Should the US have Killed Osama Bin Laden?
I heard the news that Osama Bin Laden (OBL) had been killed by US forces on the BBC World Service this morning. In the hour or so before I left for a conference I was struck by the absence of discussion of whether this was morally justified.
Some will take offence at the very suggestion that OBL, a man almost certainly responsible for the murder of thousands of civilians, might have a right to life or a right to fair trial. However, other than the extent of OBL’s wrongdoing, it is appears difficult to distinguish it from the wrongdoing of others.
Legally, the situation is clear. Soldiers, and those who command them, can benefit from the concept of “combatant immunity” which means that they cannot be held liable for killing other combatants in international armed conflict. The US has termed its efforts to combat al Qaeda and associated groups a “war,” but this is a matter of rhetoric rather than law. It is actually very difficult to argue that the activities of these groups create an international armed conflict.
The law that almost certainly applies is the normal domestic law of Pakistan and the US. I am not familiar with either system, but it is a well-established principle of international human rights law that nobody should be arbitrarily deprived of his or her life. A person’s life may be ended by a sentence of a court or when it results from necessary force. If OBL could have been arrested without killing him, then the force would not have been necessary. In any event, it appears to have been the explicit policy of the US to kill OBL, whether or not it might have been possible to arrest him. In these circumstances, this would ordinarily amount to murder.
The result of the approach adopted seems to have the rather curious implication that the more serious wrongdoing a person is thought to be responsible for, the lower standards of due process that they will be entitled.
But I think that that is too simplistic. There are more fundamental issues that explain the unwillingness to recognise OBL as being entitled to any rights. OBL is not merely suspected of the most grievous wrongdoing. It seems of greater pertinence that OBL’s very ideology, and that of the groups associated with him, is that all of the West amounts to a legitimate target. The US also seems to view OBL, al Qaeda, and associated groups, as legitimate targets. As such, it seems that the implicit paradigm that is being used by both is actually more akin to that of war, even though the applicable law would deem it to be a situation of peace.
The implication is that both frameworks appear to have been open to the US in choosing how to deal with OBL. Within the US, few would have doubted that his death was justified. However, I doubt that that view was shared in Pakistan and other areas where people are more sympathetic to his cause. The problem is that by choosing to kill OBL, the US has explicitly confirmed a particular framework. While this might deter some, it also sends out the implicit message that this is war. I worry this may prove to be counterproductive.