Gaddafi Regime Decries Uneven Justice – And They’re Right

Posted on May 17, 2011 by Mark Kersten
Syria Protests

Protests continue to be crushed in Syria, raising the question why the ICC is investigating Libya and not Syria? (Photo: AP)

It appears that Gaddafi, his regime and the human rights community are on the same page about at least one thing: Libya should not be the only state investigated for committing crimes against its own people.

In reaction to yesterday’s announcement by the ICC’s Prosecutor, Luis Moreno-Ocampo, that he is seeking arrest warrants for Gaddafi, his son Saif al-Islam Gaddafi, and the head of Libyan intelligence, Gaddafi regime officials decried the uneven application of justice:

“Why is this not happening to Syria? By any measure what they have been proven to have done is far worse than what Gaddafi is alleged to have done. There is a clear double standard. It is beyond a joke.”

While it is certainly awkward, if not uncomfortable, to imagine that one sides with Gaddafi on anything, the Gaddafi regime is absolutely correct in raising the issue of a double-standard in international criminal justice. Irrespective of whose crimes are worse, it is not clear why Syria, Bahrain and Yemen have not received nearly the international attention that Libya has. Let’s focus on Syria for the moment.

Numerous observers and groups, most notably Amnesty International, have called on the UN Security Council to refer the situation in Syria to the ICC (see this post for an overview).

Yesterday ICC Prosecutor requested an arrest warrant for Gaddafi but it is a troubling reality that international criminal justice is selective and uneven.

In an eery resemblance to the words of the Gaddafi regime, Amnesty International released a statement yesterday demanding that similar attention be paid to Syria by the UN Security Council:

“…the international community that came together in such unprecedented agreement to refer Libya to the International Criminal Court, cannot allow justice to appear selective. By any standard, what is happening in Syria is just as bad as the situation was in Libya when the Security Council referred that country to the ICC.”

It seems almost obvious that both Libya and Syria should be investigated by the ICC. The ICC Prosecutor’s request for arrest warrants yesterday focuses almost exclusively on the initial targeting of those protesting against the Libyan regime. In Syria, remarkably similar crimes have been reported. So why is one brutal crushing of an uprising not the same as another? Why does one catch the attention of the world and the ICC while others do not?

Continue reading →

Posted in International Criminal Court (ICC), Justice, Middle East, Syria, UN Security Council | 2 Comments

ICC to Seek Arrest Warrant for Gaddafi Today: Some Thoughts on What it Means (Updated)

Posted on May 15, 2011 by Mark Kersten
ICC Prosecutor

Luis Moreno-Ocampo is seeking an arrest warrant for Gaddafi and two others (Photo: AFP)

It looks like the remarkably speedy investigation of the ICC Office of the Prosecutor (OTP) will produce its first request for arrest warrants for Libyan officials tomorrow. The Prosecutor of the ICC will be holding a press conference tomorrow, May 16th 2011. As the press release states:

The Prosecutor will announce his findings following the ongoing investigations of crimes allegedly committed since 15 February 2011 in the situation in Libya.

You can see live streaming of the announcements, in various languages, by choosing from the links here.

It is unlikely that we will see any surprises tomorrow. Given his report to the UN Security Council earlier this month, the Prosecutor will be seeking arrest warrants for three Libya officials “most responsible” for breaches of international criminal law. Luis Moreno-Ocampo has made it clear that, at least amongst this first batch of arrest warrants, no Libyan rebels will be targeted.

Interestingly, Julian Borger reports that there has been a game of tattletale going on: senior members of Gaddafi’s regime have apparently contacted the ICC in order to apportion blame on each other for war crimes. Moreno-Ocampo has also been quoted as saying that his investigation is so advanced that it is “almost ready for trial.”

Will anything change once the investigation churns out an arrest warrant? The short answer is: yes, absolutely. The divergent effects of investigations in contrast to arrest warrants and indictments remain largely under-explored. Here are some initial thoughts on what an arrest warrant will mean.

First of all, it must be made clear: until an arrest warrant is issued, no member-state is under any legal obligation to arrest Gaddafi. There seems to be a misunderstanding of the obligations that member-states have to the ICC during an investigation. Until the Pre-Trial Chamber issues an indictment, no state has any obligation to detain Gaddafi. The game changes when an arrest warrant comes into play.

An arrest warrant will alter the political landscape as well as shift the political calculations of all actors involved: member-states of the ICC, non-member states, Gaddafi and the Court itself.

