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Has ‘Justice Been Done’? The Legality of Bin Laden's Killing Under International Law

Published online by Cambridge University Press:  29 June 2012

Kai Ambos  and
Josef Alkatout
Kai Ambos
Affiliation:
Professor of Criminal Law, Criminal Procedure, Comparative Law and International Criminal Law at the Georg-August Universität, Göttingen; Judge of the District Court (Landgericht) Göttingen. Email: [email protected]. Kai Ambos has presented the main arguments of this article in various fora, inter alia, in the Law Faculty of the Universidade Federal do Rio Grande do Sul, Porto Alegre, Brazil, on 9 August 2011 and in the International Law Forum of the Hebrew University, Jerusalem, on 3 January 2012. He thanks especially the participants of the last meeting for their critical and useful comments. He also thanks the Institute for Advanced Studies of the Hebrew University since this article was finished during his stay as senior research fellow there in the winter of 2011–12. Both authors thank the anonymous reviewers of the Israel Law Review for their very helpful comments.
Josef Alkatout
Affiliation:
Dr Jur candidate at the Georg-August Universität, Göttingen.
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Abstract

The killing of Osama bin Laden by US Special Forces on 2 May 2011 raises several questions of international law with regard to the legality of this particular operation and the permissibility of targeted killings of international terrorists in general. In this article it will be argued, on the basis of an analysis of the applicable international law, that the killing of bin Laden cannot be justified under international humanitarian law because there is no armed conflict between the United States and Al Qaeda. Even if one were to assume the existence of such an armed conflict, bin Laden's killing would only have been lawful if Al Qaeda were to be considered an organised armed group within the meaning of international humanitarian law and bin Laden could have been killed qua membership of this group. Otherwise, his killing could only have been lawful if he was (still) taking a direct part in hostilities. In any case, in the absence of an armed conflict, under the applicable legal regime of peacetime, the killing could only be justified in a situation of self-defence or an immediate danger for others. As this situation apparently did not exist, the killing of bin Laden amounted to an extrajudicial execution. On another note, the operation may also have violated international law by failing to respect Pakistan's territorial sovereignty. Ultimately, this depends on the recognition of a (pre-emptive) right to self-defence under Article 51 of the UN Charter, in particular taking into account the immediacy criterion.

Keywords

Al QaedaOsama bin Ladentargeted killingwar on terrordirect participation in hostilities
Type
Articles
Information
Israel Law Review , Volume 45 , Issue 2 , July 2012 , pp. 341 - 366
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2012

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References

1 Speech given by President Barack Obama on 2 May 2011 in the White House, available at http://www.whitehouse.gov/blog/2011/05/02/osama-bin-laden-dead. See also the statement of UN Secretary General Ban Ki-Moon on 2 May 2011 following the news of Osama bin Laden's death (‘Personally, I am very much relieved by the news that justice has been done’), available at http://www.un.org/apps/news/infocus/sgspeeches/statments_full.asp?statID=1163.

2 Jeremy Scahill, ‘Osama's Assassins’, The Nation, New York, 4 May 2011, available at http://www.thenation.com/article/160447/osamas-assassins. See also Nicholas Schmidle, ‘Getting Bin Laden – What Happened That Night in Abbottabad’, The New Yorker, New York, 8 August 2011, available at http://www.newyorker.com/reporting/2011/08/08/110808fa_fact_schmidle (confirming that ‘there were more missile strikes inside Pakistan during Obama's first year in office than in George W Bush's eight’). See also Neue Zürcher Zeitung, 20–21 November 2010, 17 December 2010 and 28 December 2010 Pointing out that during 2010 the American military attacked targets more than 110 times by means of unmanned drones in Pakistan; this number had doubled compared to the previous year); and Thiessen, Marc A, ‘Obama's Inheritance’ (2009) 172 World Affairs 74, 81CrossRefGoogle Scholar.

3 UNSC Res 1456(2003), UN Doc S/RES/1456 (2003), 20 January 2003, para 6; and UNSC Res 1624(2005), UN Doc S/RES/1624 (2005), 14 September 2005, para 4.

4 For other terms used (‘precision warfare’, ‘surgical strikes’, ‘focused prevention’, ‘focused assassinations’, ‘pin-point assassinations’, ‘smart bombs’, ‘pin-point accuracy’, ‘distant punishment’ and ‘distant firepower’), see Ben-Ari, Eyal, ‘Between Violence and Restraint: Human Rights, Humanitarian Considerations, and the Israeli Military in the Al-Aqsa Intifada’ in van Baarda, Ted and Verweij, Désirée (eds), The Moral Dimension of Asymmetrical Warfare, Counter-Terrorism, Democratic Values and Military Ethics (Martinus Nijhoff 2009) 231, 241–42Google Scholar.

5 See n 2.

6 HCJ 769/02 The Public Committee Against Torture in Israel and Palestinian Society for the Protection of Human Rights and the Environment v Israel and Others ILDC 597 (IL 2006) [2006] (‘Targeted Killing’), paras 61ff.

7 Kretzmer, David, ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?’ (2005) 16 European Journal of International Law 171, 186CrossRefGoogle Scholar; Solis, Gary, ‘Targeted Killing and the Law of Armed Conflict’ (2007) 60 Naval War College Review 127, 129Google Scholar; Solis, Gary, The Law of Armed Conflict: International Humanitarian Law in War (Cambridge University Press 2010) 542CrossRefGoogle Scholar; Frau, Robert, ‘Unbemannte Luftfahrzeuge im internationalen bewaffneten Konflikt’ (2011) 24 Humanitäres Völkerrecht-Informationsschriften 60, 66Google Scholar.

8 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight (entered into force 11 December 1868) in Schindler, Dietrich and Toman, Jiří (eds), The Laws of Armed Conflicts (3rd rev'd and completed edn, Martinus Nijhoff 1988) 102Google Scholar; Project of an International Declaration concerning the Laws and Customs of War, Brussels, 1874, ibid, 27; Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulation concerning the Laws and Customs of War on Land, Martens Nouveau Recueil (ser 3) 461 (entered into force 26 January 1910); cf Bothe, Michael, ‘Friedenssicherung und Kriegsrecht’ in Vitzthum, Wolfgang (ed), Völkerrecht (5th edn, de Gruyter 2010) 642CrossRefGoogle Scholar.

9 See nn 11 and 12 below. On the distinction between Hague and Geneva Law see, for example, Kolb, Robert, ‘La distinction entre le “droit de Genève” et le “droit de la Haye”’ in Kolb, Robert (ed), Droit international pénal (Helbing Lichtenhahn 2008) 1, 134ffGoogle Scholar.

10 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep 136, [106]; Kretzmer, David, ‘Rethinking the Application of IHL in Non-International Armed Conflicts’ (2009) 42 Israel Law Review 8, 18CrossRefGoogle Scholar; Kashgar, Maral, ‘The ECtHR's Judgment in Al-Jedda and Its Implications for International Humanitarian Law’ (2011) 24 Humanitäres Völkerrecht-Informationsschriften 229, 231Google Scholar, with further references and also an example of where the European Court of Human Rights (ECtHR) does not pursue the lex specialis approach. In favour of a sui generis assessment of the legality of targeted killings independent of any specific legal regime: Feruza Djamalova, ‘Targeted Killing under International Sui Generis Framework’, LLM thesis, University of Toronto, 2008, 30. In the same vein, but nevertheless in favour of the application of IHL: Jensen, Eric, ‘Targeting Persons and Property’ in Lewis, Michael, Jensen, Eric and Corn, Geoffrey (eds), The War on Terror and the Laws of War: A Military Perspective (Oxford University Press 2009) 37, 66Google Scholar.

11 See Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (entered into force 21 October 1950) 75 UNTS. 31 (‘GC I’); Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (entered into force 21 October 1950) 75 UNTS 85 (‘GC II’); Geneva Convention (III) Relative to the Treatment of Prisoners of War (entered into force 21 October 1950) 75 UNTS 135 (‘GC III’); Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (entered into force 21 October 1950) 75 UNTS 287 (‘GC IV’); Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 3 (‘AP I’); Protocol Additional III, and Relating to the Adoption of an Additional Distinctive Emblem (entered into force 14 January 2007) 2404 UNTS 261 (‘AP III’).

12 See GC I–IV, common art 3 and AP III (n 11), as well as Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 609 (‘Additional Protocol II’ or ‘AP II’).

13 The notion comes from William J Fenrick, ‘The Development of the Law of Armed Conflict Through the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’ (1998) 3 Journal of Armed Conflict Law 197, 198.

