I commented on The Heresiarch blog…. as always, a very interesting and thoughtful blog…..
When is an execution not an execution?
My comment is repeated here…
Given interdiction and killing on foreign sovereign territory, the territory of an ally, and the apparent nature of the ‘shoot to kill’ instruction – although this was later tempered by the White House – and the fact of apparent resistance, it was an assassination, at worst – or necessary self defence at the improbable best.
We do not know – but I suspect that US and UK special forces have engaged in assassination in Afghanistan. I seem to recall Margaret Thatcher’s surprise to find that one Iranian terrorist escaped death at the hands of the SAS (Iran Embassy siege). Perhaps if the TV cameras had not been so present, there would have been no survivors?
In the court of public opinion – these actions are often justified. One only needs to read the endless (and many rather unpleasing) tweets on twitter to realise that most delight in the death of Bin Laden
If we are to have a rule of law and not law by rule then it is not justified. Due process calls for (lawful) extraction, fair trial and punishment. In many countries, as everyone knows, the death penalty is not applied.
I was asked by a tweeter if The US had any choice but to kill given resistance by OBL….
Then… I asked what seemed to be a vaguely reasonable question….
Justice is done? Interesting idea…. certainly… in the Court of Public Opinion.. and I do understand a need for the court of public opinion to get the ‘pound of flesh’.. but is it the right way? I’m asking… not telling…
I am not that keen on primitive medieval systems of ‘retributive’ law… where the biggest bullet wins. I really do prefer the *concept* that world affairs are dealt with by law. War doesn’t work. Even Churchill got that one right…. with “Jaw Jaw… not war..war”. That is all I will say on the matter.
I am, obviously, out of touch with modern legal thinking…. Pity… I shall find something more beneficial to the human condition to do if we are to applaud *The Law of Rule*
What… in the cold light of day.. do you really think about this?
***
UPDATE… I was asked a question on twitter…. with a touch of irony…. I suspect. My response is ironic (ish)
***
Another UPDATE… I have just seen this Indie report at 00:51 3rd May 2011
I am more than happy to agree with what a well known silk says on this issue…. Geoffrey Robertson QC in The Independent… – a good read…
Geoffrey Robertson: Why it’s absurd to claim that justice has been done
[ Unfortunately… yet again.. we have a British prime minister… rushing in to comment that the world is a better 
I loved the Yanks’ euphemism, ‘He was buried at sea’. I hope they pointed him towards Mecca.
The SAS has been carrying out a policy of “decapitation” in Afghanistan. This is the term used for the assassination of selected Taliban leaders by snipers.
There was indeed one survivor from the Iranian Embassy siege. He survived because the hostages, during the rescue, implored the SAS not to kill him due to his youthful years.
If Osama was assassinated then I believe this was counterproductive. It would have been better for him to have been tried at an International Court where his guilt could have been established in accordance with the rules of evidence. This way, even his followers could see that he was guilty (or not, as the case may be) of the crimes of which he is accused.
Glad to see someone else pointing out the need for Rule of Law. The “he’s guilty and it would be too expensive, so kill him ” is little different from a roadside beheading, yet the blazing irony whooshes over the heads of the braying mob.
Yes, I always get very nervy when I hear something has been carried out in the name of ‘justice.’ It’s an interesting term.
I fully appeciate just how hard it would have been to capture OBL alive, however, the American and British government do not seem to be suggesting this was ever really an option.
And as my sluggish friend above rightly points out, the irony of crowds dancing in American streets appears to be entirely lost on them.
“Decapitation” of various targets seems to have been going on for quite some time. See the concern over the use of “drones”
http://watchingthelaw.blogspot.com/2010/12/drones-litigation.html
I am not sure that there is any international court which could have tried bin Laden. Most of the countries with which he seems to have been associated are not parties to the ICC
http://www.icc-cpi.int/Menus/ASP/states+parties/
Perhaps the USA might have been able to try him for various crimes in relation to 9/11 ?? [Here I am working on the “received wisdom” that bin Laden was involved]. However, I suspect that the USA did not wish to go down the road of capturing him, getting him to the USA, charging him, holding a trial probably years later which might, in the eyes of much of the world, have been considered to be an unfair trial.
Interesting coincidences here: (1) the attack of Gaddafi; (2) the attack on bin Laden and (3) the Royal honeymoon was “postponed.” Conspiracy theorist? Who – moi ? Never !
I do feel that some of the legal profession might be better employed counting the angels dancing on a pin. OBL was the accepted messiah of an organisation which proclaimed its war with non believers. Therefore it was totally justifiable to kill him assuming he had not put his hands up to surrender. In what court could he have been tried. Would Hitler have been tried? I think not. When the law and the legal system become so completely out of step with the thinking and considerations of the common man then anarchy is waiting to intervene.
I think the idea was to shut him up.
The Justice of The Peace
Counting angels on pinheads?
It is, largely, thanks to practising lawyers and judges with vision and a taste for applying the law of our country that government and others do not misuse their powers.
I have no doubt, had he not taken his own life, that Hitler would have faced trial. Geoffrey Robertson QC stresses the role of the Americans in ensuring that war criminals were put on trial.
Osama Bin Laden, had he been tried, would have had no defence – given his many admissions. We don’t know the detail of the arrest / killing – but I will stick to my view that ‘justice’ would have been better served by putting OBL on trial – a public trial for all to see.
Hitler just might have faced trial but only when already defeated.He was subject to many assassination attempts earlier. Most practising lawyers do not practise constitutional law. They are more interested in providing customer services whether commercial, personal or criminal. And to conclude, the practicalities of any trial and/or imprisonment, execution would have caused many more problems than his being eaten by the fishes.
