David Allen Green

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Law, justice and the death of Osama Bin Laden

Does it matter if the killing was against the law?

By David Allen Green Published 02 May 2011 18:15

There was probably no lawful basis for the killing of Osama Bin Laden, but for many that does not really matter.

Sometimes, one can perhaps contend, there may be justice without a legal basis or in breach of due process.

And, in any case, even the sensitive souls concerned with any legalistic irregularities are unlikely to get too vexed over this particular death.

Nonetheless, the Orwell Prize shortlisted Heresy Corner blog today asks when is an execution not an execution. He makes the point that, on the basis of a EU Commission statement and the known circumstances of the death, there appears to have been an extra-judicial execution. He concludes:

So it was a punishment for a crime after all. And the killing of a specified individual, ordered and carried out by the state as punishment for a criminal act is, in most normal definitions of the term, an "execution". What the EU is effectively saying, then, is that capital punishment is only acceptable if it is done on the basis of secret orders, issued by a politician, with no trial and no possibility of appeal. Hmm.

I do not think that we have sufficient information to form even a preliminary view as to either the circumstances of the death or the true intentions of those who effected it. The death may have been intentional, or the result of resistance, or caused by incompetence. We simply do not yet know.

There is also no particular reason to rely on a statement of the EU Commission in characterising the nature of the death. All the available information is so far only indicative; it is too early to say anything about this death with certainty.

However, there is the wider point of the legal context for a politician ordering any such killing, whether as an assassination or an "execution".

On the face of it, there is no legal basis for an American President to order the killing of anyone. Furthermore, such a killing would presumably be contrary to the local law of where the killing takes place and possibly even the public law of the United States, as well as in breach of international instruments (to the extent that they have any practical legal effect).

Such a killing would therefore be unlawful (in not having a legal basis for the power exercised) and illegal (in being in breach of applicable laws).

But if one is to take the rule of law and due process seriously, then it is at the margins where they matter most: where the victim is deemed to "deserve it". If the rule of law and due process are posited as absolutes, then ordering such a killing is necessarily wrong at all times and in all circumstances.

Alternatively, if the rule of law and due process only have a qualified status, and so (somehow) can be disregarded in exceptional situations, then the difficult question is where one draws the line.

And, in terms of international affairs, it also becomes unclear exactly what are the values and norms which the West are seeking to defend when an assassination or "execution" is ordered: it is rather absurd to defend the rule of law and due process by undermining them.

The death of Osama Bin Laden is undoubtedly a welcome event, even if it was perhaps an unlawful one. There is a sense that it was a just outcome, even if there had not been any due process. Nonetheless, if the death was unlawfully ordered, there remains at least the conceptual and ethical problem identified on Heresy Corner.

But it is not a problem which many of us will lose sleep over tonight.

David Allen Green is legal correspondent of the New Statesman and co-judge of the 2011 Orwell Prize for blogging.

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129 comments

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I first heard this story a few years ago from a girl I had met in New York's Greenwich Village. Probably the story is one of those mysterious bits of folklore£¨Ãñ¼ä´«Ëµ£© that reappear every few years, to be told a new in one form or another. However, I still like to think that it really did happen, somewhere, sometime.

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"Are you married?"

"I don't know."

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"And you're going home now, not knowing?"

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Then Brunswick was ten miles, and then five. Then,suddenly, all of the young people were up out of their seats, screaming and shouting and crying, doing small dances of joy. All except Vingo.

Vingo sat there stunned, looking at the oak tree. It was covered with yellow handkerchiefs. 20 of them, 30 of them, maybe hundreds, a tree that stood like a banner of welcome billowing in the wind. As the young people shouted, the old con rose and made his way to the front of the bus to go home.

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Wed, 2011-05-04 20:32 — Life's Roulette Wheel (not verified)

The US, and it's 51st and 52nd states (UK, Israel) assassinate their enemies in cold blood all the time. WTF do you think a drone missle does, or indeed, Spielberg's Munich?

These guys do this shit, so we can all slob away at our PCs getting fatter, and bickering about it all :)

Tue, 2011-05-03 18:35 — John Abdou

Obviously we don't know exactly what happened when the navy seals stormed the compound.If as the reports that have come out today that he was unarmed and using his wife as a human shield are true (surely not much of a threat to several trained soldiers after the other threats in the building had already been neutralised, even if he was concealing some form of weapon), I find it difficult to understand any benefit of killing him, rather than detaining him.

