Sarah Joseph

Osama Bin Laden’s killing at the hands of US Navy SEALS on 1 May gives rise to some interesting international law issues. Here, I address some of those issues from a human rights perspective, concerning freedom from torture (regarding the intelligence used to find Bin Laden) and the right to life (regarding his killing). Before doing so, I will say that issues regarding the legality of his killing under US law are largely irrelevant to any question of legality under international law.*

Bin Laden’s death has reopened the debate in the US over the use of waterboarding and other “enhanced interrogation techniques” as a means to gain information about terrorist plans. Vice President Dick Cheney suggested that some of the intelligence used to locate Bin Laden came via the waterboarding of terrorist suspects. However, former Defence Secretary Donald Rumsfeld indicated that the intelligence came from standard interrogation techniques used upon Guantanamo Bay detainees (but then he changed his mind). CIA Chief Leon Panetta then seemed to confirm that the intelligence was from a jigsaw of information surrendered by both standard and “enhanced” methods. For the sake of argument, I am going to assume that the waterboarding intel was useful in ascertaining Bin Laden’s whereabouts (even if one does concede that point, however, there is no guarantee that that part of the intel could not have been gleaned some other way, especially considering the many years that have passed since the cessation of the waterboarding program and the death of Bin Laden).

The international law on this issue is simple. The US is prohibited from ever using torture under the International Covenant on Civil and Political Rights and the Convention against Torture. Even if waterboarding does not rise to the level of severity of “torture” under international law (and I believe it does), it certainly constitutes cruel and inhuman treatment, which is also prohibited. Furthermore, freedom from torture cruel inhuman and degrading treatment is a non-derogable right which cannot be suspended in times of public emergency. Therefore, the use of waterboarding, so proudly confirmed by President George W Bush late last year while he promoted his autobiography, was a clear breach of the US’s international law obligations.

So, that is the legal issue of torture. What about the question of whether it should be absolutely prohibited or instead be allowed in certain circumstances, in particular as a weapon in the war on terror? I will not go into all of the arguments here as it is a debate that has been played out over and over in the last few years (including by myself strongly in support of the absolute prohibition on torture – see, eg, here and here). I simply wish to point out that many proponents of torture tend to talk of the need to employ torture to deal with the “ticking time bomb” scenario. The argument goes that if there is a devastatingly lethal bomb hidden in an unknown location and primed to go off at an unspecified time and kill thousands, law enforcement officers should be able to torture a suspect in order to force that person to tell them where the bomb is in time for them to defuse it and save lives. There are many things wrong with the scenario: how do the police know the bomb exists, how do they know they have the right person, how do they know he/she will talk if tortured, how do they know when he/she is telling the truth and the whole truth such that they can get on with the business of finding and defusing the bomb; how do they know the suspect won’t give them time-wasting false information or for example lead them into a boobytrap; how do they know torture will work but other methods will not … and so on.

But today I have a simpler point. Assuming that waterboarding intel was useful in locating Bin Laden, he was not a ticking bomb! After all, the Obama administration has known of his likely whereabouts for eight months: that does not indicate any great level of need to take him out quickly to stop his dastardly deadly plots. Indeed, waterboarding was allegedly last used in 2006: a lot of ticking bombs have gone off in five years (and most US intelligence sources say Osama Bin Laden was not operationally involved in any of them).  Bin Laden was the spiritual leader of Al Qaeda, but his operational role at the time of his death was certainly severely diminished from his role in 2001. Despite his enormous symbolic value, there is no suggestion that the killing of Bin Laden has thwarted any actual terrorist attacks. I am not denying he was a dangerous man, but he cannot be equated with a ticking bomb in downtown Manhattan. Therefore, in order to use Bin Laden’s death as an argument for waterboarding, one really has to argue that one can use waterboarding to find out any useful information about terrorists, rather than specific information about imminent and hugely lethal plots. The parameters of the ticking bomb argument, involving urgency and the inevitable deaths of thousands, have suddenly expanded. The argument that killing Bin Laden somehow justifies torture therefore demonstrates one of the problems with the ticking bomb argument in the first place: the danger that once one starts allowing exceptions to the prohibition on torture, the floodgates open and one starts to accept torture in other situations too. Rather than torture being used in an emergency, it starts to be used to find any “bad” person; then it starts to be used because it is convenient. And so on.  Indeed, the change in US consciousness on such issues is alarming: an American Red Cross survey recently indicated that 60% of US teenagers supported the use of torture and the killing of PoWs in some circumstances.

Turning to Bin Laden’s death. The US is a party to the International Covenant on Civil and Political Rights. Under Article 6, “no one shall be arbitrarily deprived of his life”. Contrary to US assertions, ICCPR obligations apply to a State’s actions in another State. That is, it imposes extraterritorial obligations so the killing by US forces of a person in Pakistan can breach its obligations under Article 6.

