Bin Laden and the law

By Professor Harry Roque

Published in ManilaStandard Today on 12 May 2011

 No doubt, Osama bin Laden is loathsome. He was accused by the civilized world for perpetrating the most murderous crime against humanity committed in recent years: the World Trade Center bombing that claimed the lives of at least 3,000 civilian  lives. He is also said to be the leader of the dreaded Al Qaida, a notorious terrorist group that has either claimed responsibility or said to be responsible for many terrorist acts worldwide. So when news broke out that Osama bin Laden was killed, most of the civilized world rejoiced. Be that as it may, human rights and humanitarian law advocates have sounded the bells of alarm.  Despicable as he may have been during his lifetime, the circumstances of his killing may have undermined the  normative system that we have nurtured to provide protection to human beings against potential abuses of states. Specifically, nagging doubts have now been expressed on the legality of his killing under international law, and with good reason.

The right to life is a cornerstone of human rights law. It is a guarantee against the arbitrary taking of life. According to the United Nations Human Rights Committee, this right is absolute. Side by side with human rights law, international humanitarian law is also the applicable law where there is an on-going armed conflict. Here, the point of divergence between these two branches of international law is on the issue of culpability. While human rights law provides that the right is absolute, humanitarian law nonetheless exempts those who may kill from criminal liability if the killing is done pursuant to the laws and customs of warfare. In times of armed conflicts, killings would not be criminal if combatants will target only valid military objects, the definition of which is a person, thing, or object whose destruction will contribute to the military objective, that is:  subjugation of the enemy with minimal collateral damage. All killings of civilians, including combatants who have laid down their arms, are hence prohibited and criminal.

Given that the right to life is absolute under human rights law, the first issue is whether bin Laden’s killing is justified under international humanitarian law. The US impliedly says it is when its authorities invoke “self-defense” as a justification for the killing. The problem here is that “self-defense” may only be invoked in case of an armed attack. In the case involving the US-backed Contras out to topple the then-Sandinista government in Nicaragua, the International Court of Justice defined an armed attack as the “sending of regular armed forces or its equivalent into the territory of another state”. The questions insofar as the Al Qaida is concerned are: does it have regular armed forces or its equivalent? Did it send its forces into the territory of another state? And if so, whose territory? 

Furthermore, self-defense is subject to both necessity and proportionality. According  to United Nations special rapporteur on extrajudicial killings, Philip Alston,  a targeted killing is legal “only if it is required to protect life (making lethal force proportionate) and there is no other means, such as capture or nonlethal incapacitation, of preventing that threat to life (making lethal forcenecessary).”

The American Supreme Court has had at least two  instances to rule on the characterization of the US “war against terror” In the cases of Hamdan and Boumediene, the Court refused though  to categorically rule that the conflict was either international or non-international. Instead, it nullified the measures adopted by the Guantanamo Military Tribunal as contrary to the rules and customs of warfare. It ruled that its procedure was contrary to Common Article Three of the Geneva Conventions, specifically, the provision that the imposition of penalties must be done only after judicial determination that conforms to minimum standards recognized by civilized nations. The invalidated procedure included a refusal to grant the accused access to evidence presented against him.

While these two American decisions may be read to mean that the “war against terror” is governed by international humanitarian law, it still does not answer the question of whether the killing of a combatant, even assuming bin Laden to be one, is justified under all circumstances. It is hence no different from the question of whether all combatants may be killed all the time.

Interestingly,  the Supreme Court of Israel may have already ruled on this issue. In the 2006 Targeted Killings case, two human rights NGOs challenged Israel’s policy of targeted killings or assassinations as violative of international humanitarian law and human rights law. The Court found that a civilian taking a direct part in hostilities, including members of a  terrorist organization —may be lawfully targeted, provided four conditions are met i.e.,  the attacking State must have accurate and verifiable information about the target; any killing must be thoroughly investigated and if innocent civilians are killed compensation must be paid;  any killing must not violate the principle of proportionality; and most importantly,  “a civilian taking a direct part in hostilities cannot be attacked  if a less harmful means can be employed”.

Since US authorities have admitted that bin Laden was unarmed when he was killed, the conclusion is that his killing was not justified. As explained by the Israeli Court, it is because: “Trial is preferable to use of force. A rule-of-law state employs, to the extent possible, procedures of law and not procedures of force.”