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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France is changing: an army stalks the streets and Boris Johnson wanders the Tuileries

Will Self on the militarisation of France, and Boris Johnson at the Foreign Office.

At the corner of the rue D’Hauteville and the rue de Paradis in the tenth arrondissement of Paris is a retro-video-games-themed bar, Le Fantôme, which is frequented by some not-so-jeunes gens – the kind of thirtysomethings nostalgic for an era when you had to go to an actual place if you wanted to enter virtual space. They sit placidly behind the plate-glass windows zapping Pac-Men and Space Invaders, while outside another – and rather more lethal – sort of phantom stalks the sunlit streets.

I often go to Paris for work, and so have been able to register the incremental militarisation of its streets since President Hollande first declared a state of emergency after last November’s terrorist attacks. In general the French seem more comfortable about this prêt-à-porter khaki than we’d probably be; the army-nation concept is, after all, encrypted deep in their collective psyche. The army was constituted as a revolutionary instrument. France was the first modern nation to introduce universal male conscription – and it continued in one form or another right up until the mid-1990s.

Even so, it was surprising to witness the sang-froid with which Parisians regarded the camouflaged phantoms wandering among them: a patrol numbering eight ­infantrymen and women moved up the roadway, scoping out doorways, nosing into passages – but when one peered into Le Fantôme, his assault rifle levelled, none of the boozing gamers paid the least attention. I witnessed this scene the Saturday after Mohamed Lahouaiej-Bouhlel ran amok on the Promenade des Anglais in Nice – it was a little preview of the new state of emergency.

On Monday 18 July the French premier, Manuel Valls, was booed at a memorial service for the victims of the Nice attacks – while Marine Le Pen has been making all the populist running, whipping up anxieties about the enemy within. For many French, the events of the past week – including the failed Turkish coup – are steps along the way limned by Michel Houellebecq in his bestselling novel Submission; a via dolorosa that ends with La Marianne wearing the hijab and France itself annexed by a new caliphate.

Into this febrile drama comes a new player: Boris Johnson, the British Foreign Secretary. What can we expect from this freshly minted statesman when it comes to our relations with our closest neighbour? There is no doubt that Johnson is a Francophile – I’ve run into him and his family at the Tuileries, and he made much of his own francophone status during the referendum campaign. In Paris last winter to launch the French edition of his Churchill biography, Johnson wowed a publication dinner by speaking French for the entire evening. He was sufficiently fluent to bumble, waffle and generally avoid saying anything serious at all.

Last Sunday I attended the Lambeth Country Show, an oxymoronic event for which the diverse inhabitants of my home borough gather in Brockwell Park, south London, for jerked and halal chicken, funfair rides, Quidditch-watching, and “country-style” activities, such as looking at farm animals and buying their products. Wandering among ancient Rastafarians with huge shocks of dreadlocks, British Muslims wearing immaculate white kurtas blazoned with “ASK ME ABOUT ISLAM” and crusty old Brixton punks, I found it quite impossible to rid my mind of the Nice carnage – or stop wondering how they would react if armed soldiers were patrolling, instead of tit-helmeted, emphatically unarmed police.

I stepped into the Royal Horticultural Society marquee, and there they were: the entire cast of our end-of-the-pier-show politics, in vegetable-sculpture form and arrayed for judging. There was Jeremy Corbyn (or “Cornbin”) made out of corncobs – and Boris Johnson in the form of a beetroot, being stabbed in the back by a beetroot Michael Gove. And over there was Johnson again, this time rendered in cabbage. The veggie politicians were the big draw, Brixtonians standing six-deep around them, iPhones aloft.

The animal (as opposed to the vegetable) Johnson has begun his diplomatic rounds this week, his first démarches as tasteless and anodyne as cucumber. No British abandonment of friends after Brexit . . . Coordinated response to terror threat . . . Call for Erdogan to be restrained in response to failed coup . . . Blah-blah, whiff-whaff-waffle . . . Even someone as gaffe-prone as he can manage these simple lines, but I very much doubt he will be able to produce rhetorical flourishes as powerful as his hero’s. In The Churchill Factor: How One Man Made History, Johnson writes of Winnie overcoming “his stammer and his depression and his ­appalling father to become the greatest living Englishman”. Well, I’ve no idea if Bojo suffers from depression now but he soon will if he cleaves to this role model. His Churchill-worship (like so many others’) hinges on his belief that, without Churchill as war leader, Britain would have been ground beneath the Nazi jackboot. It may well be that, with his contribution to the Brexit campaign, Johnson now feels he, too, has wrested our national destiny from the slavering jaws of contingency.

Of course the differences between the two politicians are far more significant: Johnson’s genius – such as it is – lies in his intuitive understanding that politics, in our intensely mediatised and entirely commoditised era, is best conceived of as a series of spectacles or stunts: nowadays you can fool most of the people, most of the time. This is not a view you can imagine associating with Churchill, who, when his Gallipoli stratagem went disastrously wrong, exiled himself, rifle in hand, to the trenches. No, the French people Johnson both resembles and has an affinity for are the ones caught up in the virtual reality of Le Fantôme – rather than those patrolling the real and increasingly mean streets without. 

Will Self is an author and journalist. His books include Umbrella, Shark, The Book of Dave and The Butt. He writes the Madness of Crowds and Real Meals columns for the New Statesman.

This article first appeared in the 21 July 2016 issue of the New Statesman, The English Revolt