Post-Osama: The Way Forward for the United States

JURIST Guest Columnist Benjamin G. Davis, an Associate Professor of Law at the University of Toledo College of Law, answers a few questions about Osama Bin Laden's death and discusses what it might mean in terms of foreign affairs and domestic attitudes towards torture...

We have learned that Osama Bin Laden has been killed. Was this killing done in accordance with international law?

While the facts are a bit unclear, some points would seem clear.

1) Osama bin Laden was a legitimate military objective. In this armed conflict of either an international or non-international character, what seems patently clear is that Bin Laden was the head of Al-Qaeda, a non-state-actor that has declared war on the United States. Wars between states and non-state actors have gone on since antiquity and targeting the head of Al-Qaeda and the disruption of Al-Qaeda are clear military objectives by which we secure a military advantage.

2) The residence was also a proper military target. The residence in Abbottabad appears to have been constructed in 2005 and to have been in the form of what we would call a bunker or bunkerized residence - its high walls, barbed wire etc. It appears it was built for Osama Bin Laden and was a headquarters for him in running the Al-Qaeda operations since 2005. As such, if it ever had a civilian purpose, it had turned from a purely civilian to a military object once Bin Laden had his "quartier general" there and was sending and receiving instructions for Al-Qaeda through couriers.

3) A clear military advantage could be achieved through killing or capturing Bin Laden. He was a still active member of Al-Qaeda, leading Al-Qaeda efforts from this site. Killing or capturing him would be the classic decapitating type operation almost identical to Bin Laden's attempt to do the same to the United States on 9/11 in attacking the financial center as well as military and other top nerve centers of the United States government. Necessity of targeting Bin Laden as Al-Qaeda's spiritual, strategic and tactical leader who claimed responsibility for 9/11 to put him hors de combat would appear without doubt.

4) The attack on Bin Laden was proportional. There is a question whether Bin Laden's wife was a human shield (making Bin Laden responsible for her as war crime) or not (less responsible) and, logically, whether or not she was a civilian or an Al-Qaeda operative. Assuming that she was a true civilian then the question is whether her death as collateral damage was proportional. I think that given the military objective and military advantage to be gained and the approach of the weaponry in a situation of a firefight, this situation would be easier to see as proportional. I understand the other persons in the compound were either couriers or Al-Qaeda operatives who engaged in the firefight. These other persons were also legitimate targets with the exception of one - Bin Laden's son Khalid. Assuming that Khalid and Bin Laden's wife were true civilians does not change the proportionality calculus much given the enormous role of Bin Laden in Al-Qaeda.

5) Whether this operation is viewed under a law enforcement, self-defense, or armed conflict vision (the three visions discussed by those in this arena), the consent by Pakistan for such an attack on its soil by the US against Bin Laden was longstanding in the relationship with Pakistan as our ally in this war against Al-Qaeda. Whether, if needed at all, a specific consent was needed immediately before the specific operation appears related to the Pakistan-US bilateral relationship (international relations) more than international law. In the absence of a firefight, would we have been entitled to kill Bin Laden? I do not believe so. However, the firefight moots that discussion as deadly force is permitted in such a setting under any of the three visions provided. It meets the standards of necessity and proportionality already discussed. In the face of a firefight, I do not see the variations in standards under the three visions leading to a different conclusion as to the legality and the legitimacy of killing Bin Laden.

6) Whether there is a problem with Bin Laden's burial at sea relates to the question of what is done with the body of someone killed in armed conflict. I am not aware of a specific international rule on this point other than not to defile the dead. I believe that usually the person is turned over to the state from which they are from or to the family of the person, but I believe that burial of dead enemies also occurs. Here the military concerns about the future (creating a shrine for martyrdom similar to the concerns that led to Eichmann being buried at sea) militated against either of the first two options. Bin Laden being a Saudi national, if there are issues with the way his body was buried at sea, the Bin Laden family may seek to have their concerns espoused by the Saudis on their behalf or Saudi Arabia can take it up with the United States. I am not seeing the burial of enemy dead at sea as a war crime.

In any event, I do think that the martyrdom site issue is not laid to rest as the compound in Abbottabad is a likely candidate to become such a place for Al-Qaeda sympathizers. Having that compound torn down once its intelligence utility is exploited will be another aspect of the US-Pakistan bilateral relationship.

7) On several websites the manner in which the intelligence was received on Bin Laden's whereabouts is being discussed and very quickly a meme that "torture works" [press release] is being presented (see lawfareblog.com, keepamericasafe.com, and opiniojuris.com for example).

This meme is no doubt migrating and metastasizing across the internet right now. The "torture works" theory seeming to be put forward is that the key courier was one for KSM and Al-Libbi and so their torture was how we got the name. From what I can see, the press briefing speaks generally of interrogation of detainees but does not address the question of whether this intelligence came from the torture. Once again, by those who long have tried to defend torture, what is being done is to instrumentalize the Bin Laden capture and the intelligence gathering related to it over a number of years to have us think that torture worked in some sense.

