The debate about whether the U.S. killing of Osama bin Laden was legal is on. It was legal, says John Bellinger, justified under the same rationale as U.S. drone attacks in Pakistan. Though there’s a pretty fierce debate about the legality of the drones program, thrust to a new level of complexity after Pakistan withdrew its consent for the attacks. But “the Pakistani government appears at least to have consented after the fact” to the bin Laden operation, writes Bellinger. And as Jordan Paust argues at Opinio Juris, we should not get hung up on the legal value of after-the-fact-consent, for consent was unnecessary. This was, he asserts, an act of self-defense justified under Article 51 of the UN Charter. Michael Lewis, also at Opinio Juris, agrees. He notes that the International Court of Justice (ICJ) ruled on a narrow scope for Article 51 in the Palestinian Wall case and Congo v. Uganda. But he tries to get around it by citing the separate opinions of Judges Simma and Kooijmans. And, of course, Robert Chesney of Lawfare agrees about the oepration’s legality.
So what arguments are available to those who wish to claim illegality? Osama bin Laden was probably no longer a combatant, argues Thomas Darnstadt of Der Spiegel. It is possible that Osama bin Laden was no longer giving orders, he asserts, and was thus not a legal target. Furthermore, the operation happened outside the field of battle (that being in Afghanistan). And certainly if one accepts the ICJ rulings that Michael Lewis referenced, and if one accepts that we should view ICJ rulings as authoritative (as Mary Ellen O’Connell said in my interview with her here), then one can build a case that the operation was illegal.
The other level of the debate is: who cares if it was illegal? Even if it was illegal, this line of thinking goes, it was still the right thing to do. Osaama would have been unlikely to receive a fair trial, as Mark Kersten of Justice in Conflict notes (Jeffrey Toobin wrote a similar article for CNN). But more importantly, seemingly, as The New York Times, for one, states, the killing “showed guts” and was “an extraordinary moment for Americans and all who have lost loved ones in horrifying, pointless acts of terrorism.”
But one danger of violating international law is that others are likely to seize upon the incident as precedential. As I argued in a Foreign Policy in Focus article last year, the United States has experienced this phenomenon before. Putin referenced the “illegal but legitimate” Kosovo operation to justify Russia’s actions in Georgia in 2008. Bulgaria, after it shot down a passenger jet in 1955, killing six U.S. nationals, evaded ICJ jurisdiction by claiming that the incident was domestic in nature, exactly the jurisdiction-evasion technique the United States reserved for itself in the 1946 Connally amendment. In the wake of the bin Laden killing, Knesset member Shaul Mofaz has already taken the opportunity to call for the assassination of Hamas leaders.
And the perspective getting the least amount of play is: who cares if it was legal? Maybe we shouldn’t have done it regardless. As one student interviewed by NPR said, “We’ve had nine years of war, a lot of violence on both sides, and a lot of hate that just seems to be perpetuating, and I still don’t know what that means.” As Erik Ehn, playwright and anti-genocide activist, wrote:
A death contributes nothing to justice – it is a way of making less, of subtracting… Justice is asymmetrical – we would never be able to kill Bin Laden enough to compensate for the loss of life. This is key to recovery from genocide as well – there is no fit punishment. Yet to be sustainable as a people (as a social body with memory) we need to coexist…
And there’s been a quote circulating the internet apparently incorrectly attributed to Martin Luther King, but nonetheless it adequately expresses the death-is-not-justice viewpoint:
I mourn the loss of thousands of precious lives, but I will not rejoice in the death of one, not even an enemy. Returning hate for hate multiplies hate, adding deeper darkness to a night already devoid of stars. Darkness cannot drive out darkness: only light can do that. Hate cannot drive out hate: only love can do that.
In general, though, the response to the killing seems to confirm, as I wrote last month, the widespread acceptance of George Kennan’s assertion that the Golden Rule has no place in foreign policy. Like Benjamin Franklin wrote of the Native Americans, we, as Americans, do not foresee peace with our enemies “till we have well drubbed them.”