By Rebecca Lowe
For the thousands of people who have lost friends and family members in al-Qaeda-sponsored terrorist attacks, it was difficult to greet the killing of Osama bin Laden with anything other than relief – and even, perhaps, triumph.
Yet, since his death on 2 May, bin Laden has continued to be a controversial and divisive figure. Far from being an open and shut case, the killing has prompted a fierce debate over the scope of America’s jurisdiction in this matter.
Even a figure like bin Laden cannot be subjected to extrajudicial acts of revenge, after all, or the term ‘justice’ itself becomes meaningless. So, was the killing legal, and, if so, under which law?
Law of war or international criminal justice?
According to US officials, bin Laden’s death should be judged according to the law of war. He was an enemy commander leading an armed conflict against their country, they argue, and Congress long ago approved the use of military force as a means of defence against the perpetrators of 9/11 – the Authorization for Use of Military Force Against Terrorists statute was enacted on 18 September 2001. Bin Laden, for his part, has hardly been reticent about his violent desire to destroy Americans and their allies.
Others, such as Christof Heyns, UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, and Hans Corell, former Legal Counsel of the United Nations, are less convinced.
They argue that the killing should be judged under international law. If any member of al-Qaeda can legally be targeted as a means of self-defence, they point out, it sets a dangerous precedent and amounts to little more than a global assassination policy.
Justice Richard Goldstone, former Chief Prosecutor of the UN International Criminal Tribunal for the former Yugoslavia, chaired the IBA Task Force on International Terrorism. Speaking at the launch of the IBA report, Terrorism and International Law: Accountability, Remedies, and Reform in March, he said: ‘The rhetoric of the George Bush administration’s “war on terror” has stood in sharp contrast to the belief of many that terrorist threats are the proper purview of policing and criminal justice, rather than military intervention and the law of war.
‘Some, nevertheless, have questioned whether contemporary international law is equipped to meet the challenges of modern terrorism.’
Speaking to the IBA, Hans Corell, a member of the IBA War Crimes Committee Advisory Board, said he did not believe the law of war argument was ‘justifiable’, as Pakistan, unlike Afghanistan, is not a war zone.
‘The point of departure must be that terrorism constitutes criminal acts that should be dealt with through law enforcement. Such enforcement must be conducted in conformity with certain legal standards. This point of departure is fundamental and has been emphatically stressed by many, including by two organisations of former heads of state and government: the Madrid Club and the InterAction Council.’
He added: ‘It is important to stress that the term “war on terror” is a very dangerous misnomer that has created much confusion and which has led to violations both of human rights law and humanitarian law. Therefore, if members of al-Qaeda are found not in a zone of combat, they should be subjected to law enforcement.’
‘If these states are seen to act as they please when it suits their interests, it will have a devastating effect on the possibility of establishing two fundamental preconditions for international peace and security: democracy and the rule of law.'
Yet, David Crane, founding Chief Prosecutor of the Special Court for Sierra Leone and member of the IBA War Crimes Committee Advisory Board, believes the attack was sanctioned by both the US and international community. He told the IBA: ‘I only support the use of force if it is properly authorised under domestic and international law and follows the laws of armed conflict.’
In Crane’s view the President is empowered under US law to direct the use of armed force against al-Qaeda, including bin Laden and others. He also refers to additional international authorisations via the UN and NATO that followed soon after 9/11, and cites the basic international principle of the inherent right of a nation to self-defence, found in Article 51 of the UN Charter.
On this basis, Crane said: ‘The targeting of Osama bin Laden was a legal action.’
'Obligation' to US to provide further details
For many, it is impossible to make a definitive legal judgment on the matter until the US has released more information. Doubts have been raised as a result of the inaccurate information given out by US security staff in the days following the killing.
David Tolbert, President of the International Centre of Transitional Justice, believes the US has an ‘obligation’ to provide further details, while Justice Richard Goldstone said he was unwilling to speculate as the question ‘depends on facts we do not know’.
Wider ethical implications
For Corell, the matter has wider ethical considerations beyond the killing itself, as the actions of the US could set a precedent across the world.
‘If these states are seen to act as they please when it suits their interests, it will have a devastating effect on the possibility of establishing two fundamental preconditions for international peace and security: democracy and the rule of law,’ he said.
‘To describe what happened as “justice has been done” is simply not acceptable – not even in relation to a person like Osama bin Laden. That justice has been done presupposes that the suspect has been tried and found guilty by a court of law.’
Rebecca Lowe is senior reporter at the International Bar Association