14 See Henckaerts, Jean-Marie, ‘Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict’ (2005) 87 International Committee of the Red Cross Review (‘ICRC Review’) 175, 198–99Google Scholar for the principles of distinction (Rule 1) and proportionality (Rule 14) as the most important pillars of IHL. See also Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Vol I: Rules (International Committee of the Red Cross, Cambridge University Press 2005)CrossRefGoogle Scholar (‘ICRC Study’), claiming that at least 136 out of 161 customary rules apply to both kinds of conflict. See, however, Marco Sassòli, ‘Taking Armed Groups Seriously: Ways to Improve their Compliance with International Humanitarian Law’ (2010) 1 Journal of International Humanitarian Legal Studies 5, 17 (noting the difficulty for armed groups to have to accomplish states' tasks by applying all customary rules identified by the ICRC Study for international armed conflicts to non-international ones).

15 ICTY, Prosecutor v Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1, Appeals Chamber, 2 October 1995, [119] (‘What is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife’) and passim.

16 Daren Bowyer, ‘The Moral Dimension of Asymmetrical Warfare: Accountability, Culpability and Military Effectiveness’ in van Baarda and Verweij (eds) (n 4) 135, 159; Bartels, Rogier, ‘Timelines, Borderlines and Conflicts. The Historical Evolution of the Legal Divide Between International and Non-International Armed Conflicts’ (2009) 91 International Review of the Red Cross 35, 67Google Scholar.

17 Jensen (n 10) 44.

18 See n 31.

19 Given the lack of formal combatant status in non-international armed conflicts, the term ‘(de facto) combatant’ is used to denote this de facto status in both types of conflict.

20 Kretzmer (n 10) 34.

21 Section 2.4 with nn 108ff.

22 AP I (n 11) art 43(2).

23 In favour of an analogous application of the law of international armed conflict with regard to the US fight against Al Qaeda: Solis, The Law of Armed Conflict (n 7) 544. See also Kritsiotis, Dino, ‘The Tremors of Tadić’ (2010) 43 Israel Law Review 262, 294CrossRefGoogle Scholar, in favour of a ‘generic concept of “armed conflict”’ (regardless of its international or non-international nature) which ‘would serve as a common denominator for the identical laws applicable’.

24 Compare GC III (n 11) art 4(A)(2)(a) with AP II (n 12) art 1(1), and see Section 2.2.

25 Rudolf, Peter and Schaller, Christian, ‘Targeted Killing’ Zur völkerrechtlichen, ethischen und strategischen Problematik gezielten Tötens in der Terrorismus – und Aufstandsbekämpfung (Stiftung Wissenschaft und Politik 2012) 23Google Scholar, correctly argue that the transition from a law enforcement (law of peace) framework to the law of armed conflict is not always clear-cut in the international fight against terrorism.

26 See Section 3.

27 International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171 (ICCPR), art 2(1) reads as follows: ‘Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’ (emphasis added). See also Kashgar (n 10) 230.

28 See also the Preamble to the American Declaration of the Rights and Duties of Man, Organization of American States, Res XXX (1948), which reads as follows: ‘The American States have on repeated occasions recognized that the essential rights of man are not derived from the fact that he is a national of a certain state, but are based upon attributes of his human personality.’

29 IACHR, Coard and Others v United States, Case 10.951, Report No 109/99, 29 September 1999, para 37.

30 Issa and Others v Turkey, App No 31821/96 (ECtHR, 16 November 2004) para 71; Al Skeini and Others v United Kingdom, App No 55721/07 (ECtHR, 7 July 2011) para 74. (On the previous House of Lords decision, see Tobias Thienel, ‘The ECHR in Iraq, the Judgment of the House of Lords in R (Al Skeini) v Secretary of State for Defence’ (2008) 6 Journal of International Criminal Justice 115, 199). The previous judgment in Banković and Others v Belgium and Others, App No 52207/99 (ECtHR, 12 December 2001) para 71, linked the notion of ‘effective control’ to ‘the relevant territory’ for the exceptional ‘recognition of the exercise of extra-territorial jurisdiction by a Contracting State’. See also Human Rights Committee, Sergio Euben Lopez Burgos v Uruguay, UN Doc Supp No 40 (A/36/40) 176, 29 July 1981, Human Rights Committee, Communication No R12/52, para 12.3; and Human Rights Committee, Lilian Celiberti de Casariego v Uruguay, Communication No 56/1979, UN Doc CCPR/C/OP/1 at 92, 29 July 1981, para 10.3, with almost identical wording.

31 Then US President George W Bush Jnr used this term first on 21 September 2001 during an address to a joint session of Congress, available at http://articles.cnn.com/2001-09-20/us/gen.bush.transcript_1_joint-session-national-anthem-citizens/4?_s=PM:US. While the Obama administration abandoned this very rhetoric (Sue Pleming, ‘Obama Team Drops “War on Terror Rhetoric”’, Reuters, New York, 30 March 2009, available at http://www.reuters.com/article/2009/03/30/us-obama-rhetoric-idUSTRE52T7MH20090330), it still sees the US ‘at war with al Qaeda and its affiliates’: The White House, Office of the Press Secretary, Remarks by the President on National Security, 21 May 2009, available at http://www.whitehouse.gov/the_press_office/Remarks-by-the-President-On-National-Security-5-21-09. The administration repeatedly stressed that the targeted killings against suspected terrorists are justified because Al Qaeda is at war with the US and terrorists pose an ‘imminent danger’ to the state's security: see Doyle McManus, ‘Who Reviews the US “Kill List”?’ LA Times, Los Angeles, 5 February 2012, available at http://articles.latimes.com/2012/feb/05/opinion/la-oe-mcmanus-column-drones-and-the-law-20120205.

32 Greenwood, Christopher J, ‘Scope of Application of Humanitarian Law’ in Fleck, Dieter (ed), Handbook of International Humanitarian Law (2nd edn, Oxford University Press 2008) 45, 47Google Scholar; see also Kai Ambos, Internationales Strafrecht (3rd edn, CH Beck 2011) para 7, marginal number 235.

33 GC I–IV (n 11) common art 2 reads as follows: ‘In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.’

34 Prosecutor v Tadić (n 15) [70]. See also ICTY, Prosecutor v Kunarac/Kovac/Vuković, Judgment, IT-96-23 and IT-96-23/1-A, Appeals Chamber, 12 June 2002, [56]; ICTY, Prosecutor v Krnojelac, Judgment, IT-97-25-T, Trial Chamber II, 15 March 2002, [51]; ICTY, Prosecutor v Limaj/Bala/Musliu, Judgment, IT-03-66-T, Trial Chamber II, 30 November 2005, [84]; ICTY, Prosecutor v Naletilić/Martinović, Judgment, IT-98-34-T, Trial Chamber, 31 March 2003, [225] as well as ICTY, Prosecutor v Kordić/Čerkez, Judgment, IT-95-14/2-A, Appeals Chamber, 17 December 2004, [336].

35 See n 12.

36 The relevant part of GC I–IV, common art 3 (n 12) reads as follows: ‘In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: …’

37 Rome Statute of the International Criminal Court (entered into force 1 July 2002) 2187 UNTS 90 (ICC Statute).

38 ICC Statute, art 8(2)(d) states that it ‘applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature’. These requirements apply equally to GC I–IV, common art 3 (n 12): see Prosecutor v Limaj/Bala/Musliu (n 34) [89].

39 See n 37.

40 ICC Statute (n 37) art 8(2)(f) states that it ‘applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups’.

41 See the rulings quoted in n 34.

42 Kretzmer (n 10) 40–41.

43 See n 12.

44 AP II (n 12) art 1(1) states: ‘This Protocol … shall apply to all armed conflicts which are not covered by Article 1 of … (Protocol I) and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol’ (emphasis added). AP II (n 12) art 1(2), determining the lower threshold, reads as follows: ‘This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.’ On the territorial control requirement, see also ICTY, Prosecutor v Boškoski/Tarčulovskias, Judgment, IT-04-82-T, Trial Chamber II, 10 July 2008, [197].

45 Watkin, Kenneth, ‘Opportunity Lost: Organized Armed Groups and the ICRC Direct Participation in Hostilities Interpretive Guidance’ (2009–10) 42 New York University Journal of International Law and Politics 641, 691Google Scholar. This is highly contentious, though. For a more restrictive view see, for example, Nils Melzer, ‘Keeping the Balance Between Military Necessity and Humanity: A Response to Four Critics of the ICRC's Interpretive Guidance on the Notion of Direct Participation in Hostilities’ (2009–10) 42 New York University Journal of International Law and Politics 831, 846, who argues that only the ‘military wing’ of a group loses immunity permanently. Clearly, judges, government officials and blue-collar workers are not (de facto) combatants: see Knut Ipsen, ‘Combatants and Non-Combatants’ in Fleck (n 32) 79, 99.

