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Was the Killing of Osama bin Laden Legal?

We don't know whether the administration ordered the al Qaeda leader killed, but that hasn't stopped an acrimonious debate.

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Adam Serwer took to Twitter to mock Chomsky, claiming the phrase, “'established norms of international law'... is word salad for 'I have no argument'." But that's a misunderstanding of international law. There is no global government passing a discrete, enforceable civil code – international law consists of commonly accepted norms of international behavior and a hodgepodge of treaties. There are limited institutions enforcing it, and then under limited circumstances.

Not all of those sources of international law carry the same weight. Serwer puts a lot of emphasis on “U.N. Resolution 1368, passed shortly after the 9/11 attacks, [which] explicitly supports 'all necessary steps to respond to the terrorist attacks of 11 September 2001',” but UN resolutions do not in any way exempt a nation state from its treaty obligations. A UN security council resolution cannot be taken as an authorization to ignore the Geneva conventions, for example; clearly, “all necessary means” doesn't include genocide or crimes against humanity.

Ultimately, the nebulous nature of international law lends a lot of noise to the debate. Chomsky and Serwer are simply making arguments on very different terms.

Where International and Domestic Law Overlap

According to the United States Constitution, a treaty, once ratified by Congress, is second only to the Constitution itself in the hierarchy of the law. Congress can withdraw from a treaty, but failing that, it cannot pass simple legislation overriding our treaty commitments.

That's the law of the land, and it is an important point. In any instance where AUMF conflicts with those treaties – including the Geneva Conventions, the Hague Conventions and the UN charter – our treaty commitments prevail.

As I mentioned above, protocol 1 of the Geneva convention prohibits the use of force against individuals who are “out of the fight,” regardless of whether AUMF authorized such an action. The Hague Convention stat es that “the right of belligerents to adopt means of injuring the enemy is not unlimited,” and makes it illegal for states “to declare that no quarter will be given,” or to “kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered.” Parties to the convention are also prohibited from declaring, “abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party.”

Some have claimed that ordering bin Laden killed – again, a fact that hasn't been established – would be legal under Article 51 of the United Nations charter, which grants states broad leeway to act in self-defense. The problem with that assertion is that the UN Charter is a treaty governing the actions of nation-states, and al Qaeda is a non-state entity; the assault took place not in Afghanistan, but in Pakistan. Article 2 says that member states, “shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.”

This is where things get shaky: Article 2, section 7, leaves some wiggle room, stating, “nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures” outlined in Article 51.

A common argument is that Pakistan proved unwilling or unable to apprehend bin Laden, having “sheltered” him for all these years. There are three problems with that claim. First, it hasn't been established as fact. It is widely assumed (by this writer as well) that the Pakistani government knew bin Laden was hiding in Abbottabad, but it is not uncommon for wanted fugitives to evade capture. Second, al Qaeda big-wigs including Khalid Sheikh Mohammed, Abu Zubaydah, Ramzi Binalshibh, Musaad Aruchi, Ahmed Khalfan Ghailani and Abu Faraj al-Libi were all captured in Pakistan, by Pakistani forces, using intelligence and law enforcement developed in partnership with the U.S. Finally, the principle of state sovereignty outlined in the UN charter does not come with a caveat reading, "unless you don't trust a government."

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