Following our recent post on Bin Laden’s killing, here is another comment via aquiescencia:

El debate sobre la legalidad de la ejecución de Bin Laden de acuerdo con el derecho internacional está en todos lados. Y es correcto que así sea.  En principio, el derecho a la vida de todos los seres humanos está amparado por el derecho internacional de los derechos humanos y también por el derecho humanitario bélico, que rige en los conflictos armados. En este último caso, dado un conflicto armado, no se puede ejecutar a nadie que no participe … Read More

It’s official, Bin Laden is gone. But is it fine celebrating his death as the incarnation of ‘justice’ though? Along with this Jus ad Bellum (right to engage in a conflict), a Jus in Bello issue (justice in war) is also worth considering. Should terrorists be considered as outlaws and outrights to whom the due process of law should be denied because they use violence and killings as their main means of action? In other words, can terrorists be killed the way they kill, and can killing terrorists without any form of due process of law bring any form of constructive justice?

Lawful action?

John Bellinger (former legal adviser to the US State Department) describes what will probably be the US Government’s defence, i.e. that the killing will be characterised as lawful under domestic law and international law (see here).

First, as he notes, (i) US law through the Authorization to Use Military Force Act of September 18, 2001, authorizes the President to use “all necessary and appropriate force” against persons who authorized, planned, or committed the 9/11 attacks, and (ii) the killing is not prohibited by the assassination prohibition in Executive Order 12333 “because the action was a military action in the ongoing U.S. armed conflict with al-Qaeda and it is not prohibited to kill specific leaders of an opposing force [whilst] the assassination prohibition also does not apply to killings in self-defense”.

Second, he adds, “the executive branch will also argue that the action was permissible under international law both as a permissible use of force in the U.S. armed conflict with al-Qaeda and as a legitimate action in self-defense, given that bin Laden was clearly planning additional attacks”.

These arguments are however questionable, if only because the ILC Draft Articles on State Responsibility make it clear that an act deemed legal under domestic laws can infringe international standards and therefore be illegal under public international law. Article 51 of the UN Charter on the right to self-defence, for instance, does not expressly authorise extrajudicial executions or anticipatory strikes even though the US have relied on the latter as a main feature of their National Security Strategy (available here). Justifying the death of Bin Laden on the ground of anticipatory self-defence, as a result, would characterise it as an unlawful extrajudicial killing debatable under public international law.

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26 October 2010 – An independent United Nations human rights expert said today that the regime created by the Security Council to counter terrorism is outside the scope of its powers, and called on the 15-member body to systematize its counter-terrorism measures and reporting duties of States under one framework rather than several resolutions.

Martin Scheinin, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, said that obligations in countering terrorism imposed on Member States by Security Council resolution 1373, adopted in the wake of the 11 September 2001 terrorist attacks in the United States, “amount to a quasi-legislative measure that is unlimited in time and space.”

In his yearly report, which he presented to the General Assembly yesterday, Mr. Scheinin stated that whatever justification the Council may have had in September 2001 for adopting the resolution, “its continued application nine years later cannot be seen as a proper response to a specific threat to international peace and security.

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