46 AP I (n 11) art 43(1) and (2).

47 For this view, see Watkin (n 45) 690ff; Jensen (n 10) 49.

48 For this view, see Melzer (n 45) 846; the term was coined during discussions of the expert groups in the ICRC clarification process on the notion of direct participation in hostilities: see Watkin (n 45) 655. For the outcome of the process, see Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law (International Committee of the Red Cross 2009). More information is available at http://www.icrc.org/eng/resources/documents/article/other/direct-participation-article-020709.htm. See also Solis, The Law of Armed Conflict (n 7) 206.

49 Akande, Dapo, ‘Clearing the Fog of War? The ICRC's Interpretive Guidance on Direct Participation in Hostilities’ (2010) 59 International & Comparative Law Quarterly 180, 186Google Scholar.

50 Melzer (n 48) 34. With regard to the meaning of the expression ‘direct participation in hostilities’, see Section 2.5 below.

51 Melzer ibid 34.

52 ibid 34, arguing that ‘individuals who continuously accompany or support an organized armed group, but whose function does not involve direct participation in hostilities’ are not even members of that group. While this is correct in the result, it cannot depend on membership alone but the effective participation in hostilities must be the decisive criterion.

53 For a broader approach with a view to a wide application of IHL apparently, see Marco Sassòli (n 14) 14, arguing that ‘the only limitation is that such a group must be a genuine armed group engaged in a genuine armed conflict’. It is not clear, however, what exactly the genuine element means in this context. It could also entail a restrictive interpretation of ‘armed group’ and ‘armed conflict’.

54 For a similar strict approach with regard to the concept of organisation contained in ‘organisational policy’ in ICC Statute (n 37) art 7(2)(a), see the dissenting opinion of Judge Kaul in ICC, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01/09, Pre-Trial Chamber II, 31 March 2010, [51].

55 Rudolf and Schaller (n 25) 16. The ICTY lists ‘the existence of a command structure and … headquarters’ amongst its ‘indicative factors’: Prosecutor v Haradinaj/Balaj/Brahimaj, Judgment, IT-04-84-T, Trial Chamber I, 3 April 2008, [60]. For a minimum degree of organisation: Paulus, Andreas and Vashakmadze, Mindia, ‘Asymmetrical War and the Notion of Armed Conflict – a Tentative Conceptualization’ (2009) 873 ICRC Review 95, 117Google Scholar. According to Lubell, Noam, Extraterritorial Use of Force Against Non-State Actors (Oxford University Press 2010) 110: ‘it appears unquestionable that a minimum level of organisation must exist’CrossRefGoogle Scholar.

56 GC III (n 11) art 4(A)(2)(a). See also Judith Wieczorek, Unrechtmäßige Kombattanten und humanitäres Völkerrecht (Duncker & Humblot 2005) 75ff.

57 AP II (n 12) art 1(1). See also with regard to ICC Statute (nn 37 and 54), art 7(2).

58 See n 44 and accompanying text.

59 Zimmermann, Andreas, ‘Article 8’ in Triffterer, Otto (ed), Commentary on the Rome Statute of the International Criminal Court (Beck/Hart 2008) marginal number 351Google Scholar; Werle, Gerhard, ‘Individual Criminal Responsibility in Article 25 ICC Statute’ (2007) 5 Journal of International Criminal Justice, marginal number 953Google Scholar; Tahzib-Lie, Bahia and Swaak-Goldman, Olivia, ‘Determining the Threshold for the Application of International Humanitarian Law’ in Lijnzaad, Liesbeth, van Sambeck, Johanna and Tahzib-Lie, Bahia (eds), Making the Voice of Humanity Heard (Martinus Nijhoff 2004) 239, 246Google Scholar; König, Kai-Michael, Die völkerrechtliche Legitimation der Strafgewalt internationaler Strafjustiz (Nomos 2003) 380ffGoogle Scholar; Mettraux, Guénaël, International Crimes and the Ad Hoc Tribunals (Oxford University Press 2005) 36ffGoogle Scholar; Paulus and Vashakmadze (n 55) 117–19.

60 See, for this expression, Herfried Münkler, The New Wars (Polity 2004).

61 Decision Pursuant to Article 15 (n 54) [93].

62 While this requirement is taken from ICC Statute (n 37) art 7(2)(a), it refers back to ‘organised armed groups’ within the meaning of AP II (n 12) art 1(1) for non-international armed conflicts (see Kreß, Claus, ‘On the Outer Limits of Crimes Against Humanity: The Concept of Organization within the Policy Requirement. Some Reflections on the March 2010 ICC Kenya Decision’ (2010) 23 Leiden Journal of International Law 855, 862CrossRefGoogle Scholar) and may therefore be applied in our context.

63 Ipsen (n 45) 84ff. The ICTY requires at least ‘the ability to exercise some control over its members’: Prosecutor v Boškoski/Tarčulovskias (n 44) [196].

64 See Paust, Jordan J, ‘Self-Defence Targetings of Non-State Actors and Permissibility of US Use of Drones in Pakistan’ (2009–10) 19 Journal of Transnational Law & Policy 237, 260Google Scholar (‘some non-state actors, such as al Qaeda, do not meet the test for insurgent status’); Lubell (n 55) 118 (‘As for Al-Qaeda it is hard to conclude that it currently possesses the characteristics of a party to a conflict’). Dissenting, however, see Solis, The Law of Armed Conflict (n 7) 205, for whom Al Qaeda – without further arguments – constitutes an organised armed group.

65 See statement of Alain Chouet, former head of the French secret service DGSE (‘But which organisation are you talking about?’), quoted by Nadia Bletry, Marie Verdier and Olivier Tallès, ‘La mort de ben Laden ne met pas fin au terrorisme’, La Croix, Paris, 3 May 2011, available at http://www.la-croix.com/Actualite/S-informer/Monde/La-mort-de-Ben-Laden-ne-met-pas-fin-au-terrorisme-_NG_-2011-05-02-607984. See also Burke, Jason, Al-Qaida, La veritable histoire de l'islam radical (La Découverte 2005) 19 and 25ffGoogle Scholar; Farrall, Leah, ‘How al Qaeda Works’ (2011) 90 Foreign Affairs 128, 133Google Scholar; Boor, Felix, ‘Der Drohnenkrieg in Afghanistan und Pakistan’ (2011) 24 Humanitäres Völkerrecht-Informationsschriften 97, 101Google Scholar; Rudolf and Schaller (n 25) 18. In the same sense, see Wieczorek (n 56) 189 and Lubell (n 55) 119 (‘al Qaeda franchises’).

66 Eric Schmitt and Thom Shanker, ‘In Long Pursuit of Bin Laden, The ’07 Raid, and Frustration’, New York Times, New York, 6 May 2011, A1.

67 See n 57.

68 With regard to the qualification of these groups as organised armed groups, see Blank, Laurie R, ‘Finding Facts but Missing the Law: The Goldstone Report, Gaza and Lawfare’ (2010–11) 43 Case Western Reserve Journal of International Law 279 passimGoogle Scholar. See also Blank, Laurie R, ‘The Application of IHL in the Goldstone Report: A Critical Commentary’ (2009) 12 Yearbook of International Humanitarian Law 347, 401CrossRefGoogle Scholar, in which the Hamas is described as ‘a non-state entity’.

69 Farrall (n 65) 135.

70 Hamel, Ian, L'énigme Oussama Ben Laden (Payot 2008) 299Google Scholar; Rodier, Alain, Al-Qaida, les connexions mondiales du terrorisme (Ellipses 2006) 190Google Scholar.

71 Roberts, Adam, ‘Afghanistan and International Security’ in Schmitt, Michael N (ed), The War in Afghanistan: A Legal Analysis (Department of the Navy 2009) 3, 9; Boor (n 65) 100Google Scholar.

72 For a detailed description of the western military coalition in Afghanistan, including Operation Enduring Freedom, dominated by the US, see Alan Cole, ‘Legal Issues in Forming the Coalition’, in Schmitt (n 71) 141.

73 cf Generalbundesanwaltschaft (German Attorney General), Press release 8/2010, 19 April 2010 (case of Oberst Klein regarding bombing of tanks in Kunduz), para 1, available at http://www.generalbundesanwalt.de/de/showpress.php?themenid=12&newsid=360; Ambos, Kai, ‘Afghanistan-Einsatz der Bundeswehr und Völker(straf)recht’ (2010) 63 Neue Juristische Wochenschrift 1725, 1726Google Scholar.

