The State of Law at War: A Critical Response to Tugrul Keskin by Ethan Gross

The State of Law at War: A Critical Response to Tugrul Keskin

Ethan Gross

Portland State University

International Studies – Middle East Studies

ethangross@gmail.com  

The legitimate actions of a State must at all times abide by the rules it has established for itself, and by those international rules to which it has agreed to follow. Any behavior that falls outside of this requirement should rightly be condemned as illegitimate. However, the international community has long recognized the unfortunate fact that adhering to the Rule of Law does not protect the State from the periodic need to engage in warfare in pursuit of its own legitimate rights or interests. For this reason, parallel sets of rules have been developed for times of peace and times of war; certain actions, which may be legally permissible at times of war may not be so at time of peace, and therefore a distinction must be drawn between a state at war and a State of War.

In a situation such as the targeted killing of Osama bin Laden, the first question that must be asked is whether the United States and al-Qa’ida are at war. To this, the answer would appear to be a resounding yes –to the maximal extent possible for a State and stateless organization, the US and al-Qa’ida are at war. While the current administration’s rhetoric stands in stark contrast to the Bush administration’s ‘War on Terror,’ differences in its behavior and policy have remained negligible. With this condition established, the next two questions that must be asked are whether bin Laden represents a continuing threat to the United States, and how much tactical leeway is offered by his environment.  

The answer to whether bin Laden represented a continuing threat to the US remains unclear as Pakistani and American intelligence services have offered differing accounts of his recent role in Al-Qaida, each consistent with their own legal and political interests in this case. Regardless of this, the United States acted on its own substantiated belief that bin Laden remained an active member of the terrorist organization.  

As for the tactical setting, bin Laden’s home in Abbottabad, Pakistan greatly limited the level of access for US forces. Infiltration and exfiltration required both stealth and speed and was most likely hampered by limited knowledge of what level of resistance would be found within the compound. Had bin Laden been found walking the streets of Paris, the prospect of abduction rather than elimination would have been far more feasible, but the circumstances as they were allowed for a justified willingness to use lethal force.  

Taken altogether, these conditions paint a picture of a US wartime operation taken against an active enemy target in an unstable environment. These are different enough from the 1960 abduction of Adolf Eichmann that they do not warrant the use of Israel’s actions as a fair precedent for the behavior of a state. Although Eichmann had perpetrated heinous crimes against the Jewish people, in 1960 Israel was not at war with the Nazi regime. Nazi Germany no longer existed and Eichmann, who had ceased all involvement with the crimes for which he was to be found guilty, did not represent an ongoing threat to the state of Israel or to the Jewish people. Therefore, the capture and subsequent trial of Eichmann was most significant as a symbolic event instead of as a state’s execution of strategy or pursuit of interest.  

While from the perspective of the nation each of these occurrences bring with them a comparable level of gravitas, one is part of an ongoing war effort while the other is not. In the case of bin Laden, while a trial would have been preferable and even offered a greater symbolic victory than a targeted killing, the United States acted within the confines of its situation. In doing so, it held true to the values of a State of Law by killing its target with a bullet instead of a missile, thus discriminating between those who were within the compound and the noncombatants that remained outside of it and effectively avoiding a disproportionate use of force. It is this willingness of a state to continue to abide by the international community’s rules and norms during times of war, when the temptation and opportunity exist to do otherwise, that truly demarcate the differences between a State of Law and a State of War.