 109 See Stefan Oeter, ‘Das militärische Vorgehen gegenüber bewaffneten Widerstandskämpfern in besetzten Gebieten und internen Konflikten: “direct participation in hostilities” und der Schutz der Zivilbevölkerung’ in Fischer-Lescano and others (n 108) 503, 503; Helen Keller and Magdalena Forowicz, ‘A Tightrope Walk Between Legality and Legitimacy: An Analysis of the Israeli Supreme Court’s Judgment on Targeted Killing’ (2008) 21 Leiden Journal of International Law 185, 210. 110 In the same sense, Anthony PV Rogers, Paul Malherbe and Bruno Doppler (eds), Fight it Right: Model Manual on the Law of Armed Conflict for Armed Forces (International Committee of the Red Cross 1999) 171; Michael N Schmitt and others, The Manual on the Law of Non-International Armed Conflict (2006) 4; UN Secretary- General’s Bulletin, Observance by United Nations Forces of International Humanitarian Law, UN Doc ST/ SGB/1999/13, 6 August 1999, s 5.2; as well as several military manuals, for example: Handleiding Humanitair Oorlogsrecht (2005), para 805; Zentrale Dienstvorschrift 15/2 der Deutschen Bundeswehr (1992), para 501; New Zealand Defence Manual 112, Attack Rule No 517(3); The Commander’s Handbook on the Law of Naval Operations of the US Navy/Marine Corps/Coast Guard, NWP 1-14M, MCWP P5800.7, s 11.3 (1995). 2012] HAS ‘JUSTICE BEEN DONE’? 355 With regard to the killing of bin Laden this means that, even on the assumption of the existence of an armed conflict between the US and Al Qaeda (and thus the applicability of IHL), his killing could only be considered to be lawful qua membership of an organised armed group in the sense of IHL if Al Qaeda were to be qualified as such a group. For the reasons given above (in Section 2.2) we do not think that such a conclusion can reasonably be drawn with regard to Al Qaeda. This means that bin Laden – or any other member of this network – must be treated as an individual who can only be targeted if he or she personally participated directly in hostilities.111 Going further, some authors claim, based on the postulates of humanity112 and military necessity, 113 that even a direct participant in hostilities has first to be arrested, if possible, before lethal force is used.114 However, while ethically this appears to be a more sound position, it does not find support in the international lex lata; indeed, there is no explicit prohibition115 on attacking a civilian who participates directly in hostilities; instead, IHL deprives fighters of their immunity from attack.116 The question of bin Laden’s immunity from attack must not be confused with the question of his responsibility under national or international criminal law. There is no doubt that mere membership of terrorist organisations such as Al Qaeda can be criminalised and is, in fact, criminalised in most national jurisdictions.117 Apart from that, there is little doubt that bin Laden’s individual criminal responsibility with regard to a number of terrorist acts of Al Qaeda could have been established in a criminal trial. All this is, however, irrelevant as to the legality of his killing under IHL. If one assumes, contrary to the view of the authors, that an armed conflict 111 Boor (n 65) 101. 112 AP I (n 11) art 1(2) reads as follows: ‘In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.’ See also Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep 226, [78]. 113 AP I (n 11) art 57(3) reads as follows: ‘When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.’ 114 Melzer (n 48) 81; Nils Melzer, ‘Targeted Killing or Less Harmful Means? – Israel’s High Court Judgment on Targeted Killing and the Restrictive Function of Military Necessity’ (2006) 9 Yearbook of International Humanitarian Law 87, passim; Solis, The Law of Armed Conflict (n 7) 542 derives this principle from international human rights law and advocates its application also during armed conflict. See also Targeted Killing (n 6) para 60 (‘Harming such civilians, even if the result is death, is permitted, on the condition that there is no other less harmful means’). 115 Of course, the situation changes if one requires not only the absence of a prohibition but a positive authorisation to kill by international (humanitarian) law; for this even more humanist position, see Albin Eser, ‘Tötung im Krieg: Rückfragen an das Staats – und Völkerrecht’ in Ivo Appel, Georg Hermes and Christoph Schönberger (eds), Öffentliches Recht im offenen Staat. Festschrift für Rainer Wahl (Duncker & Humblot 2011) 665ff; see also Gerd Hankel, Das Tötungsverbot im Krieg – ein Interventionsversuch (Hamburger Edition 2011). 116 Rudolf and Schaller (n 25) also consider that there is no obligation in armed conflict to use the least harmful means (at 21), such as arrest (at 26). In a similar vein, Van Schaack (n 85): ‘IHL countenances the use of deadly force against the adversary as a first resort as compared with peacetime law enforcement scenarios.’ See also n 109. 117 Thus, for example, s 129a of the German Criminal Code (Deutsches Strafgesetzbuch, Bundesgesetzblatt I, 3322) foresees up to ten years of imprisonment for founding, participation or membership in a ‘terrorist organisation’. s 129b applies to foreign organisations. For a thorough study of this type of organisational responsibility, see Ioannis Morozinis, Dogmatik der Organisationsdelikte (Duncker & Humblot 2010). 356 ISRAEL LAW REVIEW [Vol. 45:2 between the US and Al Qaeda exists, the only relevant question is whether he was still directly participating in hostilities.

