The law of enemy combatants

“The oper­a­tion in which Osama bin Laden was killed was law­ful, legit­i­mate and appro­pri­ate in every way.”

— Eric Holder,

U.S. Attor­ney General

“That’s the price you pay for par­tic­i­pat­ing in armed conflict.”

— Ben Saul,

Pro­fes­sor, Syd­ney Law School

Isoruku Yamamoto was 59 years old when he died in April of 1943. For the pre­vi­ous four years he had served as com­man­der in chief of the com­bined fleet of Japan. In that capac­ity he had devel­oped a plan to make a pre-emptive strike on the United States to draw down Amer­i­can naval power. He planned and led the attack on Pearl Har­bor in Decem­ber 1941 in which 2,402 men were killed– the worst attack ever on Amer­i­can soil by a for­eign force. Amer­i­cans ral­lied to a com­mon cause, rebuilt and fought back.

Four years after the attack on Pearl Har­bor Amer­i­can intel­li­gence agents came into pos­ses­sion of infor­ma­tion detail­ing Yamamoto’s where­abouts. He was tour­ing through the South Pacific inspect­ing troops. The infor­ma­tion was passed to Pres­i­dent Roo­sevelt and in a mis­sion code named “Magic” he ordered that Amer­i­can forces inter­cept Yamamoto’s plane and kill the enemy com­man­der. The mis­sion was successful.

Osama bin Laden was 54 years old when he died in May of 2011. For the pre­vi­ous twenty-three years he had served as the leader of al-Qaeda. In that capac­ity he had devel­oped a plan to make a ter­ror­ist strike on the United States to draw down Amer­i­can morale. He planned the attacks on New York and Wash­ing­ton in Sep­tem­ber of 2001 in which 2,977 men and women were killed– the worst attack ever on Amer­i­can soil by a for­eign force. Amer­i­cans ral­lied to a com­mon cause, rebuilt and fought back.

Ten years after the attacks on Sep­tem­ber 11, 2001 Amer­i­can intel­li­gence agents came into pos­ses­sion of infor­ma­tion detail­ing bin Laden’s where­abouts. He was liv­ing in a com­pound in Pak­istan and plan­ning fur­ther attacks. The infor­ma­tion was passed to Pres­i­dent Obama and in a mis­sion code named “Nep­tune Spear” he ordered that Amer­i­can forces infil­trate the com­pound and kill or cap­ture the enemy com­man­der. The mis­sion was successful.

No one ques­tioned the law­ful­ness of the mis­sion to kill Yamamoto, but in the two weeks since the death of bin Laden experts have had much to say about whether killing a ter­ror­ist leader inside another coun­try was a legal action under inter­na­tional law. Ben Saul, Asso­ciate Pro­fes­sor of Inter­na­tional Law at the Uni­ver­sity of Syd­ney penned an opin­ion col­umn for ABC on May 4th and com­pleted a point-counterpoint inter­view with Amer­i­can lawyer Ben­jamin Fer­encz who served as a pros­e­cu­tor in the Nurem­berg tri­als after World War II.

Saul suc­cinctly sum­ma­rized the issue for ABC, “The out­come has been wel­comed by many, and few regret bin Laden’s pass­ing. It is polit­i­cally incor­rect to say so, but bin Laden was, I believe, as evil a per­son as can be found: a geno­ci­dal, obses­sive, odd man whose busi­ness was exter­mi­nat­ing civil­ians he didn’t like.” The issue, he noted, “Is whether bin Laden is classed as a civil­ian (who can­not be legally tar­geted), or is a per­son directly par­tic­i­pat­ing in hos­til­i­ties (which makes him a legit­i­mate mil­i­tary target).”

On one side of the issue were Dutch inter­na­tional law expert Gert-Jan Knoops and British human rights lawyer Geof­frey Robert­son. Knoops told the Inter­na­tional Busi­ness Times that the Amer­i­can argu­ment that the nation is at war with ter­ror­ism is not sup­port­able, “in a strictly for­mal sense.” Robert­son was more blunt, call­ing bin Laden’s death a, “per­ver­sion of jus­tice” and “a cold-blooded assassination.”

Clin­ton admin­is­tra­tion Solic­i­tor Gen­eral Wal­ter Dellinger dis­agrees. He told CNN that under inter­na­tional law bin Laden was an ‘enemy com­man­der’ and unless he had sur­ren­dered there was no require­ment to cap­ture him alive. “You have no oblig­a­tion to make it easy for some­one to sur­ren­der,” he added. Amer­i­can lawyer Greg Kehoe, who served the Iraqi court that pros­e­cuted Sad­dam Hus­sein, noted that this was a war and not police action and that mil­i­tary com­man­ders are fair targets.

Dellinger took a more prac­ti­cal tone in his CNN inter­view, not­ing how dan­ger­ous the mis­sion was and that the Navy SEALS con­duct­ing it were fired upon. “It takes 20 min­utes to make it to the third floor. They don’t know if the Pak­istani mil­i­tary is going to be clos­ing in, is going to impede their depar­ture. Every sec­ond counts.”

The argu­ment that bin Laden was not still a mil­i­taris­tic leader or not an ongo­ing threat may have been ren­dered moot by his own words. On Wednes­day of this week the U.S. gov­ern­ment reported that bin Laden’s jour­nal con­tained, in his own hand­writ­ing, his plans for fur­ther attacks on the United States, includ­ing generic ideas of dates and loca­tions for attacks.

Dis­cus­sions about the appli­ca­tion of inter­na­tional law to the death of Osama bin Laden will con­tinue. What is clear is that this is yet another area where inter­na­tional ter­ror­ism blurs the old lines of war and brings us to a new reality.

David Hej­manowski is a Mag­is­trate and Court Admin­is­tra­tor of the Delaware County Juve­nile Court and a for­mer Assis­tant Pros­e­cut­ing Attorney.

Posted by Dave Hejmanowski on May 12 2011. You can follow any responses to this entry through the RSS Feed. Comments can be made below.