“The killing of Osama bin Laden was unlawful.” Critically analysis, with reference to international law

Article 3 of the UDHR says that , “ Everyone has the right to life, liberty and security of person. “ [1]

Article 7 of UDHR says that, “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.” [2]

Article 10 of the UDHR says that, “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”[3]

In mentioning the above three articles of the UDHR, i am alluding to the universal fact that every individual has a right to life and liberty. Also equal protection under the law is a guaranteed right without any discrimination. This sets the tone for the argument that I am going to put forth in this academic paper.

Osama bin laden indeed caused a lot of terror and loss through his violent acts, of which 9/11 can be called as ‘the epitome’. President Bush made clear that “the United States would respond forcefully against those responsible.” [4]

On October 7, 2001, Operation Enduring Freedom, a massive air operation, was launched against Afghanistan. Both the US and the UK notified the United Nations Security Council that the “ operation was an exercise of individual and collective self-defence in compliance with the terms of United Nations Charter Article 51, which permits the use of force in self-defence against an armed attack.” [5]However, that does not mean that a group of armed men, who happen to follow their country’s government orders, could just kill him while he stood there defenceless on foreign territory. In fact, doing so violates two very important international laws – the right to prosecution and the disallowance of killing a defenceless person.

If the right to prosecution was followed, then Osama should have been captured, and prosecuted before the (international) court to explain the reason behind his actions. This would then allow justice to be rightfully done based on the actual gravity of the allegations. Even if that meant giving him a death sentence, a more humane alternative to killing him on sight. Also, by doing this, many questions – which will forever remain unanswered – could have been answered, much to the satisfaction of many victims’ family members. A contemporary example that justifies the aforementioned argument is the case of former Egyptian president Hosni Mubarak, who – despite being the symbol of dictatorship in his country for decades- has been given a fair chance to explain his actions. This allows civil society to have a dialogue in a public space, a process that may uncover more shortcomings with the political system than what is apparent on the surface.

The US was not at war with Pakistan and cannot claimed to have killed him in self-defence since they attacked his compound. “Pre-emptive self-defence” [6] is not a legal argument but a moral one. Which doesn’t justify his killing to the International community.

The General Prohibition on Force: Article 2(4) of the United nations Charter says that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” [7]

“Any use of force in self-defence must respect the principles of necessity and proportionality. Necessity restricts the use of military force to the attainment of legitimate military objectives.” [8] The issue of legitimacy being under question here.

As for the disallowance of killing a defenceless person, it is unfair to kill someone in such a manner – that too without giving him a chance to surrender. This is not to say that he should have been given a chance to go and “hide” while the soldiers counted till 10 before they’d “seek” him (that would be dangerously childish!) … but to give him the option and time to put his hands up in the air, and get on his knees – a universal classic pose of capitulation.

Despite an initial widespread backing for the raid, there is now also a growing demand for the precise legal basis of the US operation. This is to be explained, particularly given the absence of prior debate in the UN Security Council.

I feel, justice would have been best served by his capture, trial before a jury, presumably a guilty verdict based on the evidence and subsequent execution. Saddam Hussain killed 600,000 people and he too was given a free trial, he was convicted and then executed. Adolf Eichmann, architect of the Nazi death camps who had told Himmler in 1944 that 4 million Jews had been killed. He then fled to Argentina where he was then tracked down by Israeli commandoes.He too wasn’t assassinated. He was put on trial, found guilty and was then hanged."It may not have been possible to take Osama bin laden alive ... but no one should be outside the protection of the law."" Even after the end of the second world war, Nazi war criminals had been given a "fair trial".[9]

Historically the right to a fair trial was regarded as more important in criminal proceedings, because the consequences for the individual are more severe in criminal proceedings compared to civil proceedings. “In criminal proceedings the right to a fair trial include the following fair trial rights:” [10]

· the right of the accused to defend him or herself, or the right to a council chosen by the accused and the right to communicate privately with the counsel
· the right not to incriminate oneself
· the right to appeal at first instance to a higher court
· the prohibition on double jeopardy
· the right to be notified of charges in a timely manner
· the right to adequate time and means for the preparation of a defence

The situation also demands a probe into the issue of Pakistani sovereignty. The US and the Seals who attacked Osama, may be acting in accordance with the laws of their country but then they were in a foreign country that is a US ally without the knowledge of the government of that country. Suppose the tables were turned and Islamabad tracked down a deadly enemy of Pakistan in the US and had Pakistani troops kill him. Imagine the outrage of the US?

