Law and the Ayman al-Zawahiri airstrike: a dozen Qs & As
This is the first of several posts that aim to give you perspectives on some of the law applicable to the airstrike that killed Ayman al-Zawahiri.
My post today offers some quick “shortbursts” on a number of legal issues the strike suggests, and it will be followed by a separate post by Lawfire®favorite, Brian Lee Cox. Brian will give us a ‘deep dive’ on his take on selected legal topics the al-Zawahiri strike raises.
There are two limfacs to keep in mind: 1) to my knowledge, the U.S. government (USG) has not released a formal legal opinion about the strike, and 2) except where indicated otherwise, the posts rely entirely on media reports for the facts. As we know, the first reports can be wrong. With those caveats, here are some preliminary views for your consideration:
1) Who was Ayman al-Zawahiri?
In announcing the strike, President Biden described Ayman al-Zawahiri as the “emir“ of al-Qaeda, the foreign terrorist organization identified by the U.S. as responsible for the 9/11 attacks. As Osama Bin Laden’s deputy at the time, al-Zawahiri was the President informs, “deeply involved” in the planning of the operation. Accordingly, the President found him to be “one of the most responsible for the attacks that murdered 2,977 people on American soil.”
Al-Zawahiri was also, the President tells us, “the mastermind of the attacks on the USS Cole that killed 17 Americans,” and he “played a key role” in attacks on US embassies in Africa in the 1990s. (In fact, the FBI reports that he had been “indicted for his alleged role in the August 7, 1998, bombings of the United States Embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya.”).
After Bin Laden was killed in a U.S. raid 11 years ago, al-Zawahiri became the leader of al-Qaeda. Here’s what the President says al-Zawahiri has being doing since taking over the terrorist organization:
From hiding, he coordinated al Qaeda’s branches and all around the world — including setting priorities, for providing operational guidance that called for and inspired attacks against U.S. targets. He made videos, including in recent weeks, calling for his followers to attack the United States and our allies.
2) Was al-Zawahri a lawful target under international law?
The Washington Post reports a “senior official” as explaining:
Government lawyers confirmed the legal basis for the operation, which is standard procedure for drone strikes. Zawahiri had a “continuing leadership role in al-Qaeda” and had participated in and supported terrorist attacks, the senior official said. He was deemed a lawful target.
Let’s unpack this a bit. As I said in my post about the killing of Osama Bin Laden, not every terrorist is targetable under the Law of Armed Conflict or “LOAC” (sometimes called International Humanitarian Law or IHL). Its application is generally limited to conflicts of sufficient scope and intensity to warrant treatment under a “war” legal regime.
Other terrorists are covered by international human rights law (IHRL), which is essentially a law enforcement legal construct. (Professor Geoff Corn and his co-authors have an excellent chart – found here – in their text, The Law of Armed Conflict: An Operational Approach, which compares and contrasts the two legal frameworks).
Though not without controversy, I believe the best view of the law today is that non-State terrorists who are members of an organized armed group engaged in a conflict (of, as noted above, sufficient scope and intensity to trigger LOAC applicability), are lawfully subject to LOAC’s more permissive targeting rules, that is, much the same rules to which members of traditional militaries are subject in State-on-State conflicts. In other words, the mere status of being a member of certain armed groups can be sufficient to make a person lawfully targetable.
To be clear, any civilian who “directly participates in hostilities” – even if they do not belong to an armed group – loses protection from direct attack during such participation. However, membership in certain non-State armed groups engaged in armed conflict can alone provide a separate legal basis for targeting.
The Department of Defense (DoD) Law of War (LoW) Manual puts it this way: “[B]elonging to an armed group makes a person liable to being made the object of attack regardless of whether he or she is taking a direct part in hostilities.”
Further, the Manual (¶ 220.127.116.11) adds this about those who are members of such entities:
The U.S. approach has been to treat the status of belonging to a hostile, non-State armed group as a separate basis upon which a person is liable to attack, apart from whether he or she has taken a direct part in hostilities. Either approach may yield the same result: members of hostile, non-State armed groups may be made the object of attack unless they are placed hors de combat.
The Manual adds this important clarification that such persons “may be made the object of attack at all times, regardless of the activities in which they are engaged at the time of attack.” So, for example, a member of a hostile, non-State armed group who is standing without a weapon on a balcony of a safe house could be the object of lawful attack.
The existence of an armed conflict is critical. But the U.S. has long taken the position that it is in an armed conflict with Al-Qaeda (see here), and it’s been reiterated in Congressional testimony after the 2021 withdrawal, as well as in judicial filings last fall.
