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Mary Pauline Hilado 2-S

2013400049 December 10, 2014

PUBLIC ENEMY NUMBER ONE: OSAMA BIN LADEN

Justification on the Al Qaeda Leader’s Death

Terrorism is one of problems yet to be solved today. It affects everyone and can take place

anywhere. Former United Nations Secretary General Kofi Annan defined terrorism as any action

intended to cause death or serious bodily harm to civilians or non-combatants, with the purpose of

intimidating a population or compelling a government or an international organization to do or

abstain from doing any act. Under the United States Code, international terrorism is defined as

activities which involve violent acts or acts dangerous to human life that violate federal or state law

and appear to be intended to intimidate or coerce a civilian population, influence the policy of a

government by intimidation or coercion, or affects the conduct of a government by mass

destruction, assassination or kidnapping (Federal Bureau of Investigation, n.d). A special law in the

Philippines (Republic Act No. 9372) provides that terrorism may be committed by any person who,

among others, commits and act punishable under Republic Act No. 6235 (Anti-Hijacking Law),

thereby sowing and creating a condition of widespread and extraordinary fear and panic among the

populace, in order to coerce the government to give in to an unlawful demand (Amurao, 2013).

Terrorism is considered as a crime against humanity and terrorists are considered as hostis humani

generis or enemy of mankind for wanton killings, disregard for human life and bringing about

widespread fear and destruction. Terrorism violates human rights.

Thirteen years ago, on September 11, 2001, the world came to know of such violence that

would lead to thes unity of nations. It was during that day that the Al Qaeda, a network of Islamic

extremist groups, hijacked four commercial planes and bombed the World Trade Center

(commonly known as the Twin Towers) in New York City and the Pentagon in Arlington, Virginia,

the headquarters of the United States Department of Defense. Around 3,000 people died during

such attacks, attacks which were considered an act of war. The United Nations (UN) and the North

Atlantic Treaty Organization (NATO) recognized the attacks as armed attacks within the UN Charter

and NATO treaty. Ten years later, on May 1, 2011, Al Qaeda’s leader, Osama bin Laden, was killed in

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Abbottabad, Pakistan by a team of US Navy Seals in an official mission (Operation Neptune Spear).

According to reports, the raid which led to the condemned leader’s death was careful ly planned by

the United States for years. The Seals cut the power in the neighbourhood to carry out the mission

and raided the three-storey building where bin Laden and men were staying. A firefight took place

and on the third floor of the building, the military men encountered bin Laden- he was cornered in

his bedroom together with his family and used his wife as a shield, however Robert O’Neill, the Seal

who purportedly killed him, shot him twice in the forehead and once more when he fell to the floor.

Bin Laden was reportedly unarmed. Other members of bin Laden’s family and group were also

killed in the process due to their resistance. Bin Laden was “unceremoniously” buried in the

Arabian Sea but within 24 hours after his death, under Islamic law. A DNA test confirmed that the

body was his and no pictures or videos were released per mandate by the United States. The only

personal reaffirmation was made by one of bin Laden’s wives. The raid, however, was not made

known to the Pakistani government until bin Laden was dead. The Pakistani intelligence source and

the Al Qaeda itself confirmed his death after a few days. The news brought a sigh of relief all over

the globe; however, was bin Laden’s killing actually justified?

One of the sources of international law is customs. Customary international law is a general

and consistent practice of states followed by them from a sense of legal obligation (Bernas, 2009). It

has two elements- the material factor or the practice of states, taking into account duration and

consistency; and the subjective factor, or the reason behind such behaviour. Specifically, an instant

custom is a spontaneous activity of a great number of states supporting a specific line of action.

In response to the 9/11 attacks, the United Nations formed a counter-terrorism council and

passed several relevant resolutions. UN Resolution 1368 condemned the attacks, justifying the acts

of self-defense of the United States and UN Resolution 1373 bound all of the United Nations

member states after it was adopted under Chapter VII of the UN Charter and called for international

cooperation to combat threats to international peace and security caused by terrorist acts. UN

Resolution 1373 obliged member states to criminalize terrorist acts and financing, freeze terrorist-

related funds and assets and deny safe haven to those affiliated with terrorist groups, prevent the

movement of the said groups and cooperate with other governments and international community

on the anti-terrorism front and be members to all terrorism-related conventions and protocols.

These resolutions gave the United States the consent to carry out the raid and the eventual killing of

Osama bin Laden.

