“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.
In contrast, the United States’ armed conflict with al-Qaeda involves a traditional armed force engaging an unaffiliated armed group whose members conduct hostilities without uniforms while mixing with civilians. Al-Qaeda’s intermingling with civilians obviously poses a challenge to the United States in discerning who is a lawful target. However, once positively identified, simply looking like a civilian does not afford al-Qaeda members protection from attack as, similar to a conflict between nations, their choice to engage in hostilities makes them lawful targets.
The law distinguishes between those individuals who sporadically participate in hostilities in support of a non-state-affiliated armed force, such as a farmer paid to occasionally shoot at American soldiers, and those individuals who consistently perform hostile acts, such as a fully integrated member of al-Qaeda. Under international law, the farmer is only exposed to attack for the limited time in which he or she is directly participating in hostilities. In essence, such a person can move in and out of combatant status. This “revolving door” between civilian and combatant status however does not apply to those al-Qaeda operatives who continuously function in a combat role by repeatedly taking part in the hostilities. These individuals, much like a combatant in an armed conflict between nations, are lawful targets irrespective of their location or immediate activities.
As the commander of al-Qaeda, Osama Bin Laden long ago forfeited any protections from targeting. His leadership role of an organized armed group amounted to a continuous combat function, enabling him to be targeted, and killed, based on his status, not his conduct. Consequently, it is irrelevant whether he was armed and resisting when he was killed. In addition, there was no duty for the SEAL team to attempt capture. This was not a domestic policing action requiring arrest, but rather a wartime decision governed by the laws of war, which clearly permit the use of deadly force against a lawful target as a first resort. Unless he plainly manifested an intent to surrender, or was wounded, the United States had clear legal authority to kill Bin Laden.
Like Bin Laden, Anwar al-Awlaki was an operational leader of al-Qaeda in the Arabian Peninsula (AQAP), an organized armed group affiliated with al-Qaeda. Though some believe Awlaki was a mere propagandist, his active involvement in the planning and direction of the November 2009 attack on Fort Hood, the 2009 Christmas day (underwear) bomb attempt, the May 2010 Times Square bomb attempt, and the more recent attempt to load explosives onto cargo flights bound for the United States dispel any claims that he was not acting in a combat role. Awlaki’s operational leadership role in these and other combat activities make him, like Bin Laden, the equivalent of an “enemy combatant,” whom the United States could lawfully target and kill.
Unlike Osama Bin Laden, however, Awlaki was an American citizen whose death was the result not of a Special Forces raid but of a Predator “drone” strike. Despite complaints to the contrary, these facts do not alter the legal conclusion. As discussed above, the laws of war permit the targeting and killing of enemy combatants or those who continuously function in a combat role. Citizenship is not a factor in this determination. On more than one occasion, the United States Supreme Court has confirmed that a citizen who chooses to conduct hostilities against his home nation becomes an enemy combatant and is afforded no greater protection than any other enemy belligerent. Citizenship does not provide blanket immunity from targeting nor preclude a nation from defending itself.
Further, the United States use of a remotely-piloted vehicle (“drone”) is undeniably a lawful means of attack. Once an individual gains enemy combatant status, or its equivalent through a continuous combat function, any means of attack that complies with the law of war principles of distinction, proportionality, and unnecessary suffering is allowed. As the strike against Awlaki occurred in a remote Yemen desert with precision weaponry, the operation complied with all applicable law of war restrictions regarding targeting. Awlaki’s American citizenship and the use of a “drone” are, therefore, immaterial for targeting purposes and do not alter the conclusion that this was a lawful attack.
The fact that the United States could target and kill Bin Laden and Awlaki in the locations and manner in which it did so admittedly makes some uncomfortable. The laws of war are based on a delicate balance between military necessity, the wartime necessity of killing and destroying military objectives in pursuit of a nation’s right of self-defense, and humanity, the wartime requirement of preventing unnecessary suffering and protecting the civilian population. Military necessity is what permitted the attacks on Bin Laden and Awlaki. Moreover, because these killings occurred as part of an armed conflict, they did not violate the US domestic law ban on assassination, which forbids murder for political purposes, not the targeting of lawful military objectives.
The killings of Osama Bin Laden and Anwar al-Awlaki were legal under both international law and US domestic law. Pakistan’s complaints are not supported by international law and are a smokescreen to hide their embarrassment and internal instability. Further, those who argue that Bin Laden and Awlaki were illegally “executed,” “assassinated,” or should have been captured and tried ignore the unfortunate reality that in armed conflict, military necessity legally justifies the lethal targeting of those belligerents who choose to participate. Bin Laden and Awlaki both made this choice and, in turn, the United States exercised its legal prerogative to kill them.