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.