For the ICC, the unprecedented speed of the OTP’s investigation is telling. It appears to be, at least in part, the result of a desire to get an arrest warrant issued against Gaddafi before he goes into exile. Another reason for the speed may be the increasing recognition that Gaddafi may be killed by a targeted strike by coalition forces. It serves the interests of the Court to get an arrest warrant before Gaddafi is killed. If he were to die, the investigation into the Libyan leader would stop immediately.

An arrest warrant is permanent. At least theoretically, an investigation can drag on. By virtue of being a process, it can also be suspended if the ICC’s OTP decides prosecuting is not in the interests of justice. However, an arrest warrant, once issued, can only be removed temporarily – if the UN Security Council invokes Article 16 of the ICC Rome Statute to defer a prosecution for up to 12 months. The Council can repeatedly defer a prosecution, but must commit to doing so yearly.

The permanence of arrest warrants is important in its implications for the process of negotiating peace. If Gaddafi thought that, despite the investigation, he had room to manoeuvre, as well as time to wage his war in an attempt to swing the momentum in his favour, he is likely to feel even more squeezed with an arrest warrant. In other words, his flexibility to leave Libya will be severely hampered. This is precisely what the Italian Foreign Minister implied when he declared that once the arrest warrant was issued,

“from that moment on an exit from power or from the country will no longer be imaginable” because “after the arrest warrant is issued all the international community would have legal obligations.”

Gaddafi and the west

If an arrest warrant is issued for Gaddafi, it will put a squeeze on those states who would look the other way if he left Libya (Photo: Oli Scarff/Getty)

Will Gaddafi have a harder time finding sanctuary/asylum elsewhere if there is an arrest warrant against him? With an arrest warrant, it would be significantly less likely that a member-state of the ICC would accept him for exile. During earlier phases of negotiations, the US and others actively explored finding a state that would be willing to grant Gaddafi asylum, if he chose to leave Libya, including a member-state. Uganda, a member-state of the ICC, offered itself up as a possible destination for the Libyan leader. With an arrest warrant this option would surely be exhausted. The pressure by the court’s most ardent supporters in the international community as well as by domestic and international human rights groups on member-states considering an offer of asylum to Gaddafi would likely be unbearable. The persistent stream of criticism that human rights groups levy on those who don’t conform can have remarkably powerful effects on the behaviour of states.

Continue reading →

Posted in Article 16, International Criminal Court (ICC), Justice, Libya, Libya and the ICC, NATO, Peace Negotiations, Sudan, The Tripoli Three (Tripoli3) | 12 Comments

ICC Prosecutor: On Film

Posted on May 12, 2011 by Mark Kersten

ICC Prosecutor Luis Moreno-Ocampo visits the Ituri region of the DRC.

Canadian Director Barry Stevens has come out with a film, Prosecutor, which examines the work of the ICC’s Prosecutor Luis Moreno-Ocampo, a figure who has brought much spotlight – and a significant dose of controversy – to the Court. It bills itself as follows:

A fascinating story with extraordinary inside access,Prosecutor follows the Chief Prosecutor through the first trials of the newly formed International Criminal Court. Luis Moreno-Ocampo investigates and prosecutes some of the world’s worst criminals for some of the world’s worst crimes. He’s a hero to genocide survivors, but has bitter enemies on both the Right and the Left. Prosecutor offers front-row seats to the historic events that will determine whether the ICC is a groundbreaking new weapon for global justice or just an idealistic dream.

The film will be airing around the world in the coming weeks. Here’s a trailer of the movie, showing a visit by Moreno-Ocampo to the Democratic Republic of Congo: For those who have invested time and energy into studying the Court, there is only so much one can learn from a 90 minute film on the subject matter, as evidenced by an earlier movie on the ICC, The Reckoning, which only examined the Court from a very narrow perspective. Nevertheless, these films always give an important insight into the machinations of the Court. Prosecutor should be particularly interesting in that, rather than exploring the ICC itself, it tackles the personality politics of the Court by following ICC Prosecutor Luis Moreno-Ocampo. I haven’t seen the film yet, but to be honest, this brief trailer doesn’t shine the best of light on the Prosecutor or the Court. It looks like video evidence of precisely what some of the Court’s sharpest critics contend: that the ICC intervenes in situations with men in suits and with briefcases, “dropping in” on weak, African states, confusing people who have little or no tradition of retributive, legal justice, and then leaves as if everything were all well and good. Even worse for the optics of the Court and Moreno-Ocampo, the facial expressions of those to whom he is speaking alternate between confusion, boredom and disinterest. I am curious as to why the makers of the film chose this particular section as a trailer. When I have a chance to see the film in its entirety, I will post a review. For those who happen to be in Ontario, Canada, the film will be showing May 12 and 15 on TVO. You can also buy the movie, but for a moronically high price: $398. You would think they don’t want anyone to see it: now there’s a deterrent effect!

