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== Legal Justifications ==
== Legal Justifications ==
Political representatives are bound by the laws of their lands, and that is what they are being sworn into at the beginning of their office. Hence, they should identify "justice" with "conforming to the rule of law"; but was the killing a legally sound affair?


*Self-defense. There was no immiment threat by bin Laden to those who broke into his compound at Abottabad at night. This excludes the possibility of self-defense as a justification of the killing.
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.  


*The laws of war. In their article "Has 'Justice been done'? The legality of bin Laden's killing under international law" (Israel Law Review 45, 2012: 341-366) Kai Ambos and Josef Alkatouta argue that the killing does not benefit from the rules of war, since
=== Law of Peace ===
**the killed person had not - at the given time - taken part in hostilities and that the killing, therefore, was an unlawful one. Extralegal executions are punishable as homicides.
*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.  
 
*member of an "organised armed group" in the sense of the law (in which case he could have been killed qua membership and regardless of his activities).


In the case of Bin Laden, there was neither an armed conflict between the U.S. and Al Qaeda, nor participated bin Laden in hostilities nor was there an organized armed group.  
*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.  


In spite of the ease with which international law regards killings as lawful, it cannot justify the killing of bin Laden.


=== Law of Peace ===
=== Law of War ===
Peacetime law requires a situation of self-defence or an immediate danger for others if a killing is to be justified. None of this existed in the case of bin Laden, qualifying the action as an extrajudicial execution.
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.


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.
*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.


2 Jeremy Scahill, ‘Osama’s Assassins’, The Nation, New York, 4 May 2011, available at http://www.thenation.
"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
com/article/160447/osamas-assassins. See also Nicholas Schmidle, ‘Getting Bin Laden – What Happened That
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."
Night in Abbottabad’, The New Yorker, New York, 8 August 2011, available at http://www.newyorker.com/


