JURIST Contributing Editor David Crane of Syracuse University College of Law says there is a fairly simple formula to determine the legality of the military operation that killed Osama Bin Laden...
o assist in the important debate related to the targeting of Osama Bin Laden, I offer up a formula to assist in this important debate related to that targeting. Though simplistic, and in acknowledgement of valid concerns legally and practically related to the targeting, this formula helps clear an intellectual path to a conclusion that perhaps his targeting was lawful.
The death of Osama Bin Laden in Pakistan was a lawful military operation. It is a matter of (A) + (B) = (C). When a nation contemplates the use of force, that force must be done with legal authority (A) and within the strictures of the laws of armed conflict (B). If there is both legal authority and that force follows the principles laid down by The Hague Rules of 1907 and the Geneva Conventions of 1949 then there can be a justified result (C).
Let's break down the formula further using the facts that are apparent in the killing of Bin Laden. In the early morning hours of May 2nd (Pakistan time), United States Special Operations Forces dynamically entered the compound where Bin Laden, some members of his family, and others lived. Let's consider (A) the legal authority. After September 11, 2001, Congress authorized the Commander-in-Chief at the time to use force against those individuals who had perpetrated the attack on the United States that fateful day. Under our constitutional scheme, the President could direct the National Command Authority to use armed force against Al Qaeda, including Bin Laden and others. Additional international authorizations via the United Nations and NATO followed. Overlaid in this authorization to use force was the basic international principle of the inherent right of a nation to self-defense, found in Art. 51 of the UN Charter.
Domestically, the authorized use of force was most certainly buttressed by a Presidential finding to kill Bin Laden as a hostile. By law the President must inform the leadership in Congress about these findings. This apparently was done years ago.
Thus President Obama had the legal authority to order Operation Geronimo and to executive the plan. The (A) part of the formula is complete. However in order to have a justified result (C) there must be the comporting of that use of force with the laws of armed conflict (B). Was Operation Geronimo conducted within the parameters of the rules of war?
When the Special Forces entered the compound they had to use the force authorized by following certain principles: military necessity, proportionality, and distinction/discrimination. Bin Laden had been declared a hostile target and as such there was a militarily necessary reason to engage him, an act to further the military objectives of the international community and the United States against Al Qaeda, the Taliban and global terrorism. If there is no militarily necessary reason to engage a target then engaging it is illegal. There was a military necessary reason to engage Bin Laden; hence the principle of military necessity was satisfied.
When the Special Operation Forces entered Bin Laden's bedroom the force that they used was proportional to the threat proffered by those in that room. Bin Laden apparently showed no sign of surrendering and there were weapons close by him. The use of assigned small arms to engage the lawful target was a proportional response to the threat Bin Laden posed to the Special Forces. The principle of proportionality was thus satisfied.
A final relevant principle related to the use of force in the operation was that of distinction/discrimination. When force is used, the force must be discriminate with the target distinctly engaged. What does this mean? Those who use that force must aim at the target they intend to engage ensuring no one that is protected under the law of armed conflict, e.g. civilians, are hit. The intentional targeting of civilians is never authorized except in self-defense. Unintentional injury or death of civilians in a military operation is called collateral damage and, though unfortunate, not a violation of law. Here the use of force in Bin Laden's room was very discriminate, two well-aimed shots once in the chest and head of the military target, Bin Laden. The principle of distinction and discrimination was satisfied. The alleged shooting of a wife of Bin Laden appears to have been in self-defense according to the facts given by the Obama administration.
Other persons in the compound were either protected, such as the children, or those who offered resistance or who fired on the Special Forces also were properly engaged as hostile at a minimum under the principle of self-defense. It appears that no civilians were intentionally targeted. Thus the essential (B) part of the equation was satisfied.
Since (A) legal authority and (B) adhering to the laws of armed conflict were in place, the killing of Bin Laden, and those who engaged the Special Forces to protect him were justified killings under our domestic law as well as international law (C). The killing of human beings is never to be lightly taken and when it is done it must be done lawfully. The death of Bin Laden was lawful. It was a matter of (A) + (B) = (C) as well as a great deal of courage by our armed forces.
David Crane is a professor at Syracuse University College of Law and the founding former Chief Prosecutor of the international war crimes tribunal in West Africa called the Special Court for Sierra Leone, 2001-2005.
Suggested citation: David Crane, Legal Arithmetic: Adding Up the Legality of Operation Geronimo, JURIST - Forum, May 14, 2011, http://jurist.org/forum/2011/05/david-crane-legal-arithmetic.php.