America breathed a sigh of relief and world leaders offered congratulations following the killing of Osama bin Laden on Sunday. But following conflicting accounts of the al Qaeda leader's final moments from the White House, questions are being raised about the legality of the military operation that resulted in bin Laden's death.
Initial reports from the Obama administration suggested that bin Laden was armed and shooting at U.S. personnel when he was killed. That was subsequently revised and the White House conceded that he was unarmed when he was shot by Navy SEALs.
Human rights groups, lawyers and academics have suggested, among other things, that this could violate an Executive Order that forbids the U.S. government and its employees from engaging in 'political assassination'.
The Guardian quotes Prof Nick Grief, an international lawyer at Kent University, as saying that the attack had the appearance of an "extrajudicial killing without due process of the law".
Kenneth Roth, the Executive Director of Human Rights Watch also tweeted: "White House still hasn't clarified: OBL "resisted" but how did he pose lethal threat to US forces on scene? Need facts."
In the face of these accusations, Attorney General Eric Holder told members of the Senate Judiciary Committee that the raid on bin Laden's compound was lawful "as an act of national self-defense."
"He was the head of al Qaeda, an organization that had conducted the attacks of September the 11th," Holder said. "It's lawful to target an enemy commander in the field."
Critics have questioned how bin Laden could constitute a threat to the lives of the SEALs if he was unarmed, and that he should have been taken alive.
Had bin Laden been shooting at U.S. personnel, he would easily have met the legal standard of a legitimate combat target. An unnamed official when asked if bin Laden tried to grab a weapon or physically attack a commando, told CNN that "he didn't hold up his hands and surrender."
White House spokesperson Jay Carney also took a similar line, saying "I think resistance does not require a firearm."
ABC News reports that the Obama administration has justified the operation legally by citing the Authorization to Use Military Force Act of Sept. 18, 2001, which allows the president to use "all necessary and appropriate force" against persons who authorized, planned or committed the 9/11 attacks, as well as international law derived from treaties and customary laws of war.
Raffi Khatchadourian, writing in The New Yorker said:
The key legal question is not whether bin Laden was armed before he was killed, or even whether or not he posed an immediate “lethal threat,” but whether he was “positively identified” before the trigger was pulled, and whether Holder is accurate when he says that “there was no indication” that bin Laden was actively attempting to surrender. Those are the more relevant facts. And if there is a formal inquiry into the incident, this is what it will undoubtedly seek to establish.
At present however, such an inquiry seems to be a distant prospect. Pakistani complaints that the raid violated their sovereignty have garnered little support internationally. Bin Laden's status a reviled international terrorist means that few countries with influence are likely to press hard for action against those who brought about his end.