This panel was convened at 9:45 am, Thursday, April 4, by its moderator, Kevin Krauss, Student President (2012-2013) of the International Law Student Association, who introduced the panelists: John Cerone of the Center for International Law and Policy at New England School of Law; and Robert T. Grey Jr. of the Global Security Institute. *
THE LEGALITY OF THE KILLING OF OSAMA BIN LADEN
By John Cerone ([dagger])
In assessing the legality of the killing of Osama bin Laden one is reminded of a saying about the situation in Lebanon. If you think you understand it, it has not been properly explained to you.
Of course, one major obstacle is that we do not have all the facts. However, we also do not have all the law.
The complexity of analyzing the legality of the killing begins with the threshold issue of applicable law. Is the conduct to be analyzed according to domestic law or international law? If domestic law, then which country's domestic laws are applicable? Certainly that of the United States and Pakistan would be applicable. Saudi law might also apply (e.g., on the basis of nationality), in addition to the laws of those countries that have another basis under their domestic law for exercising extraterritorial jurisdiction (e.g., on the universality principle).
If the conduct is analyzed under international law, then several different bodies of international law are potentially applicable, including jus ad bellum (i.e., the law regulating recourse to the use of armed force), jus in hello (i.e., international humanitarian law or the law of armed conflict), international human rights law, international criminal law, and the law of state responsibility for injury to aliens, as well as those rules of international law that allocate jurisdiction among states.
Even if the question of applicable law is settled, there are a number of potentially relevant legal issues that are unsettled within each of these bodies of law. The following analysis examines the applicability and application of jus ad bellum, jus in bello, and international human rights law, and highlights some of these unresolved issues.
JUS AD BELLUM
The modern jus ad bellum consists of very few rules-a general prohibition on the use of force, subject to two exceptions. This apparent simplicity is deceptive in that these rules, while having widely understood and well-established core meanings, are subject to varied and hotly contested interpretations at their periphery.
The U.S. use of force on the territory of Pakistan, assuming that it was without Pakistan's consent, would seem to be a violation of the prohibition on the use of force set forth in Article 2(4) of the UN Charter, as it has been traditionally understood and interpreted by the International Court of Justice. The two well-established exceptions to the prohibition Security Council authorization and the right of self-defense-do not appear applicable. While the United States has invoked the right of self-defense in this context, that right has been traditionally understood, and affirmed by the ICJ, as arising only in response to an armed attack by another state, and not in response to an attack by a nonstate actor.
But is this traditional understanding still good law? Have the rules evolved in the post-9/ 11 world? In particular, did the U.S. invasion of Afghanistan in October 2001, and the international community's response to that invasion, bring about a change in the law-perhaps as a change in customary law or as a novel, authoritative interpretation of the UN Charter?
The international community of states as a whole acquiesced, if not outright supported, the U.S. invasion of Afghanistan. The reactions of other states are certainly an...