INTRODUCTION
On the morning of September 11, 2001, 19 terrorists hijacked four commercial airliners and flew two of them straight into the Twin Towers of the World Trade Centre in New York City. The result was the death of 2,977 civilians, resulting in the deadliest terror attack in human history. This attack was orchestrated by none other than the man whose name would be synonymous with the word “terrorism”; Osama bin Laden.
Osama bin Laden was a Saudi-born militant who would go on to found and lead al-Qaeda, a Sunni Islamist militant group. An extremist by ideology, bin Laden would participate in the Afghan Jihad against the Soviet Union before forming al-Qaeda. [1]After the September 11 attacks, bin Laden would go on to be the target of a decade-long manhunt by the US and its allies. Eventually, on the 2nd of May, 2011, bin Laden was tracked down to Abbottabad, Pakistan and killed by the US Special Forces in a daring operation[2]. Although the killing of one of the most notorious terrorists in history was widely celebrated, questions were raised as to the legality of the operation conducted by the United States. To understand its legality, we must first examine how the operation was carried out.
OPERATION NEPTUNE SPEAR
After nearly a decade of searching by the US intelligence forces as well as the assistance of the global West, the location of Osama bin Laden was pinpointed to a compound in Abbottabad, Pakistan. Once the area was confirmed, reconnaissance was conducted by the CIA and the top brass met to decide on the plan of action. The US Naval Special Warfare Development Group, commonly known as SEAL Team Six were appointed to raid the compound. Their orders were to kill or capture Osama bin Laden. A decision was made not to consult with the Pakistani Government out of fear of secrecy and the need to carry out the operation immediately. On the 2nd of May, 2011, the SEAL Team Six entered Pakistani soil and infiltrated the compound. In the ensuing encounter, along with bin Laden, three other men and one woman were killed. Following this, the President of the US Barack Obama announced to the world that Osama was killed in a US operation. This was followed by celebration across the US, however, this incident received mixed reactions from the world.
QUESTIONS OF LEGALITY
A week after the September 11 attacks, the US Congress passed a joint resolution called the Authorization for Use of Military Force (AUMF), 2001[3]. This resolution allowed the President of the US to use all “necessary and appropriate force” against those whom he determined “planned, authorised, committed or aided” the September 11 attacks, or who harboured said persons or groups. The AUMF then became the instrument used by the US to wage the “War on Terror”. Hence, it could be said that the US and al-Qaeda have been in a state of war since then and all use of force is within the bounds of international law.
When waging war, combatants are bound by certain customary laws known as Laws of Armed Conflict or also International Humanitarian Law, which have been derived from customs and ideals followed during wartime in the medieval era, such as the chivalric code and religious scriptures. A more codified source is found in the Geneva Conventions[4] created shortly after the Second World War which laid down certain rules of war. These rules are founded on the principles of humanity. In particular, it prohibits the killing of non-combatants such as civilians and medical personnel. It also calls for restraint on the use of violent force against those who have surrendered and to accept it.
However, these laws were framed at a time when combatants were generally two different nations and the soldiers were instruments of the State. Al-Qaeda, and by extension all terror groups are considered to be Non-State Actors, meaning that although they have significant influence in their operating region, they cannot be considered as a State entity or allied or affiliated with any country. It is generally accepted that non-state actors who continue to engage in continuous combat operations are as valid a military target as a soldier of a nation at war.[5] Also, as per the AUMF, 2001[6], the United States military is authorised to use all necessary force against all perpetrators of the September 11 attack, which al-Qaeda has publicly claimed responsibility for. Hence, Osama bin Laden was the target of a legal military operation.
It is also widely accepted in the international forum that the actions of the United States were within their right to self-defence. Therefore, the raid would not amount to unlawful extrajudicial killing.
Furthermore, before the room in which bin Laden was in was breached, he was shot by a Marine when he peered out of the window, which wounded him. In the laws of war, such a person is considered to be hors de combat[7], translating to “out of combat”. Under the 1949 Geneva Conventions[8] (which has been ratified by the United States), a person in such a state is considered to be a non-combatant which means that they are granted the status of a protected person under humanitarian law. After the room was breached, bin Laden was shot in the forehead thrice by the US forces. One of the SEALs later claimed that when they entered the room, bin Laden was reaching into his pockets, a possible indication that he might be trying to set off a hand grenade. Doing so removes the status of hors de combat from him. What transpired at the scene is still up for speculation, however, such fine threads of legality are largely pushed aside due to emotions and opinions of the globe towards terrorists.
