A Few Things Worth a Watch and a Read: Terrorism and IL, bin Laden’s Death and Justice(s)

While JiC is almost only used as place for commentary rather than synopses or snap-shots of others views, I figured I would grant some respite to those tired of hearing what I think and highlighting three particularly interesting pieces.

First, there is a prescient and cogent piece at Xavier Rauscher‘s blog The International Jurist. His post considers the complex and somewhat conflicted relationship between contemporary international law and terrorism. Here are a few snippets, though I really urge all readers to read the entire piece.

Since September 11th, 2001, two different approaches to counter-terrorism have been opposed and found themselves at the source of much discussion between lawyers and policy makers both on a domestic and international level: the “War Model” and the “Law Enforcement” approach. In a nutshell, the former considers the United States and its allies to be “at war” in the military sense against al-Qaeda and that victory will be achieved against terrorism through the use of military force and extraordinary war-time powers, whereas the latter, more classical, considers terrorism to be first and foremost a crime and should be countered through police work and criminal trials. In each case, different types of law applies – whether International Humanitarian Law (jus ad bellum and jus in bello) or domestic and human rights law…

…The continuous debate between these two doctrines, furthermore fueled by contradicting State practice, is only generating more confusion and vagueness of the law which is clearly showing in the current debate about the legality of Osama Ben Laden’s killing…

…The debate following Osama Ben Laden’s death has made one thing clearer than ever before: the legal status quo is insufficient and therefore unacceptable and must be addressed head-on and without any taboos…

…Clearly, rules need to be set, and they need to be set sooner rather than later.”

The next two pieces are thanks to my fellow student and friend Paul Kirby, a contributor to the blog The Disorder of Things, who brought them to my attention.

Nuremberg Prosecution

Benjamin Ferencz, a prosecutor at the Nuremberg Trials, now 92, shared his remarkably thoughtful insights on BBC's Newsnight

First, there was a very interesting BBC programme last night on the death of bin Laden. In particular, the show focussed on the hypotheticals of what a trial of bin Laden would have looked like. The programme was only more remarkable for its participants, including a former US Attorney General and legal advisor under the Bush administration, and international criminal lawyer and Milosevic trial prosecutor Geoffrey Nice. The most insightful comments, however, were offered by Benjamin Ferencz, a former prosecutor at the Nuremberg Trials (yes, the ones in 1945!). Ferencz was remarkably thoughtful and persuasive in his comments. You can watch the show by clicking here, any time in the next 7 days.

Lastly, in the debate on the justice of bin Laden’s death, there haven’t been many particularly enlightening views. The landscape is still dominated by those who simply see past any problems with extrajudicial assassinations. Yet some commentators have delivered thoughtful insights that help us think through the important questions of whether and how the killing of bin Laden was or was not just.

In this context, here’s a post by Steven Poole at his blog UnSpeak which illustrates the differing – and competing – 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. (Or even, in extremis, Guantánamo Bay, still not closed, where indefinite “detention” or imprisonment is Unspeakily palliated with the expectation of some kind of tribunal.) 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.

The debate about the justice of killing bin Laden continues. Steven Poole has provided a particularly articulate delineation of the justice(s) involved in bin Laden's assassination.

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.


The perspectives in all of these pieces deserve attention and need to be grappled with. If you find any others which are particularly salient, thoughtful and articulate, please don’t hesitate to send them along!

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Afghanistan, Human Rights, Justice, Middle East, Osama bin Laden, Osama bin Laden and international law, Pakistan, Terrorism. Bookmark the permalink.

2 Responses to A Few Things Worth a Watch and a Read: Terrorism and IL, bin Laden’s Death and Justice(s)

  1. Pingback: Anton’s Weekly Digest of International Law, Vol. 2, No. 19 (19 May 2011) | Anton's Weekly Digest of International Law

  2. Hakimi Abdul Jabar says:

    If I may digress as my commentary pertains to Global Maritime Terrorism.


    The Preamble of UNCLOS clearly states that “the codification and progressive development of the law of the sea achieved in this Convention will contribute to the strengthening of peace, security, cooperation and friendly relations among all nations….”

    Nevertheless, sea-borne terrorism has emerged as a major security threat in littoral-Asia such example will be the November 2008 attacks in Mumbai, when ten Pakistani Terrorists infiltrated the city from the sea, killing 166 people and injuring over 300.

    Hence, global co-operation and the supporting of the development of a common understanding of the provisions of UNCLOS and other rules of international law by UN member-states improve maritime peace and security.

    The Special Tribunal for Lebanon (STL)-Appeals Chamber in Ayyash et al. (16 February 2011) had concluded that: ‘a number of treaties, UN resolutions, and the legislative and judicial practice of States evince the formation of a general opinio juris in the international community, accompanied by a practice consistent with such opinio, to the effect that a customary rule of international law regarding the international crime of terrorism, at least in time of peace’ (para. 83).

    The UNSC has consistently pointed out that international terrorism is criminal, unjustifiable and one of the most serious threats to international peace and security, which requires cooperation and enforcement mechanisms to suppress it, e.g. UNSCR 2462 (2019).

    Studies have shown that global maritime terrorism is a rising phenomenon.

    Written by :
    Hakimi Abdul Jabar

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