• Secondly, bin Laden was not - at that time - actively participating in hostilities against the U.S.

• Thirdly, there was no armed conflict between the U.S. and Al Qaeda. The conflict between Al Qaeda and the US can certainly not be an international one. Reason: Al Qaeda is not a state. The conflict is not a "non-international armed conflict" either: that would require Al Qaeda to be an organized armed group.

The operation may also have violated international law by failing to respect Pakistan’s territorial sovereignty. Ultimately, this depends on the recognition of a (pre-emptive) right to self-defence under Article 51 of the UN Charter, in particular taking into account the immediacy criterion.

States must ensure that any measure taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law.3

• Target killings may may be admissible under international law under exceptional circumstances, but only in the context of an armed conflict in the first place. An armed conflict ...

We will then examine whether Al Qaeda constitutes an organised armed group under international humanitarian law (IHL) and which persons are to be considered as (de facto) combatants, distinguishing between ‘true’ civilians and civilians who participate directly in hostilities. We will then, in Section 3, discuss the legality of bin Laden’s killing during peacetime and, in Section 4, the admissibility of the operation under general public international law. reporting/2011/08/08/110808fa_fact_schmidle (confirming that ‘there were more missile strikes inside Pakistan during Obama’s first year in office than in George W Bush’s eight’). See also Neue Zürcher Zeitung, 20–21 November 2010, 17 December 2010 and 28 December 2010 Pointing out that during 2010 the American military attacked targets more than 110 times by means of unmanned drones in Pakistan; this number had doubled compared to the previous year); and Marc A Thiessen, ‘Obama’s Inheritance’ (2009) 172 World Affairs 74, 81. 3 UNSC Res 1456(2003), UN Doc S/RES/1456 (2003), 20 January 2003, para 6; and UNSC Res 1624(2005), UN Doc S/RES/1624 (2005), 14 September 2005, para 4. 4 For other terms used (‘precision warfare’, ‘surgical strikes’, ‘focused prevention’, ‘focused assassinations’, ‘pinpoint assassinations’, ‘smart bombs’, ‘pin-point accuracy’, ‘distant punishment’ and ‘distant firepower’), see Eyal Ben-Ari, ‘Between Violence and Restraint: Human Rights, Humanitarian Considerations, and the Israeli Military in the Al-Aqsa Intifada’ in Ted van Baarda and Désirée Verweij (eds), The Moral Dimension of Asymmetrical Warfare, Counter-Terrorism, Democratic Values and Military Ethics (Martinus Nijhoff 2009) 231, 241–42. 6 HCJ 769/02 The Public Committee Against Torture in Israel and Palestinian Society for the Protection of Human Rights The applicable law during armed conflict is primarily IHL, namely the law governing the admissible means and methods of warfare (‘Hague Law’)8 and the more recent law regarding the protection of the victims of armed conflict (‘Geneva Law’).9 IHL constitutes lex specialis to other legal regimes applicable in times of armed conflict, in particular international human rights law.

10 While IHL contains, from a formal source-based perspective, different rules for international11 and non-international12 armed conflicts (the ‘two-box approach’),13 in substance these rules have moved closer to one other and in large part have merged.14