TERRITORIAL INFRINGEMENT?
Perhaps the biggest claim against the legality of the operation was the fact that US soldiers had entered the territory of a foreign nation with intent to conduct a military operation, without providing prior information or obtaining consent from said nation’s government or their military. The first part of the issue was dealt with by the United States by cleverly bypassing the law. The squads responsible for the raid were temporarily transferred to the Central Intelligence Agency. The CIA is established as a civilian agency, meaning they are not considered to be a part of the United States military. This workaround allowed the US Navy Seals to enter Pakistan.[9]
The US had only informed Pakistan about the operation after it had concluded. While the ISI claimed it was a joint operation initially, the claims were refuted. The US relied on the legal concept of “unable and unwilling”.[10] The concept essentially means that the victim of a terror attack or an attack from a non-state actor is empowered to take action against the group that is operating out of a nation they are not at war with, if it can be established that the host nation is either unable or unwilling to suppress the threat.[11] The US deemed that Pakistan was either unable or unwilling to deal with Osama. This came after the US claimed Pakistani officials tip off targets when the US would alert the officials, causing their escape. Therefore, the decision was made not to involve Pakistan. The question of territorial infringement was also not raised by the UN Security Council, where in their Presidential Statement on May 2, 2011, they said that they “welcome[s] the news on 1 May 2011 that Osama bin Laden will never again be able to perpetrate such acts of terrorism, and reaffirms that terrorism cannot and should not be associated with any religion, nationality, civilisation or group.”[12]
Although the concept of unable and unwilling has been the point of debate regarding the ambiguity surrounding the determination of whether a nation is “unable or unwilling” to deal with a threat, in the case of Osama bin Laden, the applicability of this concept is widely accepted.
CONCLUSION
The killing of Osama bin Laden drew worldwide attention. Some praised the US for their efficient strike and for eliminating one of the most wanted men in the world, while others criticized them for their supposed violation of Pakistani territorial integrity. Opponents of the US used this to further accuse them of destabilizing the Middle East, while supporters welcomed the elimination of one of the biggest threats to global peace. The USA and most of the West have followed a policy of “We do not negotiate with terrorists”. While this policy appears to be logical, it cannot come at the cost of the stability and security of a foreign nation. Ultimately, the most commonly accepted view is that Operation Neptune Spear was legal.
Author(s) Name: Mohit G (School of Law, M S Ramaiah University of Applied Sciences)
References:
[1] BBC News, ‘Who is Osama Bin Laden’ (BBC NEWS, 18 September 2001) <http://news.bbc.co.uk/2/hi/south_asia/155236.stm#top> accessed 21 July 2024
[2] Gal Per Finkel, ‘A new strategy against ISIS’ (The Jerusalem Post, 7 March 2017) <https://www.jpost.com/Opinion/A-new-strategy-against-ISIS-483521> accessed 21 July 2024
[3] Authorization for Use of Military Force 2001
[4] Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516; 75 U.N.T.S. 287
[5] Michael N Schmitt, ‘DECONSTRUCTING DIRECT PARTICIPATION IN HOSTILITIES: THE CONSTITUTIVE ELEMENTS’ [2010] NYU JILP 697
[6] Supra note 3
[7] International Humanitarian Law Rule 47
[8] Supra note 4
[9] NBC News, ‘US forces kill Osama bin Laden in Pakistan’ (NBC News, 2 May 2011) <https://www.nbcnews.com/id/wbna42852700> accessed 21 July 2024
[10] Charlie Dunlap, JD, ‘Yes, the raid that killed Osama Bin Laden was lawful’, (Lawfire, 31 January 2019) <https://sites.duke.edu/lawfire/2019/01/31/yes-the-raid-that-killed-osama-bin-laden-was-lawful/> accessed 8 June 2024
[11] Ashley Deeks, ‘‘Unwilling or Unable’: Toward a Normative Framework for Extraterritorial Self-Defense’ (2011) 52 Va. J. Int’l L. 483
[12] Security Council Presidential Statement, Welcoming End of Osama bin Laden’s Ability to Perpetrate Terrorist Acts, Urges States to Remain Vigilant, SC/10239, 2 May 2011
