The debate regarding the legality, justness and legitimacy of killing bin Laden continues. I figured it may be beneficial to create a post where some of the most sophisticated and fascinating perspectives on these subjects could be compiled. Keep in mind, this isn’t an exhaustive list. I will continue to add to it and opinions are certain to be revised as more facts emerge. Please feel free to send along any pieces you find particularly salient.
The debate thus far has been remarkably vibrant and, in my view, healthy. Talking about bin Laden’s death matters. It is a fundamentally good thing that we are having a global discourse on the parameters of legality and justice. As I argued before, the debate about justice and law instigated by bin Laden’s assassination has the potential to be the most important and fruitful consequence of his death. Hopefully this can act as a valuable and useful resource for those interested in the myriad of perspectives on the subject.
On the Hypothetical Trial of bin Laden
Obama on bringing Osama bin Laden to justice from 2008:
“[Obama] said he wouldn’t discuss what approach he would take to bring bin Laden to justice if he were apprehended. But he said the Nuremberg trials for the prosecution of Nazi leaders are an inspiration because the victors acted to advance universal principles and set a tone for the creation of an international order.”
Apparently, during his 2008 Presidential campaign, Obama vowed :
“We will kill bin Laden. We will crush al-Qaida. That has to be our biggest national security priority.”
Last year, Eric Holder Jr., the US Attorney General, declared that bin Laden:
“will never appear in an American courtroom…Let’s deal with the reality here. The reality is, we will be reading Miranda rights to a corpse.”
On Holder’s views at the time, also see this article from MSNBC: Holder – Bin Laden will Never Face US Trial.
In a post very similar to one posted here on the hypothetical trial of bin Laden, legal analyst Jeffrey Toobin has just published an article for CNN: 5 Hurdles if bin Laden had been taken alive. Holder focuses on five potential problems had bin Laden been put on trial: whether he would have been tried at a military or civilian court; where he would have been tried; whether bin Laden would have been granted access to US intelligence materials during the course of the trial; whether anyone would have defended him (I believe he wouldn’t have had a problem getting a defense team); and what would have been done with bin Laden’s body if, as Toobin predicts, he would have received the death penalty.
Jon Silverman also considers the challenges of holding a trial from a skeptical angle. Silverman’s analysis is particularly interesting in his use of past trials and the record of current tribunals.
Drawing on the precedence of Saddam Hussein’s capture and trial, Robert Fisk weighs in arguing that the political consequences of putting bin Laden on trial weren’t worth it. Oddly and without clarification, Fisk also calls international criminal law and process the justice of “old days”:
“Of course, there is one more obvious question unanswered: couldn’t they have captured Bin Laden? Didn’t the CIA or the Navy Seals or the US Special Forces or whatever American outfit killed him have the means to throw a net over the tiger? “Justice,” Barack Obama called his death. In the old days, of course, “justice” meant due process, a court, a hearing, a defence, a trial. Like the sons of Saddam, Bin Laden was gunned down. Sure, he never wanted to be taken alive – and there were buckets of blood in the room in which he died.
But a court would have worried more people than Bin Laden. After all, he might have talked about his contacts with the CIA during the Soviet occupation of Afghanistan, or about his cosy meetings in Islamabad with Prince Turki, Saudi Arabia’s head of intelligence. Just as Saddam – who was tried for the murder of a mere 153 people rather than thousands of gassed Kurds – was hanged before he had the chance to tell us about the gas components that came from America, his friendship with Donald Rumsfeld, the US military assistance he received when he invaded Iran in 1980.”
In a similar vein, Michael White writes in The Guardian that a trial of bin Laden would have been “easier said than done.”
Over at Foreign Policy, Joshua Keating notes that:
“There’s not likely to be too much of an outcry over the decision to kill bin Laden rather than take him alive — for one thing, we’ve avoided what would surely have been a massively controversial trial. But this question isn’t going away.”
For other challenges a trial would have incurred, check out this post.
Well-known international lawyer Geoffrey Robertson, argues that not capturing and trying bin Laden was a missed opportunity:
“I do not minimise the security issues at his trial or the danger of it ending up as a squalid circus like that of Saddam Hussein…But the Security Council could have set up an ad hoc tribunal in The Hague, with international judges (including Muslim jurists), to provide a fair trial and a reasoned verdict.