Was the killing of Bin Laden “arbitrary”? The interpretation of “arbitrary” would have to take into account the international law of armed conflict if that law applies. There are good arguments that Bin Laden’s killing was permissible under the laws of war, and there are good arguments that it was not. However, there is a threshold question of whether the laws of war applied at all: was Bin Laden killed in an “armed conflict”? I refer here to this excellent post by Associate Professor Ben Saul on that issue. The balance of opinion probably weighs in favour of there being a relevant armed conflict but the issue is not 100% clear. Therefore, for the sake of completeness, I will offer views on the legality of the issue if the law of armed conflict did not apply.

In the absence of an armed conflict, the paradigm which applies under international human rights law is a law enforcement one. Under that model, Bin Laden’s death was only permissible if it was necessary in order to prevent a reasonably perceived imminent threat to another’s life. If Bin Laden was shooting back as he was killed, there would be no breach of Article 6. However, we now know that he was unarmed, apparently in a room with his unarmed youngest wife and armed Navy SEALS at the time of his death. On the information given, it seems that his death could have been a targeted killing, which is not allowed under international human rights law, no matter who the victim is. The speculative fear that his capture and trial might spark retaliatory hostage-taking or killings is irrelevant, especially as we are told to simultaneously brace for a possible murderous reaction by Al Qaeda to his death.  Any fear that it might be difficult to try him, as the evidence against him was tainted by torture, was likewise irrelevant (and a problem of the US’s own making). His responsibility for thousands of deaths on 9/11 would only be relevant if a sentence of death after a proper trial was imposed (the death penalty is allowed under certain circumstances under Article 6(2) ICCPR).

However, even if Bin Laden did not in fact pose a lethal threat to the SEAL team or any other person at the time of his death, it would suffice for the purposes of Article 6 that the SEAL team reasonably perceived him to be a deadly threat. They may have believed that he was armed. After all, it is probably reasonable, knowing what we think we know of Bin Laden, to assume that his preference would be to kill the SEALS, even if it meant killing himself, rather than be taken alive.

However, under human rights law there is also a duty to plan a law enforcement operation to minimise deaths as much as possible. For example, it seems that the UK police failed to do so in the operation which led to the killing of Jean Charles de Menezes on a London tube by UK special forces acting under the mistaken belief that he was a suicide bomber intent on detonating himself. Menezes’ relatives have now taken his case to the European Court of Human Rights. Similarly, in McCann v UK, the European Court of Human Rights, in a controversial 10:9 decision, found that the UK forces had failed to take due account of the lives of three IRA operatives in tracking them with an intent to prevent the opreatives’ exploding of a bomb in Gibraltar in 1988. Having said that, the Navy SEALS had little ability to stake out Bin Laden’s compound and plan for the best means of capturing the people inside without unduly killing people, given the compound was located inside Pakistan. However, some in the Obama administration seem to have conceded that the operation was in fact a “kill” operation rather than a “capture or kill” operation, as first reported. If so, a planned “kill” operation cannot have been planned with due account for the right to life of the target.  Nevertheless, I must here acknowledge that the surgical strike by the SEAL team saved a lot more lives than the apparent alternative plan of dropping a bomb on the compound, which would probably have killed Bin Laden and most if not all other people in the compound.

Finally, under human rights law, there must be a thorough investigation into the killing of a person at the hands of State authorities, and prosecution and punishment if wrongdoing has occurred. There is no sign that any such investigation will take place, despite the availability of salient evidence, such as videos shot from the helmets of the Navy SEAL team.

As noted, the legal scenario changes considerably if the law of armed conflict applies. A further international law issue concerns the invasion of Pakistani sovereignty without consent by the US, where I again refer readers to Ben Saul.

Considerations of the legality of Bin Laden’s killing may seem like a spoiler which rains on the parade of the joy (of some) unleashed in the wake of his death, and disrupts the conga-line of world dignitaries, including Ban Ki Moon and Julia Gillard, who welcomed his death without qualification.  An editorial in the Australian today dismissed “much of the legalistic condemnation of Bin Laden’s death” as “pointless moral posturing”. But consideration of the legalities, and indeed all of the legalities of the “war on terror”, are essential if we are to stay true to some of the key proclaimed ideals of our societies: the rule of law, due process, and adherence to human rights. Otherwise, even in death, Bin Laden achieves a final victory for his perverse cause.

(main image via Creative Commons, Johnnie Maneiro)

* A killing must be “lawful” under a State’s domestic law in order to comply with international human rights law. However, that lawfulness is only a threshold issue: it means the killing might comply with international human rights law, not that it does so comply.