States must ensure that any measure taken to combat terrorism comply with all their obligations under
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.
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
‘Targeted killings’4 have become an important weapon in the fight against international terrorism
since 11 September 2001. 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
The group must demonstrate a minimum degree of collectivity and central organisation, be organised in a hierarchic manner,
2.1 EXISTENCE OF AN ARMED CONFLICT BETWEEN AL QAEDA AND THE US?
and – as required by Additional Protocol II – it should have the capacity ‘to carry out sustained and concerted military operations’.
According to the official US position there is a – not further qualified (international or noninternational)
Admittedly, one may apply with certain flexibility the classical criteria that qualifies an organised armed group in
– armed conflict (‘war on terror’) with Al Qaeda.31 In our view this position is legally
flawed on the basis of an analysis of the applicable IHL. Starting the analysis with the definition
of ‘armed conflict’, one has to acknowledge first that written IHL assumes a conflict but
does not define the concept explicitly.32 As for international armed conflict, a commonly
accepted definition is that given by the already quoted Tadić jurisdictional decision, which is
based on common Article 2 of the Geneva Conventions (GC) I–IV.33 Accordingly, ‘an armed
conflict exists whenever there is a resort to armed force between States’.34 Interestingly, there
is no requirement for a certain threshold of violence or duration.
As for non-international armed conflicts, several standards exist, depending on the intensity of
the conflict and the attributes of the non-state actor(s) involved. Common Article 3GCI–IV35 refers,
without further clarification, to an ‘armed conflict not of an international character’.36 Article
8(2)(d) of the Statute of the International Criminal Court (ICC Statute)37 adopts the same
approach.38 In contrast, Article 8(2)(f) of the ICC Statute39 requires a ‘protracted’40 conflict, adopting
the part of the ICTY Tadićruling where it is stated that ‘an armed conflict exists whenever there
is a resort to…protracted armed violence between governmental authorities and organized armed
groups or between such groups within a State’.41 Ultimately, most restrictively,42 Article 1(1) of
Additional Protocol II43 requires the involvement of a state actor and the control of at least part
of the territory by a non-state actor;44 it does not encompass an exclusive conflict between non-state
actors.
What is clear from these definitions is that the conflict between Al Qaeda and the US can certainly
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
their differences in detail, that the existence of an ‘organised armed group’, as an adversarytoa
state party to an armed conflict, is required. Thus, the question arises whether Al Qaeda qualifies as an
organised armed group and thus can be party to a possible armed conflict with the US.
2.2 AL QAEDA AS AN ORGANISED ARMED GROUP UNDER IHL?
In an international armed conflict the qualification of a group of persons as ‘organised armed
group’ implies that all group members45 are not protected by civilian immunity and thus
constitute legitimate military targets.46 In a non-international armed conflict it is controversial
whether the same applies to group members, who formally remain civilians per their membership
of an armed group,47 or whether only the exercise of a so-called ‘continuous combat function’
results in the loss of their immunity for the duration of the conflict.48 While the former view
can be justified with the equal treatment of group members and states’ combatants, the latter
view may better accommodate the structural difference between a state and a non-state actor.
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 attacks49 –
requires something more than mere membership, namely continuous preparation, execution or
command of ‘acts or operations amounting to direct participation in hostilities’.50 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’.51 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.52
In any case, 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.53 Thus, the respective group’s features ought to
resemble those of a state as the paradigmatic party to a conflict.54 The group must demonstratea minimum degree of collectivity and central organisation,55 be organised in a hierarchic manner,
56 and – as required by Additional Protocol II – it should have the capacity ‘to carry out sustained
and concerted military operations’.57 While, admittedly, the traditional criterion of some
form of territorial control, notwithstanding its recognition in Additional Protocol II,58 has lost
importance in light of the new ‘asymmetric’ and highly dynamic conflicts59 in the so-called
‘new wars’,60 it still serves as a useful indicator61 for the existence of an ‘organisational policy’.62
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.63
These criteria are not met by a loose and decentralised terrorist network such as Al Qaeda.64
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.65 The obscure geographic situation
the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01/09,
Pre-Trial Chamber II, 31 March 2010, [51].
55 Rudolf and Schaller (n 25) 16. The ICTY lists ‘the existence of a command structure and … headquarters’
amongst its ‘indicative factors’: Prosecutor v Haradinaj/Balaj/Brahimaj, Judgment, IT-04-84-T, Trial Chamber
I, 3 April 2008, [60]. For a minimum degree of organisation: Andreas Paulus and Mindia Vashakmadze,
‘Asymmetrical War and the Notion of Armed Conflict – a Tentative Conceptualization’ (2009) 873 ICRC
Review 95, 117. According to Noam Lubell, Extraterritorial Use of Force Against Non-State Actors (Oxford
University Press 2010) 110: ‘it appears unquestionable that a minimum level of organisation must exist’.
56 GC III (n 11) art 4(A)(2)(a). See also Judith Wieczorek, Unrechtmäßige Kombattanten und humanitäres
Völkerrecht (Duncker & Humblot 2005) 75ff.
57 AP II (n 12) art 1(1). See also with regard to ICC Statute (nn 37 and 54), art 7(2).
58 See n 44 and accompanying text.
59 Andreas Zimmermann, ‘Article 8’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International
Criminal Court (Beck/Hart 2008) marginal number 351; Gerhard Werle, ‘Individual Criminal Responsibility in
Article 25 ICC Statute’ (2007) 5 Journal of International Criminal Justice, marginal number 953; Bahia
Tahzib-Lie and Olivia Swaak-Goldman, ‘Determining the Threshold for the Application of International
Humanitarian Law’ in Liesbeth Lijnzaad, Johanna van Sambeck and Bahia Tahzib-Lie (eds), Making the Voice
of Humanity Heard (Martinus Nijhoff 2004) 239, 246; Kai-Michael König, Die völkerrechtliche Legitimation
der Strafgewalt internationaler Strafjustiz (Nomos 2003) 380ff; Guénaël Mettraux, International Crimes and
the Ad Hoc Tribunals (Oxford University Press 2005) 36ff; Paulus and Vashakmadze (n 55) 117–19.
60 See, for this expression, Herfried Münkler, The New Wars (Polity 2004).
61 Decision Pursuant to Article 15 (n 54) [93].
62 While this requirement is taken from ICC Statute (n 37) art 7(2)(a), it refers back to ‘organised armed groups’
within the meaning of AP II (n 12) art 1(1) for non-international armed conflicts (see 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)
and may therefore be applied in our context.
63 Ipsen (n 45) 84ff. The ICTY requires at least ‘the ability to exercise some control over its members’: Prosecutor
v Boškoski/Tarˇculovskias (n 44) [196].
64 See 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] HAS ‘JUSTICE BEEN DONE’? 349
in the Afghan-Pakistani border area66 does not allow for a precise determination as to who effectively
controls this area; it is highly questionable whether Al Qaeda exercises any territorial control
which comes close to the Article 1(1) of Additional Protocol II threshold. 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
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 259: 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’.67 While, with the attacks of 11 September 2001, Al Qaeda has shown
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 267: 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.70
meaning of IHL, dispose of direct authority on subordinated individuals.
2.3 TERRITORIAL EXTENSION OF THE CONFLICT IN AFGHANISTAN (THE ‘SPILLOVER EFFECT’)?
 