By detaining him there would be no doubt as to whether or not he had been captured, whereas now and for years to come we will be endlessly hearing reports that Osama is still alive and living in hiding somewhere (almost Diana-esque). The rumour of his survival at least allows some form of stability to the organisation he was leading. Also there could have been vital information to be gleaned from him or the others who were with him at the time of the raid.

Mon, 2011-05-02 18:23 — michaelpetek

Are you kidding? Osama bin Laden was a military commander not in uniform, and therefore not entitled to be treated as a prisoner of war if captured.

He was also a blasphemer and a devotee of false religion. Now he's been sent to live with the fishes where he belongs.

Mon, 2011-05-02 18:32 — Kimpatsu (not verified)

@michaelpetek
I'm also a "lasphemer and a devotee of false religion" (sic); (actually, I have no religion).
Does that make ME deserving of death?

Mon, 2011-05-02 18:35 — Al Campbell (not verified)

Rationality belongs to the cool observer. But because of the stupidity of the average man, he follows not reason, but faith. And this naive faith requires necessary illusion, and emotionally potent oversimplifications, which are provided by the myth-maker to keep the ordinary person on course. It’s not the case, as the naive might think, that indoctrination is inconsistent with democracy. Rather, it is the essence of democracy."

-Reinhold Niebuhr

Fri, 2011-05-06 10:45 — RK (not verified)

andyg, do not venture to tell an Indian Hindu about Muslim politics. As much as you hate your rich, you have no idea about Islamic politics.

It may seem like it is all about Oil, in reality there is no oil in Bangladesh/ India and Pakistan.

The cohabitation of leftist with Islamists is the greatest tragedy of our times. By the time you would have realised people of your ilk would have been killed by an Islamist.

As for ourselves we will either flee or convert.

Come out of 2 page theory book and see the world as it is not what you would think it should be as per your theory

Mon, 2011-05-02 18:41 — Jon S (not verified)

If we take the war on the abstract, the "war on terror", as valid; is it not then possible to determine from this that the 'execution' was permissible on the grounds of it neutralising a military target? Given Bin Laden's status as a military leader, the figurehead and leader of a terrorist organisation that carried out deadly attacks on the USA, Britain and many other countries, do we not infer from this that he was a legitimate target? Someone essential to Al Qaeda's war machine?

Evidently, extraction and a criminal trial would have been preferable. However, despite Pakistan's claims the ISI helped the Americans (later proved false) in killing Bin Laden, the country would not be one that extraditing Bin Laden from would really be an option. Likewise, a trial would - necessarily - be the showtrial offered to Eichmann or Saddam Hussein, where the only real 'justice' is that of victor's justice; revenge.

Find me on Twitter: @legaljourno

Mon, 2011-05-02 18:43 — James (not verified)

Seems to me that he was an armed and dangerous fugitive being sought by many governments in connection with acts of terrorism. I'd be surprised if there were any argument over this outcome under local or international law. Armed and dangerous fugitives must be apprehended somehow and even in the uk someone armed and resisting arrest would risk being killed.

Tue, 2011-05-03 19:12 — Will (not verified)

"I thought that Osama Bin Laden was very ill in 2001 and died a short time later" - Anton Jury

So did a lot of people. Benazir Bhutto even named his murderer in an interview with David Frost (censored on the BBC but available elsewhere).

But that doesn't matter now. He was taken out during primetime. It's a great day for freedom and peace etc etc. USA USA USA

Mon, 2011-05-02 18:43 — MikeHypercube (not verified)

I guess it all depends on the circumstances, as you say. If the order was to kill him, the points you make follow. But if the order was to try to take him, and in the process he resisted and gets shot, doesn't a different set of arguments apply? It's surely not that unusual for a violent criminal to be killed while resisting an attempt to take him? That still leaves a legal question about the legal basis for trying to take him on foreign soil, but if the Pakistan authorities are (retrospectively) OK with that, does any potential legal problem remain?

Wed, 2011-05-04 22:45 — RK (not verified)

andyg
04 May 2011 at 18:46

@ Luddite.

Well said, but Bush still lives.
------------------------

Andy, u alive because Bush is Alive. Just a thought.

Wed, 2011-05-04 22:54 — RK (not verified)

Whoever could be taken for a ride by Mussaraf and Pakistan; must be an stupid. Bush was stupid and naive. Not "intelligent and cruel". To think the man was intelligent and he did everything for oil is to missed his quote on Saddam "he wanted to kill Senior Mr Bush".

