Bin Laden and Awlaki: Lawful Targets
"Major Shane Reeves is an Assistant Professor in the Department of Law at the United States Military Academy and Lieutenant Colonel Jeremy Marsh is an Assistant Professor and Senior Military Faculty member in the Department of Law at the United States Air Force Academy. Prior to these assignments, both taught as Associate Professors for the International and Operational Law Department at The Judge Advocate General’s Legal Center and School, Charlottesville, VA.
The views expressed herein are solely those of the authors and do not reflect the official positions of the Department of Defense, the Department of the Army, the Department of the Air Force, or the Judge Advocate General's Corps of either service."
Many have challenged the legality of the 2011 United States’ operations that resulted in the deaths of Osama Bin Laden and Anwar al-Awlaki. Pakistan condemned the Bin Laden operation as a violation of international law; human rights advocates asserted that each man should have been captured instead of killed; and others claimed the operations were unlawful “assassinations” or, in the case of Awlaki, a violation of his constitutional rights as an American citizen. These criticisms are all without merit.
An important threshold question to answer in determining the legality of both attacks is whether al-Qaeda is a transnational criminal enterprise or an organized armed group at war with the United States. If al-Qaeda is a transnational criminal organization, akin to the American-Sicilian mafia, then domestic criminal law controls and capturing members is required save in extreme cases of individual self-defense. However, if the United States and al-Qaeda are at war, than the laws of war control and lethal targeting is allowed. Critics of both operations assume that the applicable legal framework is one of criminal law enforcement and international human rights law. This assumption is wrong. The answer to this question is well-established: since September 11, 2001, the United States has been engaged in a congressionally-authorized armed conflict with al-Qaeda, the Taliban, and associated forces pursuant to its inherent right of self-defense.
This inherent right, recognized by the United Nations Security Council after 9/11, provides an exception to the legal principle that no nation may use military force to violate the sovereign territory of another nation. Pakistan is quick to claim a violation of its sovereignty. International law, however, permits the United States to pursue its right of self-defense in a safe harbor nation if that nation is "unwilling or unable" to effectively deal with the threat. Given Bin Laden's location in Abbottabad for the past five years, it is quite obvious that Pakistan was in fact unwilling and/or unable to address the threat. Therefore, the United States lawfully entered Pakistan's sovereign territory in order to carry out this military operation.
Similarly, the United States’ incursion into Yemen clearly complies with international law. Unlike Pakistan, the United States targeted Awlaki at the invitation of the Yemeni government and therefore an “unwilling or unable” determination was unnecessary. Yemen’s consent to the Awlaki operation obviates any legal sovereignty debates and pre-empts any future allegations that the United States violated Yemen’s territorial sovereignty.
Even if the United States can pursue self-defense in Pakistan and Yemen, one must consider whether they can do so as part of an armed conflict. In September 2010, in court filings related to the possible targeting of Awlaki in Yemen, the Obama Administration made clear that the armed conflict against al-Qaeda includes the authority to target, and kill, belligerents away from the “hot” battlefields of Afghanistan and Iraq. The realities of globalization, coupled with the proliferation of transnational terrorism, provide belligerents opportunities to successfully carry out hostile activities far away from an active battlefield. It defies international law, logic, and practicality to give such belligerents legal protection from targeting based on their location. Instead, armed conflict, and the targeting authorities associated with it, must follow the belligerents.
Lawful targets are generally easy to recognize in an armed conflict between two nations. National armed forces, such as the United States Army, are comprised of uniformed individuals, who openly carry weapons, comply with the laws of war, and operate within a recognized chain of command. These individuals, known as “combatants,” may be attacked at any time or place regardless of the threat they pose to the enemy assuming they are not wounded or attempting to surrender. All others on the battlefield are protected from attack unless they decide to forfeit this protection by directly participating in the hostilities. This clear delineation between combatants and non-combatants allows for concrete determinations of who is or is not a lawful target while simultaneously protecting civilians from the brutality of warfare.