74 See Yoram Dinstein, ‘Terrorism and Afghanistan’ in Schmitt (n 71) 43, 51 and 53; generally, for an international armed conflict if the territorial state is assisted by external forces: Abi-Saab, Rosemary, Droit humanitaire et conflits internes (Pedone 1986) 109ffGoogle Scholar.

75 Riedel, Bruce, ‘Pakistan: The Critical Battlefield’ (2008) 107 Current History 355, 355Google Scholar; Gregory, Shaun, ‘The ISI and the War on Terrorism’ (2007) 30 Studies in Conflict & Terrorism 1013, 1019CrossRefGoogle Scholar; Dinstein (n 74) 52 (‘intimate relationship’).

76 UNSC Res 1368(2001), UN Doc S/RES/1368 (2001), 12 September 2001, para 3; UNSC Res 1373(2001), UN Doc S/RES/1373 (2001), 28 September 2001, Preamble.

77 In this vein, see Lubell (n 55) 88.

78 On the Taliban in Pakistan, see Gregory (n 75) 1024ff; Riedel, Bruce, ‘Pakistan and Terror: The Eye of the Storm’ (2008) 618 The Annals of the American Academy of Political and Social Science 31, 32CrossRefGoogle Scholar; Thiessen (n 2) 78ff; Mir, Amir, Talibanization of Pakistan (Pentagon Press 2009) 1Google Scholar; Nasreen Akhtar, ‘Pakistan, Afghanistan, and the Taliban’ (2008) XXV International Journal on World Peace 49, 50. On Al Qaeda's presence in Pakistan, see Gul, Imtiaz, The Al Qaeda Connection, The Taliban and Terror in Pakistan's Tribal Areas (Penguin Global 2009) 26ffGoogle Scholar; Riedel (n 75) 355. For a description of a growing co-operation between the Pakistani Taliban and Al Qaeda, see Mir ibid 9 and 14; Schaller, Christian, ‘Gezielte Tötungen und der Einsatz von Drohnen – Zum Rechtfertigungsansatz der Obama-Administration’ (2011) 24 Humanitäres Völkerrecht-Informationsschriften 91, 95Google Scholar.

79 cf ICRC, Annual Report (2010) 260, available at http://www.icrc.org/eng/resources/annual-report/index.jsp; Boor (n 65) 100; Schaller (n 78) 94. Rudolf and Schaller (n 25) 16 (identifying a non-international armed conflict throughout the entire Pakistan territory independent of any spillover effect from the Afghan conflict).

80 E-mail of the Pakistan Permanent Mission to the international organisations in Geneva to the authors, 31 May 2011. See also, with regard to the ‘intensity’ criterion for the qualification as armed conflict, Prosecutor v Boškoski/Tarčulovskias (n 44) [177] as well as Prosecutor v Haradinaj/Balaj/Brahimaj (n 55) [49].

81 In this sense, and in particular in favour of a qualification of the military operations in Afghanistan and in Pakistan's tribal lands as one single non-international armed conflict in Afghanistan, see Dinstein (n 74) 52; similarly stressing that the US views Afghanistan and Pakistan militarily ‘as a single theatre of operations’: C Christine Fair and Seth G Jones, ‘Pakistan's War Within’ (2009) 51 Survival 161, 161. For a separate conflict between the US and Al Qaeda: Geoffrey Corn, ‘Making the Case for Conflict Bifurcation in Afghanistan: Transnational Armed Conflict, al Qaida and the Limits of the Associated Militia Concept’ in Schmitt (n 71) 181, 190ff.

82 For the Tadić criteria, see nn 34 and 41.

83 See Paulus and Vashakmadze (n 55) 115ff, particularly 119. For the Tadić criteria, see nn 34 and 41.

84 In this vein, denying an armed conflict between a state and an international terror network because of the impossibility to determine the conflict's territorial spread, see Matthew J Machon, ‘Targeted Killing as an Element of US Foreign Policy in the War on Terror’, thesis, US Army Command and General Staff College, Fort Leavenworth, 2006, 52. See generally for the geographic dimension of an armed conflict: Tribunal Militaire d'Appel Suisse, Fulguence Niyonteze, Jugement d'appel, 1A, B, III, ch 3, B; ICTR, Prosecutor v Akayesu, Judgment, ICTR-96-4-T, Chamber I, 2 September 1998, [635]–[636].

85 Abbottabad lies outside Pakistan's Federally Administered Tribal Areas where the conflict takes place: see Sean D Murphy, ‘The International Legality of US Military Cross-Border Operations from Afghanistan into Pakistan’ in Schmitt (n 71) 109, 111. For a broader approach, however, see Beth Van Schaack, ‘The Killing of Osama Bin Laden & Anwar Al-Aulaqi: Uncharted Legal Territory’ (2012) 14 Yearbook of International Humanitarian Law (forthcoming) (‘from a territorial or combat activity perspective, the contention that the armed conflict with al Qaida extended at a minimum to the events in Abbottabad is defensible given the degree of cross-border hostilities already’).

86 Contesting a ‘spillover’ effect from Afghanistan even: Dinstein (n 74) 53ff (‘Actions taken by the United States and numerous other countries against al Qaeda and diverse groups of terrorists in far-flung parts of the globe, beyond the borders of Afghanistan and its environs, do not constitute an integral part of the inter-state war raging in Afghanistan’). See, however, Chesney, who claims that if the US is in an armed conflict with Al Qaeda, IHL is applicable wherever its members can be found: Robert Chesney, ‘Who May be Killed? Anwar al-Awlaki as a Case Study in the International Legal Regulation of Lethal Force’ (2010) 13 Yearbook of International Humanitarian Law 3, 38.

87 In this vein, indeed, see the Supreme Court of the US in Salim Ahmed Hamdan v Donald H Rumsfeld and Others 548 US 557 (2006), in particular the dissenting opinion of Judge Thomas, 43, arguing that the conflict occurs in the territory of more than one party to it, precisely ‘in various nations around the globe’. See also the recent statement of Secretary of State Hillary Clinton: ‘The United States reserved the right to attack anyone who it determined posed a direct threat to US national security, anywhere in the world’ (quoted by Andrew Bacevich, ‘Scoring the Global War on Terror from Liberation to Assassination in Three Quick Rounds’, TomDispatch, New York, 19 February 2012, available at http://www.tomdispatch.com/post/175505/tomgram%3A_andrew_bacevich%2C_uncle_sam%2C_global_gangster.

88 See Solis, The Law of Armed Conflict (n 7) 217 (the ‘characterization of the US-al Qaeda conflict as “Global War on Terrorism” does not mean that an actual war is in progress’); and Rudolf and Schaller (n 25) 18 and 25 (dismissing a worldwide armed conflict against Al Qaeda and questioning whether the fight against terrorists should be called a ‘war’ simply because one cannot cope with them by the means of law enforcement (at 24)). In the same vein, Philippe Sands questions ‘that anyone associated with al-Qaeda in any country in the world can be taken out, can be executed’: see Aiden Lewis, ‘Osama bin Laden: Legality of Killing Questioned’, BBC News, 12 May 2011, available at http://www.bbc.co.uk/news/world-south-asia-13318372. See also Paulus and Vashakmadze (n 55) 119 (‘so called “war on terror” is not an armed conflict as such, independently of time and space’), 124 (‘no legal notion of a general or global “war on terror”’).

89 Neither GC I–IV, common art 3, nor AP II mentions combatant status (both n 12).

90 Van Schaack (n 85) (‘there is no consensus on whether the notion of combatancy and true status-based targeting exists in NIACs’).

91 Kretzmer (n 10) 34.

92 AP II (n 12) art 9; AP I (n 11) art 43(2), and GC III (n 11) art 33(1) exclude religious and medical personnel from (de facto) combatant status. See also Ipsen (n 45) 101.

93 AP I (n 11) art 43(2).

94 With regard to international armed conflicts, participants in a levée en masse hold a status similar to combatants: GC III (n 11) art 4(A)(6)). They are, however, of little relevance in current practice: see Rogers, Anthony, ‘Combatant Status’ in Wilmshurst, Elizabeth and Breau, Susan (eds), Perspectives on the ICRC Study on Customary International Humanitarian Law (Cambridge University Press 2007) 101, 113; Ipsen (n 45) 93Google Scholar.

95 Dinstein, Yoram, The International Law of Belligerent Occupation (Cambridge University Press 2009), 103CrossRefGoogle Scholar; Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge University Press 2010) 146CrossRefGoogle Scholar; see also Akande (n 49) 190ff. Dissenting: Bothe, Michael, ‘Töten und getötet werden – Kombattanten, Kämpfer und Zivilisten im bewaffneten Konflikt’ in Dicke, Klaus and others (eds), Weltinnenrecht (Duncker & Humblot 2005) 67, 71Google Scholar (questioning that de facto combatants can be permanently targeted as such).

