In the wake of the jubilant response to bin Laden’s killing, it is heartening to see such a quick discussion erupt over its legality. The State Department has released its legal rationale for the operation here. The Atlantic Wire summarizes various arguments.
My views on extrajudicial execution are well known, but I’m not sure I agree with Paul that this event counts as such – whether or not this is understood as a law enforcement operation vs. a military engagement.
In the former, officers are permitted to use lethal force in self-defense, so if we accept the US’ claim that its Seal team was under fire then firing back was legal even if we assume human rights law rather than the law of armed conflict applies. This would be true, again assuming a firefight, even if bin Laden himself wasn’t armed (though his death ought to then have been treated as regrettable rather than celebrated as the Obama administration has done).
But if we cede the Administration‘s (and al-Qaida’s) claim that a state of armed conflict exists between the US and AQ, then the ICRC’s concept of ‘continuous combat function‘ would probably have applied to bin Laden (unlike Anwar al-Awlaki) due to his operational role in planning attacks. And even if you don’t buy this argument (many don’t since bin Laden’s operational importance is disputed and the concept of CCF is at any rate not enshrined in treaty law) the fact that this was a ground operation where bin Laden’s men were in a position to engage US troops, rather than a drone attack that hit him as he slept means that he was probably a legitimate target at the time he died even if he’s technically a civilian. Either bin Laden himself or those around him would have been directly participating in hostilities at the time, which means he was either a civilian who had momentarily lost his immunity (if armed), or a civilian caught in the crossfire of nearby civilians (the couriers) who had given up theirs. By using ground troops instead of an aerial attack, it is also clear that the US fulfilled the rules on proportionality and minimization of civilian harm, although whether they chose a ground mission for those reasons is debatable at best.
So in my mind – again assuming we can believe that US personnel were under fire at the time – it’s not the legality of killing rather than capturing bin Laden that is questionable; it is the wisdom of doing so. The claim that “justice” has been served here is particularly murky. That is because “justice” can mean a number of things.
To Obama and much of the American public it apparently means an eye for an eye.
To human rights lawyers, it involves following procedural rules in meting out punishment, which explains the focus on the legality of the killings (Ken Anderson’s post here considers what the debate means for international law development).
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). But such incidents do not transform a warrior into a war criminal, or a criminal suspect into a convict. Such acts do not in themselves constitute justice in the sense of accountability before the law. They in face preclude it.
In so doing, the psychological benefits of international justice have been precluded as well. As Geoffrey Robertson argues in the Independent:
Bin Laden could not have been tried for 9/11 at the International Criminal Court – its jurisdiction only came into existence nine months later. 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. Killing instead of capturing Osama Bin Laden was a missed opportunity to prove to the world that this charismatic leader was in fact a vicious criminal, who deserved to die of old age in prison, and not as a martyr to his inhuman cause.
That won’t be possible now. Whether the world will be better or worse or neither as a result is anyone’s guess. But what is certain is that justice, by this standard, has been stayed, not served.
[cross-posted at Duck of Minerva]
UPDATE: Note the legal ruminations at the start of this post relied on the assumption that the firefight story was accurate. Now bin Laden’s daughter is reporting that the Seals captured her father alive and then shot him, after the firefight. If true, that’s a bit different from a war law perspective.