In fact, the seminal jurisdictional decision of the Tadić Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) is based on an understanding of this approximation, extending the rules on individual criminal responsibility from international to non-international conflicts.15 Here and in other areas of the law governing armed conflicts, the more detailed law of international conflicts enriches and complements the often under-regulated law of non-international armed conflicts.16 Against this background it is quite unsurprising that, with regard to targeting decisions, it is acknowledged that ‘[t]here is a general consensus now’ that the respective principles ‘apply to armed conflict generally’ – that is, that ‘no distinction need be made between international and non-international armed conflict’.17 This explains why the US administration does not always bother to distinguish between the types of conflict in which its forces are involved.18 Of course, there are limits to this process of approximation. There are some ‘sacred cows’, like the formal combatant status which is only recognised in international armed conflicts. But even in this case it is undisputed that ‘fighters’ or (de facto)19 combatants exist also in non-international armed conflicts.20 Thus, the concept of ‘direct participation in hostilities’, discussed below with regard to bin Laden,21 is in fact nothing other than a paraphrase of the classical fighting activity of a combatant which, in turn, has a ‘right to participate directly in hostilities’.22 It is for these reasons that we apply in our analysis provisions of both conflict types analogously23 under the premise that for each situation the most precise and detailed provision available should be used – regardless of whether its formal source lies in the law of international or non-international armed conflict. In particular, with regard to an organised armed group, we submit that there should be no difference in definition and legal treatment depending on the type of conflict and its specific legal regime. Indeed, the fact that the law of non-international armed conflict does not explicitly define an armed group does not make such groups disappear; they still must be defined and the definition may reasonably be drawn from the more explicit law of international armed conflict.24 While the other relevant body of law – international human rights law – is applicable in principle both in armed conflict and in peacetime,25 and is especially relevant in casu by reason of its protection of the right to life,26 the question arises whether it can also be binding upon a state acting outside its own territory. While this may be disputed in light of the wording of Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR) referring to a state party’s territory and jurisdiction,27 we regard this question as substantively one of effective control and consequent responsibility. To be sure, one should not be able to claim a human rights violation against a state which cannot reasonably respond to this claim since the violation has taken place outside its territorial or any other control where it did not dispose of any means to effectively prevent the violation from occurring and protect the claimant. This was, however, not the situation in the case at hand: it is not about bin Laden (or any other alleged terrorist) claiming the obligation to protect his human dignity or personality in any abstract fashion28 from a state which has nothing to do with the interference with his right to life in the first place. Rather, the matter before us is peculiar in the sense that the person concerned is actively persecuted by the state concerned outside its territory. In the words of a seminal decision of the Inter-American Commission of Human Rights (IACHR), it is a case ‘where the person concerned is present in the territory of one state, but subject to the control of another state – usually through the acts of the latter’s agents abroad’.29 Concretely speaking, the US Special Forces did not only act on behalf of their country and had, at the time of the raid, de facto jurisdiction over Osama bin Laden, but had eventually found him at their mercy. In such a situation of control by a foreign state, it cannot avoid complying with the same human rights obligations binding upon it in its own territory. A state cannot be allowed to commit ‘violations … on the territory of another State, which it could not perpetrate on its own territory’.30

