Monday, May 16, 2011

A Good Kill

Some two weeks ago, the United States launched a daring raid and assault into Pakistan that ended in the death of Osama bin Laden. Since then, a debate has raged as to whether bin Laden’s killing was lawful—whether it was a good kill.

Much of the commentary in this debate has betrayed fundamental misunderstandings about the law governing the relations among states and the law governing relations among states and combatants in armed conflict. This includes both a tendency to confuse jus in bello and jus ad bellum, as well as a tendency to confuse the law governing self-defense with the law governing armed conflict. These confused commentaries do little to shed light on the operation, its legality, or advance an understanding of U.S. counter-terrorism operations.

The starting point of any analysis of the bin Laden raid must begin—explicitly or implicitly—with the UN Charter. Under the Charter—which has achieved jus cogens—use of force is prohibited except when authorized by the Security Council or when undertaken in self-defense. Of course, a state may use force within the territory of another state when the host state consents to that use of force. Regardless of the legality of the use of force itself, once force is employed it must conform to the law of armed conflict—so long as the use of force rises to the level of an armed conflict.

The bin Laden raid raises questions about the legality of the use of force from the inception and the legality of the kill itself. What is the legal justification for the raid? Regardless of that justification, did the kill conform to the requirements of the law of armed conflict?

While there has been much discussion that the raid was carried out in self-defense, the better explanation—and the more legally accurate one—is that the United States is engaged in a non-international armed conflict with al Qaeda. As such, the United States has the authority to lawfully use force against enemy fighters—combatants is an improper term for members of a non-state organized armed group—when those fighters forfeit their civilian status by directly participating in hostilities. Bin Laden, as an operational leader of al Qaeda, was such a leader and, therefore, was a lawful target. His was a good kill.

More problematic is the question of whether the U.S. incursion into Pakistan was lawful.

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