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,71 the international or non-international nature of this conflict is less
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 Force72 as an extension
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
Monde/La-mort-de-Ben-Laden-ne-met-pas-fin-au-terrorisme-_NG_-2011-05-02-607984. See also Jason Burke,
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
Al-Qaida, La veritable histoire de l’islam radical (La Découverte 2005) 19 and 25ff; Leah Farrall, ‘How al
Qaeda Works’ (2011) 90 Foreign Affairs 128, 133; Felix Boor, ‘Der Drohnenkrieg in Afghanistan und
Pakistan‘ (2011) 24 Humanitäres Völkerrecht-Informationsschriften 97, 101; Rudolf and Schaller (n 25) 18. In
the same sense, see Wieczorek (n 56) 189 and Lubell (n 55) 119 (‘al Qaeda franchises’).
66 Eric Schmitt and Thom Shanker, ‘In Long Pursuit of Bin Laden, The ’07 Raid, and Frustration’, New York
Times, New York, 6 May 2011, A1.
67 See n 57.
68 With regard to the qualification of these groups as organised armed groups, see Laurie R Blank, ‘Finding Facts
but Missing the Law: The Goldstone Report, Gaza and Lawfare’ (2010–11) 43 Case Western Reserve Journal of
International Law 279 passim. See also Laurie R Blank, ‘The Application of IHL in the Goldstone Report: A
Critical Commentary’ (2009) 12 Yearbook of International Humanitarian Law 347, 401, in which the Hamas is
described as ‘a non-state entity’.
69 Farrall (n 65) 135.
70 Ian Hamel, L’énigme Oussama Ben Laden (Payot 2008) 299; Alain Rodier, Al-Qaida, les connexions mondiales
du terrorisme (Ellipses 2006) 190.
71 Adam Roberts, ‘Afghanistan and International Security’ in Michael N Schmitt (ed), The War in Afghanistan: A
Legal Analysis (Department of the Navy 2009) 3, 9; Boor (n 65) 100.
72 For a detailed description of the western military coalition in Afghanistan, including Operation Enduring
Freedom, dominated by the US, see Alan Cole, ‘Legal Issues in Forming the Coalition’, in Schmitt (n 71) 141.
350 ISRAEL LAW REVIEW [Vol. 45:2
armed conflict against the Taliban;73 or one may argue that the alliance is an actor which internationalises
the conflict.74 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.75 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
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.77 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
retreat of its forces and, above all, Al Qaeda to Pakistan and other countries.78 At the current
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 conflict79 (although Pakistan itself does not engage, by and large, in 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’).80
 
