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OPERATION NEPTUNE SPEAR- THE LEGALITY OF THE ATTACK BY: ARCHI AGARWAL & MOHD YASIN
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OPERATION NEPTUNE SPEAR- THE LEGALITY OF THE ATTACK
Introduction
Operation Neptune Spear
was the code name for an operation that took place on 2nd May 2011
and was run by the United States of America to kill or capture the original leader
of Islamist militant Al-Qaeda, Osama bin Laden. The legality of the said
operation has been questioned by several people on various grounds. The operation was carried out by various
U.S.A. militant forces: Central, Special Activities Division,
U.S. Naval Special Warfare
Development Group,160th
Special Operations Aviation Regiment (Airborne),
and Marine Tactical Electronic Warfare Squadron 4[3]. The
operation was authorized by the former president of the U.S. Mr. Obama. Many
questions came to the surface after the following action was carried out
however, the highlighted questions will be addressed in a further blog.
The
questions that grabbed the most attention were –
·
Did the U.S.A. have the authority to carry out the
raid?
·
Should Osama bin Laden have been captured alive?
·
Pakistan; violation of state sovereignty
The attack took place in a compound in the Pakistani city of Abbottabad.
The act served as retaliation for the 9/11 disaster, which was caused by a
string of hijackings and suicide attacks on airplanes carried out in 2001 by 19
militants linked to the Islamic extremist organization Al-Qaeda. It has been in the history of mankind the most brutal
terrorist attack. The retaliation by the U.S. caught the eye of everyone and
the government was sure that there would be legal questions under international
humanitarian law the thought that an entire legal force would be there drafting
all sorts of scenarios the answer to that question would be surprising because
only four lawyers were aware of the raid and they paved the way for the attack
the names of these lawyers are -, Stephen W. Preston, the
C.I.A.'s general counsel; Mary DeRosa, the National Security Council’s
legal adviser; then-Rear Admiral James W. Crawford III, the Joint Chiefs of
Staff legal adviser, and Jeh C. Johnson, the Pentagon general counsel.[4]
Did the USA have the authority to carry out the raid?
The government of the USA has listed on numerous
occasions which laws were enacted or which international laws gave them the
power to carry out the attack. The United States Congress passed a joint
resolution on September 18, 2001. known as the Authorization for Use of
Military Force[5],
authorizing the use of American forces working against those who are accountable
for the September 11 attacks. The USA believes that it was in a position of
armed conflict with al-Qaeda and thus by UN Charter Article 51[6],
the US used its right to self-defense in reaction to the 9/11 attacks by taking
action.
The international humanitarian law or laws of war are
made of 4 conventions and apply only when there is a state of armed conflict there
are two types of that exist – international and non-international. Armed
conflict is considered international when it exists between 2 states and al-Qaeda
is not a state thus it ruled out that theory However when it comes to non-international
armed conflict several arguments were made in favor of the USA and against it.
the state of conflict that exists between al-Qaeda and the USA is an extraterritorial conflict
and the only law that even comes close to supporting extraterritorial conflict
under non-international armed conflict is Common Article 3[7]which refers to disputes
that occur in the territory of one of the high contracting parties. Although
the article might not support the situation at first, there has been a fair
share of arguments that suggest the opposite, The ICRC commentary contends that
this article should be interpreted through a very wide approach thus putting
the extraterritorial conflict well under its purview of the article.
Should Osama Bin Laden have been captured
alive – Right to Fundamental Life
To attack an individual
the first conclusion that needs to be drawn is whether the person is an original
citizen or a fighter. The customary rule of distinction is applicable in
non-international armed conflicts which states- Rule 1 of the Customary
International Humanitarian Law[8]: Conflicting parties must
always distinguish between civilians and combatants. Only attacks against
combatants are permitted. Civilians must not be targeted in attacks. There are
guidelines issued by the ICRC detailing who may fit the criteria of a combatant.
Assuming Osama bin Laden
did fulfill the criteria he still had a right to live according to Article
6(1) of the ICCPR states that: Every human being has the inherent right to
life. This right shall be protected by law. No one shall be arbitrarily
deprived of his life.[9]
The Seal Team Six that
was sent out for the mission claimed they had the orders to kill Osama bin Laden.
