After Osama Bin Laden: Assassination, Terrorism, War, and International Law

By Beres, Louis Rene | Case Western Reserve Journal of International Law, Spring-Fall 2011 | Go to article overview

After Osama Bin Laden: Assassination, Terrorism, War, and International Law


Beres, Louis Rene, Case Western Reserve Journal of International Law


International law, always confronting multiple crises, is now in a protracted crisis itself Regarding the struggle against terrorism, especially mass-casualty terrorism, states will increasingly require unorthodox means. In principle, at least, these means may sometimes include defensive first strikes that are known, jurisprudentially, as "anticipatory self-defense." Such preemptive measures could range from individual "targeted killings," (1) or assassinations, (2) to assorted expressions of cyber-war, to more-or-less far-reaching military strikes. In all of these cases, the determinable lawfulness of preemption will ultimately depend, inter alia, upon the imminence and urgency of the particular danger posed. Although it can never be jurisprudentially correct to willfully disregard the requirements of humanitarian international law, the law of armed conflict, there are occasions when ordinary legal expectations will need to be suitably adapted to extraordinary circumstances. Ubi cessat remedium ordinarium, ibi decurritur ad extraordinarium, "Where the ordinary remedy fails, recourse must be had to an extraordinary one." Presently, even after the killing of Osama bin Laden, counter-terror operators, confronted with adversarial groups that may still act as capable proxies for certain enemy states, will need to capably resist all forms of "perfidy," and also to understand that such resistance can be both indispensable, and law-enforcing. This paper will examine pertinent strategic options from an informed jurisprudential perspective, conceptually, but also with particular, or at least deducible, reference to Northern Africa and the Middle East. Moreover, there will be broader and timely excursions into the often related and interpenetrating legal issues of "humanitarian intervention," (3) or the "duty to protect."

I.   INTRODUCTION
II.  ASSASSINATION DURING A CONDITION OF PEACE
III. ASSASSINATION DURING A CONDITION OF WAR
IV   ASSASSINATION AS LAW ENFORCEMENT
     AMONG STATES NOT AT WAR
V.   ASSASSINATION AS ANTICIPATORY SELF-DEFENSE
     AGAINST TERRORISM
VI.  THE PREEMPTION PROBLEM WITH
     REGARD TO A NUCLEARIZNG IRAN
VII. GETTING BACK TO BASICS:
     THE NEED FOR HUMAN TRANSFORMATIONS

I. INTRODUCTION

However reluctantly, even after the successful American assassination (4) of Osama bin Laden on May 1, 2011, (5) the United States and its allies remain engaged in an inherently inconclusive (6) "war" (7) on terrorism. (8) On its face, this engagement is readily comprehensible. All war, after all, accepts the idea of killing as remediation.

At the same time, ironically, while virtually all societies and civilizations routinely accept the permissibility of warfare with vast armies and armaments in particular circumstances (to wit, the long tradition of a just war doctrine (9) in philosophy, theology and jurisprudence), most would nonetheless still question the presumed legality and ethical correctness of assassination and targeted killing. (10)

These denials could sometimes accompany even the most incontestable expressions of anticipatory self-defense. (11) We might also discover similarly far-reaching rejections of preemptive strikes (12) that would involve larger-scale expressions of military force.

For many years, I have argued, albeit reluctantly, for the residual legality and pragmatic reasonableness (13) of assassination as counterterrorism. (14) The core of my sometimes (seemingly) paradoxical argument has been a distinctly utilitarian and humanitarian calculation: Simply stated, at least on occasion, such expressions of violence can best preserve innocent human lives. (15)

Over this extended period, I have maintained that the preemptive assassination of terrorists who plan large-scale or unconventional mass casualty attacks against Americans and others could ultimately save the lives of a great many intended terrorist victims. As an indispensable legal corollary, any such targeted killing should nonetheless adhere to the applicable long-standing customary and codified rules of war, (16) limitations that concern standards of discrimination, (17) proportionality (18) and military necessity. …

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