The debate rages on: was the assassination of bin Laden the right thing to do? What is it the legal thing to do? Was it “justice”?
In my assessment, the vast majority of the debate regarding the assassination of bin Laden has focused on its legality, whether his killing was legal under International Human Rights Law, International Humanitarian Law, US domestic law, and whether or not the US impinged on Pakistan’s sovereign territory.
The questions surrounding the lawfulness are critical, especially as the US administration backpedals their earlier statements sequence of events that led to bin Laden’s death. However, it is important to remember that what is legal not necessarily equals what is just. Justice requires more than law. It requires that acts are morally and ethically justifiable.
It would be a fair and persuasive argument that the most remarkable trend of the last century has been the legalization of international politics. The legalization of international relations began with the liberal internationalists and was propelled onto the political scene following WWI, with the leadership of US President Woodrow Wilson. Wilson envisioned the replacement of “entangling alliances, secret diplomacy, and attempts to maintain balances of power,” with “open diplomacy, democratically controlled and a concert of power instead of rival balances of power.” That concert was the League of Nations, in Wilson’s words, “the most essential part of the [post-WWI] peace settlement itself.” The League would be the penultimate institution which would guarantee the primacy of international rule of law: “What we seek is the reign of law, based upon the consent of the governed and sustained by the organized opinion of mankind.”
Since Wilson, virtually all major developments in international relations have had links to international law: the United Nations, which is considered, by many, to be the ultimate institution responsible for guaranteeing the law of states and peoples; the human rights regime which would be impotent without legal grounding; the legal arbitration of the World Trade Organization; the evolution of international criminal law, culminating with the permanent international criminal court; and, most recently, the criminalization of aggression.
The result has been that our views of what is just is increasingly conflated with what is legal. The very purpose of legalizing international politics is to establish a universal and codified consensus about what justice and morality is, represented within the strictures of international law.
There are numerous problems with this, not the least of which is the reality that different streams of international law may have different interpretations of the legality of any particular act. Of course, it also assumes that reaching the codified consensus is possible and a fundamentally good thing. More broadly, the conflation of justice with law may obscure important questions about the nature of particular acts. The bin Laden assassination is a perfect example.
As it stands, the question of the legality of the US’s killing of bin Laden seems destined to live within the grey zones of law. Some will argue it was absolutely legal, others that it was not. Still others, will argue that regardless of its legality, bin Laden should have been tried. But what about whether it was just?
There are five possible positions regarding the killing of bin Laden:
1) It was both legal and just: either killing bin Laden was a legal action and because it was legal it must be just, or it was a legal action and also happens to have been a just action, relying on the moral calculus that killing some people is ethically sound. Either way, this seems to be the implicit belief of observers who have written that bin Laden’s assassination was legally permissible.
2) It was legal but unjust: the argument here is that under international law there is a good case to be made that assassinating bin Laden was legal, but that killing him was still not a just act. This view relies on the logic that killing can never constitute justice or, at least, that only killing in self-defense is just. Important, here, are the details emerging regarding bin Laden’s resistance - or lack thereof – during the special ops raid.
3) It was illegal but just: this is, as far as I can tell, uncharted ground in the debate. This position would suggest that there is a separation of legality and justice in this instance, that international law prohibits such action by the US, but regardless bin Laden’s assassination is a just act. This relies on a consequentialist logic where his death is deemed the best end. Here, too, it could be argued that the nature of the crimes and terror that bin Laden inflicted upon so many is beyond the law, so evil in nature that thinking of it through legal reasoning is fundamentally limited. As Hannah Arendt once wrote to her friend, Karl Jaspers, some crimes “explode the limits of law…[and] We are simply not equipped to deal on a human, political level, with a guilt that is beyond crime and an innocence that is beyond goodness or virtue.” Voltaire here, surely would have chimed in with his prescient observation: “killing a man is murder, unless done to the sound of trumpets.”
4) It was illegal and unjust: like the first scenario, this may be the result of the conflation of law and justice. In other words, killing bin Laden may be unjust because it is deemed to be illegal. However, it may be that some argue that bin Laden’s assassination is unlawful under international law but, and for ethical rather than legal reasons, also unjust.
5) Who cares, it’s justice, bin Laden is dead: this seems to be the view of the vast majority of those who rejoice in the death of bin Laden. The hordes of celebrators and those doning t-shirts with bin Laden’s face and the line: “Mission Accomplished”, certainly would fit in this group. The legality of assassinating bin Laden, here, is entirely irrelevant.
The point of this post is not to offer any particular prescription but to elucidate the diversity of possible positions on this important subject and to remind readers that what is legal does not necessarily equal that which is just. And what is just is not necessarily what is legal.
Like the legal justification for the Iraq war, the assassination of bin Laden will be debated ad nauseam. For scholars of international law this is a boon. Recalling the first ever post here at JiC, indeed the first sentence,
Karl Marx once exclaimed that “the criminal produces not only crimes, but also criminal law, and with this the professor who gives lectures on criminal law.”
The voice of those who seek to disentangle and challenge the relationship between justice and law should be heard. Law seeks to make the messy world of politics, morality and ethics predictable by transforming justice into clear black-and-white options. The assassination of bin Laden, however, illustrates that justice, if not international law, is often much more complex, residing in shades of grey rather than black-and-white moral choices.
For more on the legality, legitimacy and justice of bin Laden’s death, check out this compilation of perspectives.