The Legality of the UBL Operation: Responding to the Der Spiegel Criticism

This article by Thomas Darnstädt, published online by Der Speigel, is getting a lot of attention today.  The thrust of the piece is captured by the tagline at the top: "Is this what justice looks like? ....Americans are celebrating, but there are serious doubts about whether the targeted kililng was legal..."  The arguments that follow are unpersuasive, in my view, but I think it is important to note and come to grips with them.  Quoting Claus Kress from the law faculty at the University of Cologne, Darnstädt opens with the point that "achieving retributive justice for crimes...is 'not achieved through summary executions, but through punishment that is meted out at the end of a trial."  But of course the US Government did not purport to be pursuing UBL strictly as a matter of dispensing retributive justice for a past crime; however much rhetoric of justice (inevitably of course) enters into public statements about the operation, it could not be clearer that the government asserts that it is acting in self-defense, consistent with Article 51 of the UN Charter, in attempting to stop al Qaeda from carrying out further atrocities.  From this perspective, one wonders if Darnstädt would offer the same criticism of the Clinton Administration's attempt to kill UBL and other al Qaeda leaders through a targeted missile strike in 1998 in response to the East African Embassy bombings. Of course, I've not yet mentioned the law-of-war lens through which much analysis of US counterterrorism activity has taken place.  Darnstädt appears to concede in the next section that targeting UBL would be permissible if (i) a relevant state of armed conflict exists and (ii) UBL had a role as an operational leader of a military-type unit involved in that armed conflict.  But Darnstädt doubts these conditions are met.  He does agree that an armed conflict existed in Afghanistan in the fall of 2001, and that IHL recognizes the existence of a category of non-state combatants who may be targeted in certain circumstances: where the non-state actor is "organized in units with a military-like character," and where the particular individual is "integrated" into such a unit "either as armed fighter or as a leader who issues commands."  Readers should recognize here the position taken by the ICRC in its DPH study, recognizing a category of quasi-combatants in the NIAC setting consisting of the members of "organized armed groups" who perform a "continuous combat function."  Darnstädt further agrees that for at least some time, UBL clearly fell within the scope of that category.  But he is skeptical that this continues to be the case today: "It is in no way certain that bin Laden still had the authority to issue commands as head of a quasi-military organization." Set aside the argument that this understanding (i.e., the understanding of which members of an organized armed group may be targeted) is too narrow (I suspect that some in the US government take a broader view, while others might agree with it).  The problem with Darnstädt's suggestion (I think he is only suggesting the possibility, not necessarily embracing it) is that while he may be unsure whether the factual predicate (operational leadership) is met, it does not follow that the US government also must be unsure.  Having access to all the relevant intelligence (including, it seems, the fact that UBL remained in touch with others via the courier that led agents to identify this location), the government was uniquely positioned to form a judgment on this point.  And while it might be smart as a policy matter to maximize the public disclosure of this factual basis (or it might not be, if doing so would jeopardize sources and methods) in a way that permits outside judgment on the issue, I see no basis for saying that this would be required by IHL or otherwise (nor do I read Darnstädt as arguing that the law so requires).  Darnstädt next raises the question whether this is an example of contested US government claims that there are no geographic boundaries to the asserted armed conflict with al Qaeda.  Darnstädt describes such claims as being "unacceptable" to the "vast majority" of IHL experts, citing Professor Kress for the proposition that accepting the calim "would lead to the incalculable escalation of the use of force."  But why should that be so?  I think this geographic-spread concern is a legitimate one, to be sure, but I also think that the rules of the UN Charter system--in particular the combination of Articles 2(4) and 51--suffices to address it.  The key is to understand that in order to intervene without consent in another's territory under Article 51, the use of force must be necessary and proportional, and that this standard won't be satisfied if the "host" state is both willing and able to address the situation itself.  In some places in Pakistan, Yemen, and Somalia, for example, the host state has no realistic capacity to act.   Not so in London.  As for Abbotabad, well, the problem seems more in the nature of a blend of deficits relating to capacity and will: the writ of the government no doubt runs there in ordinary circumstances, but in these extraordinary and peculiar circumstances (including a climate of suspicion about just who knew what and when about UBL's location, and what agendas various individuals and groups might have) I think the US government properly could decide that there was too great a likelihood that seeking to work through the host government would blow the window of opportunity (to be clear, I don't think this is an easy call, and I think arguments critiquing this self-defense claim on the ground that Pakistan in fact would have been willing and able to act would be reasonable arguments, even if I'm not ultimately persuaded by them).   In any event, even if one does not accept this, it seems to me that the geographic concern would only have bite as to UBL if in fact he were wholly isolated from ongoing al Qaeda participation in actual hostilities in the Af-Pak theater; as noted above, it's far from obvious to me that this was the case, and it may be that the US government takes the position that it is indeed not the case. Finally, at the end of the piece, Darnstädt does take up the question of Article 51, mentioning in passing that self-defense would excuse the infringement of Pakistani sovereignty that otherwise would occur if there were no consent to the military strike.  Yet Darnstädt curiously fails to consider whether in fact the US government has a valid self-defense argument, focusing instead solely on the question of consent (as to which I note this op-ed from President Zardari, which notes that the operation was not "joint" but nonetheless applauds rather than objects to it). It seems to me most accurate to say that there may have been tacit consent ex ante, that there is at least tacit consent post-hoc, and that there is at least a good argument under self-defense in any event.