Offcourse if was not stupid, we would not have had Iraq. Afganistan was and remains a fair game. If you think the war will stop because Americans are not in Afpak, you understand nothing about Afpak.

Mon, 2011-05-02 18:48 — michaelpetek

Kimpatsu, you're OK as long as you don't wage armed jihad in favour of a false religion.

Keep your nose clean and mind 'ow you go!

Tue, 2011-05-03 19:18 — andyg (not verified)

The world takes yet another nose dive in accepting murder as legitimate.
Any inhumane act of committing pain, suffering or death of another human being, is a committed act against me; because I am a member of that human race.Legitimise this kind of act and the consequencies grow ever closer to yourself. Any man that commits an act of revenge should make two coffins!

Wed, 2011-05-04 22:58 — RK (not verified)

I have begun to regain confidence in Obama because he said before elections that PAKISTAN is the problem.

For those who miss this, please read Naipaul literature on Islam and its imperilistic influence on cultures where it conquered. If have lived in India and interacted with Muslims in India; you can understand it.

Arab muslims or even Afgani muslims cannot tell that story. Arab Muslims are very different story.

Fri, 2011-05-06 11:07 — RK (not verified)

andyg

Here is a true story:

I had a friend who disarmed a bully with a knife, who was harrassing some children and thrashed him a bit. My friends brother was pacifist who physically restrained him against going after the bully; who took advantage of the situation and killed my friend.

The bully went on to become notorious gang leader murdering tens and now local MP. He may some day even become a minister.

Lesson Learnt?

PS: This is a true story.

Mon, 2011-05-02 18:49 — Guy Chapman (not verified)

We need to wait until the original orders are on Wikileaks. Of course, even if the orders said "bring him back dead or alive" there would still be the element of nudge-nudge, wink-wink.

Thu, 2011-05-05 16:53 — Rog (not verified)

No legal basis? How about "self defense".

Mon, 2011-05-02 18:57 — Anton Jury (not verified)

I thought that Osama Bin Laden was very ill in 2001 and died a short time later !

Why would the Americans claim to have assassinated Osama Bin Laden and bury him at sea within Twenty Four Hours and also confirm his DNA results in such a short time ?

Would it not have been better to have held his body for a few days to double check the DNA results and any other formalities that may be necessary, for example : Notify living relatives and formal paper work prepared regarding burial and providing full evidence to show to Osama Bin Laden's relatives that he was died and give them a choice in burial and matters regarding it.

Fri, 2011-05-13 23:22 — RK (not verified)

enjoy

http://abcnews.go.com/Blotter/porn-found-osama-bin-laden-evidence-trove/...

Mon, 2011-05-02 19:01 — Adam (not verified)

I think MikeHypercube has hit the nail on the head. If the US forces made a reasonable effort to take him alive, but it just wasn't possible, then it seems that this was a welcome and praiseworthy operation. However, if it was the intention all along to kill him, then I find that worrying.

Mon, 2011-05-02 19:04 — Jack Price (not verified)

As far as I'm aware, this was an assassination mission. The orders were to kill. (source: http://www.guardian.co.uk/world/2011/may/02/osama-bin-laden-death-live @3:38pm.) Bin Laden was not killed whilst resisting capture, then, but was never intended to leave his compound alive.

I cannot pretend to be upset that a mass-murderer is dead, but that we should violate our own professed principles in order to take him out is, at best, very regrettable.

Wed, 2011-05-04 23:22 — ODL (not verified)

Well said @writeon.

I feel like this incident has brought the absolute worst out of humanity. There have been atrocities committed so incomprehensible that we will never fully understand them. The holocaust, Rwandan genocide, the deaths of millions in Iraq.

But throughout this, there has always been someone professing to uphold democratic justice. Trial by one's peers and punishment that fits the crime.

With the 'killing' of OBL, the very people who claim to export democracy to the world have finally disregarded one of its pillars. The rule of law and justice for ALL.

What we know about OBL is irrelevant. If we claim to be the last bastion of freedom and justice, we must apply our principles to ALL. We must lead by example and change the world through our principles and ethical actions.

I fear this killing is a watershed moment. For years the US have assasinated those who work against its interests, but to openly do so, offering no evidence or chance of trial, sets a precedent for a new kind of imperial justice.

If enough people think you're guilty, your killing can be justified without evidence.

I won't lose sleep over Bin Laden, but I do worry that we can now expect this type of "revenge" against enemies of America now that it has been sanctioned by public opinion.