96 This is controversial, see n 45.

97 Richter, Wolfgang, ‘Kampfdrohnen versus Völkerrecht? Zum “Drohnenkrieg” in Afghanistan und Pakistan’ (2011) 24 Humanitäres Völkerrecht-Informationsschriften 105, 110Google Scholar. This also counts true for members of organised armed groups who forfeit their combatant status by disrespecting IHL: see Jensen (n 10) 49.

98 AP I (n 11) arts 51(5)(b) and 57(2). The expected military advantage must be of greater advantage than the unavoidable loss of uninvolved civilians: see Cohen, Amichai and Shany, Yuval, ‘A Development of Modest Proportions, The Application of the Principle of Proportionality in the Targeted Killings Case’ (2007) 5 Journal of International Criminal Justice 310, 312CrossRefGoogle Scholar; Melzer, Nils, Targeted Killing in International Law (Oxford University Press 2008) 303CrossRefGoogle Scholar.

99 Office of the US Press Secretary, White House Fact Sheet, 7 February 2002, ‘Status of Detainees at Guantanamo’, available at http://www.whitehouse.gov/news/releases/2002/02/20020207-13.html; Response of the US dated 21 October 2005 to the inquiry of the UNCHR Special Rapporteur pertaining to detainees at Guantanamo Bay, 8 August 2005, 5, available at http://www.asil.org/pdfs/ilib0603211.pdf.

100 For a thorough study that is critical of this third category, in particular with regard to international armed conflicts, see Wieczorek (n 56) 125. For civilian status according to the Israel Supreme Court, see Targeted Killing (n 6) para 26 (‘An unlawful combatant is not a combatant, rather a “civilian”’). In favour of this category for purely semantic reasons: Parameswaran, Katharina, Besatzungsrecht im Wandel: Zur heutigen Bedeutung des Besatzungsrechts (Nomos 2008) 95CrossRefGoogle Scholar; Švarc, Dominika, ‘The Use of Military Force in the Fight against Terrorism: International Legal Framework’ (2006) 6 ISIL Yearbook of International Humanitarian Law and Refugee Law 142, 162Google Scholar; Bothe (n 95) 69. For: Gross, Michael L, ‘Assassination and Targeted Killing: Law-Enforcement, Execution or Self-Defence?’ in Rodin, David (ed), War, Torture and Terrorism (Wiley-Blackwell 2007) 83, 84 (these persons are ‘certainly no civilians’)Google Scholar.

101 The term ‘unlawful combatant’ was originally introduced to describe concealed German saboteurs in the US: see US Supreme Court, Ex parte Quirin, US Reports 317 (1942), 1 (4, 31).

102 Similar to criminals against humanity, see Ambos, Kai, ‘Crimes Against Humanity and the ICC’ in Sadat, Leila Nadya (ed), Forging a Convention for Crimes Against Humanity (Cambridge University Press 2011) 279, 282, referring to David Luban's approachGoogle Scholar.

103 AP I (n 11) art 50(1) reads as follows: ‘A civilian is any person who does not belong to one of the categories of persons referred to in Article 4A(1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.’ Civilians are therefore all persons who are not combatants – apart from ordinary civilians, members of the police, spies, UN Blue Berets, franctireurs, mercenaries, employees of private security companies and unorganised insurgents. Concerning the aspect of legitimacy that the term civilian carries with it, see Kenneth Watkin, ‘Warriors Without Rights? Combatants, Unprivileged Belligerents, and the Struggle Over Legitimacy’, Humanitarian Policy and Conflict Research, HPCR Occasional Paper, 2005, 6.

104 In the same sense, Lubell (n 55) 119.

105 Richter (n 97); see, however, Watkin (n 45) 666, who regards the loss of civilian status as possible under these circumstances.

106 For non-international conflict, see AP II (n 12) art 13.

107 ICC Statute (n 37) arts 8(2)(b)(i) and 8(2)(e)(i).

108 AP I (n 11) art 51(3). This Article is not subject to any reservation by the parties: see Momtaz, Djamchid, ‘La participation directe des personnes civiles aux hostilités’ in Fischer-Lescano, Andreas and others (eds), Frieden in Freiheit - Peace in Liberty - Paix en liberté: Festschrift für Michael Bothe zum 70. Geburtstag (Nomos 2008) 493, 496Google Scholar; Gaudreau, Julie, ‘Les réserves aux Protocoles Additionnels aux Conventions de Genève pour la protection des victimes de la guerre’ (2003) 849 International Review of the Red Cross 143Google Scholar. See also AP II (n 12) art 13(3) with regard to non-international armed conflicts.

109 See Stefan Oeter, ‘Das militärische Vorgehen gegenüber bewaffneten Widerstandskämpfern in besetzten Gebieten und internen Konflikten: “direct participation in hostilities” und der Schutz der Zivilbevölkerung’ in Fischer-Lescano and others (n 108) 503, 503; Keller, Helen and Forowicz, Magdalena, ‘A Tightrope Walk Between Legality and Legitimacy: An Analysis of the Israeli Supreme Court's Judgment on Targeted Killing’ (2008) 21 Leiden Journal of International Law 185, 210CrossRefGoogle Scholar.

110 In the same sense, Rogers, Anthony PV, Malherbe, Paul and Doppler, Bruno (eds), Fight it Right: Model Manual on the Law of Armed Conflict for Armed Forces (International Committee of the Red Cross 1999) 171Google Scholar; Schmitt, Michael N and others, The Manual on the Law of Non-International Armed Conflict (2006) 4Google Scholar; UN Secretary-General's Bulletin, Observance by United Nations Forces of International Humanitarian Law, UN Doc ST/SGB/1999/13, 6 August 1999, s 5.2; as well as several military manuals, for example: Handleiding Humanitair Oorlogsrecht (2005), para 805; Zentrale Dienstvorschrift 15/2 der Deutschen Bundeswehr (1992), para 501; New Zealand Defence Manual 112, Attack Rule No 517(3); The Commander's Handbook on the Law of Naval Operations of the US Navy/Marine Corps/Coast Guard, NWP 1-14M, MCWP P5800.7, s 11.3 (1995).

111 Boor (n 65) 101.

112 AP I (n 11) art 1(2) reads as follows: ‘In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.’ See also Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep 226, [78].

113 AP I (n 11) art 57(3) reads as follows: ‘When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects.’

114 Melzer (n 48) 81; Nils Melzer, ‘Targeted Killing or Less Harmful Means? – Israel's High Court Judgment on Targeted Killing and the Restrictive Function of Military Necessity’ (2006) 9 Yearbook of International Humanitarian Law 87, passim; Solis, The Law of Armed Conflict (n 7) 542 derives this principle from international human rights law and advocates its application also during armed conflict. See also Targeted Killing (n 6) para 60 (‘Harming such civilians, even if the result is death, is permitted, on the condition that there is no other less harmful means’).

115 Of course, the situation changes if one requires not only the absence of a prohibition but a positive authorisation to kill by international (humanitarian) law; for this even more humanist position, see Eser, Albin, ‘Tötung im Krieg: Rückfragen an das Staats – und Völkerrecht’ in Appel, Ivo, Hermes, Georg and Schönberger, Christoph (eds), Öffentliches Recht im offenen Staat. Festschrift für Rainer Wahl (Duncker & Humblot 2011) 665ffGoogle Scholar; see also Hankel, Gerd, Das Tötungsverbot im Krieg – ein Interventionsversuch (Hamburger Edition 2011)Google Scholar.

116 Rudolf and Schaller (n 25) also consider that there is no obligation in armed conflict to use the least harmful means (at 21), such as arrest (at 26). In a similar vein, Van Schaack (n 85): ‘IHL countenances the use of deadly force against the adversary as a first resort as compared with peacetime law enforcement scenarios.’ See also n 109.

117 Thus, for example, s 129a of the German Criminal Code (Deutsches Strafgesetzbuch, Bundesgesetzblatt I, 3322) foresees up to ten years of imprisonment for founding, participation or membership in a ‘terrorist organisation’. s 129b applies to foreign organisations. For a thorough study of this type of organisational responsibility, see Morozinis, Ioannis, Dogmatik der Organisationsdelikte (Duncker & Humblot 2010)Google Scholar.