I do not know the timeline and I doubt that a true accounting will ever be provided, unless in a court of law. What I do know is that the twenty years these intelligence efforts have been going on belies the notion of imminence or hot pursuit of the infamous "ticking time bomb scenario." The whole tenor of what is described so far is dogged painstaking work, not Jack Bauer 24 style torture. I note the studied ambiguity in describing what happens has the unfortunate effect of leaving an impression that torture was of some significant role in this operation. This ambiguity may serve the purpose of deflecting momentum in the United States to criminally prosecute those who broke our laws by committing torture. This developing meme is a further example of the "acquiescence to torture" machine at work.

In our euphoria over Bin Laden's demise, we should not let ourselves descend farther into vengefulness. With lucidity, we should endeavor to continue the battle internally to hold accountable those who tortured in our name. Because of the speed of the "torture works" meme coming out, I would suspect that it was extremely counterproductive for the kind of work that led us to Bin Laden. People who committed the torture crime should be held accountable just as those who commit war crimes on the other side. Refluat Stercus.

8) As to prosecution, the military commissions for those who remain in U.S. custody contrast significantly with the legality of the Bin Laden operation. Just like the "torture works" meme, let us stand firm against the military commissions meme to show the world - including those who vow revenge on the United States and ourselves - that we trust in our normal judicial structures to assure that justice occurs both in our ordinary judicial fora and at the barrel of a gun in a firefight in Abbottabad.

9) I fear that Bin Laden's demise is not the beginning of the end, but the end of the beginning of something that may be much crazier. As a citizen, I salute all those involved in getting this done and am eternally grateful for their efforts. At the same time, I have no illusion about this war being over. I do think the Arab Spring provides an opportunity for internal self-determination in autocratic regimes, reducing the appeal of Al-Qaeda, but because the future of the Arab Spring is extremely hard to predict we must remain vigilant. Of the countries in the Middle East, I am worried most about Iraq and Syria as places where Al-Qaeda will get traction because of the questions for the people as to the legitimacy of their rulers. In my opinion, the current Saudi ability to buy off all of its population (unlike Iraq or Syria) makes it less of a concern for the near future. Libya is in a state of flux at present and the defeat of Gaddhafi would provide an opportunity for meaningful internal self-determination. As do the ongoing situations in Egypt and Yemen. At the same time, I am certain that Al-Qaeda will renew its efforts to gain control of aspects of the sovereign in all of these countries. Every monarch must watch their back. The times require from us a sustained and nuanced effort to encourage local means of internal self-determination in collaboration with the rest of the international community.

10) Though we may be so tempted, to avoid hubris we should not go it alone but continue the difficult task of coalition building with other countries to continue to fight the scourge of Al-Qaeda and confront the terrorists. This effort must include a willingness to address the Palestinian/Israeli concerns. There are good people that I love on both sides of the Israeli/Palestinian struggle and they need to find a way forward.

Updated May 4, 2011

The more recent reports have stated that Bin Laden was unarmed at the time he was killed. On the interrogation and military commission points—the wave of comments since May 2, 2011 do not alter my views.

There are three generic potential legal regimes that have been discussed regarding the legality of the Bin Laden's killing: the law of armed conflict (international humanitarian law or IHL), self-defense, and law enforcement.

Even though he was unarmed, the killing was clearly lawful under the law of armed conflict, clearly lawful under the law of self-defense, and a closer call under the law enforcement regime.

Under the law of armed conflict, Bin Laden can be a military objective. For example, he could be shot unarmed sitting at lunch because there is a military advantage in killing him, it is necessary to kill him, and that approach would be proportional. Killing him with a nuclear bomb in that scenario would not be legal because while there is a military advantage, a nuclear bomb is not proportional. If, however, Bin Laden had already surrendered, then killing him would be an unlawful killing. Unarmed does not mean that the person has surrendered and is no longer a threat. We will have to see whether the reports of him having resisted are "walked back" also. I would note that there is a distinction made between armed conflict of an international and a non-international character but I do not believe that changes this analysis.

Under self-defense, the intersection between IHL and international human rights law (IHRL) is more significant. Some say that IHL applies by analogy while others see IHRL as applying and some see it as mixed. For me, the point is that issues of military advantage, necessity, and proportionality apply here also and the analysis leads me to the same place.

Under law enforcement, in trying to arrest Bin Laden one is aware that he has used deadly force on a massive scale or threatened the use of deadly force on a massive scale even though he is unarmed. So a situation arose in which deadly force could be used even though he was unarmed. If he had not surrendered and had not resisted, the case is closer on the appropriateness of the use of deadly force in trying to capture him.

In none of the three cases should we assume he had surrendered and was a prisoner at the time the deadly force was used. All we know is that he was unarmed, and the SEALS came upon him after a firefight in the compound in which people were killed or wounded.

Benjamin Davis is an Assistant Professor at the University of Toledo College of Law. He has served as legal counsel for the International Court of Arbitration of the International Chamber of Commerce. He is also the creator of fast-track international commercial arbitration and the International Competitions for Online Dispute Resolution (ICODR).

Suggested Citation: Benjamin Davis, Post-Osama: The Way Forward for the United States, JURIST - Forum, May 2, 2011, http://jurist.org/forum/2011/05/benjamin-davis-post-osama.php.

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