2.5 DIRECT PARTICIPATION IN HOSTILITIES While the questions surrounding modalities, duration and threshold of direct participation in hostilities are still highly contentious,118 it is generally agreed that the participant needs to accomplish acts which by their nature or purpose are likely to cause harm119 to military personnel or equipment of the adversary.120 Attacking or trying to capture members or weapons of the enemy armed forces, laying mines, planting or detonating bombs or sabotaging military lines of communication are all well-known examples of direct participation.121 The deployment to or retreat from places where the mentioned activities are carried out are also included in the definition of direct participation.122 Also, if harm is caused otherwise (to non-military targets), by killing civilians for example, direct participation still exists123 as long as the violence is linked to the conflict.124 On the other hand, immunity from attack can be renewed if the participants in question definitely and credibly withdraw from military activity, for example by handing over their weapons,125 or by a long period of non-participation.126 It is more controversial whether a short-term abstention from the fighting can qualify as a (definitive) withdrawal.127 The participant cannot walk through a ‘revolving door’,128 thereby losing and regaining protection as he 118 Jelena Pejic, ‘“Unlawful/Enemy Combatants”: Interpretations and Consequences’ in Michael N Schmitt and Jelena Pejic (eds), International Law and Armed Conflict: Exploring the Faultlines, Essays in Honor of Yoram Dinstein (Martinus Nijhoff 2007) 335, 337; ICC, Prosecutor v Bahar Idriss Abu Garda, Decision on the Confirmation of Charges, ICC-02/05-02/09, Pre-Trial Chamber I, 8 February 2010, [80] (‘neither treaty law nor customary law expressly define what constitutes direct participation in hostilities’). 119 Jean-François Quéguiner, ‘Le principe de distinction dans la conduite des hostilités’, thesis, University of Geneva, 2006, 326–27 (‘une menace directe et immédiate pour le belligérant adverse’). 120 ICTR, Prosecutor v Baglishema, Judgment, ICTR-95-1A, Trial Chamber I, 7 June 2001, [104]; Eric David, Principes de droit des conflits armés (4th edn, Bruylant 2008) 286. 121 Wearing a uniform, a distinctive sign and using weapons is sufficient according to Jan Roemer, Killing in a Gray Area Between Humanitarian Law and Human Rights (Springer 2010) 50. For further examples, see ICTY, Prosecutor v Strugar, Judgment, IT-01-42-A, Appeals Chamber, 17 July 2008, [177]. 122 Anthony Rogers, Law on the Battlefield (Manchester University Press 2004) 11–12. 123 Roemer (n 121) 55; David Kretzmer, ‘Civilian Immunity in War: Legal Aspects’ in Igor Primoratz (ed), Civilian Immunity in War (Oxford University Press 2007) 84, 91; Michael N Schmitt, ‘The Interpretive Guidance on the Notion of Direct Participation in Hostilities: A Critical Analysis’ (2010) 1 Harvard National Security Journal 5, 28. 124 For a detailed analysis of the belligerent nexus, see Frederik Strømme Legernæs, ‘Incompetent Resistance? Core Aspects of Civilian Direct Participation in Hostilities’, thesis, University of Oslo, 2009, 26. 125 Héctor Olásolo, Unlawful Attacks in Combat Situations: From the ICTY’s Case Law to the Rome Statute (Martinus Nijhoff 2008) 115. 126 In detail, Michael N Schmitt, ‘Targeting and International Humanitarian Law in Afghanistan’, in Schmitt (n 71) 307, 317. 127 Kai Ambos, ‘VStGB Vorbemerkungen §§ 8 ff’, in Wolfgang Joecks and others, Müncher Kommentar zum Strafgesetzbuch (1st edn, CH Beck 2009) 620, marginal note 42 with further references. 128 Term used for the first time byWHays Parks, ‘Air War and the Law of War’ (1990) 32 Air Force Law Review 1, 118. In detail, Yuval Shany, ‘Israeli Counter-Terrorism Measures: Are they “Kosher” under International Law?’ 2012] HAS ‘JUSTICE BEEN DONE’? 357 fancies;129 in other words, ‘a farmer by day and a fighter by night’ is regarded as directly taking part in hostilities, meaning he is a ‘fighter’ (fulfilling a continuous combat function) for the purpose of IHL.130 If one applies these principles to bin Laden, everything depends on his role and activity in the last months before his killing. Clearly, there is some room for speculation since precise and reliable information is lacking. While bin Laden certainly in the distant past participated directly in hostilities when he was still an active fighter on the battlefield or as an important strategist operating in and from Afghanistan,131 more recently he seems to have turned into a mere spiritual leader of Al Qaeda and had no further influence on concrete military operations.132 Isolated and hidden in his Pakistani refuge,133 bin Laden seemed no longer capable of filling the position of a military leader,134 regardless of his formal status or function within the network. His resignation from military activities might not have been voluntary, but it was definite nevertheless. Therefore, even the widest possible interpretation of what constitutes direct participation in hostilities cannot include bin Laden, at least as far as his role is known to the general public. Note that even if, despite the opposing indicia, one qualifies bin Laden as a legitimate military target, his killing would also have been illegal if he voluntarily surrendered or was otherwise hors de combat.135 Also, the killing must be genuinely targeted and collateral damage avoided to the extent possible.136 in Michael N Schmitt and Gian Luca Beruto (eds), Terrorism and International Law: Challenges and Responses (Nagard 2002) 96, 104. 129 Melzer (n 98) 353. 130 In detail Dewi Williams, ‘Tata, što si Ti radio u Velikom ratu’ – Izravno ucˇešće u neprijateljstvima i moguće rješenje za složsenu pravnu poziciju’ (‘Daddy, What did YOU do in the Great War?’ Direct Participation in Hostilities, a Possible Solution to a Fraught Legal Position’) thesis, University of Split, 2008, 830. 131 For an illustration, see Adam Robinson, Bin Laden (Arcade 2001) 266. 