Published in Halsbury's Law Exchange here
It did not take long for the newspapers to invoke some stereotypical American imagery with regard to the death of Osama Bin Laden. Dr Tim Stanley in the Telegraph wrote shortly after the news broke that
America is a nation of laws, but beneath all that fine sentiment about procedure there is a stronger hunger for natural justice. ... It was in the American wilderness that the individual was once again freed to pursue their own kind of rough justice. The assassination of Osama is as American as the shootout that killed Billy the Kid. It is a personal Wild West drama writ-large on the global stage.
His article was accompanied by the picture of a cowboy riding into the sunset, in case anyone missed the point.
The theme of rough justice versus due process appears more than once in the Western genre. Indeed, one of the most eloquent arguments against mob rule comes from the famous horse opera The Ox-Bow Incident. In the film a hurriedly-assembled posse responding to the murder of a rancher by cattle rustlers discovers to its horror that it has mistakenly killed three innocent people, while the sheriff has caught the real villains in the meantime. One of the innocent men wrote a letter to his wife just before being killed. It is read out by a member of the chastened mob towards the end of the film:
My Dear Wife,
Mr. Davies will tell you what's happening here tonight. He's a good man, and he's done everything he can for me. I suppose there's some other good men here, too, only they don't seem to realize what they're doing. They're the ones I feel sorry for, 'cause it'll be over for me in a little while, but they'll have to go on rememberin' for the rest of their lives. A man just naturally can't take the law into his own hands and hang people without hurtin' everybody in the world, 'cause then he's just not breakin' one law, but all laws. Law is a lot more than words you put in a book, or judges or lawyers or sheriffs you hire to carry it out. It's everything people ever have found out about justice and what's right and wrong. It's the very conscience of humanity. There can't be any such thing as civilization unless people have a conscience, because if people touch God anywhere, where is it except through their conscience? And what is anybody's conscience except a little piece of the conscience of all men that ever lived? I guess that's all I've got to say except - kiss the babies for me and God bless you.
Doubtless the American authorities would prefer an analogy with the legend of the OK Corral instead, where the outlaw Clanton gang received its lawful dues at the hands of Wyatt Earp and his fellow lawmen during the eponymous gunfight.
The point is, of course, whether or not Bin Laden’s killing was lawful or a version of the Ox-Bow style mob. Two initial questions arise: (i) whether the US had the consent of the Pakistani government to carry out the raid on Pakistani soil; and (ii) whether the operation was intended to be a targeted killing, or whether they had hoped to capture Bin Laden but ended up killing him in self defence.
Neither can be judged conclusively at this early stage, but in the exceptional circumstances of the case, neither carries much weight. Reports suggest that the Pakistani government was not told in advance, nor did the US have some sort of prior agreement to carry out raids when it saw fit, although it has been undertaking strikes from drones in the north of Pakistan for some time. But Pakistan has not raised a formal objection to the raid, nor does it seem likely that it will. This may have something to do with the alarming fact that Bin Laden was apparently able to live for a long period of time in a rather distinctive compound very close to the country’s premier military academy.
As to the second point, President Obama initially indicated that the raid was an assassination, though it has since been suggested that if Bin Laden had surrendered he might have been taken into custody instead. But a measure of realism has to be brought into the equation here. I recall some debate in the United Kingdom Parliament during the early stages of military operations in Afghanistan after 9/11. It was suggested that if found by British forces Bin Laden would be brought back to the United Kingdom to face a fair trial. This, it was said, was in contradistinction to his acts of mass murder: the UK, as a civilised nation, would act according to standards its enemies would not.
Such sentiments are entirely true, entirely admirable and, in the case of Bin Laden, entirely unrealistic. It is possible to preach the highest standards of law and order from within the well-upholstered and comparatively safe confines of the Houses of Parliament. It is (almost always) possible to abide by those standards when dealing with “ordinary” criminals within the jurisdiction. But it is quite another thing when one is a soldier on the front line, let alone when one is a special forces’ soldier conducting a raid in hostile territory. The Navy Seals who entered Bin Laden’s compound would not have had the chance to negotiate or subdue anyone without unacceptable risks to their own lives, and it is preposterous to think otherwise. They inflicted minimal collateral damage (initially it was said that one of Bin Laden’s wives was killed whilst he used her as a human shield, but one would struggle to call that collateral damage, and in any event it transpires she may only have been wounded after rushing the troops herself). If they had used a safer option from their point of view, such as an airstrike, then much greater collateral damage would probably have occurred and, moreover, it would not have been possible to prove that Bin Laden had been present.
It would seem therefore that no objection will be sustainable either on the basis that the US mounted the raid inside a sovereign state without permission or on the basis that Bin Laden was killed rather than captured – that is, of course, assuming that there was just cause to assassinate Bin Laden in the first place.
In that respect a helpful discussion has been published on the blog of the European Journal of International Law here. The blog notes that there are three applicable principles of international law: jus ad bellum (just war), international humanitarian law, and international human rights law.
It is slightly cumbersome to speak of just wars, or any other type of “war” when one is not dealing with a conflict between two sovereign states. The nature of the West’s actions against organised international terrorism is not as simple to analyse as, say, the United Kingdom’s war against Argentina over the Falkland Islands (which had a defined battlefield and accepted rules of war, both of which both sides by and large observed). But Bin Laden had avowedly declared his belief that he was engaged in a “war” with the West, in particular the US, and by his organisation had prosecuted it in every way he could, including a series of attacks such as the embassy bombings and the suicide attack on the USS Cole in the late twentieth century. He consistently called for more such attacks as well. The fact that he had made few public statements in recent years, and that his ability to organise attacks appears to have been severely restricted, changes nothing: it is not as though he ever suggested a truce or retracted any of his previously stated intentions.
Accordingly, the US was justified in attacking him out of self defence, which conforms with traditional notions of a just war and is permitted by art 51 of the UN Charter. That Al Qaeda is not a sovereign state as such should not mean it can fall between stools of international law, as it were, and not be attacked out of self defence. Pakistan as a sovereign state could raise an objection about a hostile act on its soil, but as discussed it has not and (in all likelihood) will not.
As to the international humanitarian law aspect, I am content to adopt the analysis of the EJIL that
it either does not apply at all as the killing was not done as a part of any legally cognizable armed conflict (probably the better view), or OBL was a lawful target as a leader of an organized armed group taking part in a non-international armed conflict a la Hamdan.
Which leaves international human rights law. The United States is not a signatory to the International Criminal Court, and argues that the International Covenant on Civil and Political Rights does not apply extraterritorially. Both stances are controversial, and I would maintain that some form of human rights laws should have applied to Bin Laden one way or another: human rights, if they are to mean anything, have to apply to all. But that does not mean Bin Laden’s rights were violated. Given that the US was entitled to attack him out of self defence (and by all accounts he made no attempt to surrender) his death was not unlawful on any view.
It is right to examine the circumstances including the legality of Bin Laden’s death, however despicable an individual he was – indeed precisely because he was such a despicable individual who never afforded his victims any such civilised standards. It is equally right to acknowledge that capturing him alive was never going to be a realistic possibility. He has justly met his end.