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Osama bin Laden was assassinated by U.S. Special Forces on May 1, 2011. Although media emphasis thus far has been focused almost entirely on the pertinent operational and political issues surrounding this “high value” killing, there are also important jurisprudential aspects to the case that require similar attention. Whether or not killing Osama was a genuinely purposeful assassination from a strategic perspective, a question that will be debated for years to come, we should now also inquire: Was it legal?
Assassination is ordinarily a crime under international law. Still, in certain residual circumstances, the targeted killing of principal terrorist leaders can be defended as a fully permissible example of law enforcement. In the best of all possible worlds, there would never be any need for such decentralized or vigilante expressions of international justice, but we don’t yet live in such a world. Rather, in our present and still anarchic global legal order, as President Obama correctly understood, the only real alternative to precise self-defense actions against terrorists is apt to be a worsening global instability, and also escalating terrorist violence against the innocent.
Almost by definition, the idea of assassination as remediation seems an oxymoron. At a minimum, this idea seemingly precludes all normal due processes of law. Yet, since the current state system’s inception in the seventeenth century, following the Thirty Years’ War and the resultant Peace of Westphalia (1648), international relations have not been governed by the same civil protections as individual states. In this world legal system, which lacks effective supra-national authority, Al Qaeda leader bin Laden was indisputably responsible for the mass killings of many noncombatant men, women and children. Had he not been assassinated by the United States, his egregious crimes would almost certainly have gone entirely unpunished.
The indiscriminacy of Al Qaeda operations under bin Laden was never the result of inadvertence. It was, instead, the intentional outcome of profoundly murderous principles that lay deeply embedded in the leader’s view of Jihad. For bin Laden, there could never be any meaningful distinction between civilians and non-civilians, innocents and non-innocents. For bin Laden, all that mattered was the distinction between Muslims and “unbelievers.”
As for the lives of unbelievers, it was all very simple. These lives had no value. They had no sanctity.
Every government has the right and obligationto protect its own citizens. In certain circumstances, this may even extend to assassination. The point has long been understood in Washington, where every president in recent memory has given nodding or more direct approval to high value assassination operations. Of course, lower-value or more tactical assassination efforts in Iraq and Afghanistan have become a very regular feature of U.S. special operations.
There are some points of legal comparison with the recent NATO strike that killed Moammar Gadhafi’s second-youngest son and his three grandchildren. While this was a thinly disguised assassination attempt that went awry, the target, although certainly a supporter of his own brand of terrorists, had effectively been immunized from any deliberate NATO harms by the U.N. Security Council’s limited definition of humanitarian intervention.
It is generally true that assassination is a crime under international law. Yet, in our decentralized system of world law, self-help by individual states is often necessary, and the only alternative to suffering terrorist crimes. In the absence of particular assassinations, terrorists could continue to plan havoc against defenseless civilians in America and elsewhere, and could do so with impunity. To be sure, they would be generally immune to the more orthodox legal expectations of extradition and prosecution. This is not to suggest that assassination will always work, but only that disallowing such killing out of hand could never be gainful.
Assassinating bin Laden was consistent with the ancient legal principle of Nullum crimen sine poena, “No crime without a punishment.” Earlier, this core principle had been cited as a rationale for both the Tokyo and Nuremberg war crime tribunals, and was subsequently incorporated into binding customary international law. As to the foreign venue of the assassination, President Obama can find adequate legal support in certain relevant bilateral agreements with Pakistan, and also in pertinent provisions of the 1974 General Assembly Definition of Aggression. Although extra-territorial jurisdiction in any such matters would normally be unlawful, there are critical exceptions when a particular country (here, Pakistan) more or less allows its territory to be used as a base of operation for future terrorist crimes.
By the codified and customary standards of contemporary international law, terrorists are Hostes humani generis or “Common enemies of humankind.” In the fashion of pirates, who were to be hanged by the first persons into whose hands they fell, terrorists are international outlaws who fall within the scope of universal jurisdiction. That bin Laden’s terror-crimes were plainly directed at the United States in particular removes any doubts about the geo-strategic reasonableness of America’s primary jurisdiction.
Limited support for assassination can be found in the classical writings of Aristotle, Plutarch and Cicero, and even in American history. Should the community of nations ever reject this right altogether, it would have to recognize, as a corollary, that such rejection could be at the expense of innocent human life. The existing law of nations must, at least on occasion, continue to rely on even the most objectionable forms of self-defense.
International law is not a suicide pact. Assassination, always subject to the applicable legal rules of discrimination, proportionality and military necessity (it is vital that assassinations always seek to avoid collateral casualties) may sometimes be the least injurious form of defense and punishment. Wherever additional terrorist crimes are still being planned, as was certainly the case with Osama bin Laden, the permissibility of assassination may be far greater.
In a better world, assassination could have no defensible place as counterterrorism. But we do not yet live in the best of all possible worlds, and the obviously negative aspects of assassination should never be evaluated apart from the foreseeable costs of all other options. Such aspects should always be compared to what would be expected of these alternative choices.
Assassination, even of a terrorist mastermind like Osama bin Laden, will almost always elicit some indignation, ironically, even by those who would likely find full-scale warfare appropriate. Yet, the civilizational promise of universal reasonableness is unrealized, and imperiled states, including our own, must inevitably confront stark choices between employing assassination in limited circumstances, or renouncing such tactics at the expense of justice and security. In facing such choices, these countries, including the United States, will always discover that viable alternatives to the assassination option also include large-scale violence, and that these alternatives may ultimately exact a substantially larger long-term toll in human life and suffering.
LOUIS RENÉ BERES was educated at Princeton (Ph.D., 1971), and is the author of many books and scholarly articles dealing with international law and terrorism. His more than forty-years’ work on counterterrorism is well-known to America’s military and intelligence communities. Professor Beres is Strategic and Military Affairs columnist for The Jewish Press.
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