Five days after the US raid that killed Osama Bin Laden in his walled hideout in Abbottabad, Pakistan, UN special rapporteurs on summary executions and on human rights and counter-terrorism are calling for the US to disclose whether the Navy Seals offered Bin Laden "any meaningful prospect of surrender and arrest." The special rapporteurs are requesting this information in order to "allow an assessment in terms of international human rights law standards."
There is no doubt that investigations and assessments are critical tools to ensure that military operations and other uses of force adhere to the lawfor the protection of innocent civilians in the area, the protection of those engaged in combat, the preservation of protected objects and sites, and for the maintenance of effective and disciplined operations. Police operations depend on post-hoc investigations as well, to ensure the appropriate and measured application of authority andwhere relevantdeadly force.
But before we engage in an investigation and examination of the "rightness" or "wrongness" of the Bin Laden raid or any other operation, setting the parameters of the legal paradigmhow to determine the lines between right and wrongis the essential first task.
During armed conflict, whether international or non-international, the law of armed conflict applies and governs the conduct of hostilities and the protection of persons and objects. The special rapporteurs' statement clearly demonstrates that in his view, and the basis for his proposed investigation, is that armed conflict is not the relevant paradigm for examining Bin Laden operation. Instead, the reference to human rights standards highlights the law enforcement paradigm.
The casual observer may think that whether we apply the law of war or human rights law is an academic question, one that does not really impact whether the operation was lawful. Not only is that an incorrect assumption, but the effect of the wrong choice of legal paradigm may have far-reaching consequences.
Investigations of military operations, both internal and external, can have significant and powerful effects on the conduct of future operationsit is axiomatic that we must examine the lawfulness of operations in order to ensure compliance with legal obligations. To do so, however, the investigations must have credibility with the very persons and institutions they purport to assess.
Since September 11, 2001, the US has categorized its fight against al Qaeda as an armed conflict, a framework upheld by all three branches of the US government. Is the armed conflict paradigm for state vs. terrorist group irrefutable? Not necessarily, as the continuing debate in the academic and policy worlds demonstrates. Beyond that, the armed conflict paradigm itself raises a host of interesting and important questions that bear on the conduct of military operations and the protection of persons, such as the parameters of the battlefield, the identification and status of enemy personnel and the rights they are due, and so forth.
To suggest, therefore, as the special rapporteurs do in their call for additional facts, that the Bin Laden operation should be investigated within a human rights framework with no regard for the question of whether that is the right framework, is not only an unreasonable assumption, but misses an opportunity to tackle some of these challenging questions. It is also a recipe for ineffectiveness and counterproductive results.
Under the law of armed conflict, whether Bin Laden was armed or unarmed is essentially an irrelevant question. As the leader of the enemy forces, he was a legitimate military target at all times, whether firing a weapon or brushing his teeth. The law of armed conflict includes no obligation to offer the enemy a chance to surrenderimagine how that would play out in the middle of a tank or artillery battle. The law does mandate that any operation comport with the obligations of distinction, proportionality and precautions, and based on the information currently available, the Navy Seals and those who planned the operation demonstrated great respect for these obligations.
Further exploration of how the operation met these legal obligations would be relevant and useful for the planning and implementation of future operations. We will not get that value, however, from an investigation blindly applying human rights standards. First, any such investigation will likely be ignored and discredited by the US, emasculating and rendering any findings largely irrelevant. Second, such an investigation can actually have negative effects through the importation of inappropriate standards into the law, leading to a rejection of the law as unreasonable. Interpreting the law to require warning shots before using deadly force against enemy fighters during armed conflict is not only wrong but dangerous for our soldiers on the ground. Requiring an invitation to surrender before using lethal force against legitimate targets during armed conflict will be equally dangerous.
When the law of armed conflict mandates the use of deadly force as a first resort and human rights law prohibits the use of deadly force except as a last resort, we can see that the two paradigms will often be irreconcilable when applied to the same incident. And yet both legal regimes have the protection of persons as a core value.
The broader risk therefore is that such an investigation can lead relevant persons to see the law itself as the problem, not the particular legal analysis at issue. And that places both innocent civilians and those who are fighting in the greatest danger of all. The choice of applicable law, therefore, must be neither cavalier nor determined solely by perspective or politics. If it is, the investigation will not be worth the paper on which it is written.
Laurie Blank is the director of the International Humanitarian Law Clinic at Emory University School of Law and was one of the principal founders of the clinic in early 2007.
Suggested citation: Laurie Blank, Finding the Paradigm: Investigating Bin Laden's Demise, JURIST - Forum, May 8, 2011, http://jurist.org/forum/2011/05/laurie-blank-finding-the-paradigm.php.