Posted in Democratic Republic of Congo, Deterrence, Film, International Criminal Court (ICC), Justice | 2 Comments

Sudan’s President and ICC’s Most Wanted to Visit Uganda?

Posted on May 11, 2011 by Mark Kersten
al-Bashir Uganda

Reports suggest that Omar al-Bashir will visit Uganda on May 12th (Photo: The Guardian)

UPDATED: Sudanese President Omar al-Bashir will not be in Kampalafor Ugandan President Yoweri Museveni’s presidential swearing in. According to Sudan’s Foreign Ministry, a senior advisor to al-Bashir will be sent instead “due to precommitments” of the President (probably a precommitment to not being arrested!). A Ugandan government spokesperson has now said the invitation was given to Bashir in accordance with regional and diplomatic protocol: “President Bashir was invited as our neighbor. But I think it is up to him to decide whether to come or not. In any case, he is free to delegate [somebody else].” 

I have chosen to leave the post as is. Most of it remains pertinent; the post mostly considers the implications of Uganda’s invitation rather than the possibility of al-Bashir visiting Kampala. This is a small but important victory for rights groups which reacted sharply against al-Bashir’s possible visit. Nevertheless, questions still remain as to why al-Bashir was invited by Museveni and about the wider implications of African-ICC relations. 

It has become a regular occasion that the human rights community gasps at the news that Sudanese President, Omar al-Bashir, gets invited to yet another country and yet another state party of the International Criminal Court. It has become an uncomfortable ritual that defies international criminal justice.

The international community’s outrage will be a little bit louder and their exasperation a bit deeper if, as reports suggest, al-Bashir visits Uganda, a key supporter of the ICC.

It has been a tough week for international criminal justice. Whichever way the cookie crumbles, the assassination of Osama bin Laden wasn’t a good thing for international criminal law. Egypt, in a rather schizophrenic moment, released two statements in one day: the first saying they would join the ICC and another defying the Court by saying it would not arrest President al-Bashir if he visited. This week, al-Bashir visited yet another ICC member-state, Djibouti for the swearing in of President Ismail Omar Guelleh (al-Bashir has also visited two other member-states: Kenya and Chad).

Now Yoweri Museveni, the President of Uganda, has invited al-Bashir to attend his Presidential swearing in set to take place May 12th in Kampala. According to reports, al-Bashir has not confirmed whether he will attend.

Ugandan President Yoweri Museveni has been a key supporter of the ICC (Photo: AFP)

This will come as a surprise, if not a shock, to many observers. First, Uganda has been one of the most enthusiastic supporters of the ICC. It referred the conflict in Northern Uganda between the government and the Lord’s Resistance Army to the Court in 2003. Last summer, Uganda hosted the Kampala Review Conference on the ICC. The ICC even has an office in Kampala.

Second, Uganda has not been in line with other African states in refusing to cooperate with the ICC on detaining al-Bashir. A significant group of African Union (AU) member-states have expressed their vehement opposition to the ICC’s intervention in Darfur and its arrest warrant against al-Bashir.  Uganda has previously said that it would arrest al-Bashir should he visit. On more than one occasion, al-Bashir has decided against visiting Uganda for conferences, presumably for fear of being detained. The relationship between Kampala and Khartoum has often been strained with allegations that both have supported each other’s enemies.

Given the above, why would Museveni invite al-Bashir? It is unclear what his intentions are but it is possible that his decision is in response to the ICC sending a team to monitor the government’s responses to ongoing protests in the country. According to one report, an anonymous source recently said:

“They [the ICC monitors] are here. They are watching this. Don’t forget that the ICC has never closed the northern Uganda file. And now this is happening; Museveni is still being watched.”

Continue reading →

Posted in African Union (AU), Djibouti, Egypt, International Criminal Court (ICC), Sudan, Uganda | Leave a comment

Obama to those Questioning bin Laden Assassination: “Get your head examined”

Posted on May 11, 2011 by Mark Kersten

Earlier this week, President Obama had an interview with CBS’s 60 Minutes. In it, Obama was rather candid about the developments that led to Osama bin Laden’s assassination. The President spoke openly about the dissent among his advisors about the plan to kill bin Laden. He says that the division of opinions amongst those around him was critically important in fleshing out all possible scenarios. Indeed, he says that differences in opinion are important, welcome, and make better policy.