Mon, 2011-05-02 19:10 — David Lindsay

He wasn't in Afghanistan after all. Well, I never! So, why the hell are we?

As for the crowd-pleasing reaction from Hamas, as with the apparent rapprochement between it and Fatah, I will share in the outrage when all those who express it also do so about the governing role of Sinn Féin, and about the Far Left and Far Right backgrounds of numerous leading politicians on both sides of the Atlantic, and about each and all of the unsavoury elements to whose legislative will we are subject in the European Parliament and the Council of Ministers, and about the Islamist terrorist war against Russia, and about the taking out of major bulwarks against Islamist terrorism in Iraq and, putatively, Syria.

Don't hold your breath for that. But you might as well for the reprisals after today. I'd be surprised if they had not already begun. What's that you say? We had to get him because of 9/11? You mean the Saudi attack on the United States? The event that we long ago ceased to mention as we dreamt up ever more far-fetched excuses for the war in Afghanistan. With Osama bin Laden dead, we have finally run out of them. It is very high time indeed to get out, and never again to go anywhere near the Graveyard of Empires.

Mon, 2011-05-02 19:21 — PeteyMcPeterson

What's more worrying is the amout of chatter I've been hearing today to the effect of "Well, I suppose we don't have to worry about extremist terrorism any more!" As if Bin Laden was coordinating all terrorism like some kind of super villain, and without him all cukoo fundamentalist types will revert to being nice, invite-em-round-for-a-beer neighbourly folk.

Scary.

Mon, 2011-05-02 19:24 — Willp

I don't know what Reinhold Niebuhr's self-satisfied, vicious and undemocratic comment - "because of the stupidity of the average man, he follows not reason, but faith" has to do with anything.
Bin Laden was a warmonger and terrorist, a mass murdering fascist. He deserved to die.

Mon, 2011-05-02 19:35 — Tom (iow) (not verified)

The implication of the official statements is that he was shot resisting arrest. I have not seen any statement that the killing was planned.

If people later express happiness at his death this alone does not make the killing unlawful, but at most could lead to an inference that the official account is perhaps not true.

Tue, 2011-05-03 19:54 — frankchant (not verified)

Re."But it is not a problem which many of us will lose sleep over tonight"
this kind of cynical reporting/opinion is unhealthy, one sided, and just helps the unlawful bully tactics of the US and allies to do as they please, when and how it suits them.
If Bin Ladin deserved to die then so does Bush, Blair, and all the rest of the thieving war mongerers presently raging havoc in the middle east and beyond.

Mon, 2011-05-02 19:43 — Spilliam Wooner

Of course law, international or otherwise, is intended only to keep the ordinary citizen in line; otherwise we would just rise up and strangle our leaders in their beds. Every time a dissatisfied citizen runs amok with a gun, the gun laws are tightened to make it less likely that someone who's premature demise would be of general benefit to the nation as a whole, will occur.

Law for the elite seems to be virtually inoperative provided its violation is carried out discretely and doesn't embarrass the establishment by making this fact too obvious to the general public. Even then the sentences meted out to those considered 'worthy' by those who rule our lives is noticeable less severe than would be the case for the rest of us given the same crime.

The argument as to the legality of actions carried out at the behest of those at the top of the heap is a sterile one unless we first ask "Who's law?" has been broken. We cannot judge our leaders' adherence to laws intended only for us and must first understand which laws, applicable to THEM, they have violated.

Mon, 2011-05-02 19:56 — Matt Flaherty (not verified)

I'm not sure I believe that Reuters report, which refers only to an unnamed source. Obama had said the mission was to capture Bin Laden and bring him to justice.

Mon, 2011-06-20 21:00 — Whoever (not verified)

-Osama committed mass murders.

-An eye for an eye.

-Osama was murdered.

Logic can explain why and how he died, but it cannot explicate why murder driven by justice is wrong. I'll leave that to philosophy.

Tue, 2011-05-03 20:15 — writeon1

I disgree with everything in this article. It's trite and facile. Hard to imagine a lawyer wrote it. Whatever happened to the Law along the way?

Personally I'd have liked to have seen Bin Laden stand trial like Adolf Eichmann, or the other leading Nazis.

As Bin Laden was unarmed capturing him wouldn't have been too difficult, he might even have enjoyed the possibility of defending his actions in a court of law, using it as a platform.

