He pretty much declared war when he issued this fatwa.
From Wiki.
In February 1998, Osama bin Laden and Ayman al-Zawahiri co-signed a fatwa in the name of the World Islamic Front for Jihad Against Jews and Crusaders which declared the killing of North Americans and their allies an “individual duty for every Muslim” to “liberate the al-Aqsa Mosque (in Jerusalem) and the holy mosque (in Mecca) from their grip”.[90][91] At the public announcement of the fatwa bin Laden announced that North Americans are “very easy targets.” He told the attending journalists, “You will see the results of this in a very short time.”[92]
Sorry for no link.
I would think that would make it pretty much legal.
If you had read a little bit further into the 1995 rape case you would see that Bill Clinton and then Prime Minister of Japan met behind closed doors to change the status of their agreement to allow the Japanese to try the men. When they were initially arrested they were handed over to American forces and held there until we released them back to the Japanese. While I wasn’t sure of the date, it essentially conforms to my recollection that our agreement with Japan was basically “we’ll prosecute all of the crimes, the Japanese will not prosecute any of them.”
While international law is not my forte, I am familiar with some of the provisions regulating armed conflict, and the fact under international law, this is not an “armed conflict” and consequently, Osama should have been pursued and detained pursuant to the framework of international criminal law, as opposed to the laws of war framework.
International law recognizes four different types of conflict situations, each of which is governed by a different set of legal norms, and they are (A.) situations of tensions and disturbances; (B.) international armed conflicts; (C.) wars of national liberation; and (D.) internal armed conflicts. There really is only one possible classification the U.S. war on terror, or war againt Osama and Al Qaeda, could remotely fall into and it is “international armed conflict.”
The phrase “international armed conflict” refers to a situation involving two or more states engaged in armed conflict. Internal armed conflict referes to all armed conflicts that can not be characterized as either international armed conflicts or wars of national liberation. “Wars of national liberation” refers to armed conflicts in which “peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination." "Internal tensions and disturbances” refers to situations short of armed conflict, but use of force is present and other repressive measures by a government to maintain and/or restore public order/public safety.
The “war on terror” does not, arguably, fall into any of those categories, which means the U.S. is not engaged in an “armed conflict” recongized by international law. So what does this mean? Well, some have concluded if this “war on terror” does not come within those 4 categories, then the action is governed by international criminal law, at the very least international criminal law as it pertains to Osama, located away from the battlefields of Afhanistand and Iraq. If this is true, and if this was a targeted killing, (not stating it was a targeted killing), then it probably violates international law, as the killing cannot be justified by the law governing international criminal law.
Although, there is this one provision which obscures the matter, a matter which is already not very transparent. The phrase “unlawful combatant” is not contradicted by international law. International Criminal Tribunal for the Former Yugoslavia quoted the ICRC commentary on the 4th Geneva Convention in1958, and said, “If civilians directly engage in hostilities, they are considered ‘unlawful’ or ‘unprivileged’ combatants or belligerents (the treaties of humanitarian law do not expressly contain these terms). They may be prosecuted under the domestic law of the detaining state for such action.” It seems to me, from this perspective, Obama has acted consistently with international law.
Any international law experts around here to tell me where I am wrong and why?
It’s been a while since I’ve gone into detailed study about this, but I think the fundamental problem with your argument is that you assume that if a certain type of war doesn’t neatly fit into one of the four categories, then it is prohibited.
To my recollection, those four categories of war are not intended to be a total categorization of all the legal forms of war. Instead, international law lays out rules for each of those forms of war: if it is a state-on-state conflict, then these rules apply; if it is a war of national liberation, then these rules apply. I don’t believe there was ever an attempt to force all wars to fit into those definitions, hence the Geneva Conventions include Common Article III, which basically states that in cases of war that aren’t state-on-state, there are certain basic standards of conduct.
If one were to follow your line of reasoning, then a nation conducting war against Somali pirates would be illegal, because it doesn’t fit into one of those categories. I think that is a fairly absurd conclusion to prohibit war against a common enemy of mankind. Very generally, the laws of armed conflict would apply to a war against pirates in terms of specific obligations under Common Article III, as well as adherence to customary laws of war, such as proportionality and respect for non-combatants.
I see no reason why a war against a specific terrorist organization (or a “war against terror” if you must) would not be covered by the same provisions and practice of the laws of war.
