x Abu Dhabi, UAEWednesday 26 July 2017

Experts divided on whether US broke law in killing Osama bin Laden

United States view of the al Qa'eda chief as a military target is not shared universally, with the UN's independent investigator on extra-judicial killings, saying there is 'considerable dispute in legal circles'.

Americans generally seem pleased that bin Laden is dead, though the debate as to whether the killing was legal will continue.
Americans generally seem pleased that bin Laden is dead, though the debate as to whether the killing was legal will continue.

NEW YORK // While the relief and joy of most Americans over the death of Osama bin Laden is still palpable a week after he was killed, the question remains: was it legal?

US Attorney General Eric Holder, the US's chief law enforcement official, has defended the raid, describing bin Laden as a lawful military target whose killing was "an act of national self-defence."

Also, Mr Holder noted, the al Qa'eda leader made no attempt to surrender.

Notably absent is any official complaint to the United Nations by Pakistan saying that US forces violated its sovereignty, although Pakistan's foreign minister, Salman Bashir, acknowledged that may have occurred.

UN Secretary General Ban Ki-moon has not condemned the operation, either, declaring instead that "justice has been done".

The UN Security Council drew a more careful line, saying in a statement that it "welcomes the news that Osama bin Laden will never again be able to perpetrate such acts of terrorism."

The statement, however, stopped short of approving bin Laden's killing - perhaps more for political than legal reasons, one UN ambassador suggested.

The envoy said no member of the council was willing to speak out against the way bin Laden was brought to book for his involvement in the deaths of thousands of innocent civilians. "It's sacred - nobody would dare oppose the US on that one," the envoy said.

Any assessment of the legality of the killing of bin Laden is complicated from the start by the differing accounts of the mission issued by US officials. One version, for instance, depicts bin Laden avoiding capture and returning fire, while another presents him lunging for weapons and still another describes him being shot while unarmed.

That may be one reason why Navi Pillay, the UN high commissioner for human rights, was reticent to draw any judgements, calling instead for a "full disclosure of the accurate facts" to determine whether the killing of bin Laden complied with international law.

The UN "has basic rules of how counter-terrorism activity has to be carried out. It has to be in compliance with international law," Ms Pillay said. "For instance, you're not allowed ... to commit torture or extra-judicial killings."

Washington describes bin Laden as an enemy combatant who led a military organisation that waged war on America. It cites the September 11, 2001 attacks on New York and Washington among a string of armed strikes on US embassies, warships and other targets.

Richard Dicker, a lawyer for Human Rights Watch, said the killing may be legal under an "armed conflict scenario". However, to reach that legal threshold, he said, it would have to be established that bin Laden commanded and directed ongoing attacks against the US. There is still debate over whether - and to what extent - he still led al Qa'eda operations at the time of his death.

Under the Geneva Conventions, which codify the rules of war, bin Laden should have had right to give himself up. "If he had surrendered and had his hands up, shooting him would be undoubtedly a violation of the laws of war in an armed conflict situation," Mr Dicker said.

Washington's view of bin Laden as a military target is not shared universally. The UN's independent investigator on extra-judicial killings, Christof Heyns, said there is "considerable dispute in legal circles as to whether we are dealing with an armed conflict in respect of al Qa'eda in Pakistan".

Several lawyers argue that counter-terrorism does not, legally speaking, fall under the rubric of war. Rather, it should be treated as a law enforcement issue. Under that framework, they say, bin Laden should have been arrested, extradited and faced trial for criminal charges of conspiracy to commit murder and terrorism.

Gert-Jan Knoops, a Netherlands-based international law expert, said Washington's battlefield claim "does not stand up," while Louise Doswald-Beck, a former head of the legal division of the International Committee for the Red Cross, said bin Laden should have been handled like a "dangerous criminal" and not a military target.

Had he been classified as a fugitive - albeit one accused of heinous crimes - US commandos would have had a greater obligation to make an arrest and only open fire in self-defence, according to several legal experts.

The White House's alternate descriptions of bin Laden's response to the attack on the compound where he was holed up have raised doubts there were any plans to take him alive.

"This man has been subject to summary execution, and what is now appearing after a good deal of disinformation from the White House is it may well have been a cold-blooded assassination," said Geoffrey Robertson, an Australian human-rights lawyer.

Some analysts said bin Laden's killing was not being evaluated according to normal legal standards because of the extraordinary scale of revulsion to his alleged crimes and the massive influence America wields on the world stage.

Mr Dicker described "unevenness in the world in the application of the laws of war and human rights laws". Cyrus Safdari, an Iranian-American commentator, warned of the dangers of tacitly allowing bin Laden-style killings on foreign soil.

"In judging the legality of extra-legal, extra-judicial and external executions, let's remember that a precedent set by one country can be applied by another," he said. "What would you think of the legality of, say, Iran assassinating opponents abroad?"

jreinl@thenational.ae

* With additional reporting from Reuters and Associated Press