The myth of Eichmann and his crazed ideology was undermined by actually seeing what he looked like in a court of law. A trial should always be something civilised nations resort to, rather than a Chicago-style hit. Sure we appear efficient at killing, but what about our values and morality? Surely we are supposed to show that we are fundamentally different and better than Bin Laden, not just more powerful? Why don't we believe that our laws are good enough anymore to deal with criminals like Bin Laden?

Bin Laden seems to have been a security asset of the Americans and the Pakistanis for years, and far from being in hiding, he seems to have been a prisoner, a 'card' kept up the sleeve, ready to be 'played' when the time was right.

Mon, 2011-05-02 20:03 — PeteyMcPeterson

Can we try to establish a consensus?

Is Bin Laden's death a satisfactory resolution to the events? Would you rather see that or, say, him locked in a cell to rot until the end of his days. If it were up to you and you had the choice; dead or alive, which would you choose?

Tue, 2011-05-03 20:16 — zsremrxc

frankchant agreed... !

Mon, 2011-05-02 20:04 — Steve Jones (not verified)

"There was probably no lawful basis for the killing of Osama bin Laden".

I think that's bonkers - if somebody takes it upon himself to declare war on a country (which is what Osama bin Laden explicitly did), then his death in combat is surely lawful. If it's not, then it would appear to be the law that is wrong. In any case, whose law are we talking about? Some might argue that only properly constituted states can be involved in a war, but that position isu surely untenable in the modern world. In effect, if the head of a state was killed by a country he had declared war on, then that would surely be legal. The only difference here is that the organisation that Osama bin Laden headed up was not a recognised state. Get used to it - there will be more to come. The law is going to have to adapt.

Mon, 2011-05-02 20:04 — M Gadsby (not verified)

Agreed, 'law' is only what those possessed of the most power deem it to be at any given moment, it doesn't exist in any other form. Certainly the United States is at the top of the international pile and can therefore justify anything it does as legitimate whilst condemning other nations who do the same or similar (Guantanamo Bay).

Mon, 2011-05-02 20:08 — skiptonman

It`s how you define a terrorist ? if a man ever needed to be understood then surely it`s Mr Bin Laden. If we want the war to end his capture then public trial would go some way to ending the bloodshed forever. The IRA eventually agreed peace after talking .. lets not forget this man was trained by the CIA when he was fighting the communist threat during the Afghan war of the 70`s .. if they had cornered him why kill him ? many ways to skin a cat and i think the public had a right to a trial as did the victims families.

Mon, 2011-05-02 20:09 — Nick Gordon (not verified)

There was a firefight that lasted several minutes. I have no idea whether OBL actually participated in the shooting, but that seems to me beside the point. You come to arrest me, my guys start shooting, I'm at risk and culpable.

Point being - doesn't fit my definition of an execution.

One statement said OBL was given a chance to surrender and wouldn't, and was then shot. Didn't say whether his refusal entailed simply saying "no", or attempting to continue fighting.

All in all, I think none of us (including m'learned friends, whether here or in the EU) have enough data to start making judgements.

Mon, 2011-05-02 20:14 — oximoron (not verified)

my virtual friend died in New York on 9/11

http://smilimano.blogspot.com/2008/09/sharon-in-english.html

Tue, 2011-05-03 20:28 — writeon1

Also, can we in the 'civilised' West really assume that we can attack and slaughter civilians in various countries around the world, whithout anyone striking back at us, are they just supposed to take it and do nothing?

Bush, Blair and Obama make me want to vomit, along with most Western leaders. Our hypocracy and sanctimony are grotesgue. Our killing machine, also known as our 'heroes' make Bin Laden look like a mere amateur in the game of mass killing. Why don't the hundreds of thousands slaughtered in Iraq count on the great scale of 'justice', where the mountains of corpses are weighed, why is it only our losses that matter and have names?

Are our great leaders really that different to Saddam and Bin Laden? Why is his killing of civilians worse than ours? Do the dead even care about the motives or intentions of their killers?

Tue, 2011-05-03 20:32 — Luddite (not verified)

Then said Jesus unto him, Put up again thy sword into his place: for all they that take the sword shall perish with the sword.

Tue, 2011-05-03 20:41 — Luddite (not verified)

writeon
03 May 2011 at 19:28 Who started this war? That PIG is directly responsible for most of the carnage throughout the Middle East, India, and Pakistan.

Mon, 2011-05-02 20:29 — Herbert (not verified)

Seems fair enough to me. Now on to the Blair/Bush trial for waging illegal war. Believe it or not there are some of us who are against ALL terrorists.