International Criminal Law is moot until the U.N. has a police/military force capable of enforcing it. All the intellectual navel gazing is irrelevant.
Bottom line, the U.S. can do pretty much whatever the hell we want, and there’s not much the U.N. can do about it. If it comes to a vote on the security council, the Brits will back us or abstain, and the French will either surrender to somebody, or say bad words about us, but no one will care because they are French. China and Russia are very much unlikely to give a rat’s ass about us blowing away a terrorist.
The UN did in fact have a military force capable of enforcing against those crimes, namely, the military force of its most powerful member state. It does not have a military force capable of enforcing against any crimes the US might commit.
“Do what thou wilt shall be the whole of the law.” By that standard, sure. When your beliefs conflict with your behavior, you can always change your beliefs…
I am not an international law expert, just find it interesting. Notwithstanding that, international law is not nice and neat. Countries can interpret the same treaty differently, doesn’t mean either country is “wrong.”
Of your list of possible armed conflicts, I think international armed conflict is *not *remotely possible. It falls into the non-international armed conflict (which you call internal armed conflict) category (or, as I bolded in your post and why it’s also called non-international armed conflict: “Internal armed conflict refer[s] to all armed conflicts that can not be characterized as either international armed conflicts or wars of national liberation”). Or, if there’s an armed conflict, and it’s not between two or more states (which this can never be), then the default is non-international armed conflict.
I think the real question is does this rise to the level of an armed conflict? Your only mention is acknowledging the category that is not an armed conflict (internal disturbances and tensions) because the violence does not rise that high. For example, was the LA riots and the response to them an “armed conflict?” No. But why?
There’s no clear definition of an armed conflict. But here are some factors to look for to determine if it’s just an LA Riot type disturbance, or actually rises to an armed conflict:
(1) Rebels Organized?
Yes. Although, moreso from the late 90’s until 2002ish. Not as much anymore; however, we started this war in 2001. They were much more organized (they even had a military “division” back in 2001). There is a chain of command. They have access to cash, training camps, ect.
(2) Sporadic crime or systematic
Again, different today (although partly because we disrupt them), but in 2001 I’d call it systematic. 9/11 was the culmination of a series al qaeda attacks against the United States to force the US out of Saudi Arabia.
(3) Rebels control Territory?
No. Maybe pockets in mountainous regions or places where sovereignty is hazy. But no, not meaningfully.
(4) Gov’t response?
Overwhelming.
I’m trying to be factual with my analysis, but if you dispute, that’s welcome. I just think it adds up to an armed conflict; maybe not US vs. Nazi type armed conflict, but it doesn’t have to be that restrictive or expansive.
Further, three US Presidents, the Supreme Court, NATO, and UN (kinda) all treated terrorists act by al qaeda as acts of war.
I think the more pertinent question is, was killing Bin Laden warranted?
You know, with him being unarmed versus a hoard of armed-to-the-hilt Casey Rybacks; with the prospect of a living Bin Laden potentially yielding a lot more information than the flotsam corpse incarnation; the obviousness of the dubious nature of the Obama administration conveniently ‘finding’ Bin Laden on the cusp of the 2012 presidential campaign; and, of course, the ‘trivial’ issue of his death (‘martyrdom’) providing the key ingredient for the delusional Islamist masses to undertake [even] more terrorist acts – incentive…
Ameeeericaaa, FACEPALM YEAH!! :smack:
You don’t always need military force to enforce international law. You can arrest someone if they are in another country.
There is the famous example where former president George W. Bush cancelled a trip to Switzerland. At the time Amnesty International had said it sent sufficient information to the Swiss government for them to start an investigation.
So what? Unless Bush leaves our jurisdiction, he cannot be arrested by the Swiss against the nation’s will, and that simply is not going to be forthcoming.
Its been a few years since I read it, but Michael Scharf of Case Western wrote an article in 2004 discussing the application of the Law of War to enemy combatants. For those with access, its WestLaw cite is 36 Case W. Res. J. Int’l L. 359 and its entitled “Defining Terrorism As The Peacetime Equivalent Of War Crimes: Problems And Prospects”.
