The legal debates about the killing of Osama bin Laden continue. My previous posts on the subject (here and here, for example) have focused mostly on the jus ad bellum dimension (the UN Charter’s Article 51 and the inherent right of self-defense). But recent discussions at Opinio Juris turn my attention to the jus in bello issues (international humanitarian law, or IHL).
One amusingly trenchant exchange occurred over the weekend between Kevin Jon Heller and Ilya Somin of Volokh Conspiracy. It began here, when Somin argued that al Qaeda, “given the enormous scale of its atrocities,” qualifies as an entity with which the United States is at war. Thus, he asserted, the United States can target members of al Qaeda. The U.S. killing of Admiral Isoroku Yamamoto during World War II is widely considered to be legal, he noted, so killing bin Laden must be legal as well. But, as Heller retorted, such a statement demonstrates that Somin lacks an understanding of the fundamentals of international humanitarian law (IHL):
It is, of course, legally impossible for a state to be in a “war” — i.e., in an international armed conflict — with a non-state actor like al Qaeda, as the Supreme Court recognized in Hamdan. As reflected in Common Article 2 of the Geneva Conventions (and this is really IHL 101), international armed conflict can exist only between states.
This dispute offers the reader a gateway into a much more substantial discussion going on at Opinio Juris about the IHL angle on the bin Laden killing. Kevin Jon Heller summed it up pretty nicely in his first post on the subject:
I have no doubt that killing UBL was legal. To begin with, I think the applicable legal regime is international humanitarian law (IHL), not international human-rights law (IHRL) — a conclusion that can be reached in a number of different ways. The best rationale is that UBL was a member of an organized armed group (”original” al Qaeda) taking part in the armed conflict in Afghanistan. In the alternative, I think we can say (although it is a closer call) that the hostilities in Pakistan rise to the level of armed conflict and that UBL was a member of an organized armed group (original al Qaeda or al Qaeda Pakistan, if the two are distinct entities) taking part in that conflict. Either way, UBL was legitimately targetable with lethal force at any time, subject only to the principles of distinction and proportionality. And nothing I’ve seen indicates that the attack on UBL’s compound violated either of those principles.
So there are two options for this falling under the IHL framework – either it was an extension of a non-international armed conflict in Afghanistan or it was a part of a non-international armed conflict in Pakistan. Both options lead us to the ambiguities of IHL’s scope, particularly its geographic scope, as Michael Lewis wrote about here. Deciphering a battlefield boundary is incredibly important. Why? I’ll let Mary Ellen O’Connell explain:
The definition of armed conflict is crucial because during an armed conflict, and only during an armed conflict, regular members of a state’ s armed forces who respect the law of armed conflict (LOAC) may kill without warning. They may use lethal force without fear of prosecution for the deaths they cause… Outside armed conflict, law enforcement officials are authorized to use lethal force but only in personal self-defense or the defense of others facing an immediate threat to life or serious physical injury… It is only during the int ense fighting of an armed conflict that international law permits the taking of human life on a basis other than the immediate need to save life. In armed conflict, a privileged belligerent may use lethal force on the basis of “reasonable necessity”; outside armed conflict, the relevant standard is “absolute necessity. “
So we have an interest in limiting the geographical scope of armed conflicts, lest the entire world become a battlefield. But Michael Lewis notes the other side of the argument. If we limit the geographic scope too strictly, we risk creating a legal regime that gives terrorists an advantage. A terrorist, for example, could participate in an attack, then slip outside the zone of armed conflict, using the legally delineated battlefield boundary as a shield from targeting. As Lewis puts it, terrorists “would get to decide when, where and how the war is to be fought because they would be immune from targeting based purely on geography.”
But how does one balance the desire to not create a legal regime that advantages terrorism with the desire to not have non-international armed conflicts spill too much over into the rest of the world? Perhaps the answer lies in RAND’s 2008 study of how terrorist groups end (this is a point Mary Ellen O’Connell has raised). The study examined 648 terrorist groups that existed between 1968 and 2006 and concluded that, of the groups that ended, they were much more likely to end because they were integrated into political processes or dealt with by law enforcement. According to RAND:
Calling the efforts a war on terrorism raises public expectations — both in the United States and elsewhere — that there is a battlefield solution. It also tends to legitimize the terrorists’ view that they are conducting a jihad (holy war) against the United States and elevates them to the status of holy warriors. Terrorists should be perceived as criminals, not holy warriors.
Perhaps this is the way out of the dilemma to which Lewis points.