Vail Valley: Was killing bin Laden legal? | VailDaily.com

Vail Valley: Was killing bin Laden legal?

Rohn Robbins
Vail, CO, Colorado

Most Americans were, at the least, pleased when they heard the news of Osama bin Laden’s death at the hands of U.S. Navy SEALs. Since, there has been a hue and cry – at least in some quarters – to release photographic proof that he is dead.

While the brouhaha over the photos seems to have gotten most of the attention, the more serious matter of the legality of taking out bin Laden seems to have gotten comparatively little attention. Was, however, the killing of Osama bin Laden by U.S. forces in the sovereign nation of Pakistan legal?

A partial answer lies in the United Nations Charter. But first, what is the U.N. Charter and why does it apply?

The charter is the foundational treaty of the United Nations. It became international law on Oct. 24, 1945. As a charter, it is a “constituent” treaty, meaning all members – its constituents – are bound by its provisions. The charter holds that obligations to the United Nations prevail over all other treaty obligations. Most nations have now ratified the charter.

Article 51 may be found in Chapter 7, which is entitled “Action With Respect To Threats To The Peace, Breaches Of The Peace, and Acts Of Aggression.” It states, in part: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence {sic} if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain inter- national peace and security. Measures taken by Members in the exercise of this right of self-defence {sic} shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

It is under this article that the United States may have asserted its right to hunt down and kill the mastermind of the World Trade Center and Pentagon attacks.

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A complimentary approach is that the 9/11 attacks were recognized by the international community as an armed attack on the U.S. As such, they amounted to acts of “war” in reply to which congressional authority was granted to use military force against al Qaeda. Bin Laden’s killing may, accordingly, be scrutinized under the laws pertaining to the rules of war. Those international conventions permit enemy fighters and their commanders in the field to be killed on sight unless either incapacitated or offering unequivocal surrender.

Further to the rules of war, lawful wartime killing is not limited to “battlefields.” That term is more of a descriptive term than a legal one. If killing an enemy advances the aims of the conflict and is directed at the lawful object of attack without the undue or gratuitous harm of innocents or civilians, provided no specific laws of war have been abridged, then it is, by the curious logic of war, wholly lawful.

Under this conception, taking out bin Laden was, under the conventions of warfare, a legal act.

Following the raid, Attorney General Eric Holder told members of the Senate Judiciary Committee that the U.S. attack on bin Laden’s compound was lawful “as an act of national self-defense.”

The raid “was conducted in a manner fully consistent with the laws of war, White House Press Secretary Jay Carney told reporters. Carney said “there is simply no question that this operation was lawful. … (bin Laden) had continued to plot attacks against the United States.”

CIA Director Leon Panetta told PBS that, “The authority (during the raid) was to kill bin Laden. Obviously, under the rules of engagement, if he had in fact thrown up his hands, surrendered, and didn’t appear to be representing any kind of threat, then they were to capture him. But they had full authority to kill him.”

In the last analysis, the question or whether the killing of bin Laden was legal may come down to the question of bin Laden’s response at the moment U.S. Navy SEALs burst into his room. As commander of al Qaeda, unless he was proactively surrendering or incapacitated, taking him out was fully justified.

What is telling is the silence. Few if any nations, with the exception of a chagrined Pakistan, are dunning the U.S. with any wrongdoing. In most peace-loving nations, there seems, instead, to be a collective sigh of relief. Perhaps the world is just a little safer place.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He may be heard Wednesdays at 7:00 p.m. on KZYR radio (97.7 FM) and seen on ECO TV18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at robbins@colorado.net.