This would have been the best way of de-mystifying this man, debunking his cause and de-brainwashing his followers. In the dock he would have been reduced in stature – never more remembered as the tall, soulful figure on the mountain, but as a hateful and hate-filled old man, screaming from the dock or lying from the witness box.”
Lyndsey Beyerstein also writes that not detaining and putting bin Laden on trial was “a missed opportunity”.
At Foreign Policy in Focus, Russ Wellen argues that even if a trial of bin Laden would have been a “circus”, “who doesn’t like a circus?”
While he does not consider the challenges of a trial, William Schabas argues that under international human rights law, bin Laden “had a right to a fair trial, like anyone else.”
Osama bin Laden’s sons have weighed in on the death of their father, arguing that he should have had a trail. In a joint statement, they write:
“If OBL has been killed in that operation as President of United States has claimed then we are just in questioning as per media reports that why an unarmed man was not arrested and tried in a court of law so that truth is revealed to the people of the world. If he has been summarily executed then, we question the propriety of such assassination where not only international law has been blatantly violated but USA has set a very different example whereby right to have a fair trial, and presumption of innocence until proven guilty by a court of law has been sacrificed on which western society is built and is standing when a trial of OBL was possible for any wrongdoing as that of Iraqi President Sadam Hussein and Serbian President Slobodan Miloševic’. We maintain that arbitrary killing is not a solution to political problems and crime’s adjudication as Justice must be seen to be done.
They then threaten to take legal action, if the Obama administration does not answer to claims he executed an unarmed Osama bin Laden. They refer to the ICC as a possible forum, although it should be noted, that the Court does not have jurisdiction over singular events, such as the assassination of bin Laden, which do not constitute a part of systemic crimes against humanity, genocide, or war crimes,:
Failure to answer these questions will force us to go to International forum for justice such as International Criminal Court and International Court of Justice and UN must take notice of the violation of international law and assist us to have answers for which we are lawful in seeking them. A panel of eminent British and international lawyers is being constituted and a necessary action may be taken if no answers are furnished within 30 days of this statement.”
Jeff Greenfield has written an interesting “alternate history” of bin Laden being captured alive and brought to justice.
On the Legality of the US Operation
John Bellinger III at the Council on Foreign Relations is clear in his defense of the legality of killing bin Laden:
“The U.S. killing of Osama bin Laden in Pakistan was lawful under both U.S. domestic law and international law. The U.S. government’s legal rationale will be similar to arguments used by both the Bush and Obama administrations to justify drone strikes against other al-Qaeda leaders in Pakistan and elsewhere. The Authorization to Use Military Force Act of September 18, 2001, authorizes the president to use “all necessary and appropriate force” against persons who authorized, planned, or committed the 9/11 attacks.”
Kevin Jon Heller, at Opinio Juris, shares his thoughts on the legality of killing bin Laden. Heller maintains that:
“I have no doubt that killing UBL was legal. To begin with, I think the applicable legal regime is international humanitarian law (IHL), not international human-rights law (IHRL) — a conclusion that can be reached in a number of different ways. The best rationale is that UBL was a member of an organized armed group (”original” al Qaeda) taking part in the armed conflict in Afghanistan. In the alternative, I think we can say (although it is a closer call) that the hostilities in Pakistan rise to the level of armed conflict and that UBL was a member of an organized armed group (original al Qaeda or al Qaeda Pakistan, if the two are distinct entities) taking part in that conflict. Either way, UBL was legitimately targetable with lethal force at any time, subject only to the principles of distinction and proportionality. And nothing I’ve seen indicates that the attack on UBL’s compound violated either of those principles.”
Kevin subsequently revisited the question of the legality of killing bin Laden and suggested that bin Laden’s killing may amount to a war crime.
Marko Milanovic at EJIL Talk! concurs that the killing of bin Laden was legal. Was the killing of bin Laden legal?
“Yes. I wouldn’t say beyond any doubt, but for practical purposes very nearly so. As I’ve argued before, there are three bodies of law (potentially) relevant for assessing the legality of a targeted killing: the jus ad bellum, IHL, and human rights law.”
Milanovic argues that killing bin Laden was legally justified in all three bodies of law.
