Document Type

Article

Abstract

Using the May 2011 killing of Osama bin Laden as a case study, this Article contributes to the debate on targeted killing in two distinct ways, each of which has the result of downplaying the centrality of international humanitarian law (IHL) as the decisive source of justification for targeted killings.

First, we argue that the IHL rules governing the killing of combatants in wartime should be understood to apply more strictly in cases involving the targeting of single individuals, particularly when the targeting occurs against nonparadigmatic combatants outside the traditional battlefield. As applied to the bin Laden killing, we argue that the best interpretation of IHL would have required the SEALs to capture bin Laden in conditions short of surrender, if he was in fact manifestly defenseless or otherwise could have been readily captured with little risk.

Second, we take seriously the possibility that the law should tolerate some targeted killings under conditions that are justified neither by reference to IHL nor by reference to the traditional justifications available in peacetime. Drawing upon the example of Colombian crime family leader Pablo Escobar, who died in a police raid in 1993 in circumstances suggesting the authorities were not interested in capture, we suggest that targeted killings in these circumstances may be morally—if not legally—justified when (1) killing the targeted individual will protect society from a serious threat, (2) the individual is undeniably culpable for past atrocities, and (3) trying the individual is either logistically impossible or extraordinarily dangerous.

Although we conclude that the bin Laden killing does not clearly satisfy the third criterion, this model nevertheless provides—in important ways—a superior framework for understanding public responses to bin Laden’s death than does the war paradigm.

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