The Assassination of Osama bin Laden: the legality of Operation Neptune Spear

The international community breathed a sigh of relief on the 2nd of May 2011 when President Obama announced the death of Osama Bin Laden, the man behind the 9/11 attacks. Laden was killed by US Navy SEALs in the city of Abbottabad in the country of Pakistan. The United States SEALs began practising for the raid in a replica of the compound in Afghanistan. The raid was named Operation Neptune Spear. The SEALs used Black Hawk helicopters because of their ability to fly very quietly and are very difficult to detect on the radar. The details of the events are very well depicted in the Academy award-nominated movie, Zero Dark Thirty.

At its core, the operation was a case of gaining custody of the enemy on a foreign soil. Now there are a lot of international customs and conventions which prohibit any arbitrary action by any country on any foreign soil even if it is for gaining custody of a criminal. Therefore one of the main objectives of the mission was to keep the operation as quick as possible and also try and not gather any attention from either the Pakistani military or the civilian population around. Other ways of reaching the end of either capture or killing of Osama such as dropping explosives on his compound or even having talks with Pakistan could not be used because it could’ve to lead to ambiguity of the result or the target getting alert and hiding off again. Therefore this plan was set into motion. A 40-minute raid into Osama’s house was carried out in the dark of the night with the moonlight as their ally.

As much as there arises no doubt about the fact that the ultimate aim of the mission was desired by all of humanity it does bring in questions of the legality of the operation. To put things into perspective, the mission was to send fighters across borders invading the Pakistani airspace and perform military action in a civilian area without the permission or even prior knowledge of the government of Pakistan.

Article 2(4) of the United Nations Charter state that all the members shall refrain from the threat or use of force against the territorial integrity or political independence of any State. In simpler terms, it means to not invade any other country whatsoever be the reason. Although there are three exceptions given in this situation none seem to fit here.

 First, if the other country gives it permission to do so but the only permission the US had was of counter-terrorism activities in the Afghan border and not 150 km into the country of Pakistan only 135 km away from the capital, Islamabad.

Second, if the UN Security Council authorizes the use of force. Again the only use of force that the Security Council allowed the US was against the Taliban in Afghanistan and not in Pakistan. Previously just after the 9/11 attack had taken place President Bush had told the international community that in the United States War against Terror countries were either with them or against them. Basically he meant that if any country did not help them they are the potential enemy of the US. Even on these lines, the actions do not hold strong because Pakistan was not an enemy of the United States as they supported the US and their allies in the war against Al Qaeda. Therefore this exception also does not fall in place to justify the actions in Operation Neptune Spear.

The third exception is Article 51 of the United Nations Charter which gives member states the right to self-defence. It states that nothing in the 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. Although the United States had immediately informed the UN about the killing of Osama bin Laden it does not fall under the purview of self-defence because going by the facts of the events it was an action carried out 10 years later and in a completely different country in a separate continent which is miles away from the United States. It also brings up the question of using self-defence against a country which was a friend and an ally of the US.

The US has a theory of taking the matter into their own hands if any country is unable to take control of terrorist activities by non-state actors in foreign soil but that would also require the knowledge of the foreign country before any action is taken by the US or else it makes up a loose justification for random countries carrying out military operations on different countries even if it is against non-state actors. On the contrary, there are terrorists that operate in the United States itself and so any other country can use this as precedence to attack American soils claiming their intent to only uproot or eliminate the terrorists (people of American citizenship) and not hurt America.

Next comes the question of dealing with the criminal, Osama was killed directly instead of asking if he wanted to surrender or even try to take custody and give him a trial instead of killing him. Although there are justifiable reasons against taking him back the US, like repercussions in the form of more attacks on the US by the Al Qaeda to get him free, it falls out of place with methods prescribed. Protocol 1 of the Geneva Convention states, that if a person is no longer capable of fighting then he cannot be attacked. In this logic, if the first bullet had not killed Osama then the second shot was a violation of the protocol. But it is not that easy to count shots in such a scenario even if it is being carried out by a well-trained sniper.

These scenarios show that even though the end achieved by the United States is a blessing to the international community who lived in fear of the terror activities of Al Qaeda and other similar radical organisations it brings up violations of international laws. It brings up the question of the competence and lacunas in the international legal framework of these laws. On one side it shows that the United States cannot take matters into their own hand and launch manhunts across the globe because their country was attacked, even in such scenarios it is important to respect the sovereignty and territorial integrity of other countries.

The process of gaining custody of a foreign enemy or a domestic enemy on foreign soil could be done in other ways such as luring or by holding diplomatic talks with that country. It is important that the usage of violence should be kept as the last resort. The set of events that led to the killing of Osama bin Laden raises a lot of could have questions, for example, what if the people of the neighbourhood attacked or tried to block the SEALs would they have killed them too? Or what if the Pakistani military had received inputs earlier and tried to fight foreign elements in their sky because they had no prior knowledge that such an activity was only to eliminate the most wanted criminal in the world at that time?

This brings us to a bigger question of having to choose between justice and peace.

Chandrendu Chattopadhyay

Chandrendu Chattopadhyay

I'm a law student studying at NMIMS University, Mumbai.

Chandrendu Chattopadhyay

I'm a law student studying at NMIMS University, Mumbai.

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