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== The Assault == | == 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 in the shape of a V. | |||
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" [http://www.dailymail.co.uk/news/article-2276972/Navy-SEAL-describes-moment-shot-Osama-bin-Laden-3-times-head.html]. | 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" [http://www.dailymail.co.uk/news/article-2276972/Navy-SEAL-describes-moment-shot-Osama-bin-Laden-3-times-head.html]. | ||
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. | |||
[[Datei:Osama_bin_Laden_watching_TV_at_his_compound_in_Pakistan-3.jpg|200px|thumb|right| 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. | |||
international | |||
"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. | |||
to | |||
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 | |||
and concerted military operations’. | |||
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 | 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 | control may not be invoked as a definitional prerequisite of an armed group. In fact, it is plausible | ||
Zeile 265: | Zeile 66: | ||
part of their military tactics. Yet, all this flexibility cannot replace the – still reasonable – criteria | 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 | of a military-like internal hierarchical structure and the capacity ‘to carry out sustained and concerted | ||
military operations’. | 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 | 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 | been regarded as an organised armed group (like the military branches of the Hezbollah and the | ||
Zeile 273: | Zeile 75: | ||
which are attributed to, or claimed by, the network might have occurred to bin Laden’s satisfaction | 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 | 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. | 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 | While it is beyond dispute that an armed conflict between the Karzai government and the Taliban | ||
takes place in Afghanistan, | 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 | 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 | ||
of the Karzai government and thus as a party on the government side in its non-international | 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 | |||
armed conflict against the Taliban; | |||
the conflict. | |||
that the Taliban, or at least a part of it, has been an ally of Al Qaeda. | |||
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 | 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, | 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 | 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 | ||
Qaeda existed. | retreat of its forces and, above all, Al Qaeda to Pakistan and other countries. At the current | ||
retreat of its forces and, above all, Al Qaeda to Pakistan and other countries. | |||
state of affairs, given the Taliban and Al Qaeda presence in Pakistan, one could qualify, at | 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 | best, the conflict between Pakistan and the Taliban operating on Pakistani territory as a noninternational | ||
armed | 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 | ||
operations against Taliban or Al Qaeda terrorists and, in any case, only speaks of a ‘law enforcement | operation’). | ||
operation’). | |||
As for the involvement of the US, one would have to argue, with a view to an armed conflict | 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 | ||
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 | argument and ignore the facts on the ground. To be sure, while an armed conflict, meeting the | ||
Tadić criteria, | 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 | 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 | ||
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 | 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 | not only situated outside a reasonable ‘spillover’ area (about 160 kilometres away from the Afghan border), but also outside the actual Pakistan battle zone. | ||
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 | 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 | Pakistan, but with the US claim of a worldwide ‘war’ against Al Qaeda irrespective of any territorial | ||
link whatsoever. | link whatsoever. | ||
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 | 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 | |||
Pakistan’s tribal lands as one single non-international armed conflict in Afghanistan, see Dinstein (n 74) | |||
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 | 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 | 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 | 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. | 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 | 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 | impossibility to determine the conflict’s territorial spread, see Matthew J Machon, ‘Targeted Killing as an | ||
Zeile 397: | Zeile 146: | ||
TomDispatch, New York, 19 February 2012, available at http://www.tomdispatch.com/post/175505/tomgram% | TomDispatch, New York, 19 February 2012, available at http://www.tomdispatch.com/post/175505/tomgram% | ||
3A_andrew_bacevich%2C_uncle_sam%2C_global_gangster. | 3A_andrew_bacevich%2C_uncle_sam%2C_global_gangster. | ||
planet would thus become a battlefield without bounds, and the classic understanding of an | 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 | armed conflict linked to state territory and involving a specific military confrontation would | ||
lose all its restraining and humanising force. | lose all its restraining and humanising force. | ||
2.4 COMBATANT AND CIVILIAN STATUS | 2.4 COMBATANT AND CIVILIAN STATUS | ||
Let us, for the sake of argument, assume that there exists an armed conflict between the US and | 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 | 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, | 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 | 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 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 | 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) | terminological dispute with regard to the notion of combatancy90 – to be qualified as (de facto) | ||
Zeile 863: | Zeile 612: | ||
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 | ||
Zeile 1.129: | Zeile 973: | ||
Hand in Deployment of Elite Forces’, New York Times, New York, 12 February 2012, A1 (pointing out that ‘[t]he | 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 | officer, Admiral William H McRaven, who leads the Special Operations Command, is pushing for a larger role for | ||
2012] | 2012] | ||
operations change if we, for the sake of argument, replace ‘USA’ with ‘China’, ‘Russia’ or | operations change if we, for the sake of argument, replace ‘USA’ with ‘China’, ‘Russia’ or | ||
‘Iran’? | ‘Iran’? | ||
Zeile 1.162: | Zeile 1.006: | ||
Laden will never again be able to perpetrate such acts of terrorism’. | Laden will never again be able to perpetrate such acts of terrorism’. | ||
== Weblinks == | == Unwritten Law == | ||
== 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. | |||
*[http://en.wikipedia.org/wiki/Death_of_Osama_bin_Laden Death of Osama bin Laden in: en.wikipedia] | *[http://en.wikipedia.org/wiki/Death_of_Osama_bin_Laden 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. | |||
* [http://www.thenation.com/article/160447/osamas-assassins. Scahill, Jeremy (2011) ‘Osama’s Assassins’, The Nation, New York, 4 May] | |||
*[http://www.newyorker.com/ 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. |