118 Pejic, Jelena, ‘“Unlawful/Enemy Combatants”: Interpretations and Consequences’ in Schmitt, Michael N and Pejic, Jelena (eds), International Law and Armed Conflict: Exploring the Faultlines, Essays in Honor of Yoram Dinstein (Martinus Nijhoff 2007) 335, 337Google Scholar; ICC, Prosecutor v Bahar Idriss Abu Garda, Decision on the Confirmation of Charges, ICC-02/05-02/09, Pre-Trial Chamber I, 8 February 2010, [80] (‘neither treaty law nor customary law expressly define what constitutes direct participation in hostilities’).

119 Jean-François Quéguiner, ‘Le principe de distinction dans la conduite des hostilités’, thesis, University of Geneva, 2006, 326–27 (‘une menace directe et immédiate pour le belligérant adverse’).

120 ICTR, Prosecutor v Baglishema, Judgment, ICTR-95-1A, Trial Chamber I, 7 June 2001, [104]; Eric David, Principes de droit des conflits armés (4th edn, Bruylant 2008) 286.

121 Wearing a uniform, a distinctive sign and using weapons is sufficient according to Jan Roemer, Killing in a Gray Area Between Humanitarian Law and Human Rights (Springer 2010) 50. For further examples, see ICTY, Prosecutor v Strugar, Judgment, IT-01-42-A, Appeals Chamber, 17 July 2008, [177].

122 Rogers, Anthony, Law on the Battlefield (Manchester University Press 2004) 11–12Google Scholar.

123 Roemer (n 121) 55; Kretzmer, David, ‘Civilian Immunity in War: Legal Aspects’ in Primoratz, Igor (ed), Civilian Immunity in War (Oxford University Press 2007) 84, 91Google Scholar; Michael N Schmitt, ‘The Interpretive Guidance on the Notion of Direct Participation in Hostilities: A Critical Analysis’ (2010) 1 Harvard National Security Journal 5, 28.

124 For a detailed analysis of the belligerent nexus, see Frederik Strømme Legernæs, ‘Incompetent Resistance? Core Aspects of Civilian Direct Participation in Hostilities’, thesis, University of Oslo, 2009, 26.

125 Héctor Olásolo, Unlawful Attacks in Combat Situations: From the ICTY's Case Law to the Rome Statute (Martinus Nijhoff 2008) 115.

126 In detail, Michael N Schmitt, ‘Targeting and International Humanitarian Law in Afghanistan’, in Schmitt (n 71) 307, 317.

127 Ambos, Kai, ‘VStGB Vorbemerkungen §§ 8 ff’, in Joecks, Wolfgang and others, Müncher Kommentar zum Strafgesetzbuch (1st edn, CH Beck 2009) 620, marginal note 42 with further referencesGoogle Scholar.

128 Term used for the first time by W Hays Parks, ‘Air War and the Law of War’ (1990) 32 Air Force Law Review 1, 118. In detail, Shany, Yuval, ‘Israeli Counter-Terrorism Measures: Are they “Kosher” under International Law?’ in Schmitt, Michael N and Beruto, Gian Luca (eds), Terrorism and International Law: Challenges and Responses (Nagard 2002) 96, 104Google Scholar.

129 Melzer (n 98) 353.

130 In detail Dewi Williams, ‘Tata, što si Ti radio u Velikom ratu’ – Izravno učešće u neprijateljstvima i moguće rješenje za složsenu pravnu poziciju' (‘Daddy, What did YOU do in the Great War?’ Direct Participation in Hostilities, a Possible Solution to a Fraught Legal Position’) thesis, University of Split, 2008, 830.

131 For an illustration, see Robinson, Adam, Bin Laden (Arcade 2001) 266Google Scholar.

132 According to Alain Chouet, former head of the French secret service DGSE, ‘Osama bin Laden has not had any operational capacity since quite a while’ (quoted by Bletry, Verdier and Tallès (n 65)). See also Burke (n 65) 28ff and 293ff; Korewa, Victor, La lutte contre le terrorisme d'Al-Qaida: Perspectives stratégiques (Connaissances et Savoirs 2008) 109Google Scholar (‘Al-Qaida does not depend on bin Laden with regard to organisation and legitimacy’ (translation from French)); Van Schaack (n 85) (‘it is fair to query whether he still exercised any operational leadership at the time he was killed’); dissenting: Bergen, Peter L, ‘Al-Qaeda, the Organization: A Five-Year Forecast’ (2008) 618 The Annals of the American Academy of Political and Social Science 14, 16CrossRefGoogle Scholar; Corine Lesnes, ‘Saisi à Abbottabad, le journal d'Oussama Ben Laden est un “trésor” pour la CIA’, Le Monde, Paris, 13 May 2011, 8. This has recently been confirmed by bin Laden's private documents, seized by the US during the Abbottabad raid and released through the West Point Combating Terrorism Center. The corresponding publication (Nelly Lahoud and others, ‘Letters from Abbottabad: Bin Laden Sidelined?’, Harmony Program, 3 May 2012, available at http://www.ctc.usma.edu) states that ‘the tone in several letters authored by bin Laden makes it clear that he was struggling to exercise even a minimal influence over [Al Qaeda's affiliates]’ (13) and ‘On the basis of the 17 declassified documents, bin Laden was not, as many thought, the puppet master pulling the strings that set in motion jihadi groups around the world’ (52). According to Kretzmer (n 123) 93, general strategic analysis during armed conflict – as opposed to the effective selection of military targets – is not equal to direct participation in hostilities.

133 Bin Laden's compound in Abbottabad had neither phone nor internet connection: see Schmidle (n 2).

134 See, however, Schmidle, ibid, claiming that ‘he had been developing plans to assassinate Obama and Petraeus’.

135 AP I, art 41 and GC I–IV, common art 3(1) (both n 11). According to Vincent-Joël Proulx, ‘If the Hat Fits Wear it, if the Turban Fits Run for Your Life: Reflection on the Indefinite Detention and Targeted Killings of Suspected Terrorists’ (2005) 56 Hastings Law Journal 801, 884 (targeted killings deny the victim the right to surrender).

136 See n 98 and accompanying text.

137 Universal Declaration of Human Rights, UNGA Res 217A(III), UN Doc A/810 (1948), 10 December 1948, art 3 (‘Everyone has the right to life, liberty and security of person’); ICCPR (n 27) art 6(1) (‘Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life’); American Declaration of the Rights and Duties of Man (n 28) art 1 (‘Every human being has the right to life, liberty and the security of his person’).

138 Rudolf and Schaller (n 25) 14. With regard to US domestic law, see also Executive Order 12333 of the US President concerning intelligence activities (last amended in 2008), art 2.11 of which reads as follows: ‘No person employed by or acting on behalf of the United States Government shall engage in or conspire to engage in assassination.’

139 Hélène Tigroudja, ‘Assassinats ciblés et droit à la vie dans la jurisprudence de la Cour suprême israélienne’ in Christian Tomuschat, Evelyne Lagrange and Stefan Oeter (eds), The Right to Life (Martinus Nijhoff 2010) 267, 274; Charli Carpenter and Lina Shaikhouni, ‘Don't Fear the Reaper’, Foreign Policy, 7 June 2011, available at http://www.foreignpolicy.com/articles/2011/06/07/dont_fear_the_reaper.

140 Amnesty International points out that 60% of the world's population lives in a country which practises capital punishment, in total one third of the world's countries, available at http://www.amnesty.name/en/death-penalty/numbers.

141 ICCPR (n 27) art 6(2) reads as follows: ‘In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.’

142 UN Human Rights Council, Interim Report on the Worldwide Situation in regard to Extrajudicial, Summary or Arbitrary Executions submitted by Philip Alston, Special Rapporteur, UN Doc A/61/311, 5 September 2006, paras 33–45.

143 See n 27.

144 Kai Ambos, ‘Defences in International Criminal Law’ in Bartram S Brown (ed), Research Handbook on International Criminal Law (Edward Elgar 2011) 299, 307ff with further references. See also the Code of Conduct for Law Enforcement Officials, art 3, which reads as follows: ‘Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty’ (UNGA Res 169(1980), UN Doc A/RES/34/169, 5 February 1980) as well as the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (UN Doc A/CONF.144/28/Rev.1, 112 (1990), available at http://www2.ohchr.org/english/law/firearms.htm) of which special provision 9 states that ‘[l]aw enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life’.

145 See n 37.

146 See ICC Statute (n 37) art 31(1)(c) (‘against an imminent and unlawful use of force’) and art 31(1)(d) (‘threat of imminent death or of continuing serious bodily harm’).

147 See statement of the White House Press Secretary, Jay Carney, during the Press Briefing on 3 May 2011: ‘He was not armed … I think resistance does not require a firearm’, available at http://www.whitehouse.gov/the-press-office/2011/05/03/press-briefing-press-secretary-jay-carney-532011. See also Altman and others, ‘The End of bin Laden’, Time Magazine, New York, 20 May 2011, 21; and P. Bergen, ‘The Last Days of Osama bin Laden’, Time Magazine, New York, 7 May 2012, 16ff.

