Roger writing the LAWmag

The Killing of Osama Bin Laden

Osama Bin LadenThe world may have breathed a collective sigh of relief on May 2, 2011, and for a variety of reasons, not the least of which is the avoidance of the high-profile trial of a Muslim terrorist.

But that does not mean his killing was lawful.

According to the FBI website, "Usama" Bin Laden, on their Ten Most Wanted list since 1999, is now "deceased". Wanted for "Murder of U.S. Nationals Outside the United States; Conspiracy to Murder U.S. Nationals Outside the United States; Attack on a Federal Facility Resulting in Death".

Born in 1957 and listed at 6'4", the Saudi Arabian national was also described as:

"... the leader of a terrorist organization known as Al-Qaeda…. he is left-handed and walks with a cane. Should be considered armed and dangerous."

The United States Department of State offered a reward of $25-million for information leading directly to the apprehension or conviction of Osama Bin Laden.

In 1998, a New York grand jury investigation of Bin Laden issued an indictment against him for "conspiracy to attack defense utilities of the United States."

There has never been an indictment issued in regards to the terrorist attacks of September 11, 2001.

In any event, there has never been a judicial hearing and conviction, even in abstentia, of Osama Bin Laden for the attacks of September 11, 2001.

Bin Laden admitted that Al-Qaeda was responsible for the attacks in a video which aired on Al-Jazeera in October of 2004.

But there are other indications that Bin Laden denied responsibility for the attacks. Pakistani newspaper Ummat Karachi interviewed Bin Laden on September 28, 2001. The newspaper reported Bin Laden's admittedly self-serving denial, and with the might of American forces being flexed on just about every street corner of the Arab world. Perhaps he hoped for the Koran's promise of 80,000 servants and 72-wives when he said:

"I am not involved in the September 11 attacks in the United States. As a Muslim, I try my best to avoid telling a lie. I had no knowledge of these attacks, nor do I consider the killing of innocent women, children and other humans as an appreciable act."

ABBOTTABAD

On May 2, 2011, American President Barrack Obama disingenuously told the world, suggesting ,as it were, that Bin Laden was armed:

"After a firefight, they killed Osama bin Laden and took custody of his body."

In fairness, the Seal Team 6 which conducted the 1 a.m., 45-minute raid which resulted in the assassination, faced gun fire from at least two armed individuals as they approached their target. Weapons (and porn) were found in the room where he was shot three times at point-blank range - once over his left eye; but he was not holding a weapon.

THE AFTERMATH

The lead words President Obama Barrack's statement announcing the death referred repeatedly to justice:

"… bring those who committed (9/11) attack to justice…. Justice has been done…. [T]onight, (the American people) feel the satisfaction of their work and the result of their pursuit of justice…. Let us remember that we can do these things not just because of wealth or power, but because of who we are: one nation under God … with liberty and justice for all."

Sept 11The Secretary-General of the United Nations:

"The death of Osama bin Laden … is a watershed moment in our common global fight against terrorism."

British prime minister David Cameron:

"It is a great success that he has been found and will no longer be able to pursue his campaign of global terror."

Even the Vatican was moved to make a rare press statement:

"Osama bin Laden, as we all know, bore the most serious responsibility for spreading divisions and hatred among populations, causing the deaths of innumerable people, and manipulating religions to this end. In the face of a man's death, a Christian never rejoices, but reflects on the serious responsibilities of each person before God and before men…."

But the Archbishop of Canterbury Rowan Williams was more Christian, telling the Daily Telegraph:

"I think the killing of an unarmed man is always going to leave a very uncomfortable feeling, because it doesn’t look as if justice is seen to be done in those circumstances."

JUSTICE?

The facts are still sketchy as the American government is reluctant to release full details of the incident. But the spin has begun, leading off with the U.S. Attorney General Eric Holder's statement to the Senate Judiciary Committee:

"The operation in which Osama bin Laden was killed was lawful. He was the head of al Qaida - an organization that had conducted the attacks of September 11. He admitted his involvement. It was justified as an act of national self defence. If he had surrendered, attempted to surrender, I think we should obviously have accepted that, but there was no indication that he wanted to do that and therefore his killing was appropriate."

Retired, 91-year old United States Supreme Court Justice John Paul Stevens, speaking at a conference in honor of his own "legacy", at Chicago's Northwestern University, opined:

"It was not merely to do justice and avenge September 11 (but) to remove an enemy who had been trying every day to attack the United States. I have not the slightest doubt that it was entirely appropriate for U.S. forces to do."

Fine lines are drawn by international jurists between the distinction to be made, if any, between actual war conditions and members of a terrorist criminal network. To many, terrorists are criminals, even mass murderers; but not.

LAWFUL.

American Executive Order #12333, §2.11, as signed by Ronald Reagan in 1999:

"No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination."

burial at seaAssassination is the taking of another's life for political expediency. The reality is that Al-Quaeda is a terrorist group avowed to attack the United States by force of arms. Territory or not, that created a state of war, a gauntlet which, after September 11, 2001, the United States picked up. The United States implemented the Authorization to Use Military Force Act of September 18, 2001, which authorizes the use of “all necessary and appropriate force” against the perpetrators of the 9/11 attacks.

That transferred the image of Osama Bin Laden from the political dartboard (aka "assassination") to the military's target board.

The United States Charter, at §51 refers to the "inherent right of individual or collective self-defence", which was reiterated in U.N. Security Council unanimously passed Resolution #1368, issued on September 12, 2001.

Even the New York City lawyers international non-profit agency, Human Rights First, declared:

"Assuming the existence of an armed conflict against al-Qaeda, Osama bin Laden was targetable unless he was surrendering or so injured as to no longer be apparently capable of engaging in hostilities."

Precisely: we are left with only the question of whether Bin Laden was hors de combat; i.e. whether he was killed while surrendering. In military and international law, being hors de combat means whether he had made any gesture to surrender in the moments before the three Seal Team 6 triggers were pressed. US Military rules and regulations prohibit a soldier from shooting someone trying to surrender. Once an opposing soldier indicates surrender, he or she is hors de combat and must be given POW protection.

Was he trying to surrender? Two crucial pieces of evidence remain unavailable. His body was quickly buried at sea and pictures are not being released, although the official reason is that the United States does not want to be seen as gloating. And the full assault was video-streamed back to the White House, recorded by the Seals themselves, but with the footage safely locked up in the Pentagon.

I WILL NOT SURRENDER

Bin Laden's son Omar Bin Laden, safe and rich in Egypt, basks in the attention of international journalists while he decries the "murder" of his brother. In a statement the Bin Laden family had published in the New York Times on May 10, 2011, Omar Bin Laden and his clan said that he'd take the matter to the International Criminal Court; that "arbitrary killing is not a solution to political problems" and "why our father was not arrested and tried but summarily executed without a court of law".

But for those who wonder whether Osama Bin Laden was begging for mercy and trying to surrender when he was shot, i.e. whether the killing was lawful, the chilling words of the Al-Quaeda terrorist given in a November of 2007 interview to Pakistani journalist, Hamid Mir come to mind. Mir asked Osama Bin Laden what he would do if he was ever trapped?

"I am a person who loves death. The Americans love life. I will engage them and fight. I will not surrender. If I am to die, I would like to be killed by the bullet."

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Posted in Human Rights, International Law, Military Law
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