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Judged by the assassination of bin Laden is American justice just?

By Jo Coghlan - posted Wednesday, 18 May 2011

Was the killing of Osama Bin Laden legal? According to Barrack Obama "justice has been done". How 'just' the actions of the U.S. are is being questioned by the United Nations, Amnesty International, Human Rights Watch and is filling editorial columns in most of the world's newspapers.

Was the killing legal under international law? The Obama Administration says yes, absolutely. Experts are unsure. One international lawyer says the raid on the Pakistan compound of bin Laden had the appearance of an "extrajudicial killing without the due process of law". Another lawyer suggested, "vengeance will become synonymised with justice, and that revenge will supplant due process".

International human rights lawyer Geoffrey Robertson has argued that the killing risked undermining the rule of law: "The Security Council could have set up an ad hoc tribunal in The Hague, with international judges (including Muslim jurists), to provide a fair trial and a reasoned verdict. This would have been the best way of demystifying this man, debunking his cause and de-brainwashing his followers". Even the Nuremberg trials gave legality to the punishment Nazi war criminals. No such opportunity to do this arose.


The legality or illegality of the bin Laden killing partly rests on whether SEAL commandos were ordered to detain or kill Bin Laden.

Harold Koh, legal adviser to the US State Department, outlined the Obama government's position on political assassinations: "U.S laws banning political assassinations reinforce the notion that targeted operations are lawful when acted in "self-defense" or "in armed conflict". According to Kenneth Anderson, professor of law at American University Washington College of Law, Koh's position "expresses a view that when acting in lawful self-defense (which might or might not be 'armed conflict' in a specifically legal sense of that term), targeting specific high-level belligerent leaders is not (independently) unlawful, and because it is not, it thus does not constitute 'assassination'." But what kind of threat or risk did the unarmed bin Laden pose to the SEAL commandos during the firefight and was he such a threat that it warranted an act of self-defense by the U.S. soldiers?

Even if the law should be supplicated because bin Laden confessed to being the mastermind of 11 September 2001, any order to the commandoes by their government to kill Bin Laden would still have violated longstanding Executive Orders that bars U.S employees from engaging in political assassination. If it was to detain bin Laden what was President Obama's plan to do with him? Guantanamo Bay perhaps?

White House counterterrorism adviser John Brennan has said: "If we had the opportunity to take bin Laden alive, if he didn't present any threat, the individuals involved were able and prepared to do that." However, capturing bin Laden alive would have presented numerous uncomfortable problems: Where would he be held? Who would do the interrogation? Would the U.S. have to read him his rights?

Security sources in Washington have said the mission was to kill, not capture, Bin Laden. The military nature of the operation in Abbotabad coupled with the fact that bin Laden was a declared enemy of America meant bin Laden was seen by the U.S. as an enemy combatant. According to Louise Doswald-Beck, a former legal chief for the Red Cross, bin Laden was clearly not an enemy combatant. He was the "head of a terrorist criminal network, which means that you're not really looking at the law of armed conflict but at lethal action against a dangerous criminal." Yet, most mainstream media coverage maintains the myth of the war on terror, hence justifying the assassination of bin Laden.

The legality for killing bin Laden is not especially dependent upon his behavior. If he was considered a threat, armed or not, Bin Laden was always going to be viewed by the U.S. government in Washington and by the SEAL commandoes in Abbotabad as more than a combat-based target. He was a high-value target. It is on Congressional record that if Bin Laden "had surrendered, attempted to surrender" it should have "accepted that" but there was no indication that "he wanted to do that, and therefore his killing was appropriate." In such a circumstance, the law suggests that the onus is on the target to immediately revoke his combatant status.


The Obama Administration are trying to quell the legal questions about the raid, Attorney General Eric H. Holder Jr. has said: "It was justified as an act of national self-defense," citing Bin Laden's role as the architect of the 11 September attacks. This meant bin Laden was considered a "lawful military target". If Bin Laden did not pose a threat to U.S. forces on the scene in Abbotabad then the assassination of bin Laden can be construed as vengeance and this undermines the legality of the American government's action. As a former lawyer Barrack Obama surely must realise this.

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About the Author

Jo Coghlan is a lecturer in the School of Arts and Social Sciences at Southern Cross University.

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