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Were US commandos acting lawfully when they killed Osama bin Laden in Pakistan on May 2? If it is lawful to kill a political leader in order to save the lives of his future victims, what about Gaddafi in Libya, Assad in Syria or Mugabe in Zimbabwe? And what about the terrorist leaders who find themselves targeted by the Israelis? 

Under US law, the position is tolerably clear. Killing a captive who poses no immediate threat is illegal under military and civilian law, however much blood he may have on his hands. But the Navy Seals who shot bin Laden and members of his entourage were entitled to use proportionate force in self-defence. It is no answer to say they would not have been at any risk if they had not invaded bin Laden's compound.

With the benefit of hindsight, it does not look as if the commandos were in immediate danger. They apparently met little resistance and were not injured. Bin Laden was not said to have been armed.

So could they have captured bin Laden alive and brought him back for trial, as the Israelis did with Eichmann 50 years ago?  Almost certainly not. They were surely entitled to proceed on the basis that bin Laden could have set off explosives while he remained alive. That was the assumption made by the police officers in London who killed Jean Charles de Menezes in 2005. Though this was an appalling tragedy and the Brazilian was entirely innocent, the officers were not found to have acted unlawfully. These days, a suspected terrorist cannot be regarded as safe unless he's found alone, stark naked and in an open space.

What, though, if the US had decided to drop a bomb on bin Laden's suburban compound? The question of self-defence would not have arisen.

In that event, the Americans would no doubt have justified their actions as part of the "war on terror". Bin Laden declared war on the US by attacking its territory and killing its people on September 11, 2001. That turned him into a legitimate target in the eyes of the US Attorney General. "It is lawful to target an enemy commander in the field," Eric Holder said after bin Laden was killed.

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Herbert Thornton
October 11th, 2011
9:10 PM
Andrew McGee asks - "How can it be self-defence to go to a man's house armed and with hostile intent and kill him? That is an absurd argument." I think that Andrew McGee misses the entire point. If the law says that something is "unlawful" that is not the complete and final answer. The law sometimes ought to be changed and quite often is changed. In our own time for example, so many people have changed their minds about homosexual acts being unlawful that the law against it has been changed so that it now is lawful. As for Osama bin Laden, my own son visited New York not long before the World Trade Centre atrocity and like many tourists, went to the top of the WTC. If he had been there when the atrocity was perpetrated, our son would now be dead. That very much influences my attitude and I would hope that Andrew McGee could understand that - and recognise that my attitude is legitimate. There is no doubt whatsoever that OBL was planning still more such atrocities. Consequently, to my mind, killing OBL was of the very essence of self defence and to call it an "absurd argument" is unsound thinking. If the law books say it is never lawful to kill people in such circumstances, then the law stated in the books ought to be changed. Certainly in the cases of Osama bin Laden and of Anwar al-Awlaki, any law that protects them is clearly very bad law and ought to be changed. Happily, it has - in effect - been changed. If any further steps are needed to confirm that the law has developed in this way then those further steps ought to be taken.

Andrew McGee
June 16th, 2011
11:06 AM
How can it be self-defence to go to a man's house armed and with hostile intent and kill him? That is an absurd argument. The position is in reality quite simple. US forces conducted a military operation in the territory of another sovereign state without that state's permission. The purpose of the operation was to kill a particular individual who was regarded as a threat to the security of the US; but the US cannot be 'at war' with him or with his organisation, which is not a sovereign state. Nor can international law recognise the idea of war on an abstract concept as in 'War on Terror'. The operation was plainly unlawful, however desirable we might consider the result to be.

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