132 According to Alain Chouet, former head of the French secret service DGSE, ‘Osama bin Laden has not had any operational capacity since quite a while’ (quoted by Bletry, Verdier and Tallès (n 65)). See also Burke (n 65) 28ff and 293ff; Victor Korewa, La lutte contre le terrorisme d’Al-Qaida: Perspectives stratégiques (Connaissances et Savoirs 2008) 109 (‘Al-Qaida does not depend on bin Laden with regard to organisation and legitimacy’ (translation from French)); Van Schaack (n 85) (‘it is fair to query whether he still exercised any operational leadership at the time he was killed’); dissenting: Peter L Bergen, ‘Al-Qaeda, the Organization: A Five-Year Forecast’ (2008) 618 The Annals of the American Academy of Political and Social Science 14, 16; Corine Lesnes, ‘Saisi à Abbottabad, le journal d’Oussama Ben Laden est un “trésor” pour la CIA’, Le Monde, Paris, 13 May 2011, 8. This has recently been confirmed by bin Laden’s private documents, seized by the US during the Abbottabad raid and released through the West Point Combating Terrorism Center. The corresponding publication (Nelly Lahoud and others, ‘Letters from Abbottabad: Bin Laden Sidelined?’, Harmony Program, 3 May 2012, available at http://www.ctc.usma.edu) states that ‘the tone in several letters authored by bin Laden makes it clear that he was struggling to exercise even a minimal influence over [Al Qaeda’s affiliates]’ (13) and ‘On the basis of the 17 declassified documents, bin Laden was not, as many thought, the puppet master pulling the strings that set in motion jihadi groups around the world’ (52). According to Kretzmer (n 123) 93, general strategic analysis during armed conflict – as opposed to the effective selection of military targets – is not equal to direct participation in hostilities. 133 Bin Laden’s compound in Abbottabad had neither phone nor internet connection: see Schmidle (n 2). 134 See, however, Schmidle, ibid, claiming that ‘he had been developing plans to assassinate Obama and Petraeus’. 135 AP I, art 41 and GC I–IV, common art 3(1) (both n 11). According to Vincent-Joël Proulx, ‘If the Hat Fits Wear it, if the Turban Fits Run for Your Life: Reflection on the Indefinite Detention and Targeted Killings of Suspected Terrorists’ (2005) 56 Hastings Law Journal 801, 884 (targeted killings deny the victim the right to surrender). 136 See n 98 and accompanying text. 358 ISRAEL LAW REVIEW [Vol. 45:2 3. LEGALITY OF KILLING BIN LADEN DURING PEACETIME If, as argued in this article, the US is not at war with Al Qaeda, the applicable legal regime is exclusively that of peacetime. Thus, lethal force against any person, be it an ordinary citizen or a terrorist suspect, is, as a rule, prohibited by both criminal law and international human rights law,137 including customary international law.138 International human rights law does not distinguish between a targeted or untargeted killing, or between a killing executed by an unmanned drone or otherwise.139 Of course, the ban on the use of lethal force is not absolute. It knows two exceptions. First, international law does not prohibit the – still widely practised140 – death penalty as long as it is imposed after a fair trial by ‘a competent court’.141 A premeditated killing, before a trial or on the basis of a summary, unfair trial, is illegal. It constitutes an extrajudicial or extralegal execution or killing.142 The second exception follows from an e contrario interpretation of Article 6(1) ICCPR.143 The provision prohibits the ‘arbitrary deprivation’ of one’s life. This is generally understood as allowing for the use of lethal force in the defence of oneself or others or of imminent danger to oneself or others.144 The underlying general principles of criminal law, relevant to determine individual 137 Universal Declaration of Human Rights, UNGA Res 217A(III), UN Doc A/810 (1948), 10 December 1948, art 3 (‘Everyone has the right to life, liberty and security of person’); ICCPR (n 27) art 6(1) (‘Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life’); American Declaration of the Rights and Duties of Man (n 28) art 1 (‘Every human being has the right to life, liberty and the security of his person’). 138 Rudolf and Schaller (n 25) 14. With regard to US domestic law, see also Executive Order 12333 of the US President concerning intelligence activities (last amended in 2008), art 2.11 of which reads as follows: ‘No person employed by or acting on behalf of the United States Government shall engage in or conspire to engage in assassination.’ 139 Hélène Tigroudja, ‘Assassinats ciblés et droit à la vie dans la jurisprudence de la Cour suprême israélienne’ in Christian Tomuschat, Evelyne Lagrange and Stefan Oeter (eds), The Right to Life (Martinus Nijhoff 2010) 267, 274; Charli Carpenter and Lina Shaikhouni, ‘Don’t Fear the Reaper’, Foreign Policy, 7 June 2011, available at http://www.foreignpolicy.com/articles/2011/06/07/dont_fear_the_reaper. 140 Amnesty International points out that 60% of the world’s population lives in a country which practises capital punishment, in total one third of the world’s countries, available at http://www.amnesty.name/en/death-penalty/ numbers. 141 ICCPR (n 27) art 6(2) reads as follows: ‘In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.’ 142 UN Human Rights Council, Interim Report on the Worldwide Situation in regard to Extrajudicial, Summary or Arbitrary Executions submitted by Philip Alston, Special Rapporteur, UN Doc A/61/311, 5 September 2006, paras 33–45. 143 See n 27. 144 Kai Ambos, ‘Defences in International Criminal Law’ in Bartram S Brown (ed), Research Handbook on International Criminal Law (Edward Elgar 2011) 299, 307ff with further references. See also the Code of Conduct for Law Enforcement Officials, art 3, which read criminal responsibility (in casu of the Navy Seals who shot bin Laden), have been codified in Article 31(1)(c) – defence of oneself or another person – and Article 31(1)(d) – necessity and duress – of the ICC Statute.145 Of course, the application of self-defence in our case is predicated on the assumption that the Navy Seals had, in principle, a right to go after bin Laden and arrest him, for otherwise they would have to be considered to be attackers and thus could not resort to a right of self-defence in the first place. In any case, both ‘defences’ require, apart from certain conditions as to the use of force (proportionality), either an imminent use of force or an imminent danger for the person resorting to the use of lethal force.146 Concretely speaking, this means that bin Laden must have used such force or posed such a danger to the entering Navy Seals. If it is true that Osama bin Laden was unarmed when he was shot,147 such a scenario can, with a high probability, be ruled out. Even if such a use or threat of force, exercised by bin Laden, existed, it is implausible, given the expertise of the Special Forces employed,148 that bin Laden could not have been taken care of otherwise, for example by injuring149 instead of killing him with two targeted shots (one in the head, one in the chest).150 If the raiding Special Forces believed that an imminent attack did exist – that is, they were mistaken about the factual requirements of a self-defence situation (putative