Justice Has Been Done

Emily Moore questions whether justice has been done by the killing of Osama Bin Laden

Late last Sunday President Barack Obama announced that ten years after 9/11 sent shock waves through the civilized world the United States had successfully conducted an operation that killed the star perpetrator, Osama bin Laden. In slow and deliberate tones he stressed “Justice Has Been Done.” As more information about the operation has emerged over the week and the US narrative of the raid has developed and changed, the choice of the word “Justice” has become increasingly hollow.

The key question is whether the Al-Qaeda leader was armed and posed a threat to the American special forces. The White House has been oddly confused in describing events, blaming inaccuracies in the original accounts of the raid given by US officials on having to produce “a great deal of information in great haste.” The source of uncertainty is mysterious however since the raid was filmed, and the facts are thus on undisputed display for those making the announcements. In initial accounts the SEAL team engaged in a 40 minute fire-fight and Bin Laden had a gun in his hand and was shielding behind his wife when he was shot. The White House later announced that a single gunman shot at the commandos as they proceeded to Osama Bin Laden’s bedroom and that he was unarmed when shot and not shielding behind his wife. The newest version of the story is that he may have been reaching for a weapon as he was shot and that the Navy Seals suspected individuals in the compound were wearing suicide belts. Osama did not go down screaming jihad as he splayed the approaching Navy Seals with bullets from his AK-47 like some scene from Call of Duty. Indeed, his only “hostile act” appears to have been dodging bullets. The SEAL team’s actions are thus hardly a proportional response or an act of genuine self-defence.

Benjamin Ferencz , an international law specialist who prosecuted during the Nuremburg trials, puts it simply: “killing a captive who poses no immediate threat is a crime under military law as well as all other law.” America has justified Osama’s death on a broader level as “an act of national self-defence.” Having taken credit for 9/11 and hatched numerous terrorist plots Osama certainly qualifies as a threat to American security; it is difficult to see however what immediate national threat he posed by sitting in his pyjamas.

Mr Scheinin and Mr. Heynes the UN’s special rapporteurs on the promotion and protection of human rights and fundamental freedoms while countering terrorism and extra-judicial, summary or arbitrary executions have echoed concerns. In a statement to Reuters they said “In certain exceptional cases, use of deadly force may be permissible as a measure of last resort….However, the norm should be that terrorists are dealt with as criminals, through legal processes of arrest, trial and judicially decided punishment.”

Putting Osama on trial would have been decidedly difficult and painful for America. A trial in Pakistan where Bin Laden was killed would have been impossible given the deterioration of relations between Pakistan and America, and suspicions that the Pakistani security services are affiliates of Al-Qaeda to some unknown extent. Holding a trial at the Hague would have also been embarrassing, since America does not recognise the jurisdiction of the International Court of Justice. A trial in New York, the scene of his most abhorrent crime, would also have been problematic. The jubilations at ground zero following Obama’s speech indicate that an open trial would have probably been mobbed, not to mention a huge target for the Al-Qaeda network. A secret trial would have been suspicious, and led to even more conspiracy theories than already circulate about 9/11 following Fahrenheit 9/11. Even though the chances of a New York jury finding him guilty would have been almost guaranteed there is no death penalty in the state. His place of incarceration would therefore have become a shrine, footing a stupendous security bill.

The Whitehouse’s revising of events has led many to believe that the operation was a planned assassination and that there was never any intention to take Osama Bin Laden alive. Figures who have suggested that Osama should have been put on trial instead have been roundly criticised. However even if organising an effective trial would have been harder for the American authorities, it would nonetheless been a better option.

As Mr Scheinin and Mr. Heynes warned “actions taken by states in combating terrorism, especially in high profile cases, set precedents for the way in which the right to life will be treated in future instances.” British QC Mr Sands commented that the logical conclusion to justification of Bin Laden’s killing was that “anyone associated with Al-Qaeda in any country in the world can be taken out, can be executed.” He continued “it’s deeply troubling if we are moving to a place where you can have a global assassination policy for those who are perceived to cause trouble.” That the killing was sanctioned by many heads of states including David Cameron who said it would be welcomed across Britain, has also given America a kind of informal but powerful international mandate to indulge in extra-judicial liquidisation of anyone who poses a threat to American interests. Indeed, the whole operation’s legal founding is shaky, as America contravened international law by entering Pakistan without its authorisation. Most worrying of all however is that it has dissolved the dividing line between ‘them’ and ‘us’. In a civilized society there’s no room for vigilantism, and America’s assumption of the role of judge, jury and executioner means that it has adopted the same principle as the terrorists it fights against.

Obama’s announcement that “Justice has been done” therefore employs an extremely liberal understanding of the word “justice”. More fitting would have been the word “revenge”, for all the evidence and the White House revising of events suggest that Osama bin Laden’s death was in truth an extra-judicial liquidation that has cheated the rule of law. While Obama understandably does not want to rock the resultant surge of popularity that analysts believe will carry him through his re-election campaign, it would be nice if the White House could be honest and admit that while “Justice” may have been done, in that Bin Laden “got what he deserved”, it was not done in the legal sense, and acknowledge and address the disturbing implications.