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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A swimming pool and a bleeding toe put my medical competency in doubt

Doctors are used to contending with Google. Sometimes the search engine wins. 

The brutal heatwave affecting southern Europe this summer has become known among locals as “Lucifer”. Having just returned from Italy, I fully understand the nickname. An early excursion caused the beginnings of sunstroke, so we abandoned plans to explore the cultural heritage of the Amalfi region and strayed no further than five metres from the hotel pool for the rest of the week.

The children were delighted, particularly my 12-year-old stepdaughter, Gracie, who proceeded to spend hours at a time playing in the water. Towelling herself after one long session, she noticed something odd.

“What’s happened there?” she asked, holding her foot aloft in front of my face.

I inspected the proffered appendage: on the underside of her big toe was an oblong area of glistening red flesh that looked like a chunk of raw steak.

“Did you injure it?”

She shook her head. “It doesn’t hurt at all.”

I shrugged and said she must have grazed it. She wasn’t convinced, pointing out that she would remember if she had done that. She has great faith in plasters, though, and once it was dressed she forgot all about it. I dismissed it, too, assuming it was one of those things.

By the end of the next day, the pulp on the underside of all of her toes looked the same. As the doctor in the family, I felt under some pressure to come up with an explanation. I made up something about burns from the hot paving slabs around the pool. Gracie didn’t say as much, but her look suggested a dawning scepticism over my claims to hold a medical degree.

The next day, Gracie and her new-found holiday playmate, Eve, abruptly terminated a marathon piggy-in-the-middle session in the pool with Eve’s dad. “Our feet are bleeding,” they announced, somewhat incredulously. Sure enough, bright-red blood was flowing, apparently painlessly, from the bottoms of their big toes.

Doctors are used to contending with Google. Often, what patients discover on the internet causes them undue alarm, and our role is to provide context and reassurance. But not infrequently, people come across information that outstrips our knowledge. On my return from our room with fresh supplies of plasters, my wife looked up from her sun lounger with an air of quiet amusement.

“It’s called ‘pool toe’,” she said, handing me her iPhone. The page she had tracked down described the girls’ situation exactly: friction burns, most commonly seen in children, caused by repetitive hopping about on the abrasive floors of swimming pools. Doctors practising in hot countries must see it all the time. I doubt it presents often to British GPs.

I remained puzzled about the lack of pain. The injuries looked bad, but neither Gracie nor Eve was particularly bothered. Here the internet drew a blank, but I suspect it has to do with the “pruning” of our skin that we’re all familiar with after a soak in the bath. This only occurs over the pulps of our fingers and toes. It was once thought to be caused by water diffusing into skin cells, making them swell, but the truth is far more fascinating.

The wrinkling is an active process, triggered by immersion, in which the blood supply to the pulp regions is switched off, causing the skin there to shrink and pucker. This creates the biological equivalent of tyre treads on our fingers and toes and markedly improves our grip – of great evolutionary advantage when grasping slippery fish in a river, or if trying to maintain balance on slick wet rocks.

The flip side of this is much greater friction, leading to abrasion of the skin through repeated micro-trauma. And the lack of blood flow causes nerves to shut down, depriving us of the pain that would otherwise alert us to the ongoing tissue damage. An adaptation that helped our ancestors hunt in rivers proves considerably less use on a modern summer holiday.

I may not have seen much of the local heritage, but the trip to Italy taught me something new all the same. 

This article first appeared in the 17 August 2017 issue of the New Statesman, Trump goes nuclear