Last week the U.S. ‘took out’ Al Qaeda leader Osama Bin Laden. As an American, I cannot help but have a visceral reaction of delight. Such a major blow will surely expedite the end of ‘the war on terror’. Whatever your opinion is of that endeavor, we can all be relieved by its conclusion. If something happens that likely will hasten that outcome it can in some respect be universally viewed as a positive. But as a war crimes commentator, dispassionately looking at the letter of the law, I cannot help being troubled by the implications of the United States’ actions. This does not necessarily mean that either the international law or the assassination of Bin Laden was wrong, but it may indicate that reform is needed to reconcile these two worthy ends.
There have been plenty of articles written about whether it was legal or illegal to kill Bin Laden, and most of them are terrific and thoughtful. The problem is that there are so many fact patterns that could be gleaned from this case that it generates literally dozens of legal scenarios with different jurisdictions, different statuses for Bin Laden, and different characterizations of the killings perpetrated by Al Qaeda under his command. None of them are particularly useful, and certainly amount to no more than thought experiments for those with many better experiments to think about, myself included.
So I will focus on an overlooked and interesting wrinkle to these scenarios (while ignoring the most compelling, being that Bin Laden was not a legal combatant and therefore his summary execution was illegal) – that Pakistan is one of only four signatories to the second protocol of the fourth Geneva Convention, along with the U.S., to not ratify the protocol, declaring applicability of the convention to conflicts ‘not of an international character’ as well as to traditional state v. state ‘wars’. Al Qaeda conducted many terrorist attacks against the Pakistani government and Pakistani civilians including but not limited to multiple bombings of public spaces, mass murder of Pakistani intelligence officials, and rumored involvement in the murder of Pakistani PM candidate Benazir Bhutto. These attacks almost certainly surpass the threshold of the language ‘sporadic violent attacks’. So while Bin Laden, not being an actual state leader, controversially does not meet the international standard as a combatant in an international conflict, Pakistan could have granted a wider loophole to bring any enemies of their state under the purview of the Geneva Conventions. But they did not. This means that as the official account of the Bin Laden assassination stands, it would have been unequivocally illegal. Because even in this conflict NOT of an international character, it is not the case that adversaries are allowed to murder unarmed and cowering combatants, nor can they allow foreign militants to do so on their behalf. Still, it ashamedly feels good to have done so. Perhaps exceptions need to be made for figureheads of wantonly murderous organizations. Joseph Kony may finally slip up under that pressure.