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Was OBL lawfully targeted under LOAC/IHL?

In Uncategorized on May 5, 2011 at 2:39 pm

Was OBL lawfully targeted under LOAC/IHL?

Since the exact circumstances of OBL’s death remains unclear, it will be difficult to make an adequate evaluation until more facts emerge. We have little idea to what extent OBL was a threat to the navy SEALs. Nor do we know exactly in what form OBL was “resisting” the US forces. Nevertheless, at the moment three versions of his death have come to light, and they could potentially lead to different legal determinations. Of course, the brief and incomplete analysis below depends on whether or not the threshold criteria for a non-international armed conflict (NIAC) has been triggered by the conflict between the US and Al-Qaeda (which many experts dispute).

 Version 1:

On Monday white house officials had stated that OBL was killed rather than captured because he was involved in the firefight. According to CNN top counterterrorism adviser, John Brennan, said bin Laden was resisting and had a weapon, though he added that it was unclear whether bin Laden had fired a shot.”

According to IHL, in an armed conflict of a non-international character both civilians who directly participate in hostilities and members of organized armed groups—who have a “continuous combat function”—are legitimate targets of attack.  Combat members of armed groups are unprotected for as long as they maintain their membership in the armed group. Unless they clearly “opt-out of hostilities” they are open to attack “wherever and whenever.”(However disagreements among experts remain on whether temporal or geographical limits apply) If OBL was considered as Attorney General Holder describes, as an “enemy commander in the field”, he was targetable irrespective of whether he was armed at the time.  

 Version 2:

 On Tuesday, the account of the facts changed when Press Secretary Jay Carney stated that in fact OBL was not armed. He added, however, that OBL “resisted” but did not offer any specific details. Another US official clarified earlier that “He didn’t hold up his hands and surrender.”

 Here there seems to be some significant disagreement. As noted above, according to some experts, irrespective of whether OBL was armed or unarmed, since he was a combatant with a “continuous combat function” he was a legitimate military target.  Unless he surrendered or otherwise became hors de combat he was lawfully targetable.  The ICRC, on the other hand, according to its interpretive guidance on DPH, holds that “considerationsof humanity require that, within the parameters set by the specific provisions of IHL, no more death, injury, or destruction be caused than is actually necessary for the accomplishment of a legitimate military purpose in the prevailing circumstances.” The study adds that “it would deny basic notions of humanity to kill an adversary or refrain from giving him or her an opportunity to surrender where there manifestly is no necessity for the use of lethal force.”  Here the ICRC is applying an essentially law enforcement framework on an armed conflict situation. The principles of military necessity and humanity can constrain the “degree and kind” of force to be used against a military target, but this is evaluated in relationship to possible collateral harm or unnecessary civilian suffering that may result from taking such action. In no way does IHL restrain the use of force against a lawful military target to protect the target itself from lethal attack.  Therefore, neither treaty nor customary IHL requires you to consider capturing or wounding a legitimate military target before resorting to lethal force.

 Version 3

 Third version of events have also emerged which probably should be taken with a grain of salt. Al-Arabiyya has reportedthat OBL’s 12 year old daughter has told ISI investigators that US forces first captured then killed her father. If that were the case then a clear violation of common Article 3 which prohibits the use of violence against “Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘ hors de combat ‘ by sickness, wounds, detention, or any other cause.”

Updates:

Denial by the CIA that Version 3 of events occurred:

According to the Guardian: “George Little, a CIA spokesman, denied Bin Laden had been held by US forces before being shot: “There is no indication that Bin Laden was somehow captured and later killed inside the compound. It would be wrong to suggest otherwise.”

 More details from AP on how exactly OBL may have “resisted”:

“US officials tell the Associated Press that the Navy Seals who stormed Osama bin Laden’s compound shot and killed him after they saw him appear to lunge for a weapon.The officials, who were briefed on the operation, say several weapons were found in the room where the terror chief died, including AK-47s and personal side arms.”

 

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