For its part, al-Qaeda essentially declared war on the U.S. via fatwas issued by Osama Bin Laden in 1996 and 1998 and has never backed away from that position. Just last fall CNN reported that al-Qaeda operatives said the “war against the US will be continuing on all other fronts unless they are expelled from the rest of the Islamic world.”
In short, al-Zawahiri’s status as a member of al-Qaeda makes him lawfully subject to attack.
3) Is there any other basis under international law that could justify the strike?
Yes. Article 51 of the UN Charter permits member nations to use force in self-defense in the event of an “armed attack” – even if there is no pre-existing armed conflict.
The U.S. and many – perhaps most – countries also subscribed to the principle of anticipatory self-defense which essentially means that force can be used in self-defense prior to an “imminent” attack. Depending upon the circumstances, striking a key individual may be the best way to preclude an attack.
“Imminence” is not necessarily interpreted strictly in a temporal sense. As the Army’s 2022 Operational Law Handbook explains, the “U.S. analyzes a variety of factors when determining whether an armed attack is imminent,” including “the likelihood that there will be other opportunities to undertake effective action in self–defense that may be expected to cause less serious collateral injury, loss, or damage.”
The Handbook notes that it is the U.S. position that “the absence of specific evidence of where an attack will take place or of the precise nature of an attack does not preclude a conclusion that an armed attack is imminent for purposes of the exercise of the right of self–defense, provided that there is a reasonable and objective basis for concluding that an armed attack is imminent.”
Did al-Zawahiri present a current threat? The President characterized al-Zawahiri as a “vicious and determined killer” who, as the leader of an organization with a well-documented track record for horrifying violence, was “calling for his followers to attack the United States and our allies.”
In addition, the The Hill reports that on NBC’s Today show National Security Advisor Jake Sullivan said the strike “undoubtedly made the United States safer” and offered this explanation: “We do believe he was playing an active role at a strategic level in directing al Qaeda and in continuing to pose a severe threat against the United States and American citizens everywhere.”
Such facts seem sufficient, even in the absence of evidence about a specific forthcoming attack, to find that al-Zawahiri represented a threat that met the criteria for the application of anticipatory self-defense.
That said, in my view, it is unnecessary to do an “imminence” analysis since I believe al-Zawahiri’s status as a member of al-Qaeda is – alone – sufficient legal justification for the strike.
4) Did international law require the U.S. to get permission from the Taliban to conduct an airstrike in Afghanistan?
As a general proposition, “each State has complete and exclusive sovereignty over the airspace above its territory.” In this instance, the situation is more complicated in that while the Taliban has become the de facto rulers of Afghanistan, no country has formally recognized them. Nevertheless, they have objected to the strike.
Thus, the legal rationale for the unpermitted penetration of Afghanistan’s airspace would seem to based on the “unwilling or unable“ proposition in international law. This allows a threatened state to take action in self-defense (to include anticipatory self-defense) in another state without that state’s permission if it is “unwilling or unable” to take action to neutralize the threat that exists within its borders.
The Secretary of State appeared to allude to the concept in his remarks about the al-Zawahiri strike. He pointed out the Taliban’s “unwillingness or inability to abide by their commitments” made when the U.S. withdrew in August of 2021 in accordance with the Doha agreement.
That agreement required the Taliban, the Secretary said, to “not allow Afghan territory to be used by terrorists to threaten the security of other countries.” Obviously, the presence of al-Zawahiri living openly in Kabul showed that the Taliban was “unwilling or unable” to address the threat he posed to the “security of other countries.“
5) Did the President have the legal authority under domestic U.S. law to strike al-Zawahiri?
Yes. Congress’ 2001 Authorization for the Use of Military Force (AUMF) provides:
That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Plainly, given al-Qaeda’s established involvement in 9/11, its current leader qualifies under this authorizing resolution. Though some scholars chafe at the fact that the 2001 AUMF is still in force, it is and it applies here.
In addition, Section 2 of Article II of the Constitution designates the President and Commander-in-Chief of the armed forces. Though the exact scope of President’s Article II power is unsettled, it does appear that it would include authority to use force against al-Qaeda operatives.
6) Is ‘delivering justice’ itself a valid basis for the use of force?
In his remarks, President Biden said that in the killing of al-Zawahiri, “justice has been delivered.” That may have been one effect of the strike (and a desirable one), but ‘delivering justice’ in the form of killing al-Zawahiri should not be confused with the actual legal basis for the use of force against him.
