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*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 reuqired bin Laden to be a member of an "organised armed group" in the sense of the law
*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.


*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 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
1. INTRODUCTION: THE APPLICABLE INTERNATIONAL LAW
As mentioned at the start of this article,5 the Obama administration
has more than doubled the Bush Jnr administration’s use of the measure. Given their
normally transnational and secretive character, targeted killings pose a particular challenge
to international law. While they may be admissible under international law6 under exceptional
circumstances, there is consensus among scholars that this presupposes the existence of an
ongoing armed conflict in the first place.7 For this reason this article will focus on the legality
of targeted killings during armed conflict (Section 2). The discussion will start with the logically
first question whether such a conflict exists at all between the US and Al Qaeda and, if so,
where it takes place, in order to then inquire, arguendo, whether the killing of bin Laden would
have been admissible under such a 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.
5 See n 2.
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
Studies 5,
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. THE LEGALITY OF BIN LADEN’S KILLING DURING ARMED CONFLICT
2.1 EXISTENCE OF AN ARMED CONFLICT BETWEEN AL QAEDA AND THE US?
According to the official US position there is a – not further qualified (international or noninternational)
According to the official US position there is a – not further qualified (international or noninternational)
– armed conflict (‘war on terror’) with Al Qaeda.31 In our view this position is legally
– armed conflict (‘war on terror’) with Al Qaeda.31 In our view this position is legally
Zeile 171: Zeile 68:
of the territory by a non-state actor;44 it does not encompass an exclusive conflict between non-state
of the territory by a non-state actor;44 it does not encompass an exclusive conflict between non-state
actors.
actors.
What is clear from these definitions is that the conflict between Al Qaeda and the US can certainly
What is clear from these definitions is that (on the spillover argument, see
not be an international one since Al Qaeda does not qualify as a state (on the spillover argument, see
Section 2.3 below).As for non-international conflicts, it follows from the available definitions, notwithstanding
Section 2.3 below).As for non-international conflicts, it follows from the available definitions, notwithstanding
their differences in detail, that the existence of an ‘organised armed group’, as an adversarytoa
their differences in detail, that the existence of an ‘organised armed group’, as an adversarytoa
Zeile 855: Zeile 751:
between the US and Al Qaeda exists, the only relevant question is whether he was still directly
between the US and Al Qaeda exists, the only relevant question is whether he was still directly
participating in hostilities.
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
2.5 DIRECT PARTICIPATION IN HOSTILITIES
While the questions surrounding modalities, duration and threshold of direct participation in hostilities
While the questions surrounding modalities, duration and threshold of direct participation in hostilities
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