Whether or not the Pakistan government authorised the assault on its territory might technically affect the legality of the operation under international law. But the enthusiastic support of the UN secretary general, Ban Ki-Moon, for the killing is likely to silence any critical voices in the security council. Pakistan foreign minister said that this, “violation of sovereignty, and the modalities for combating terrorism, raises certain legal and moral issues which fall ... in the domain of the international community." [11]

Pakistani Law and International Law notwithstanding, the President has the authority as Commander in Chief under the US Constitution to “authorize the killing of an enemy combatant during time of war.

It doesn't matter where the combatant is if there is some justification that he will continue to conduct war against the United States.” [12] So do we base laws of the United States over and above contemporary International laws?

The prominent defence lawyer Michael Mansfield said "Assuming the mission was … intended to detain and not to assassinate, it is therefore imperative that a properly documented and verifiable narrative of exactly what happened is made public. Whatever feelings of elation and relief may dominate the airwaves,"...., "they must not be allowed to submerge core questions about the legality of the exercise, nor to permit vengeance or summary execution to become substitutes for justice."[13]

Also One criticism asserts that targeted killing is incompatible with International law, which prohibits extrajudicial killings that lack due process.[14][15] The position of Amnesty International, the human rights organization, has been understood to mean that such due process must be afforded even in an armed conflict.[16]Some human rights organizations, for example, presuming (which may not always be the case) that the terrorist is within the jurisdiction of the acting state, maintain that terrorist should be arrested, put on trial, and found guilty before any punishment is meted out. [14][17]

Conclusion:
I feel that to justify or to challenge the killing of Osama bin Laden is indeed a tricky and sensitive issue. So much so that is still a heated topic of academic and political discussion in forums across the globe. However, as Shakespeare says that “too err is human”, in other words, everybody deserves a chance to explain why they did what they did. I firmly support the statement. Concluding that Osama should have been put on trial and then convicted for the charges he was accused for.
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End Notes
1. "Universal declaration of Human Rights". United Nations.
2. "Universal declaration of Human Rights". United Nations.
3. "Universal declaration of Human Rights". United Nations.
4. Serge Schmemann, U.S. Attacked, Hijacked Jets Destroy Twin Towers and Hit Pentagon in Day of Terror, President Vows to Exact Punishment for "Evil," N.Y. TIMES, Sept. 12, 2001, at A1
5. Letter dated 7 October 2001 from the Permanent Representative of the United States of America to the United Nations addressed to the President of the Security Council, U.N. SCOR, 56th Sess., U.N. Doc. S/2001/946; Letter dated 7 October 2001 from the Chargé
6. President Bush spoke of “pre-emption” in a speech on combating terrorism at West Point in May 2002. Mike Allen & Karen DeYoung, Bush: U.S. Will Strike First at Enemies; In West Point Speech, President Lays Out Broader U.S. Policy, WASH. POST, June 2, 2002, at A01; see also Robbins & Cummings, supra note 9
7. U.N. CHARTER art. 2, para. 4.
8.Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, para. 41. The Court stated that both necessity and proportionality must be respected in any decision to use armed force.
9. Prof Nick Grief “Osama bin Laden: “US responds to questions about killing's legality.”Guardian (May, 2011)
10.Doebbler, Curtis (2006). “Introduction to International Human rights law” CD Publishing. pp. 109. ISBN 9780974357027
11. Salman Bashir, Pakistan foreign minister. “Osama bin Laden death: Pakistan says US may have breached sovereignty.” Guardian(May,2011)
12. “Authorization for Use of Military Force Against Terrorists”(Pub.l. 107-40, 115 Stat. 224, enacted September 18 2001)
13. Michael Mansfield, Lawyer. “Osama bin Laden: US Responds to Questions about Killing's Legality.” Guardian(May, 2011)
14.Garry D. Solis (2010).The law of Armed conflict: International Humanitarian Law in war: Cambridge University Press pp. 538–47.ISBN 0512870887 Retrieved May 19, 2010.
15.“ Other Views: Straits times, Los Angeles Times, Daily star “, New York Times, March 9, 2006, October 8, 2010
16.Benjamin Wittes (2009).”Legislating the war on Terror: An Agenda for Reform.” Brookings Institution Press.ISBN 0815703104. Retrieved May 24, 2010
17. The Program for Humanitarian Policy and Conflict Research, “Brief Primer on Targeted Killings”, International Humanitarian Law Research Initiative, May 2008. Retrieved October 8, 2010

The  author can be reached at: karn@legalserviceindia.com