@ Justice of the peace –
“And to conclude, the practicalities of any trial and/or imprisonment, execution would have caused many more problems than his being eaten by the fishes.”
Which is, I think, precisely the point I made in my earlier comment (above).
——
It is interesting to look back and to discover that the International Military Tribunal – (aka Nuremberg) – was not accepted by some lawyers at the time. Even today, international criminal law has a considerable way to go. Unfortunately, not all countries subscribe to the ICC – e.g. the USA does not.
‘Most practising lawyers do not practise constitutional law. They are more interested in providing customer services whether commercial, personal or criminal.’
well i don’t practise constitutional law per se, but i still think it matters and i didn’t enter this profession just to ‘provide customer services’ i did so at least partly because i believe that the more a legal system answers the needs of the people the better off society is. and part of answering their needs is having a strong underlying rule of law – practical not just theoretical. law for me has no intrinsic value; it is not a holy thing to be venerated, it is a human creation to be used to make our society better for all.
… as is punctuation, though you probably wouldn’t know that from my effort above – i hang my head in shame.
I am proposing to set up a body to be called ‘Deathers’.
We will demand to see OBL’s death certificate.
And then refuse to believe it when we do…
we could file it with obama’s birth certificate … and if you ask me that looks a bit fishy. just not in the way obl is currently a bit fishy.
Further to my post above – The USA are (controversially) going to try certain others connected with 9/11. The trail will be by a Military Commission as opposed to Federal Court. See Amnesty:
http://www.amnesty.org.uk/news_details.asp?NewsID=19376
I agree that capture and trial would have been best, although I note that – had that happened – a number of people now criticising the USA would be complaining about illegal rendition. That a trial would have been costly, potentially embarrassing and created a focus for dissent and complaint is not a reason for not having one. Part of the point is that justice should be public. If that means that idiots want to carp, they must be allowed to do so.
On the other hand, I have little time for complaints about invasion of sovereign territory. Hiding in Pakistan was a mass murderer. The comity of nations – not to say basic human feeling – dictates that the Pakistanis should have been looking for him. Patently they were doing nothing of the kind. If they want to complain to the USA then they can do so and if they want to kick the USA out of Pakistan (foregoing the vast amount of money they receive for helping track down and discourage mass murderers) then they can.
Personally, I feel little need to take up the cudgels on their behalf. This is one incursion, necessitated by the duplicitous stance of a country pretending to be an ally – seemingly in order to obtain money. Why, at a time when the Syrians are massacring their own people and the Bahrainis are trying doctors and nurses for medically attending to demonstrators, the ‘great voices’ of the human rights movement are focussing on this is difficult to understand and speaks to a disturbingly political agenda.
Bin Laden declared war on the USA. By his own lights, he and his followers have no basis for complaint that he was assassinated. Our concern arises from the fact that we did not accept that it was a war (although, arguably, the Americans did – assuming that the phrase ‘War on Terror’ means [i]anything[/i]).
I think it was better to treat Bin Laden as a criminal and, accordingly, he had rights. The issue is whether those rights extend to being left alone because he had manufactured (and, presumably, paid for) a situation in which he could not be treated in accordance with his rights without imperilling the lives of others. That is not justice either – it is privilege. The Americans can hardly be blamed for assuming that he would neither surrender nor hand himself in. They could not rely on the Pakistanis. Is it right to leave him alone in those circumstances? Arguably the combination of being a self-declared combatant and the refusal to take advantage of the rights of which he would have been entitled to avail himself, means that assassination was justified.
Is the world a worse place without him? Hardly. Is it a better place because he was unlawfully killed (granting, for this purpose, that he was) given that the alternative was to permit a man to buy untouchability for horrendous crimes? I don’t think so. If he had manipulated a position in which he could bribe the American Judge to achieve the same end, we would all be appalled.
Simon – I tend to agree. Pakistan – or some ‘rogue’ elements within Pakistan appear to have been duplicitous.
We are discussing this issue in our Without Prejudice podcast tonight.
As you say….. Bahrain… Syria?
The White House has changed stance on the initial facts given. I still remain of the view that the tougher option would have been to take him alive and try him. The practicalities may well have justified assassination. He could have been wearing a suicide vest underneath his robes – as The White House are suggesting. In the tense heat of that particular engagement – split second decisions have to be taken.
I don’t have a major issue with the interdiction in sovereign territory of an ally. Legal opinion on ‘legality’ is divided. Many say that USA acted lawfully in terms of the capture attempt.
Perhaps International Law needs to be clarified to cover these situations – so that the matter is put beyond doubt?
OBL’s wife now suggesting that OBL was captured alive and then shot. Weight to that testimony?
Out of interest, would the opinion of people differ if the US had simply dropped a couple of missiles on the compound? After all, this is all they’ve been doing via drone strikes for years. Is it the face to face nature of the killing that people find so abhorrent?
@Alex M: I think that is in part the issue, with the presumption being that if you go in on foot you can _try_ to capture him.
@SMQC: I remember hearing somewhere that the US did in effect declare war on AQ making him an enemy combatant rather than a common criminal. Coming at it from my pre-law background (War Studies) I’ve always been of the view that categorising the senior AQ leadership as common criminals is a political, rather than military or legal view.
At any rate in the raid as described there is very little chance that there would have been an opportunity to capture OBL. This was a man who’d made no secret of his desire to be a martyr and who ran an organisation that used suicide attacks as a weapon of choice. They were not beneath booby-trapping corpses and prisoners to do this. Upon commencing the assault they were shot at and had to return fire. When they reached OBL’s room they were attacked by one of his wives. By the time they got to OBL they had to make a split-second decision or risk losing their own lives. In light of that I suspect most of us would have pulled the trigger rather than take the credible risk of him blowing himself up.