Was the killing of Osama bin Laden by a team of U.S. Navy SEALs a violation of international law?
Probably not. That was the consensus among a panel of human rights and international law experts Friday at Pace Law School -- although the panelists cautioned that a definitive answer is impossible without knowing exactly what happened inside the compound in Pakistan where the leader of al-Qaida was killed on Sunday, May 1.
"I think it's fair to say we don't know all the facts yet," said Pace law professor Thomas McDonnell during the panel discussion, which was part of a larger conference on teaching international law.
Still, the panelists almost universally expressed dismay at the lack of appetite among the American public to discuss whether the mission to take out bin Laden was legal or moral. Americans are so happy that he is dead that they simply aren't worried about the legality of the operation, said Cindy Buys, a professor at Southern Illinois University School of Law.
That's a step backward for international law, said University of Houston Law Center professor Jordan Paust, given that violating those laws could lead to a slippery slope. "It's too easy to have leaders who want to do things that aren't legal," he said. "As lawyers, we must insist that we not allow violations of the law."
International law cannot be over looked simply because the nature of bin Laden's crimes are so heinous, said Pace law professor Alexander Greenawalt.
"I have a real problem with the idea that it's OK to kill somebody in order to avoid a politicized trial," he said. "A lot of people have a basic moral intuition that this was OK."
The panelists tended to look at the issue from two perspectives: Did the United States violate international law by conducting the operation in Pakistan without the consent of that sovereign nation, and did the United States violate international law by killing an apparently unarmed bin Laden rather than take him into custody or turn him over to the Pakistani government.
Most of the experts agreed that the U.S. military had the right under international law to target a non-head of state in a sovereign country because bin Laden had attacked the United States.
"The de-facto theater of war has expanded, and that's what we look at in international law," Paust said. "Wherever Osama bin Laden was operating, the theater of war was right over his head."
Robert Van Lierop, the permanent representative to the United Nations for Vanuatu, said he is inclined to think that United States did have the right to go into Pakistan, given that bin Laden fits the definition of a "non-state aggressor."
"At some point, a sovereign country that is harboring an international war criminal loses -- somewhat -- the right to assert sovereignty when an effort is made to bring in that criminal," Van Lierop said.
The circumstances of the killing divided the panel somewhat -- although releasing the footage of the raid or photographs may help clear up some of the lingering questions, several participants said.
It's difficult to decipher which laws apply to the raid, given that it was something of a cross between a police enforcement operation and a traditional military operation, said Peggy McGuiness, a professor at St. John's University School of Law.
While soldiers are prohibited under international law from shooting those who surrender, it's not at all clear what bin Laden was doing when the Navy SEALs approached. Not only that, the question of surrender is murkier now, McGuiness said. "How do we know if someone is approaching in order to surrender, or approaching in order to detonate a suicide vest?" she said.
If the SEALs were specifically ordered to kill bin Laden, that could be problematic under international law, Paust said. But those decisions are split-second in close combat, Van Lierop said.
"I don't know who could second-guess a split-second decision under those circumstances," he said. "I don't know that there could have been a different outcome."
In all reality, U.S. forces could not have left bin Laden in the hands of the Pakistani government, noting that there was no "chance in the world" that he would be extradited to the United States or granted due process.
The fact that the United States chose to send in the SEALs for a targeted strike, rather than blowing up the compound by air, indicates that commanders were taking the law into consideration, several panelists said.
"There was an effort to minimize collateral damage, and that is significant on the side of legality," said Laura Dickinson, a professor at the Arizona State University Sandra Day O'Connor College of Law.