Specifically, retribution, retaliation, punishment or their like are not themselves justifications for the use of force. As one scholar explains with respect to the use of military force in these situations: “unlike the criminal law, our ‘punishment’ of a hostile belligerent nation, terrorist group, or high value target cannot alone serve as its legal argument.”
To say that “justice” for previous wrongs was delivered by a use of force in this case is understandable and even expected; however, it is always essential that the use of force be formally grounded in appropriate legal rationale, such as the need to address a serious, ongoing threat.
7) Wasn’t this strike an assassination, and aren’t assassinations illegal?
No, it wasn’t an unlawful “assassination.” As the DoD LoW Manual puts it (¶ 5.7.4 ):
Military leaders are subject to attack on the same basis as other members of the armed forces. Similarly, leaders of non-State armed groups are also subject to attack on the same basis as other members of the group. There is no objection to making a specific enemy leader who is a combatant the object of attack. (Emphasis added.)
Allow me to elaborate a bit with an extract from a previous post:
In 1989 Hays Parks, then a Department of Defense official, wrote the definitive memorandum regarding the legal meaning of “assassination.” I very much encourage you to read the full text, but I’ll give you a few highlights.
Parks was opining on the application of Executive Order 12333’s prohibition on assassination, and explained that:
Peacetime assassination…would seem to encompass the murder of a private individual or public figure for political purposes, and in some cases…also require that the act constitute a covert activity, particularly when the individual is a private citizen. Assassination is unlawful killing, and would be prohibited by international law even if there was no executive order proscribing it.
But Parks drew a careful distinction between such slayings, and the killing of an individual combatant in wartime. He points out:
[C]ombatants are legitimate targets at all times, regardless of their duties or activities at the time of attack. Such attacks do not constitute assassination unless carried out in a “treacherous” manner, as prohibited by article 23(b) of the Annex to the 1907 Hague IV. While the term treacherous has not been defined, as previously noted it is not regarded as prohibiting operations that depend upon the element of surprise, such as a commando raid or other form of attack behind enemy lines.
Parks cites the many examples of lawful wartime killings of individuals, including the World War II operation that resulted in the death of Japanese Admiral Isoroku Yamamoto, who masterminded the attack on Pearl Harbor.
In my view, “assassination” is not the legally correct way to describe the al-Zawahiri killing and – regardless – his death was not unlawful.
8) Some press reports say the U.S. put a “$25 million bounty on [al-Zawahiri’s] head” – is that legal?
A “bounty” on al-Zawahiri’s “head” may wrongfully suggest that there was a reward for killing him. As the DoD LoW Manual explains (¶ 5.26.3), “rewards may not be offered for the killing of enemy persons.” However, the rule does not “prohibit offering rewards for information that may be used by combatants to conduct military operations that attack enemy combatants.”
It is true that through the Rewards For Justice Program the U.S. Secretary of State may authorize rewards for information that:
- Leads to the arrest or conviction of anyone who plans, commits, aids, or attempts international terrorist acts against U.S. persons or property
- Prevents such acts from occurring
- Leads to the identification or location of a key terrorist leader
- Disrupts terrorism financing
According to the FBI, there was “a reward of up to $25 million for information leading directly to the apprehension or conviction of Ayman Al-Zawahiri.” Such a reward for information is completely legal, even if it ends up being used for targeting a belligerent.
9) Was the U.S. legally required to try to capture al-Zawahri?
In any event, the LOAC does not require an effort to capture a belligerent. The DoD LoW Manual (¶ 18.104.22.168) points out:
Some commentators have argued that military necessity should be interpreted so as to permit only what is actually necessary in the prevailing circumstances, such as by requiring commanders, if possible, to seek to capture or wound enemy combatants rather than to make them the object of attack. This interpretation, however, does not reflect customary international law or treaty law applicable to DoD personnel. (Emphasis added.)
LOAC expert Professor Michael Schmitt likewise rejects the notion as some have suggested, that LOAC or, as it is sometimes called, International Humanitarian Law (IHL), mandates any obligation to try to capture, even when operationally feasible. He adds:
My opposition to a capture-kill rule is also based on the fact that the enemy fighter generally has the means to achieve the same result by surrendering, since those who surrender are hors de combat and cannot be attacked; in other words, IHL already addresses the situation. A rule that prohibits an attack whenever the individual can be captured would shift the burden from the fighter to the attacker in a way that warfighting states would have been, and remain, unlikely to countenance.
The New York Times reports that given the location of the safe house al-Zawahiri was using, “any sort of incursion by Special Operations forces would be prohibitively dangerous.” Consequently, to stop him with the least risk to friendly forces and civilians in the area, a precision airstrike was necessary.
