Has ‘Justice Been Done’? The Legality of Bin Laden’s Killing Under International Law

Abstract

The killing of Osama bin Laden by US Special Forces on 2 May 2011 raises several questions of international law with regard to the legality of this particular operation and the permissibility of targeted killings of international terrorists in general. In this paper it will be argued, on the basis of an analysis of the applicable international law, that the killing of bin Laden cannot be justified under international humanitarian law because there is no armed conflict between the US and Al-Qaida. Even if one were to assume the existence of such an armed conflict, bin Laden’s killing would only have been lawful if Al-Qaida were to be considered an organized armed group within the meaning of international humanitarian law and bin Laden could have been killed qua membership in this group. Otherwise, his killing could only have been lawful if he was (still) taking a direct part in hostilities. In any case, in the absence of an armed conflict, under the applicable legal regime of peacetime the killing could only be justified in a situation of self-defence or an immediate danger for others. As this situation did apparently not exist, the killing of bin Laden amounted to an extra-judicial execution. On another note, the operation may also have violated international law by failing to respect Pakistan’s territorial sovereignty. Ultimately, this depends on the recognition of a (pre-emptive) right to self-defence under Article 51 of the UN Charter, in particular taking into account the immediacy criterion.

Keywords: Al-Qaida, Osama bin Laden, targeted killing, war on terror, direct participation in hostilities