Another fascinating post by Milanovic on “when to kill, when to capture.”
Osama bin Laden: US Responds to Questions about Killings Legality. Of course, the US administration believes it was absolutely legal to kill bin Laden, regardless of what actually occurred during the Special Ops mission.
The article includes a quote from UN Secretary General Bank Ki-moon:
“The death of Osama bin Laden … is a watershed moment in our common global fight against terrorism…Personally, I am very much relieved by the news that justice has been done.”
A Reuters article examines the European reaction to the US assassination of bin Laden.
Joshua Keating, at Foreign Policy, argues that despite the “murky legal framework of the war on terror,”
We can all agree that killing bin Laden was the right and just thing to do. But it’s well past time the U.S. government had a serious conversation about exactly when and where assassination is an appropriate tactic.
Trusted and widely respected scholar of international criminal law, William Schabas, says that the killing of bin Laden amounts to murder:
“Credible reports indicate that when he was killed, Bin Laden was in his bedroom and he was unarmed. He was accompanied by his wife, and apparently a child was also present. He did not, contrary to early reports, use his wife as a ‘human shield’ although she may well have tried to prevent her husband from being killed, which should not surprise anyone. He was in his mid-50s and has been on kidney dialysis for many years.
If these facts are true, the killing of Bin Laden should be described as murder. In international human rights law, we would use the term ‘extrajudicial, summary or arbitrary execution’. Such murder is obviously contrary to international law, it is contrary to the laws of Pakistan and it is contrary to the laws of the United States…There is no legal exception that allows American soldiers to sneak into a country, confront an unarmed man in late middle age and to kill him, whatever the nature of the crimes of which he is suspected.”
Curtis Doebbler argues that the assassination of bin Laden, as a target killing, was illegal.
“First, a targeted killing, as this one was, is carried out often by the use of force against the territorial integrity and political independence of a foreign state. In this case, the president of Pakistan has made it clear that his country did not authorise the US action. Instead, the US sent about two-dozen troops in helicopters into Pakistani airspace and attacked a house in a civilian neighbourhood without the permission of the Pakistani government. As such, Pakistani national security, one of the most crucial attributes of both political independence and territorial integrity, was violated.
Second, targeted killings are summary and extrajudicial executions that violate the right to life. It is hard to believe that the US had no other option but to kill Osama Bin Laden. According to US reports, he was killed by two gunshots to the head at close range fired from US soldiers’ guns. Moreover, after he was killed, the United States claims they took his body. These facts indicate that the well-armed and protected US troops operating illegally on foreign soil could have made an attempt to capture Osama Bin Laden, but instead merely executed him.”
Please see Dov Jacobs‘ comment below. Dov weighed in on Doebbler’s recent record as a commentator on issues of justice and international law, questioning Doebbler as a “reliable source on international law, despite his credentials on paper.”
International Law Professor Geert-Jan Knoops, also argued that killing bin Laden was illegal:
“Under international law, he must be arrested and handed over to the US to stand trial…The US regards itself as being in a state of war against terror and therefore as having the right to eliminate its enemies on the battlefield. But the laws of war do not permit this sort of action. Naturally, no court in the world will tick off the Americans for this. What’s remarkable is that Obama justifies this killing – while he said earlier that he aims to restore law in the US.”
Rob Grace, at his blog Law and Security Strategy, has a great summary of many of the arguments made so far and warns of the precedence killing bin Laden may shape.
The Atlantic has a concise summary of the legal arguments made thus far.
Like many, Martin Scheinin, the UN special rapporteur on protecting human rights while countering terrorism wants the US to come clean on the events that unfolded:
“We are just saying the U.S. government should answer questions concerning whether a meaningful prospect of surrender and arrest was given by the U.S., but perhaps not taken by Osama bin Laden…
You design an operation so that there is a meaningful possibility of surrender and arrest even if you think the offer will be refused and you have to resort to lethal force…
It is the overall situation that governs when resorting to lethal force is permissible.”
The “Justice” of the Matter
Numerous observers have picked up on the use of “justice” in describing the assassination.
The Spiegel weighs in with a fantastic article. It begins with a photo of an American in a cowboy hat, celebrating bin Laden’s death and asks: “Is this what justice looks like?”