148 The responsible ‘Team 6’ of Navy Seals is called ‘the elite of the elite’: see Mark Mazzetti, ‘In Bin Laden's Compound, Seals’ All-Star Team', New York Times, New York, 5 May 2011, A14.

149 In this vein recently, see also David Scheffer, former US Ambassador at Large for War Crime Issues, available at http://inthearena.blogs.cnn.com/2011/05/11/did-the-u-s-violate-international-law-by-killing-bin-laden-david-scheffer-former-u-s-amb-at-large-for-war-crimes-issues-weighs-in.

150 Chelsea J Carter, ‘Taliban: Bin Laden's Death Reinvigorates War Against US’, CNN World, 7 May 2011, available at http://articles.cnn.com/2011-05-07/world/afghanistan.taliban.bin.laden_1_bin-laden-osama-bin-sheikh-osama?_s=PM:WORLD. Despite the official statement of the White House Press Secretary, Jay Carney, during the Press Briefing of 4 May 2011 (‘The operation was planned so that the team was prepared and had the means to take bin Laden into custody’, available at http://whitehouse.gov/the-press-office/2011/05/04/press-briefing-press-secretary-jay-carney-542011) as well as that of the UN Special Rapporteur for the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin (‘The United States offered bin Laden the possibility to surrender, but he refused’, available at http://www.undispatch.com/was-bin-ladens-killing-legal-one-top-un-expert-says-so), the recent statement of the then US Secretary of Defense, Robert Gates, regarding bin Laden's successor, suggests that the killing was planned at the outset (‘Like bin Laden before him, the US intends to capture and kill Zawahiri as well’, available at http://www.defense.gov/audio/2012). See also the interview with the then CIA Director, Leon Panetta (‘The authority here was to kill bin Laden’, available at http://www.pbs.org/newshour/bb/terrorism/jan-june11/panetta_05-03.html) as well as the statement of a US special operations officer, according to Schmidle (n 2) (‘There was never any question of detaining or capturing him – it wasn't a split-second decision. No one wanted detainees’). In the same direction goes Barack Obama's assertion during his election campaign saying he would ‘kill bin Laden’, see http://www.spiegel.de/international/world/0,1518,760358,00.html. William Schabas qualifies the killing as ‘state-sponsored murder’ at http://humanrightsdoctorate.blogspot.com/2011/06/licence-to-kill.html.

151 For a good discussion in English, see Fletcher, George P, Basic Concepts of Criminal Law (Oxford University Press 1998) 158ffGoogle Scholar.

152 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v US), Merits, Judgment of 27 June 1986 [1986] ICJ Rep 14, [246]. In favour of a (in casu not applicable) ‘hot pursuit’ exception in case of the immediate escape of the insurgents over the border, see Murphy (n 85) 116; contra, however, Lubell (n 55) 72 and 73 (limiting the application of the ‘hot pursuit’ exception, if at all, to the law of the sea).

153 President Obama acknowledged this dictate: see TV Interview on 4 May 2011, available at http://www.cbsnews.com/8301-504803_162-20060530-10391709.html?tag=contentBody;listingLeadStories.

154 Charter of the United Nations (entered into force 24 October 1945) 1 UNTS 16 (‘UN Charter’), art 2(4) reads as follows: ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’

155 UNSC Res 1267(1999), UN Doc S/RES/1267 (1999), 15 October 1999, preliminary remarks; UNSC Res 1333(2000), UN Doc S/RES/1333 (2000), 19 December 2000, preliminary remarks; UNSC Res 1390(2002), UN Doc S/RES/1390 (2002), 28 January 2002; UNSC Res 1455(2003), UN Doc S/RES/1455 (2003), 17 January 2003; UNSC Res 1526(2004), UN Doc S/RES/1526 (2004), 30 January 2004; UNSC Res 1617(2005), UN Doc S/RES/1617 (2005), 29 July 2005; UNSC Res 1735(2006), UN Doc S/RES/1735 (2006), 22 December, 2006; UNSC Res 1822(2008), UN Doc S/RES/1822 (2008), 30 June 2008, and UNSC Res 1904(2009), UN Doc S/RES/1904 (2009), 17 December 2009. See also UNSC Res 1363(2001), UN Doc S/RES/1363 (2001), 30 July 2001; UNSC Res 1388(2002), UN Doc S/RES/1388 (2002), 15 January 2002; UNSC Res 1452(2002), UN Doc S/RES/1452 (2002), 20 December 2002; UNSC Res 1456(2003), UN Doc S/RES/1456 (2003), 20 January 2003; UNSC Res 1699(2006), UN Doc S/RES/1699 (2006), 8 August 2006; UNSC Res 1730(2006), UN Doc S/RES/1730 (2006), 19 December 2006, and UNSC Res 1732(2006), UN Doc S/RES/1732 (2006), 21 December 2006.

156 See UNSC Res 1917(2010), UN Doc S/RES/1917 (2010), 22 March 2010, preliminary remarks, para 2; UNSC Res 1943(2010), UN Doc S/RES/1943 (2010), 13 October 2010, para 4, and UNSC Res 1974(2011), UN Doc S/RES/1974 (2011), 22 March 2011, para 2 (confirming the sovereignty of territorial states).

157 See Pakistan Ministry of Foreign Affairs, Press Release No 152/2011, 3 May 2011, available at http://www.mofa.gov.pk/Press_Releases/2011/May/PR_152.htm: ‘However, the Government of Pakistan categorically denies the media reports suggesting that its leadership, civil as well as military, had any prior knowledge of the US operation against Osama bin Ladin carried out in the early hours of 2nd May 2011 … the Government of Pakistan expresses its deep concerns and reservations on the manner in which the Government of the United States carried out this operation without prior information or authorization from the Government of Pakistan.’

See also Press briefing of a senior White House official right after bin Laden's killing (‘We shared our intelligence on this bin Laden compound with no other country, including Pakistan’, available at http://www.whitehouse.gov/the-press-office/2011/05/02/press-briefing-senior-administration-officials-killing-osama-bin-laden) as well as President Barack Obama's interview (n 153). See also Van Schaack (n 85) (‘apparent lack of Pakistani consent to the SEALs’ incursion' and ‘little indication that Pakistan was aware of the Bin Laden operation’).

Of course, there are some accounts according to which the Pakistani government was actually informed of the raid but it preferred to give approval to the US secretly so as not to upset the Pakistani public: Declan Walsh, ‘Osama bin Laden Mission Agreed in Secret 10 Years ago by US and Pakistan’, The Guardian, London, 9 May 2011, available at http://m.guardian.co.uk/world/2011/may/09/osama-bin-laden-us-pakistan-deal?cat=world&type=article. In respect of this possibility, see also Chris Allbritton and Rebecca Conway, ‘Analysis: In Pakistan, Embarrassed Silence on Killing’ Reuters, New York, 2 May 2011, available at http://www.reuters.com/article/2011/05/02/us-binladen-silence-idUSTRE7414GF20110502. While the authors, as outsiders, are not able to assess the veracity of such accounts, they do not seem to be very logical: either the US sees Pakistan as a reliable partner it can trust, in which case bin Laden could have been arrested in a concerted action by Pakistani and US forces, probably even at an earlier stage, or the US is worried that the Pakistani state or parts of its security services collaborate with Al Qaeda and therefore preferred to act on its own without even informing the Pakistani authorities. In our view, this latter scenario better fits the actual operation and it is highly likely that the US acted without having informed the Pakistani authorities and thus violated Pakistan's sovereignty. On Pakistan's consent to previous US military operations on its territory, see Murphy (n 85) 118ff and Van Schaack (n 85) (‘Consent to action in FATA would not necessarily extend to the Bin Laden raid, however’).

158 See International Convention for the Suppression of Terrorist Bombings, A/RES/52/164, 15 December 1997, 2149 UNTS 256, art 15(a) (‘States Parties shall cooperate in the prevention of the offences … By taking all practical measures … to prohibit in their territories illegal activities of persons, groups and organizations that encourage, instigate, organize, knowingly finance or engage in the perpetration of [terrorist] offences’). With almost identical wording, see International Convention for the Suppression of the Financing of Terrorism, A/RES/54/109, 9 December 1999, 2178 UNTS 197, art 18(1)(a), and the International Convention for the Suppression of Acts of Nuclear Terrorism, A/RES/59/290, 13 April 2005, 2445 UNTS 89, art 7(1).

