Bin Laden: Accident, extrajudicial killing, and justice
May 3, 2011
It’s official, Bin Laden is gone. But is it fine celebrating his death as the incarnation of ‘justice’ though? Along with this Jus ad Bellum (right to engage in a conflict), a Jus in Bello issue (justice in war) is also worth considering. Should terrorists be considered as outlaws and outrights to whom the due process of law should be denied because they use violence and killings as their main means of action? In other words, can terrorists be killed the way they kill, and can killing terrorists without any form of due process of law bring any form of constructive justice?
John Bellinger (former legal adviser to the US State Department) describes what will probably be the US Government’s defence, i.e. that the killing will be characterised as lawful under domestic law and international law (see here).
First, as he notes, (i) US law through the Authorization to Use Military Force Act of September 18, 2001, authorizes the President to use “all necessary and appropriate force” against persons who authorized, planned, or committed the 9/11 attacks, and (ii) the killing is not prohibited by the assassination prohibition in Executive Order 12333 “because the action was a military action in the ongoing U.S. armed conflict with al-Qaeda and it is not prohibited to kill specific leaders of an opposing force [whilst] the assassination prohibition also does not apply to killings in self-defense”.
Second, he adds, “the executive branch will also argue that the action was permissible under international law both as a permissible use of force in the U.S. armed conflict with al-Qaeda and as a legitimate action in self-defense, given that bin Laden was clearly planning additional attacks”.
These arguments are however questionable, if only because the ILC Draft Articles on State Responsibility make it clear that an act deemed legal under domestic laws can infringe international standards and therefore be illegal under public international law. Article 51 of the UN Charter on the right to self-defence, for instance, does not expressly authorise extrajudicial executions or anticipatory strikes even though the US have relied on the latter as a main feature of their National Security Strategy (available here). Justifying the death of Bin Laden on the ground of anticipatory self-defence, as a result, would characterise it as an unlawful extrajudicial killing debatable under public international law.
(edit 04/05/11: for an interesting debate on the legality of the intervention, see ‘How should the OBL Operation be characterized‘ by Michael W. Lewis, and ‘Quick Thoughts on UBL’s Killing — and a Response to Lewis‘ by Kevin Jon Heller)
(edit 15/05/11: see also ‘Who Needs International Lawyers When We Have Ilya Somin?‘ by Kevin Jon Heller)
The issue is however to determine whether the terrorist leader was killed by accident or deliberately. Unsurprisingly, the White house communiqué announced that Bin Laden was “killed in a firefight as [...] operators came onto the compound”, but at the same time the media have widely suggested that no prisoners were made (apart for kids and women perhaps), which possibly suggests that no mercy was given. As a matter of fact, it even seems that Bin Laden was not even holding a weapon when he was killed (see this briefing):
Q: You said that Osama bin Laden was actually involved in the firefight, and we had — it has been reported that he reached for a weapon. Did he get his hand on a gun and did he fire himself?
MR. BRENNAN: He was engaged in a firefight with those that entered the area of the house he was in. And whether or not he got off any rounds, I quite frankly don’t know
It is hard to establish, therefore, whether the death of Bin Laden was premeditated or occurred by ‘accident’ during the military intervention aiming at capturing him. As a matter of fact, the White House communiqué does not dissipate the various controversies as to how and why the terrorist passed away. For instance, a major statement which reads as follows raises doubts as to (i) the real motivations of the raid which killed Bin Laden, and (ii) whether the raid’s outcome –the killing– somehow amounts to ‘justice’:
“The raid occurred in the early morning hours in Pakistan and accomplished its objective. Osama bin Laden is now no longer a threat to America [...] This remarkable achievement could not have happened without persistent effort and careful planning over many years. Our national security professionals did a superb job. They deserve tremendous credit for serving justice to Osama bin Laden”
Although the briefing suggests that the objective was to catch Bin Laden alive (see here), reading this does not help clarifying whether the achieved objective was to neutralise a threat to America by arresting Bin Laden or by killing him. Quite obviously, the two options don’t have the same impact, if only because a deliberate execution would amount to an extrajudicial execution and a gross denial of due process of law condemned under customary international law. As the well-know Wikipedia dictionary formulates, “an extrajudicial killing is the killing of a person by governmental authorities without the sanction of any judicial proceeding or legal process”. If this is what Bin Laden’s death was like, then terrorist or not, his killing constitutes an extrajudicial execution which is by its very nature unlawful.
Accident or voluntary execution alike, another issue concerns the debates as to whether such extrajudicial killings may constitute legitimate, or at least necessary steps in the fight against terrorism justified by the need to save lives. Showing the difficulty of making the distinction, Kretzmer for instance writes that “under the necessity requirement the targeting of suspected terrorists must be restricted to cases in which there is credible evidence that the targeted persons are actively involved in planning or preparing further terrorist attacks against the victim state and no other operational means of stopping those attacks are available”. Where the target is the leader of a terrorist group, however, can killings systematically apply and be legitimate?
There is also the issue of whether terrorists are recognised as combatants or civilians engaged into an armed conflict, as well as the issue of whether their elimination is collateral damage or an extrajudicial execution deliberately ignoring due process of law requirements. As Kretzmer notes, “the assumption [...] that regarding suspected transnational terrorists as civilians who at times take part in hostilities is an unrealistic perception of the situation. On the other hand, regarding them as combatants who may be targeted at will opens the way to serious violations of the right to life in non-international armed conflicts. The middle road proposed here is an attempt to create a realistic alternative that allows states to defend their residents against terrorist attacks without abandoning commitment to standards of human rights and humanitarian law. It is based on the notion that unless realistic standards of conduct for states involved in armed conflicts with terrorist groups exist, they will act in an environment infected by the lawlessness that characterizes terrorism”. Apparently, this has not been considered in the American policies.
Questioning the outcome of the operation is of course easy and will be criticised by those who have suffered the crimes of the Al Qaeda. Celebrating the death of Bin Laden as if justice had been rendered, however, is worth thinking about.
First, justice and ‘extrajudicial’ executions are by nature incompatible. As a matter of fact, even executions flowing from judicial decisions are criticised by human rights activists. As a result, considering the killing of Bin Laden as a ‘delivering of justice’ (as in the communiqué) is questionable because justice cannot be rendered by a decree authorising a kill, it has to go through a judicial process.
Second, it would be worth considering whether extra-judicially killing international terrorists is compatible with the objectives of justice, i.e. clarifying the hows and whys of a crime in order to help victims, or punish. On the one hand, it has been said that judging Bin Laden would be pointless because the process would overall be expensive, unconstructive, and would tend to present him as a martyr, thereby adding up pressure to the controversies. But in this case also, the lack of due process makes the killing questionable. On the other hand, killing to punish can only be admissible where a due process of law is respected; otherwise killing is about vengeance rather than justice. Despite being conducted following a decision of the local courts, the execution of Sadam Hussein was for instance so precipitated that it was somehow associated to vengeance and therefore characterised as a missed opportunity to render justice.
 Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence? David Kretzmer The European Journal of International Law16 (2005), p203 available at http://www.law.upenn.edu/academics/institutes/ilp/targetedkilling_papers/KretzmertargetedKillings.pdf