self-defence) – their mistaken belief would not make the killing a lawful act but only, at best, exclude the blameworthiness of the conduct and thus the culpability of the perpetrators.151 4. LEGALITY OF BIN LADEN’S KILLING UNDER GENERAL PUBLIC INTERNATIONAL LAW Any military or police operation on foreign territory requires the approval of the state concerned;152 otherwise the operation amounts to a violation of that state’s territorial integrity,153 protected by Article 2(4) of the UN Charter.154 This protection is not lifted for the purpose of a transnational operation against international terrorism. Quite the contrary, the relevant antiterrorism resolutions of the Security Council155 confirm the need for respect of the integrity of the territorial state concerne One may object to this view as too sovereignty-oriented and thus impractical in cases where a territorial state consciously tolerates the presence of (international) terrorists on its soil, supports their activities or, as a ‘failed state’, is simply unable to cope with them. Should another state, threatened by these terrorists, then not have the opportunity to invoke the right to (pre-emptive) self-defence under Article 51 of the UN Charter and carry out military operations against the terrorist groups hosted on foreign territory? To be sure, states are under a duty, based on treaty158 and customary international law,159 not to provide a safe haven for terrorist groups – at least to make sure that these groups do not attack other states from their territory.160 If they do not act against these groups, they commit an international wrongful act and incur state responsibility.161 Is it then, against this background, plausible to argue in favour of a right to self-defence for threatened or attacked states against the host state?162 We would call for a very cautious and restrictive approach with regard to a state’s right to (individual) self-defence (Article 51 UN Charter) as opposed to collective self-defence under Chapter VII of the UN Charter (Articles 39ff). It is important to note that, as far as the lex lata is concerned, the Security Council never explicitly authorised military operations on foreign territory to fight terrorists163 but only, time and again, repeated the obligation to cope with terrorist suspects via the classic principle of aut dedere aut iudicare (either to extradite or prosecute them).164 Thus, Resolution 1456(2003) demands in its paragraph 3 to ‘bring to justice those who finance, plan, support or commit terrorist acts or provide safe havens, in accordance with international law, in particular on the basis of the principle to extradite or prosecute’.165 instigating, assisting or participating in acts of civil strife or terrorist acts in another State’). See also Sven Peterke,Beyond that – that is, before the Security Council’s intervention, or in case of insufficient action by the Council – Article 51 of the UN Charter can only be invoked if there exists an immediate threat of a terrorist attack which can only be prevented by the immediate use of force and does not allow time to wait for the Security Council to act. Thus, the key criterion is ‘immediacy’; if it is lacking, or if the Security Council has taken appropriate measures, it clearly follows from the wording of Article 51 that self-defence cannot be invoked.166 In fact, this is the situation with regard to the general threat of international terrorism because, since September 11, the Security Council has taken control of the situation and acted accordingly. To be sure, if there is a concrete threat and the Security Council does not react appropriately, the threatened state must have the opportunity to react by invoking Article 51 of the UN Charter. In any case, a temporal element like immediacy raises many line-drawing problems and thus it is not surprising that those authors who advocate a broad right to individual self-defence remain either silent or imprecise when it comes to defining the exact circumstances under which it may still be permissible or already prohibited to use force under Article 51 of the UN Charter.167 Finally, it should not be overlooked that the broad approach – whoever may defend it – clearly benefits only those states which have the military capacity to use force extraterritorially: essentially military superpowers like the US, Russia and China. This may explain why it is mainly authors from these states, in particular from the US military establishment, who call for a broad interpretation of self-defence. 5. CONCLUSION The killing of Osama bin Laden by the US Special Forces does not withstand the test of a careful legal analysis. With regard to IHL as the most pertinent legal regime, if, contrary to our view, one assumes that an armed conflict between the US and Al Qaeda exists, the US operation most probably caused the death of a civilian who was no longer taking a direct part in hostilities. If he still was a ‘fighter’, he may have been, at the moment of the killing, hors de combat. It is only if one Suppression of Terrorist Bombings, art 6(4); International Convention for the Suppression of the Financing of Terrorism, art 7(4); International Convention for the Suppression of Acts of Nuclear Terrorism, art 9(4) (all n 158) (‘Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over the offences set forth in article 2 in cases where the alleged offender is present in its territory and it does not extradite that person to any of the States Parties which have established their jurisdiction in accordance with paragraph 1 or 2’). 166 UN Charter (n 154) art 51 reads in the relevant part: ‘until the Security Council has taken measures’. On the principle of immediacy and the subsidiary character of self-defence measures in light of the Security Council action, see Antonio Cassese, ‘Article 51’ in Jean-Pierre Cot, Alain Pellet and Mathias Forteau (eds), La Charte des Nations Unies, Commentaire article par article (3rd edn, Economica 2005) 1329, 1333; Albrecht Randelzhofer, ‘Article 51’ in Bruno Simma and others (eds), The Charter of the United Nations, A Commentary (2nd edn, Oxford University Press 2002) 788, 790 and 792; Murphy (n 85) 130ff. See, however, Kenneth Anderson, ‘Bleg vor Harold Koh’s ASIL Speech’, available at http://opiniojuris.org/2010/03/25/blegfor- harold-kohs-asil-speech (stating ‘that sovereignty and territorial integrity are important, but the US preserves its rights to go after its enemies in their safe havens’). 167 See references in n 162. 