See also UNSC Res 1373(2001), UN Doc S/RES/1373 (2001), 28 September 2001, para 2 (c) (‘all States shall … Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens’) and UNSC Res 1624(2005), UN Doc S/RES/1624 (2005), 14 September 2005, para 1(c) (calling upon ‘all States to adopt such measures as may be necessary … to … Deny safe haven to any persons with respect to whom there is credible and relevant information giving serious reasons for considering that they have been guilty of [commission of terrorist acts]’).

159 This follows from various soft law sources: see, for example, Annex to the GA Resolution on the Measures to eliminate international terrorism, UNGA Res 49/60 (1995), UN Doc A/RES/49/60, 17 February 1995, para 5(a) (‘States must also fulfil their obligations under the Charter of the United Nations and other provisions of international law with respect to combating international terrorism and are urged to take effective and resolute measures … To refrain from organizing, instigating, facilitating, financing, encouraging or tolerating terrorist activities and to take appropriate practical measures to ensure that their respective territories are not used for terrorist installations or training camps, or for the preparation or organization of terrorist acts intended to be committed against other States or their citizens’). Its more recent version, UNGA Res 210(1997), UN Doc A/RES/51/210, 16 January 1997, para 5 (‘Reiterates its call upon States to refrain from financing, encouraging, providing training for or otherwise supporting terrorist activities’) and GA Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, UNGA Res 2625(1970), UN Doc A/RES/2625(XXV), 24 October 1970 (‘Every state has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State’). See also Sven Peterke, ‘Völkerrechtliches Selbstverteidigungsrecht gegen transnationales organisiertes Verbrechen?’ (2011) 24 Humanitäres Völkerrecht-Informationsschriften 202, 205.

160 For a customary rule of international law which imposes on states the obligation to prosecute and try alleged terrorists and on third states to refrain from objecting to such prosecution and repression against their nationals, see Special Tribunal for Lebanon (STL), Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, STL-11-01/I/AC/R176bis, Appeals Chamber, 16 February 2011, [102]. For a critical discussion, see Ambos, Kai, ‘Judicial Creativity at the Special Tribunal for Lebanon: Is there a Crime of Terrorism under International Law?’ (2011) 24 Leiden Journal of International Law 655CrossRefGoogle Scholar.

161 cf Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries (2001), Report of the International Law Commission, 53rd session [2001] 2 YILC 26, UN Doc A/56/10, November 2001.

162 cf Solis, The Law of Armed Conflict (n 7) 162 (‘If a nonstate terrorist group attacks a state from a safe haven in another host state that will not or cannot take action against the nonstate armed group, the attacked state may employ armed force against the terrorist group within the borders of the host state. Extraterritorial law enforcement is not an attack on the host state, but on its parasitical terrorist group’); Chesney (n 86) 24 and 38 (advocating the legality of self-defence interventions in ‘failed states’ even in the absence of an armed conflict where IHL would not be applicable); Kranz, Jerzy, War, Peace or Appeasement (Wydawniczy 2009) 112ffGoogle Scholar (affirming the right to self-defence against ‘irregular troops’ even without appeal to the Security Council); Rudolf and Schaller (n 25) 13 (arguing that a state, which is unable or unwilling to prevent terrorist activities emanating from its territory, is obliged to tolerate the attacked state's intervention pursuant to self defence). For an extensive discussion, see also Peterke (n 159) (leaving it open, however, whether self-defence applies), and recently Tams, Christian J and Devaney, James G, ‘Applying Necessity and Proportionality to Anti-Terrorist Self-Defence’ (2012) 45 Israel Law Review 91CrossRefGoogle Scholar (arguing that international law is beginning to recognise a right of self-defence against terrorist attacks especially taking into account necessity and proportionality). The official US position has recently been reaffirmed by Attorney-General Holder in a lecture at Chicago University on 5 March 2012 (stating that ‘international law recognizes the inherent right of national self-defense. None of this is changed by the fact that we are not in a conventional war … it is entirely lawful – under both United States law and applicable law of war principles – to target specific senior operational leaders of al Qaeda’), available at http://www.justice.gov/iso/opa/ag/speeches/2012/ag-speech-1203051.html.

163 Even Resolutions 1368 (n 76) and 1373 (n 158), sometimes invoked by the adherents of military intervention, only recognise or reaffirm in their Preambles ‘the inherent right of individual or collective self-defence in accordance with the Charter’.

164 See also Murphy (n 85) 121 and references in n 160.

165 See also UNSC Res 1566(2004), UN Doc S/RES/1566 (2004), 8 October 2004, para 2, as well as UNSC Res 1624(2005), UN Doc S/RES/1624 (2005), 14 September 2005, Preamble. Even before the attacks of 11 September 2001, the Security Council had demanded the arrest and criminal prosecution of Osama bin Laden: see UNSC Res 1267(1999), UN Doc S/RES/1267 (1999), 15 October 1999, para 2. See also International Convention for the Suppression of Terrorist Bombings, art 6(4); International Convention for the Suppression of the Financing of Terrorism, art 7(4); International Convention for the Suppression of Acts of Nuclear Terrorism, art 9(4) (all n 158) (‘Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over the offences set forth in article 2 in cases where the alleged offender is present in its territory and it does not extradite that person to any of the States Parties which have established their jurisdiction in accordance with paragraph 1 or 2’).

166 UN Charter (n 154) art 51 reads in the relevant part: ‘until the Security Council has taken measures’. On the principle of immediacy and the subsidiary character of self-defence measures in light of the Security Council action, see Antonio Cassese, ‘Article 51’ in Jean-Pierre Cot, Alain Pellet and Mathias Forteau (eds), La Charte des Nations Unies, Commentaire article par article (3rd edn, Economica 2005) 1329, 1333; Randelzhofer, Albrecht, ‘Article 51’ in Simma, Bruno and others (eds), The Charter of the United Nations, A Commentary (2nd edn, Oxford University Press 2002) 788, 790 and 792Google Scholar; Murphy (n 85) 130ff. See, however, Kenneth Anderson, ‘Bleg vor Harold Koh's ASIL Speech’, available at http://opiniojuris.org/2010/03/25/bleg-for-harold-kohs-asil-speech (stating ‘that sovereignty and territorial integrity are important, but the US preserves its rights to go after its enemies in their safe havens’).

167 See references in n 162.

168 UN Charter (n 154) art 51.

169 The mission was once again conducted by the US ‘Team 6’ of Navy Seals, the entity which also carried out bin Laden's killing: Karen DeYoung and Greg Jaffe, ‘Navy SEALs Rescue Kidnapped Aid Workers Jessica Buchanan and Poul Hagen Thisted in Somalia’, The Washington Post, Washington, 25 January 2012, available at http://www.washingtonpost.com/world/national-security/us-forces-rescue-kidnapped-aid-workers-jessica-buchanan-and-poul-hagen-thisted-in-somalia/2012/01/25/gIQA7WopPQ_story.html.

170 Dissenting, for example, Peterke (n 159) 212.

171 Thom Shanker, ‘Djibouti Outpost Behind Somalia Rescue is Part of New Defense Strategy’, New York Times, New York, 26 January 2012, A14. According to DeYoung and Jaffe (n 169), the kidnapers were supposed to be heavily armed but none of the US Special Forces was injured. See also Peter Winkler, ‘Kühne Geiselbefreiung der USA in Somalia’, Neue Zürcher Zeitung, Zurich, 26 January 2012, 3, available at http://www.nzz.ch/nachrichten/politik/international/kuehne_geiselbefreiung_der_usa_in_somalia_1.14536644.html.

172 ‘This program rests on the personal legitimacy of the president’, says former CIA director, Michael V Haydenis; quoted by McManus (n 31).

173 cf DeYoung and Jaffe (n 169). See also Eric Schmitt, Mark Mazzetti and Thom Shanker, ‘Admiral Seeks Freer Hand in Deployment of Elite Forces’, New York Times, New York, 12 February 2012, A1 (pointing out that ‘[t]he officer, Admiral William H McRaven, who leads the Special Operations Command, is pushing for a larger role for his elite units who have traditionally operated in the dark corners of American foreign policy’). See, with regard to another targeted killing, the comment of former CIA director, Michael V Haydenis: ‘We needed a court order to eavesdrop on him … but we didn't need a court order to kill him. Isn't that something?’; quoted by McManus (n 31).

174 UNSC Res 1456(2003) and UNSC Res 1624(2005) (both n 3). Against this wording the statement of the (French) President of the Security Council on its behalf on 2 May 2011 after Osama bin Laden's death (S/PRST/2011/9) is questionable: ‘The Security Council welcomes the news on 1 May 2011 that Osama bin Laden will never again be able to perpetrate such acts of terrorism’.