Law, justice and the death of Osama Bin Laden

Does it matter if the killing was against the law?

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.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Tony Blair won't endorse the Labour leader - Jeremy Corbyn's fans are celebrating

The thrice-elected Prime Minister is no fan of the new Labour leader. 

Labour heavyweights usually support each other - at least in public. But the former Prime Minister Tony Blair couldn't bring himself to do so when asked on Sky News.

He dodged the question of whether the current Labour leader was the best person to lead the country, instead urging voters not to give Theresa May a "blank cheque". 

If this seems shocking, it's worth remembering that Corbyn refused to say whether he would pick "Trotskyism or Blairism" during the Labour leadership campaign. Corbyn was after all behind the Stop the War Coalition, which opposed Blair's decision to join the invasion of Iraq. 

For some Corbyn supporters, it seems that there couldn't be a greater boon than the thrice-elected PM witholding his endorsement in a critical general election. 

Julia Rampen is the digital news editor of the New Statesman (previously editor of The Staggers, The New Statesman's online rolling politics blog). She has also been deputy editor at Mirror Money Online and has worked as a financial journalist for several trade magazines. 

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