By Louis René Beres
Osama bin Laden was assassinated by U.S. special forces on May 1, 2011. Although media emphasis thus far has been focused almost entirely on the pertinent operational and political issues surrounding this “high value” killing, there are also important jurisprudential aspects to the case. These aspects require similar attention. Whether or not killing Osama was a genuinely purposeful assassination from a strategic perspective, a question that will be debated for years to come, we should now also inquire: Was it legal?
Assassination is ordinarily a crime under international law. Still, in certain residual circumstances, the targeted killing of principal terrorist leaders can be defended as a fully permissible example of law-enforcement. In the best of all possible worlds, there would never be any need for such decentralized or “vigilante” expressions of international justice, but – we don’t yet live in such a world. Rather, enduring in our present and still anarchic global legal order, as President Barack Obama correctly understood, the only real alternative to precise self-defense actions against terrorists is apt to be a worsening global instability, and also escalating terrorist violence against the innocent.
Almost by definition, the idea of assassination as remediation seems an oxymoron. At a minimum, this idea seemingly precludes all normal due processes of law. Yet, since the current state system’s inception in the seventeenth century, following the Thirty Years’ War and the resultant Peace of Westphalia (1648), international relations have not been governed by the same civil protections as individual states. In this world legal system, which lacks effective supra-national authority, Al Qaeda leader bin Laden was indisputably responsible for the mass killings of many noncombatant men, women and children. Had he not been assassinated by the United States, his egregious crimes would almost certainly have gone entirely unpunished.
The indiscriminacy of Al Qaeda operations under bin Laden was never the result of inadvertence. It was, instead, the intentional outcome of profoundly murderous principles that lay deeply embedded in the leader’s view of Jihad. For bin Laden, there could never be any meaningful distinction between civilians and non-civilians, innocents and non-innocents. For bin Laden, all that mattered was the distinction between Muslims and “unbelievers.”
As for the lives of unbelievers, it was all very simple. These lives had no value. They had no sanctity.
Every government has the right and obligation to protect its own citizens. In certain circumstances, this may even extend to assassination. The point has long been understood in Washington, where every president in recent memory has given nodding or more direct approval to “high value” assassination operations. Of course, lower-value or more tactical assassination efforts in Iraq and Afghanistan have become a very regular feature of U.S. special operations.
There are some points of legal comparison with the recent NATO strike that killed Moammar Gadhafi’s second-youngest son, and his three grandchildren. While this was a thinly-disguised assassination attempt that went awry, the target, although certainly a supporter of his own brand of terrorists, had effectively been immunized from any deliberate NATO harms by the U.N. Security Council’s limited definition of humanitarian intervention.
It is generally