From Charli Carpenter’s post, Was “Justice” Served?:
“To Obama and much of the American public [justice] apparently means an eye for an eye…
…But to advocates and scholars of post-conflict justice, “justice” has a broader, sociological and empirically measurable meaning: the phenomenon of holding perpetrators accountable for crimes in the eyes of their victims. This concept has a normative package of ideas associated with it as well: accountability should be exercised not only consistent with the rule of law, but in a manner that promotes a human rights culture, minimizes or deters future atrocities, and promotes reconciliation and inter-group understanding.
Killing rather than capturing bin Laden is an absolute fail on the first account. Warriors get killed in combat and criminal suspects get killed in confrontations with law enforcement all the time (as do civilian bystanders)…
…what is certain is that justice, by this standard, has been stayed, not served.”
Dov Jacobs takes aim at the Resolution passed by the UN Security Council regarding bin Laden’s death:
“I’m not saying that Ben Laden should not have been killed. I’m well aware of the realities of politics. I’m just denouncing the hypocrisy of defending values and then approving actions that run counter to them in the same breath. If you believe in the rule of law and due process, then you cannot approve the killing of Ben Laden, however politically or logistically justified it may be.”
In an article very similar to an earlier post here, Thomas Nachbar questions whether killing bin Laden can actually constitute “justice”:
“To describe an act as “justice” is not merely to claim that the act was legitimate; it is to claim that it is legitimate in a particular way….
…At its core, then, what U.S. forces visited upon Osama Bin Laden was violence. That is frequently what the U.S. armed forces are asked to do, and they do it very, very well. Violence can be a form of justice, and justice occasionally requires acts of violence. But, despite their occasionally close relationship, justice and violence should never be confused, even when violence is undertaken in service of the most just of causes. Osama Bin Laden was himself an accomplished engineer of violence, but no right-thinking person would think he was a source of justice…
…Why bother making the distinction? Because we can act according to our principles only if we can think clearly about them, and we can think clearly about them only if we talk clearly about them. And our principles—those worth fighting and dying for—are what separate us from the likes of Osama Bin Laden, not the ability to kill people thousands of miles away.
Will Braun has written a religiously-inspired and thought-provoking piece that is well-worth a read. Here’s a few snippets:
“On the surface, the story is simple and satisfying: The good guys got bin Laden. Justice has been done. The fight against the forces of evil will continue…
…There is something in each of us that finds satisfaction in a simple solution to evil. We want to see consequences for evil actions and a solution with the finality of death holds particular appeal. This gut-level desire for retribution stands in tension with a decency within us that knows death is not something to gloat over
The Vatican likewise called on Christians to look within. In a statement responding to bin Laden’s death, it said “each person” should reflect on the responsibility to seek the “growth of peace and not of hatred.” The statement echoes words of Martin Luther King Jr. which have been making their way through the blogosphere since Sunday: “Hate cannot drive out hate; only love can do that.”
However removed these lines may seem from the blunt reality of suicide bombers or the war against Taliban insurgents, they raise the unavoidable question of how to reduce the cycle of hate that lies behind the terror we seek to end. They challenge us to consider a plot line that is less about good guys fighting bad guys than a cycle of animosity that must be broken.”
Check out this thought-provoking post on the justice of killing bin Laden:
“Bin Laden’s killing is very likely justified under the laws (such as they are) of war. But, as best as I understand them, these laws are not intended to conduct towards justice; instead they are intended to conduct towards a minimization of those regrettable little side-effects (massacres of prisoners; the deaths of multitudes of civilians &c) that tend to go together with military disputes. It may also possibly be justified in purely pragmatic terms – very possibly, many more people would have died over the longer run had he been captured rather than killed. But it cannot be justified in terms of the procedural requirements of justice as practiced by democracies, which usually do require trials, evidence, judgments that can be appealed and so on.”
The post above, draws heavily on this particularly articulate post at Unspeak on the differing conceptions of justice at play:
It is worth pausing to admire Obama’s masterful rhetorical conflation here of two different conceptions of justice. One sense of “justice”, of course, has to do with courts, legal process, fair trials, and the rest. This has to be the sense invoked in Obama’s reference to the desire to bring Bin Laden to justice. In this spatial metaphor, justice is a place: implicitly, a courtroom, or at least a cell with the promise of process…To bring someone to justice is to put them in a place where they will be answerable for their alleged crimes. To be answerable in this sense, it helps to be alive.