At the end of the interview, however, Obama did something spectacularly hypocritical. Just minutes after acknowledging the importance of diversity of opinions he says:

“Justice was done and I think that anyone who would question that the perpetrator of mass murder on American soil didn’t deserve what he got, needs to get their head examined.”

Say what? Was that George W. Bush speaking? It sure sounds like it.

How is difference in opinion about the mission valuable, but the diversity of opinion about the justness of assassinating bin Laden the result of mental instability?

It’s not. Those who are uncomfortable with, or skeptical of, the legality, justice and legitimacy of killing bin Laden aren’t “crazy”. They have legitimate concerns.

Once more, the discussion that has proliferated about whether assassinations and target killings, like that of bin Laden, are just and legal is critically important. The skepticism of scholars, every-day observers, religious figures, politicians etc. has created a healthy debate. Simply discarding the views of all those who dissented with the US decision on killing bin Laden as being mentally ill is more 1984 than 2011. It is worth adding that it is the fumbled recanting of facts regarding the mission to kill bin Laden that has fueled much of the criticism.

It is a sad day, when freedom of expression is actively being quashed in places like Syria, Libya, Bahrain, that the President of the US equates “anyone who questions” his decision with suffering mental illness.

You would think, and indeed hope, that a President who has worked hard to foster the diversity of views in his country and around the world, would understand the importance of debating and discussing issues as important as the justice of target killings. You’d also think, as a former professor of constitutional law, Obama would be more careful with his words.

Here’s the last third of the video. Obama’s remarks come at the very end of the interview:

Posted in Osama bin Laden, Osama bin Laden and international law, United States | 9 Comments

Killing bin Laden: Justice, International Law and Legitimacy – A Compilation of Perspectives

Posted on May 7, 2011 by Mark Kersten

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.

Continue reading →

Posted in Middle East, Osama bin Laden, Osama bin Laden and international law, Terrorism, UN Security Council, United States | 6 Comments

The UN Security Council and the ICC: Between a Rock and a Hard Place

Posted on May 6, 2011 by Mark Kersten
UN Security Council referral of Libya to the ICC

What are the costs of the UN Security Council referring situations to the ICC?

What are the implications of the UN Security Council referring situations to the International Criminal Court? Judging by most accounts of UN Security Council referrals of the situations in both Darfur and recently Libya to the ICC, referrals are a cause for celebration. This post suggests that contrary to this view of referrals as fundamentally good, they may be the best option but one with high costs for international criminal justice.

Previous posts have considered some of the problems of referrals including the inclusion of certain provisions – the immunity of individuals from non-member states, the limits set by the Security Council on the temporal jurisdiction, the possible “outsourcing” of peace by the Security Council to the ICC, etc. But what about the costs of referrals on the quality and legitimacy of international criminal justice?

It bears remembering that, during the Rome negotiations to establish the ICC in 1998, the most fervent state and civil society advocates in favour of creating the Court sought to ensure that the ICC would be independent from the power-politics of the UN Security Council. A compromise was reached which gave the Court’s Prosecutor three avenues of initiating an investigation: by state referral, proprio motu (through the Prosecutor’s own volition) and by UN Security Council referral.

For some, this was no doubt a costly compromise. The most keen states and human rights organizations argued that a separation of politics and justice was necessary if pursuing justice was to be legitimate and that tethering the justice of the Court to the politics of the Council would politicize the ICC.

In a recent post at Radio Netherlands Worldwide, Geraldine Coughlan noted that:

“The so-called Trias Politica – the separation of power between politicians and the judiciary – is more absent than present in international criminal law.”

Justice Louise Arbour

Louise Arbour recently noted that UN Security Council referrals to the ICC may not be in the interests of justice (Photo: Andrew Winning/Reuters)

In a recent speech in London, Louise Arbour, the former chief Prosecutor for the ICTY and the ICTR, similarly acknowledged:

“…international criminal justice cannot be sheltered from political considerations when they are administered by the quintessential political body: the Security Council. I have long advocated a separation of the justice and political agendas, and would prefer to see an ICC that had no connection to the Security Council. But this is neither the case nor the trend.”

Continue reading →

Posted in International Criminal Court (ICC), Libya, Libya and the ICC, Sudan, Transitional Justice, UN Security Council | 5 Comments

The Justice and Legality of bin Laden’s Assassination: Is What is Legal Necessarily Just?