The US government justified its firm assertion that US soldiers, even those
using lethal force, are not subject to international human rights law wherever
they are stationed outside of US jurisdiction against specific terrorism
suspects abroad. This opinion is founded on a constrained interpretation of Article
2(1)[10]
of the ICCPR respecting the Covenant's territorial reach. Furthermore, the USA
upholds a rigorous interpretation of the idea that international humanitarian
law (IHL) takes precedence over other laws during armed conflict[11]. The forces are not
allowed to engage if the person is willing to surrender and does not pose an
imminent threat to anyone or is not a flight risk. However, In the present case,
Osama did resist being captured thus leaving the forces with the option of killing
him.
It is believed Osama bin
Laden was entitled to an intrinsic right to life and was protected by the
ICCPR, hence the US had a moral obligation to refrain from murdering him. On
the other hand, the US also had a duty under the ICCPR to take meaningful
measures to stop persons from being killed while the operation was underway in
their territory. Accordingly, it is possible that deciding not to kill Osama
bin Laden might put other people's lives in peril and thus violate their
inherent right to life. There has not been enough proof to support that he was
a threat to others at the time thus killing him under IHL was unlawful.[12]
Pakistan's violation of state sovereignty
The attack took place in
a city in Pakistan, It is believed by the leaders of the country that they
should have been notified about the attack, and because no prior notice was
given it amounts to a violation of state sovereignty under international law.
The US justified its action by stating that Pakistan had not done anything to
eliminate the threat in the past and was also unwilling to do so, the US
government also had concerns since the terrorist group Taliban has relations with
the Pakistan intelligence services there would have been mishandling of
information and Osama could have escaped. The reasons though logical a
country’s sovereignty was put into question thus raising concerns worldwide.
Conclusion
The US did a great job
in eliminating a threat to world peace but at the same, it did try to find
loopholes within the law. Killing Osama might have been accepted with positive
notions worldwide yet capturing him would have been well within the law. US government
took their risk while conducting the raid because the majority of laws seem to
establish there is no state of armed conflict rendering the entire attack
lawful. It not only affected the sovereignty of Pakistan but raised many questions
on international law. Many laws were manipulated in the process of the raid but
on the bright side world was made a better place by eliminating the threat. All
the people who died in the 9/11 tragedy were avenged and got the justice they
truly deserved.
[1] The author is a student of
BBA.LLB(Hons.) at Galgotias University, Greater Noida.
[2] The author is a student of
BBA.LLB(Hons.) at Galgotias University, Greater Noida.
[3] ‘Killing of Osama bin Laden’(Wikipedia)<
https://en.wikipedia.org/wiki/Killing_of_Osama_bin_Laden> accessed on 12 August 2023
[4] Charlie Savage, ‘How 4 Federal Paved
the Way to Kill Osama bin Laden’( The New York Times, 28 October 2015)<
https://www.nytimes.com/2015/10/29/us/politics/obama-legal-authorization-osama-bin-laden-raid.html> accessed 13 August 2023
[5] The Authorization for Use of
Military Force 2001
[6] UN (26 June 1945)
[8] Customary International Humanitarian
Law 2005, Rule 1
[9] International Covenant on Civil
and Political Rights (adopted 16 December 1966, came into force 23 March 1976)
999 UNTS 171 (ICCPR)
[10] Ibid
[11] Christian Schaller, ‘ Using Force
Against Terrorists ‘Outside Areas of Active Hostilities’ – The Obama Approach
and the Bin Laden Raid Revisited ‘ (2015) 20 Journal of Conflict and Security
Law 195,209.
[12] Amanda Elfstrom, ‘The killing of
Osama bin Laden, Was it Lawful?’ ( Diva Portal, 2011 )< http://oru.diva-portal.org/smash/get/diva2:506500/FULLTEXT01.pdf > accessed 16 August 2023
Article Information
OPERATION NEPTUNE SPEAR- THE LEGALITY OF THE ATTACK BY: ARCHI AGARWAL & MOHD YASIN
Authors: ARCHI AGARWAL, MOHD YASIN
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/05
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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