But it is quite another sense of “justice” — meaning a fair result, regardless of the means by which it was achieved — that is functioning in Obama’s next use of the word: the quasi-legal judgment that justice was done. On what sorts of occasion do we actually say that justice was done? Not, I suppose, at the conclusion of a trial (when it might be claimed, instead, that justice was served); rather, after some other event, away from any courtroom, that we perceive as rightful punishment (or reward) for the sins (or virtues) of the individual under consideration. (Compare poetic justice.) The claim that justice was done appeals, then, to a kind of Old Testament or Wild West notion of just deserts. What, after all, happened between the desire to bring Bin Laden to justice and the claim that justice was done? Well, Bin Laden was killed. He was not, after all, brought to justice. Instead, justice (in its familiar guise as American bombs and bullets) was brought to him.”
Noam Chomsky has added his voice to the debate. Chomsky argues that former President George W. Bush is a far greater criminal than bin Laden and that labeling the mission “Operation Geronimo” reflects an American “imperial mentality”:
“We might ask ourselves how we would be reacting if Iraqi commandos landed at George W. Bush’s compound, assassinated him, and dumped his body in the Atlantic. Uncontroversially, his crimes vastly exceed bin Laden’s, and he is not a “suspect” but uncontroversially the “decider” who gave the orders to commit the “supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole” (quoting the Nuremberg Tribunal) for which Nazi criminals were hanged: the hundreds of thousands of deaths, millions of refugees, destruction of much of the country, the bitter sectarian conflict that has now spread to the rest of the region…
…Same with the name, Operation Geronimo. The imperial mentality is so profound, throughout western society, that no one can perceive that they are glorifying bin Laden by identifying him with courageous resistance against genocidal invaders. It’s like naming our murder weapons after victims of our crimes: Apache, Tomahawk… It’s as if the Luftwaffe were to call its fighter planes “Jew” and “Gypsy.”
Other Native tribes in the US are requesting that the operation be renamed. The President of the Navajo Nation called the operation’s name “dehumanizing.”
In an interesting, although unsubstantiated piece, Toby Young argues that killing bin Laden was both legal and unjust. While not a lawyer or clarifying why this is the case, Young characterizes the legal argument for the assassination as “watertight.” He confidently (perhaps over-confidently given the counter-factual nature of his argument) declares that capturing rather than killing bin Laden would have cost countless lives as the result of terrorist reprisals.
Here’s an interesting piece on the ethics and politics of target killing, from the Economist.
One of the most interesting elements of bin Laden’s death was the social media reporting and commentary on it. I myself was following the situation in the twitter-verse at 4am from London, as many waited impatiently for President Obama to announce the details of bin Laden’s death. In this context, here is an interesting piece, courtesy of SpeakEasyShe below, on how Twitter exploded early reports that Osama bin Laden had been killed. As SpeakEasyShe rightly comments: “How the news was presented and responded to by key players may have influenced the overall perception of the death.”
The facts about the US “Global War on Terror” against al Qaeda aren’t clear to many people. Key individuals, including in the administration of former President George Bush produced a lot of misinformation which has misinformed many people’s understanding and opinions of Osama bin Laden and the movement he led. A post by Peter Bergen at the Washington Post seeks to debunk some myths about Osama bin Laden: that he and the mujahedeen were created by the CIA; that bin Laden attacked American values and freedoms; that al Qaeda was not linked to Islam; that Ayman al-Zawahiri, not bin Laden, is the real brains of al-Qaeda; and that bin Laden’s death is only symbolically important but otherwise irrelevant to the war on terror.
Bergen concludes by saying that bin Laden’s death will fundamentally change the dynamics of al Qaeda and the war on terror, and him being gone is a very good thing:
“Bin Laden is one of the few men in recent decades who truly changed the history of the world. With him gone from the scene, there is no one of his stature and charisma to become not only the leader and strategic guide of al-Qaeda, but to inspire the group’s affiliates across the Middle East and North Africa and the wider jihadi movement around the globe. For that, we can all be grateful.”
