28/05/11

On 2nd May 2011 a team of the US Navy Seals, acting under orders of President Barack Obama, shot dead Osama bin Laden at a compound in Abbottabad in the north of Pakistan.

There was no doubt that bin Laden had been responsible for the atrocities that were carried out in the United States on 11 September 2011. By his own admissions he made clear that he had played, a key role in masterminding the attacks in America, claiming responsibility for these attacks in a video recording in 2004, and confessing that he had personally directed the nineteen hijackers. After he was shot two questions were raised. First, considering the circumstances in which the killing occurred, was it legal to kill him or should he have been captured instead? Second, was justice better served by killing bin Laden or by having him arrested and tried in a court of law?

1. Considering the circumstances was it legal to kill bin Laden rather than arrest him?

The precise circumstances surrounding the killing of bin Laden have not been released. However, from what we know there was little resistance from those protecting the al-Qaeda leader, who was not carrying a weapon at the time the US Navy Seals intervened. Eric Holder, the US Attorney General, stated that the operation was a “kill or capture mission.” One would have expected him to say that it was first a mission to capture and only if this proved impossible would it be a mission to kill. Benjamin Ferencz, who was a Prosecutor at the Nuremberg Tribunal said: “The issue here is whether what was done was an act of legitimate self-defence.” He added: “killing a captive who poses no immediate threat is a crime under military law as well as all other law.”

From what we know, it does not appear that bin Laden at the time of the killing constituted a direct and imminent threat to the lives of US servicemen or that he was resisting arrest. If what we know is a true description of the circumstances, it does not appear that the killing of bin Laden was absolutely necessary. Therefore the legality of the killing appears to be questionable and should not be seen as a reasonable and proportionate measure.

US officials have attempted to justify the killing on the grounds that it was part of an armed conflict. Mr Holder stated: “you have to remember, it is lawful to target an enemy commander.” The problem with this approach is that it elevates bin Laden and gives him the status of a war leader submitted to the international Law of war. No doubt the al-Qaeda leader would have considered it an honour to be treated with such high regard. However, it would have been preferable to consider him as a terrorist godfather who should have been treated as any other terrorist under the law, and therefore arrested according to the rules that apply to criminals. Killing him should have been a last resort.

2. Was justice better served by killing bin Laden or by having him arrested and tried in a court of law?

Following the killing of bin Laden, President Obama declared: “justice was done”. Usually this statement is made at the end of a legal process, when the final decision rendered is widely considered by the public as satisfactory. Since it is difficult to argue that in this case a due process of law took place, the celebration generated among the American people by the news of the death of the most wanted terrorist should not be condoned.

It seems clear that arresting, trying and sentencing bin Laden would have been a preferable option. Benjamin Ferencz, who successfully prosecuted 22 Nazi criminals at Nuremberg, stated that it would have been better to try bin Laden. He indicated that with the evidence of his own admission of responsibility for the atrocities carried out in America it would have been easy to have him convicted. Geoffrey Robertson, QC added that to try bin Laden would have had the dual positive effect of de-mystifying him and de-brainwashing his followers.

It is unfortunate that the opportunity was lost to prove the seriousness of bin Laden’s crimes in a court of law, so as to use his trial and conviction to dissuade others from joining terrorist organisations and engaging in acts of terrorism.