Thus, even under an IHRL regime (essentially a law enforcement paradigm) the use of deadly force would likely be permissible in this instance. Consider this extract from the UN’s “Basic Principles on the Use of Force and Firearms by Law Enforcement Officials”:
[I]n self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives.
10) The President said only that al-Zawahiri was killed by an airstrike. If a remotely-piloted aircraft (RPA) was used, and it was piloted by a civilian, would that impact the legality?
No. There is nothing inherently unlawful about using RPAs (commonly referred to as drones) to conduct an otherwise lawful strike. Notably, over three-dozen countries now have armed drones, and the worldwide military drone market is expected to hit $26.12 billion by 2028. Drones do have limitations, but they are lawful weapons that certainly can be used in full compliance with LOAC.
As a general rule, civilians are not prohibited by LOAC from participating in combat operations. However, in State-on-State conflicts, they would lose their protection against direct attack. That said, unprivileged belligerents like al-Qaeda terrorists do not have a legal right to attack anyone at any time.
11) The President said he authorized the strike after “carefully considering the clear and convincing evidence of [al-Zawahiri’s] location.” Is “clear and convincing” the standard of certainty that LOAC requires for operations?
No. LOAC generally employs a “reasonable military commander“ standard for decisions involving the use of force. The DoD LoW Manual (¶ 5.3) does, however, put it slightly differently:
Commanders and other decision-makers must make decisions in good faith and based on the information available to them. Even when information is imperfect or lacking (as will frequently be the case during armed conflict), commanders and other decision-makers may direct and conduct military operations, so long as they make a good faith assessment of the information that is available to them at that time.
[The ICRC] explains that the law requires targeting decisions “must reflect the level of certainty that can reasonably be achieved in the circumstances” and that “in practice, this determination will have to take into account, inter alia, the intelligence available to the decision maker, the urgency of the situation, and the harm likely to result to the operating forces or to persons and objects protected against direct attack from an erroneous decision.”
Even in the law enforcement context, reasonableness is employed in judging use-of-force decisions. For example, in the 1989 case of Graham v. Connor, the U.S. Supreme Court concluded:
[The] “reasonableness” inquiry is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.
The President’s use of a heightened standard of certainty appears to laudably reflect his determination to avoid civilian casualties. He said:
This mission was carefully planned and rigorously minimized the risk of harm to other civilians. And one week ago, after being advised that the conditions were optimal, I gave the final approval to go get him, and the mission was a success. None of his family members were hurt, and there were no civilian casualties.
Of course, LOAC requires “feasible” precautions be taken to avoid civilian harm. The DoD LoW Manual (¶ 22.214.171.124) elucidates this requirement:
The standard for what precautions must be taken is one of due regard or diligence, not an absolute requirement to do everything possible. A wanton disregard for civilian casualties or harm to other protected persons and objects is clearly prohibited. Feasible precautions are those that are practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.
Still, it appears that in his decision-making process for this strike the President went ‘above and beyond’ what the law might require.
12) Does LOAC require zero civilian casualties in attacks?
No. The DoD LoW Manual (¶ 5.10) explains the law this way:
• Combatants must take feasible precautions in planning and conducting attacks to reduce the risk of harm to civilians and other persons and objects protected from being made the object of attack; and
• Combatants must refrain from attacks in which the expected loss of civilian life, injury to civilians, and damage to civilian objects incidental to the attack would be excessive in relation to the concrete and direct military advantage expected to be gained. (Emphasis added.)
In short, civilian casualties, however unwanted, are nevertheless tolerated by LOAC even when it is clear in advance they will occur. Various policies of the U.S. and other countries may call for zero casualties in attacks, but the law does not.
Although the death of al-Zawahiri is an important step in keeping America and its allies safe, there is little reason to think that the threat from al-Qaeda will disappear entirely
Unfortunately, it will take constant effort to keep the peril from it and other terrorists organization suppressed. Doing so will (often?) involve the use of lawful force.
As much as we may want to end “forever wars,” the melancholy truth is that the “enemy gets a vote.” Consequently, we must educate ourselves to the threat, as well as to an understanding of the applicable law, and commit ourselves to real vigilance.
Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!
Be sure to read the othe posts in our mini-series on the a-Zawahiri strike: Brian Lee Cox’s post, Al-Zawahiri Strike, Article 51 Self-Defense, and Future Implications for the AUMF and Prof. Mitt Regan on “Will the “Drone Strike Against a-Zawahiri Make the United States Safer?”