A piece from Rolling Stone Magazine from January 2010 explores the life of bin Laden’s “prodigal son”, Omar bin Laden, who apparently was his father’s favourite kin. It’s well worth a read. Omar bin Laden not only split causes with his father but publicly disavowed him as well. He writes that he hoped his father would be killed rather than captured:
“My father is a strong personality. Nobody can stop him from getting his dream. Either he gets what he wants, or he dies…
“I love him because he is my father. I don’t want him to be caught and put on trial. It would break my heart. I wish he could die before someone gets him. I don’t want to see my father under the rule of somebody else. My father is my father, to this day, and until I die. I came from his body. I am part of him.”
According to the Guardian, Omar bin Laden and Osama bin Laden’s other sons have condemned the killing of their father. See their letter, available at the New York Times, here.
For an analysis of the Arab response to bin Laden’s assassination, check out this piece by Martin Chulov at the Guardian. Chulov cites numerous Arab citizens and officials:
“You don’t see T-shirts of Bin Laden in Egypt anymore,” said Ragheb al-Masri, as she made her way to work in central Cairo this morning. “That was four years ago. But this group called al-Qaida now has many faces.”
In Iraq, which suffered devastating violence at the hands of Sunni groups initially inspired by Bin Laden, some intelligence officials believe that the killing in Pakistan will have a significant effect, but others were less optimistic.
“Al-Qaida is not one person anymore,” said Major General Hussein Kamal, from the intelligence division of Iraq’s interior ministry. “I don’t expect that the killing of Bin Laden will finish al-Qaida here or in other countries. It will affect their morale, for sure. But it won’t end their organisation.”
An interesting post at the Washington Post focuses on the Pakistani reaction to bin Laden’s killing, arguing that the relative silence/quiet/subdued reaction by the country’s most radical groups is surprising and unusual.
Hamas, however, has condemned the assassination. Ismail Haniya, the Hamas prime minister of the Gaza strip declared:
“We condemn the assassination of a Muslim and Arab warrior and we pray to God that his soul rests in peace…We regard this as the continuation of the American oppression and shedding of blood of Muslims and Arabs.”
Doug Saunders, a columnist at the Globe and Mail, writes about the withering importance attributed to bin Laden and his ideas in recent years:
“He was a rock star.
But it’s been almost impossible, in recent years, to find anyone who subscribes to his ascetic and medieval view of the role of religion in politics, who has any interest in installing his endlessly touted Islamic caliphate in their country. The ideas died long before the man…
…Osama bin Laden, in his efforts to fit the world into a single identity, was a man of a previous era.”
An article in The Washington Post, based on a CBS interview with Obama on ’60 Minutes’ illustrates the decision-making that went into preparing the Special Ops mission, the division amongst Obama’s security advisors, and the doubts swirling around the prior knowledge by Pakistani intelligence of bin Laden’s location. You can find the full interview with Obama here.
Finally, you can read bin Laden’s obituary from the Economist here. (The comma after “Finally” is the most important punctuation in this post!)
Although it does not offer an intellectual or political perspective, I think http://mashable.com/2011/05/07/bin-laden-visualization/?utm_source=twitterfeed&utm_medium=twitter&utm_campaign=Feed%3A+Mashable+%28Mashable%29&utm_content=Twitter offers interesting insight in Osama Bin Laden’s death by evaluating how news of it spread through social media. How the news was presented and responded to by key players may have influenced the overall perception of the death.
Many thanks SpeakEasyShe for this article. I have added it to the compilation above in a new section.
Great work on the compilation of articles (and thanks for the mention)!
Obviously, you don’t discriminate, and you’re right to do so to be comprehensive, but I’ve become increasingly skeptical about Curtis Doebbler as a reliable source on international law, despite his credentials on paper. His post on Res 1973 over at the Jurist was notably sloppy, with several misquotes of the UN Charter and his op-ed on Ben Laden is equally unconvincing in terms of the identification of the applicable law and the relevant legal issues. He is clearly an activist (which is fine by me), but clearly a poor legal scholar…
And I can’t resist to put the conclusion of his post as an illustration:
“the West is now celebrating the death of someone who, however misled and wrong-minded, was a person who was willing to fight for the poorest and the most vulnerable people in the world to the very end of his life.”
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