364 ISRAEL LAW REVIEW [Vol. 45:2 qualifies, again contrary to our view, Al Qaeda as an organised armed group within the meaning of IHL that bin Laden could have been killed qua membership. Under international human rights and ordinary (international or domestic) criminal law, both applicable in peacetime, the legal situation is even clearer: the killing of bin Laden amounts to an extrajudicial killing forbidden under general human rights law; the facts so far known do not suggest that the Special Forces acted out of self-defence. Ultimately, the US operation, taking place without the knowledge of the Pakistani authorities, violated the territorial sovereignty of the latter. This latter violation may be justified only on the basis of individual self-defence168 if one considers that the immediacy requirement of this provision is met and the Security Council did not take appropriate action. Beyond these complex and indeed contentious legal questions, the much more fundamental question arises whether we are prepared to accept an international order in which the few military superpowers are allowed to play the role of global police and send out their swat teams to other countries to eliminate their alleged enemies. While this may be acceptable and even desirable for many in the case of an international terrorist network like Al Qaeda, it raises the question of where to draw the line with regard to the still permissible extraterritorial use of force and prohibited extrajudicial killings on foreign territory. One wonders, for example, how the extraterritorial killing of alleged pirates, by the very same Special Forces who hunted down bin Laden, in an operation to liberate abducted Western tourists in Somalia can be justified under international law.169 For it is not only contested generally that a state can invoke the right to self-defence to liberate its citizens abducted by criminals in a foreign country170 but, more importantly, this state certainly has not, in a classical law enforcement operation, the right to kill all the kidnappers on the spot (unless the criminal law of self-defence applies).171 Of course, as is common in this kind of operation, we do not know exactly how the operation took place but, worryingly, the Obama administration does not even bother to provide information which would enable interested citizens to assess the legality of the operation.172 Instead, it has been celebrated as the ‘hallmark’ of future US military activities abroad.173 Would our opinion on the legality of such 168 UN Charter (n 154) art 51. 169 The mission was once again conducted by the US ‘Team 6’ of Navy Seals, the entity which also carried out bin Laden’s killing: Karen DeYoung and Greg Jaffe, ‘Navy SEALs Rescue Kidnapped Aid Workers Jessica Buchanan and Poul Hagen Thisted in Somalia’, The Washington Post, Washington, 25 January 2012, available at http:// www.washingtonpost.com/world/national-security/us-forces-rescue-kidnapped-aid-workers-jessica-buchananand- poul-hagen-thisted-in-somalia/2012/01/25/gIQA7WopPQ_story.html. 170 Dissenting, for example, Peterke (n 159) 212. 171 Thom Shanker, ‘Djibouti Outpost Behind Somalia Rescue is Part of New Defense Strategy’, New York Times, New York, 26 January 2012, A14. According to DeYoung and Jaffe (n 169), the kidnapers were supposed to be heavily armed but none of the US Special Forces was injured. See also Peter Winkler, ‘Kühne Geiselbefreiung der USA in Somalia’, Neue Zürcher Zeitung, Zurich, 26 January 2012, 3, available at http://www.nzz.ch/nachrichten/ politik/international/kuehne_geiselbefreiung_der_usa_in_somalia_1.14536644.html. 172 ‘This program rests on the personal legitimacy of the president’, says former CIA director, Michael V Haydenis; quoted by McManus (n 31). 173 cf DeYoung and Jaffe (n 169). See also Eric Schmitt, Mark Mazzetti and Thom Shanker, ‘Admiral Seeks Freer Hand in Deployment of Elite Forces’, New York Times, New York, 12 February 2012, A1 (pointing out that ‘[t]he officer, Admiral William H McRaven, who leads the Special Operations Command, is pushing for a larger role for 2012] operations change if we, for the sake of argument, replace ‘USA’ with ‘China’, ‘Russia’ or ‘Iran’? To return to the killing of bin Laden or other (alleged) ‘terrorists’, we have to seriously ask ourselves if we want to deprive our ‘terrorist enemies’ of their right to life and other fundamental human rights and declare them military fair game. Concretely, we have to ask ourselves if the reason why most of us intuitively tend to consider the bin Laden killing ‘right’ lies in his prominence as public enemy number one and the fact that he was killed by our allied US forces. If so, should we then not be more careful in our discussion of the killing? Should we not, right at the outset, abstain from any legal assessment if we cannot distance ourselves from our irrational intuitions, given that legal rules, which per definitionem pretend to claim universal validity and applicability to similar, comparable situations, cannot be developed on the basis of such intuitions? To ask all these questions is tantamount to answering them in the negative. The moral and political superiority of a free and democratic society dictates that it treats its enemies as persons with minimal rights at least and does not do as the enemy does – act with barbarism and contempt for mankind. It does not wage ‘war’ against terrorists, but combats them with a fair and proportional criminal law. It acts, as rightly stated in UNSC Resolution 1456(2003), quoted at the start of this article, ‘in accordance with international law, in particular international human rights, refugee, and humanitarian law’174 in the fight against terrorism. This does not exclude the use of force and even the killing of terrorists as ultima ratio, but only by respecting the rules and conditions set out above. This alone ensures the kind of justice that has been promoted particularly by the US since Nuremberg. And this is the only foundation from which we can triumph over the terrorist injustice. his elite units who have traditionally operated in the dark corners of American foreign policy’). See, with regard to another targeted killing, the comment of former CIA director, Michael V Haydenis: ‘We needed a court order to eavesdrop on him … but we didn’t need a court order to kill him. Isn’t that something?’; quoted by McManus (n 31). 174 UNSC Res 1456(2003) and UNSC Res 1624(2005) (both n 3). Against this wording the statement of the (French) President of the Security Council on its behalf on 2 May 2011 after Osama bin Laden’s death (S/PRST/2011/9) is questionable: ‘The Security Council welcomes the news on 1 May 2011 that Osama bin Laden will never again be able to perpetrate such acts of terrorism’.