Posted on May 5, 2011 by Mark Kersten
Obama on Osama

Ever since President Obama said that "justice had been done" and Osama bin Laden had been killed, a debate about the legality and justice of bin Laden's death has raged

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.”

Was the assassination of Osama bin Laden just? Was it legal?

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:

Woodrow Wilson was an early advocate of regulating international relations through international law

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.

Continue reading →

Posted in Justice, Osama bin Laden, Osama bin Laden and international law | 1 Comment

Bin Laden and International Law: Death or Trial?

Posted on May 3, 2011 by Mark Kersten

US officials including President Obama, VP Joe Biden, Secretary of State Hilary Clinton and Secretary of Defense Robert Gates watch as the bin Laden mission unfolds. The mission was to kill bin Laden, not to capture him.

A debate regarding the legality of killing Osama bin Laden is raging across the internet. Everyone wants to know: was the assassination of bin Laden in accordance with international law? Yesterday, I weighed in on the broader question of whether it was in fact an act of “justice” to kill bin Laden.

It strikes me that if assassinating bin Laden was, in fact, illegal (note there is no consensus on this question), then the prescription that follows would be that the US should have captured, detained and subsequently tried bin Laden for violations of international law.

Lindsay Beyerstein sums up the views of those uncomfortable with the assassination who would have prefered that bin Laden had been brought to trial:

I see his killing as a lost opportunity to capture and try him…Americans have just decided that it’s okay to kill suspects without trial if it seems obvious enough that they’re guilty of terrorism.

This post is an attempt to think through the kinds of issues that a trial of bin Laden would encounter. While there is no doubt an argument that putting bin Laden on trial would better serve the interests of justice than his assassination, it is not entirely clear just how “just” such a trial would be. Human rights expert, Joe Hoover, for example, commented that there is a need to be skeptical about what trials of this nature can offer:

“trials, especially international ones, are political acts and the desire to legalise the act of holding to account, of delivering justice, is hardly innocent or unproblematic.”

In what ways would a trial be problematic? I suggest four major challenges that a trial of bin Laden would have had: its fundamentally political (rather than impartial, judicial) nature, the question of where his trial would have taken place, which crimes would have been adjudicated, and, more practically, the cost of trying him. In the end, the debate about justice that has been instigated by bin Laden’s death is critically important for how we conceive of justice and the legitimacy and appropriateness of future action against individuals like bin Laden.

Politics of Law

Would bin Laden have received a fair trial? If justice was to be served and achieved by a trial, impartiality would have been absolutely necessary.

Greg Barns, a former Australian MP, writes that, if the leader of al-Qaeda had been put in front of a tribunal,

“Bin Laden could then have been tried according to law and given all the resources that every human being is entitled to in defending themselves against criminal charges.”

It isn’t entirely clear, however, that bin Laden would have been given all those resources. For example, individuals being prosecuted are granted the benefit of the doubt: they are assumed innocent until proven guilty. I don’t think it is controversial to maintain that bin Laden would have undoubtedly been presumed guilty. In 2001, when the Taliban offered to hand over bin Laden to a third country for trial, President Bush replied:

“When I said no negotiations I meant no negotiations…We know he’s guilty. Turn him over. There’s no need to discuss innocence or guilt.”

While bin Laden’s responsibility in terrorist attacks is clear, even by bin Laden’s own admission, with regards to the standards of international criminal law, he would have had to be presumed innocent nonetheless.

Time magazine cover bin laden

The upcoming cover of Time Magazine

There would also have been the risk that bin Laden’s trial might have become a show trial, intended to illustrate the moral superiority of America rather than guarantee an even-handed, fair judicial prosecution. It is entirely possible, given the precedence of past high-profile cases, that bin Laden himself would have used a trial as a pulpit to spread propaganda.

In this context, it’s not obvious that bin Laden would have received a fair defense. Would the US be have been willing to hand over evidence against him as well as the names of witnesses who would have testified against him? If the trial were to be fair, they would have had to.

One problem that bin Laden may not have had is with finding legal representation. While some have suggested that bin Laden would have had a difficult time finding representation, this seems very unlikely. There is no shortage of lawyers who would dream to make their career defending individuals like bin Laden. A lawyer like Jacques Verges would seem a logical candidate. Dubbed the “Devil’s Advocate”, Verges has represented the likes of Slobodan Milosevic, Carlos the Jackal and Klaus Barbie.

