Was It Illegal to Kill Osama Bin Laden?

Did the US forces violate the law by killing Osama bin Laden?

Adam Freedman
June 6, 2011


Today’s topic: Was it illegal to kill Osama bin Laden? 

And now, your daily dose of legalese:  This article does not create an attorney-client relationship with any reader.  In other words, although I am a lawyer, I’m not your lawyer.  In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.

Was it Illegal to Kill Osama Bin Laden?

On May 1, 2011, US Special Forces attacked the Pakistani compound of terrorist mastermind Osama bin Laden and--in the firefight that ensued--killed Bin Laden.  Although many--perhaps most--people in the US were simply relieved to see Bin Laden taken out, the killing has turned out to be controversial in some legal circles, particularly in light of reports that Bin Laden was not armed at the time he was killed.  The legality of killing Bin Laden has to be examined from both US and international law, but under both systems, the key question is whether the al Qaeda leader was an enemy combatant, or simply a criminal.

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When is it Legal to Kill an Unarmed Man?

Within days, perhaps hours, of the news of Osama bin Laden’s death, various legal experts began to raise issues about the legality of the US killing a man -- even a terrorist leader -- when he was not armed.  Indeed, some of Bin Laden’s children have even threatened to sue the US government in the International Court of Justice.  If you’re like me, you might be tempted to say: so what?  It’s true that few people in the US are likely to shed any tears over Bin Laden’s demise, but since the struggle against international terrorism is likely to continue, it's worth considering the criticism of this operation.

US Law Prohibits "Assassination"

Since the 1970’s, US law has prohibited government employees from engaging in “political assassination.”  This prohibition, however, is contained in a series of executive orders, none of which defines the term “assassination” with any precision.

The State Department takes the position that the prohibition does not apply in times of war.  That makes sense--otherwise, every soldier in an armed conflict might be guilty of an illegal “assassination.”  Moreover, as Attorney General Eric Holder has pointed out, under the laws of war, it’s legitimate to target enemy commanders--after all, they’re just enemy soldiers with fancy uniforms. In World War II, for example, the US shot down a plane carrying Japanese Admiral Yamamoto, even though the admiral was not threatening US forces at the moment he was shot down.

Of course, the "Yamamoto argument" depends on the notion that the US is at “war” with al Qaeda.  That was the position of the Bush administration, and it has been reiterated by the Obama administration as well.  Some people disagree with that characterization, and for them, it’s harder to justify the killing of Bin Laden.

Was the US Authorized to Invade Pakistan?

But let’s assume for the time being that the US is at war with al Qaeda.  That still leaves us with a question under US law.  Did the President have the legal authority to order an attack on Pakistani territory? Although not all lawyers agree on this point, the Constitution is usually understood to require congressional authorization for any attack on foreign soil, unless it is purely defensive. 

[[AdMiddle]On this point, the administration relies on legislation passed shortly after the 9/11 attacks in which Congress authorized the president to use “all necessary and appropriate force” against those nations, organizations, and persons who aided the attacks.  Granted, it doesn’t say “assassination” or “Bin Laden” specifically, but there’s a pretty strong argument that the president was acting within his authority.

International Law Protects Those “Outside of Combat”

But then there’s international law.  Some international lawyers reject the whole notion of a war against terror or a war against al Qaeda.  For example, Gert-Jan Knoops, a Dutch lawyer, and Geoffrey Robertson, a British barrister, have publicly argued that Bin Laden should have been treated as an international criminal.  Under international law enforcement standards, you can only use lethal force against a suspect if it's necessary to do so in self-defense.  But since Bin Laden wasn’t armed, the argument goes, he should have been brought before a US court or an international tribunal. 

But even for those who agree that the US is at war with al Qaeda, the fact that Bin Laden was unarmed could present an issue.  Under Protocol I of the Geneva Conventions, soldiers are not allowed to target those who have taken themselves out of combat. That exemption typically applies only to people whose behavior clearly indicates that they are surrendering; that is, things like saying "I surrender," or waving the white flag, or speaking French.  Okay, not that last one.  In any event, according to reports, Bin Laden wasn’t doing any of those things.

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