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Article 51 of the UN Charter further justifies the killing of bin Laden. It states: “Nothing in

the present Charter shall impair the inherent right of individual or collective self-defence if an

armed attack occurs against a Member of the United Nations, until the Security Council has taken

measures necessary to maintain international peace and security. Measures taken by Members in

the exercise of this right of self-defence shall be immediately reported to the Security Council and

shall not in any way affect the authority and responsibility of the Security Council under the present

Charter to take at any time such action as it deems necessary in order to maintain or restore

international peace and security.” Such article is an exception to Article 2(4) on the prohibition on

the use of force in self-defense, affirmed in the Republic of Nicaragua vs The United States case

(1986) . The killing was an act of pre-emptive self-defense since bin Laden and his group posed an

imminent threat to peace and security of nations and nations have a right to defend themselves

against violence. Under the said article, a state may use force in self-defense if it has been attacked,

or if an armed attack is legitimately deemed to be imminent. The Caroline Test requires that the use

of force must be necessary because the threat is imminent and pursuing peaceful alternatives is not

necessary and the response must be proportionate to the threat. Hence, the killing of Osama bin

Laden is legal: the United States was attacked not as retaliation, but as a planned target; intelligence

information also discloses that bin Laden intended to assassinate President Barack Obama even

prior to the 2012 presidential elections. Furthermore, the Al Qaeda continues to be a threat to the

international community due to its suicide bombings and network of terrorist groups.

A counterargument would be the immediate shooting of bin Laden. Is it not that he should

be given a fair trial first and detained? The answer is simple: bin Laden’s actions showed no signs of

surrendering to the military forces. When he saw them approaching, he retreated to his bedroom

and used his wife as his ‘shield’. As a high profile criminal and leader of a notorious terrorist group,

it is illogical that he is armed, though concealed, and even if he did submit himself to the forces, as

powerful as he is, there is no assurance that the Seals would successfully put him in custody. Bin

Laden’s forces and reinforcements could have also killed the Seals in the process. Moreover, he is

considered as an unlawful enemy combatant under international law. An unlawful enemy

combatant is an individual who, under the laws and customs of war, may be detained for the

duration of an armed conflict which includes members of the Taliban and the Al Qaeda. Bin Laden,

as an unlawful enemy combatant, is not afforded with a prisoner of war status and does not receive

full protection of the Third Geneva Convention.

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The Numberg Principles are a set of guidelines enunciating that no person, no matter what

their office, stands above international law (Sarmiento 2009). Principle VI enumerates the

following crimes, among others, as crimes against humanity: murder and inhuman acts done

against any civilian population. Though terrorism is not expressly classified under the principle, the

9/11 attacks consisted of mass murder and was intended to intimidate the civilian population, not

only in the United States but around the world. As the head of the Al Qaeda, and expressly

admitting that he was behind the attacks, bin Laden is a lawful target of the United States.

The killing of Osama may be a triumph for the terror-gripped society, but doubts are still

cast on his death. Since no evidence was shown to the public, merely testimonies and affirmations

of individuals, raises an uncertainty on the facts of the case.

Sources:

Bernas, J. (2009). Introduction to Public International Law. Rex Printing Company, Inc.:

Quezon City, Philippines.

Bowcott, O. (2011). Osama bin Laden: US responds to questions about killing’s legality. The

Guardian. Retrieved from http://www.theguardian.com/world/2011/may/03/osama-bin-

laden-killing-legality

Bowden, M. (2012). The death of Osama bin Laden: how the US finally got its man. The

Guardian. Retrieved from http://www.theguardian.com/world/2012/oct/12/death-

osama-bin-laden-us

CNN Library (2014). Death of Osama bin Laden Fast Facts. CNN. Retrieved

fromhttp://edition.cnn.com/2013/09/09/world/death-of-osama-bin-laden-fast-facts/

Daily Mail Reporter (2011). Kill Obama: bin Laden plotted to assassinate President before

2012 election. Associated Newspapers Ltd. Retrieved from

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assassinate-President.html De Vogue, A. (2011). Was Killing of Osama bin Laden Legal Under International Law? ABC

News. Retrieved from http://abcnews.go.com/Politics/osama-bin-laden-killing-legal-

international-law/story?id=13538365

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Haynes, W. (2002). Enemy Combatants. Retrieved from http://www.cfr.org/international-

law/enemy-combatants/p5312.

International Business Times (2011). Is Osama bin Laden killing legal? International Law

experts divided. Retrieved from http://www.ibtimes.com/osama-bin-laden-killing-legal-

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Lewis, A. (2011). Osama bin Laden: Legality of killing questioned. BBC News. Retrieved from

http://www.bbc.com/news/world-south-asia-13318372

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Quezon City, Philippines.

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United Nations (2014). Chapter VII: Action With Respect to Threats to the Peace, Breaches of

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