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
73 cf Generalbundesanwaltschaft (German Attorney General), Press release 8/2010, 19 April 2010 (case of
Oberst Klein regarding bombing of tanks in Kunduz), para 1, available at http://www.generalbundesanwalt.
de/de/showpress.php?themenid=12&newsid=360; Kai Ambos, ‘Afghanistan-Einsatz der Bundeswehr und
Völker(straf)recht’ (2010) 63 Neue Juristische Wochenschrift 1725, 1726.
74 See Yoram Dinstein, ‘Terrorism and Afghanistan’ in Schmitt (n 71) 43, 51 and 53; generally, for an international
armed conflict if the territorial state is assisted by external forces: Rosemary Abi-Saab, Droit humanitaire
et conflits internes (Pedone 1986) 109ff.
75 Bruce Riedel, ‘Pakistan: The Critical Battlefield’ (2008) 107 Current History 355, 355; Shaun Gregory, ‘The ISI
and the War on Terrorism’ (2007) 30 Studies in Conflict & Terrorism 1013, 1019; Dinstein (n 74) 52 (‘intimate
relationship’).
76 UNSC Res 1368(2001), UN Doc S/RES/1368 (2001), 12 September 2001, para 3; UNSC Res 1373(2001), UN
Doc S/RES/1373 (2001), 28 September 2001, Preamble.
77 In this vein, see Lubell (n 55) 88.
78 On the Taliban in Pakistan, see Gregory (n 75) 1024ff; Bruce Riedel, ‘Pakistan and Terror: The Eye of the
Storm’ (2008) 618 The Annals of the American Academy of Political and Social Science 31, 32; Thiessen
(n 2) 78ff; Amir Mir, Talibanization of Pakistan (Pentagon Press 2009) 1; Nasreen Akhtar, ‘Pakistan,
Afghanistan, and the Taliban’ (2008) XXV International Journal on World Peace 49, 50. On Al Qaeda’s presence
in Pakistan, see Imtiaz Gul, The Al Qaeda Connection, The Taliban and Terror in Pakistan’s Tribal Areas
(Penguin Global 2009) 26ff; Riedel (n 75) 355. For a description of a growing co-operation between the
Pakistani Taliban and Al Qaeda, see Mir ibid 9 and 14; Christian Schaller, ‘Gezielte Tötungen und der Einsatz
von Drohnen – Zum Rechtfertigungsansatz der Obama-Administration’ (2011) 24 Humanitäres Völkerrecht-
Informationsschriften 91, 95.
79 cf ICRC, Annual Report (2010) 260, available at http://www.icrc.org/eng/resources/annual-report/index.jsp;
Boor (n 65) 100; Schaller (n 78) 94. 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. See also, with regard to the ‘intensity’ criterion for the qualification as armed conflict, Prosecutor v
Boškoski/Tarˇculovskias (n 44) [177] as well as Prosecutor v Haradinaj/Balaj/Brahimaj (n 55) [49].
2012] HAS ‘JUSTICE BEEN DONE’? 351
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,82 may entail ‘spillover effects’ such as those caused by the retreat of one of 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
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.85 Thus, we are, in fact, not concerned
 
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.86 Following this view means proclaiming a worldwide ‘war on terror’87
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
81 In this sense, and in particular in favour of a qualification of the military operations in Afghanistan and in
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) 52; similarly
 
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.
82 For the Tadić criteria, see nn 34 and 41.
83 See Paulus and Vashakmadze (n 55) 115ff, particularly 119. For the Tadić criteria, see nn 34 and 41.
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 391: 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.
352 ISRAEL LAW REVIEW [Vol. 45:2
 
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.88
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 857: 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 1.155: Zeile 1.005:
(S/PRST/2011/9) is questionable: ‘The Security Council welcomes the news on 1 May 2011 that Osama bin
(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’.
Laden will never again be able to perpetrate such acts of terrorism’.
== Higher Justice? ==
 
== 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 ===
=== Legitimizing Images ===
Natural Law? Eschatology? Apokalyptic rhetoric. Good vs. Evil. Popular Imagery.


== Criminological Questions ==
== Criminological Questions ==
Zeile 1.167: Zeile 1.024:




== Weblinks ==
== 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.
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