Well, I do not think I said the conflict was “prohibited” but I did say, however, pursuing targets off of the battlefield may or may not be regulated by international laws of war, but perhaps international criminal law. I think the armed conflict transpiring within Afghanistan probably qualifies as an armed conflict and is regulated by the laws of war, although international law does not define “armed conflict” and it technically does not consider the type of combat in Afghanistan.
However, even if the conflict in Afghanistan constitutes as an armed conflict, a war, I am not so sure international law of war recognizes or permits a targeted killing in a sovereign country not engaged in hostilities against the U.S. (assuming this was a targeted killing).
Well, I never said if the engagement did not fall into one of those categories then it was “illegal.” Rather, I was very careful not to characterize it at all if the engagement did not fall into one of the four categories. What I did say, however, is I am unaware of any international law regarding armed conflicts, or any law regarding the law of war, which would permit this type of targeted killing (again assuming it was a targeted killing). In other words, under international law, it is perhaps impossible to characterize this operation as a military one, and the killing of Osama as a justified killing done while engaged in an “armed conflict,” much less Osama as a legitimate military target.
To avoid any confusion, it is important we remember what exactly is being discussed here. There is the armed conflict transpiring in Afghanistan, which most likely can be construed as an armed conflict, something akin to a war, and therefore, the battlefields and combat conducted in Afghanistan is regulated by the international laws of war.
Then, we have the AUMFAT (Authorization of Use of Force Against Terrorists), or the “war on terror,” specifically the war against Al Qaeda, a terrorist organization, among other things. I am doubtful the international laws of war are applicable to this scenario, quite simply because none of them legally recognize an armed conflict of a State against a non-state, such as against an organization. As a result, it is argued, going after targets belonging to these organizations is not regulated by laws of war but rather international criminal law, and targeted killings of them would violate international law.
On this basis, we then move to the presumed, for the sake of argument only, targeted killing of Osama would violate international law (assuming it was a targeted killing and Osama did not resist) as the targeted killing would not come within the law of war, because the laws of war do not legally recognize armed conflict or a war of a State against an organization.
Well, for the reasons I at least noted above, and there are some prominent members in the international legal field which would agree, and I essentially just summarized their understanding of international law in the analytical framework I provided in this post. At most, the laws of war are applicable to the “war on terror” against the terrorist organization Al Qaeda where the organization is engaged in an armed conflict against the U.S. military on a battlefield, like Iraq. However, it is argued the laws of war cannot extend to Osama and a presumed targeted killing of him, when he is located miles away from the battlefield and in a different country, a country in which the battlefield is non-existent.
Again, this is not my forte and as a result I am not sure this position is accurate or correct, which is why I am asking and hoping for someone more intimately familiar with international law to examine this position.
That may be so, and I will look into Article III, thanks for the reference.
Except that there is no doubt whatsoever that the laws of armed conflict do apply, especially as far as this debate is concerned. The US is unquestionably under obligation to comply with applicable laws of war.
The question of targeted killing is a relevant topic, where the killing occurs is not. The laws of war do not prohibit hostilities in sovereign countries, unless they are neutral. Pakistan most assuredly is not neutral in this case, having cooperated to some degree in military actions against the Taliban and Al Qaeda, as deficient as one may argue their actions have been.
if you’re looking for a law to permit various acts of war, you are going to find a very small body of law that specifically says that certain things are permissible: for example, treaty law does indeed allow for ruses of war. But generally, laws prohibit things, and if there is no prohibition, it is legal.
Now, there are prohibitions on killing noncombatants, those who are out of the fight, or even trying to kill an opposing combatant in a treacherous manner. One can debate how the facts of the Bin Laden killing apply to that law.
There isn’t one law of armed conflict. Some rules apply to state vs state conflicts, others apply to other conflicts. But as I said, there are certain precepts that apply to ALL armed conflict, such as customary international law that requires proportionality and discretion in carrying out the combat.
You are misunderstanding the term battlefield. The battlefield is where conflict occurs, not a geographical place where war must be conducted.
I think more people than not agree with your position. However, the law evolves, and there’s a push (or realization) to adapt the law to the changing types of warfare. People don’t want to wait for an attack, then go find the bad guys and bring them to justice. But as you explain, being in war with terrorists doesn’t fit nealty within the laws of war.
I’m going to respond more to your post in detail tomorrow, but had a quick question. Did you ever take a class from Mary Ellen O’Connell? I noticed your username, and your positions are similar.