Where would he have been tried?

Yesterday, Jan Triska commented that:

“the…big unspoken issue here, as well: whether bin Laden or even one of his lieutenants could have ever received a fair trial, anywhere”

Triska is right to point out that it remains unclear where bin Laden would have been tried. The initial presumption may have been that bin Laden would be tried in the US. If bin Laden had, however, been brought to Guantanamo first, a very possible scenario, he would be unable to be tried in the US, as Congress has virtually barred any Gitmo detainees from having trials on US soil.

Even if he had not been transferred to Gitmo, there has been little to suggest an appetite for a trial of bin Laden in the US. 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.”

It also seems unlikely that bin Laden could have been tried at the ICC. The ICC does not have jurisdiction over the events of 9/11 as they occurred prior to the Court’s creation in 2002. It also does not have jurisdiction of bin Laden’s prior terrorist attacks.

Continue reading →

Posted in Afghanistan, International Criminal Court (ICC), Iraq, Osama bin Laden and international law, Terrorism, United States | 6 Comments

The “Justice” of Killing bin Laden and What it Means for Gaddafi

Posted on May 2, 2011 by Mark Kersten
bin laden dead

Last night, US President Obama announced that a US special mission had killed Osama bin Laden. Many had described bin Laden's death as "justice" (Photo: AP)

Last night, President Barack Obama announced to eager audiences around the world that America’s most wanted man, Osama bin Laden, had been assassinated. Obama described bin Laden’s death by declaring that “justice has been done.” People around the globe are echoing this sentiment – that bin Laden’s death amounts to “justice”.

Looking at my twitter feed and facebook page, dozens of people are  invoking the same notion of justice in bin Laden’s death. Leaders and former leaders around the world have also expressed their views:

George W Bush: “The fight against terror goes on, but tonight America has sent an unmistakable message: No matter how long it takes, justice will be done.”

Tony Blair: “The operation shows those who commit acts of terror against the innocent will be brought to justice, however long it takes”

Canadian PM Stephen Harper “death of Osama bin Laden…secures a measure of justice.”

Kenyan President Mwai Kibaki: The killing of Osama Bin Laden is an “act of justice” for the victims of the 1998 bombings at the US embassy

Executive director of the 9/11 Commission, Philip Zelikkow: “We take a great deal of satisfaction in the news that Bin Laden has been brought to justice.”

Former US Vice President Dick Cheney: “bin Laden has been brought to justice…Today, the message our forces have sent is clear — if you attack the United States, we will find you and bring you to justice.”

Blair and Bush

Both former Bush and Blair called the death of bin Laden "justice" (Photo: PA)

But is bin Laden’s death really “justice”? Can killing someone ever be justice? If so, what type of justice is it? If it is just to assassinate bin Laden, who will surely go down as one of history’s most brutal antagonists, shouldn’t that mean that killing Gaddafi amounts to “justice” as well?

First, it is important to note that the legality of assassinating bin Laden rests on shaky grounds, at best. The US justifies killing members of al Qaeda by virtue of being at “war” with terrorism and thus considering al Qaeda operatives as “enemy combatants”. Nevertheless, the legality of targeting individuals with extra-judicial assassinations under international law is precarious. The US has recognized this fact in the past.

Of course, this is not to say that justice equates with what is legal or that what is legal equals what is moral. In 1964, Judith Shklar, warned us of the dangers of legalism, conflating morality with law which risked neglecting or obscuring context.

The instinct of those celebrating bin Laden’s death is that some things, or better some people, are so exceptionally bad that they make law irrelevant. The legality of killing bin Laden doesn’t really matter, it is the “right thing to do” and therefore constitutes “justice”.

Justice is more complicated than it is simple. Justice may be retributive, restorative, distributive, or procedural. For some, justice is primarily moral, for others it is legal, and for others still it is emotional. For many it is all of the above and there may be no difference between the moral, legal and emotional arguments for what is just.

Photo: Reuters/Chip East

If the “justice” of bin Laden’s death cannot be supported by international law, what kind of justice is it? What people appear to be invoking is a sense of physical, non-legal retributive justice: the killing of bin Laden is his due punishment. The extermination of his life avenges the lives he extinguished. And it must be reiterated, that this was always about killing bin Laden. The US special operations mission was to kill bin Laden, not to capture him.

Continue reading →

Posted in Afghanistan, International Criminal Court (ICC), Libya, Libya and the ICC, Middle East, Osama bin Laden, Pakistan, Terrorism | 11 Comments