The Second Code

Praxeology: unveiling guiding norms and values

Look for empirical regularities. Acting on foreign soil, pressuring foreign governments, do as one pleases, no conditional programming, teleological and theological programming Münker: that's asymmetric warfare. Adapting to the terrorist mode of action.

Legitimizing Images

Natural Law? Eschatology? Apokalyptic rhetoric. Good vs. Evil. Popular Imagery.

Criminological Questions

Motivation to Kill

• FBI Typology
• Obedience to Authority
• Techniques of Neutralization

Literature & Weblinks

• Ambos, Kai & Josef Alkatouta (2012) Has 'Justice been done'? The legality of bin Laden's killing under international law. Israel Law Review 45, 2012: 341-366.
• Death of Osama bin Laden in: en.wikipedia
• Lubell, Noam (2010) Extraterritorial Use of Force Against Non-State Actors. Oxford: Oxford University Press.
• Paulus, Andreas & Mindia Vashakmadze (2009) Asymmetrical War and the Notion of Armed Conflict – a Tentative Conceptualization ICRC Review 95, 117.
• Scahill, Jeremy (2011) ‘Osama’s Assassins’, The Nation, New York, 4 May
• Schmidle, Nicholas (2011) Getting Bin Laden – What Happened That Night in Abbottabad, The New Yorker 8 August.
• Wieczorek,Judith Unrechtmäßige Kombattanten und humanitäres

Völkerrecht (Duncker & Humblot 2005)

• Zimmermann, Andreas (2008) ‘Article 8’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International

Criminal Court (Beck/Hart)

• Werle, Gerhard (2007) ‘Individual Criminal Responsibility in

Article 25 ICC Statute’ 5 Journal of International Criminal Justice

• Guénaël Mettraux, International Crimes and

the Ad Hoc Tribunals (Oxford University Press 2005) 36ff

• Herfried Münkler, The New Wars (Polity 2004).
• Claus Kreß, ‘On the Outer Limits of Crimes Against Humanity: The Concept of Organization within the Policy Requirement. Some

Reflections on the March 2010 ICC Kenya Decision’ (2010) 23 Leiden Journal of International Law 855, 862)

• Jordan J Paust, ‘Self-Defence Targetings of Non-State Actors and Permissibility of US Use of Drones in

Pakistan’ (2009–10) 19 Journal of Transnational Law & Policy 237, 260 (‘some non-state actors, such as al Qaeda, do not meet the test for insurgent status’); Lubell (n 55) 118 (‘As for Al-Qaeda it is hard to conclude that it currently possesses the characteristics of a party to a conflict’). Dissenting, however, see Solis, The Law of Armed Conflict (n 7) 205, for whom Al Qaeda – without further arguments – constitutes an organised armed group. 65 See statement of Alain Chouet, former head of the French secret service DGSE (‘But which organisation are you talking about?’), quoted by Nadia Bletry, Marie Verdier and Olivier Tallès, ‘La mort de ben Laden ne met pas fin au terrorisme’, La Croix, Paris, 3 May 2011, available at http://www.la-croix.com/Actualite/S-informer/ 2012]

Christian Schaller, ‘Gezielte Tötungen und der Einsatz von Drohnen – Zum Rechtfertigungsansatz der Obama-Administration’ (2011) 24 Humanitäres Völkerrecht- Informationsschriften 91, 95. Rudolf and Schaller (n 25) 16 (identifying a non-international armed conflict throughout the entire Pakistan territory independent of any spillover effect from the Afghan conflict). 80 E-mail of the Pakistan Permanent Mission to the international organisations in Geneva to the authors, 31 May 2011.