Targeting Bin Laden: Legal, Geopolitical and Strategic Issues

JURIST Guest Columnist Amos N. Guiora of the S.J. Quinney College of Law at the University of Utah says that although the killing of Osama Bin Laden was a legitimate military action, it is important to consider the implications of his death for counterterrorism efforts...

President Obama's decision to target Osama Bin Laden was unequivocally the right call. The operation was planned and implemented flawlessly and the American people owe an enormous debt of gratitude to those who painstakingly—and anonymously—track and trace endless pieces of intelligence information. Although challenging, frustrating, and sometimes fruitless, connecting the innumerable dots is essential to effective operational counterterrorism. The reality of intelligence gathering is that finding someone can take years, particularly in extraordinarily complicated situations and locations. The Navy Seals who carried out the attack should also be commended for their extraordinary performance. Indeed, the phrase "on behalf of a grateful nation" is truly apt.

Since President Obama's dramatic press conference, I have had the privilege of fielding innumerable media requests. Interestingly, in a departure from responses to past incidents, the questions have focused on the geostrategic and operational issues rather than on the legality of the hit. In the aftermath of previous attacks on terrorists and suspected terrorists, the debate focused primarily on the legal parameters of self-defense and when an individual is a legitimate target of attack. Such issues have not been the focal point here; rather Bin Laden's death has sparked enormously significant questions about the future of al-Qaeda, the future face of terrorism and the possibility of attacks in the days to come. Indeed, this impressive tactical success does not eliminate—in fact emphasizes—the need for sober and cautious reflection.

The legality of the operation should not be lost amid the significance of the geostrategic issues. After all, effective operational counterterrorism must be legal; that is the essence of the rule of law, regardless of the paradigm's complexity. That imperative was my advice to Israel Defense Forces (IDF) commanders when I served as a Legal Advisor in the IDF and it has driven my scholarship in the past seven years.

According to the principles of self-defense enshrined in the UN Charter, the nation-state has a right to protect itself when attacked. Notwithstanding important questions regarding the limits and legality of pre-emptive self-defense, Bin Laden's continued threats and his proven ability to successfully conduct attacks—9/11 in particular—unequivocally categorized him as a legitimate target at the time he was killed. The attack, therefore, was not an act of retribution under international law. It also adhered to fundamental international law principles, including distinction, military necessity, proportionality and alternatives. As a result, the operation was the manifestation of lawful and legitimate self-defense.

More important, beyond the legal issues, we cannot allow the operation's success to gloss over important questions that also deserve our attention. The key question: "where do we go from here?" Although killing Bin Laden is a significant tactical victory, it does not mean defeat for terrorism or terrorists, unlike V-E and V-J Day. Perhaps, in fact, quite the opposite.

After all, the Hamas mastermind responsible for killing over 200 Israelis, Yihah A'yash, was killed in January 1996 in a sophisticated operation that penetrated his inner circle. A brutal series of suicide bombings in Tel Aviv, Jerusalem and Ashkelon, killing scores of Israelis soon followed; in May of that year, Prime Minister Peres was stunningly upset by Benjamin Netanyahu. This example dramatically highlights the retribution motif of a terrorist organization that has been significantly attacked. Under such circumstances, the new leader's need to quickly prove his worth to multiple publics (his and ours, at the least) is a powerful motivation.

In addition, terrorist attacks over the past seven years suggest that the "global jihadism" threat was over-stated and exaggerated. After all, the Madrid train bombings, the London subway bombings, the plot to blow up 13 US bound planes, the failed Times Square bombing, the attack on a Beslan schoolhouse and the Fort Hood massacre were all committed by citizens or residents of Spain, Russia, the UK and the US. The attacks reflect a domestic terrorism in which the terrorists were radicalized to act in the name of religious extremism for the most part by local religious extremist faith leaders.

The question, then, is whether Bin Laden had become more a symbol rather than the operational brains behind al-Qaeda over recent years. That does not suggest the action was illegal; not at all. He remained a legitimate target and a credible threat to the US. However, there is a potential future cost to the action. We must ask whether turning Bin Laden into a martyr and inviting the all but inevitable retributive attacks was the right decision from a strategic perspective.

One final note: the celebrations that greeted President Obama's announcement were, for me, a moment to "cringe." A person's death, even the death of a bitter enemy, is not cause for celebration. As one family member who lost a loved one on 9/11 soberly noted, "I would prefer killing the idea, not the man." It is noteworthy to recall that Americans were aghast at scenes of "dancing on the rooftops" after 9/11. Bin Laden was responsible for horrific terrorist attacks but his death does not mark the death of al-Qaeda or the death of terrorism. One can therefore hope that on the morning after, revelers also understand a cold reality: terrorism is here to stay.

Amos N. Guiora is Professor of Law at S.J. Quinney College of Law, the University of Utah; his latest article is: Relearning Lessons of History: Miranda and Counterterrorism. He has recently been interviewed by multiple media outlets about Osama Bin Laden's death.

Suggested Citation: Amos N. Guiora, Targeting Bin Laden: Legal, Geopolitical and Strategic Issues, JURIST - Forum, May 4, 2011, http://jurist.org/forum/2011/05/amos-guiora-targeting-bin-laden.php.

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