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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.

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26 Comment on this post

  1. " 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."

    As I've understood Obama's speech so far, the US intended to arrest Bin Laden in order to sue him, and I take it Obama said that bona fide. This would be consistent with the assumption that the US would rather have had him alive than dead.

    So my brute understanding of the situation is that, undertaking to arrest him, US and Pakistan soldiers were legitimately armed, *and so was he*. Gunshots must have occurred on both sides. So, even though Bin Laden's not a combatant properly speaking, he must have been in this situation. Exactly what would the US have lost by not killing him?

  2. Sorry: It appears Pakistani forces were not involved.
    The NY Times reports:
    "American officials gave few details about the raid itself, other than to say that a firefight broke out shortly after the commandos arrived and that Bin Laden had tried to 'resist the assault force.'"

  3. Dear Nicholas, thanks for your comments. My post was written on the understanding that I gleaned this morning from the news. If OBN was killed in a firefight, this will put a different perspective on events. I shall follow the news with interest.

  4. Did you run a similar blog entry nine years and seven months ago entitled, "Should OBL have murdered 3,000 innocents?" I applaud the Navy Seals for exterminating this blight.

  5. Dear Tom, thank you for your message. Of course you are entitled to that opinion and I am sure vast numbers of people would be entirely in agreement with you. Could I ask you whether you would still think that he should have been killed if you thought that putting him on trial would result in fewer deaths among civilians in the future?

  6. If so, then the operation was wrong. But this intervenes in the wider context of "war against terror" in which traditional laws of war and fundamental rights have already been infringed or suspended, so this is no wonder. The very distinction of combatant/non-combatant is declared irrelevant in this war since, per definition, terrorism operates under a mask. So it is assumed from the onset that this is not a fair war since the enemy (terror) has supposedly not agreed on conventional or customary rules of war.

  7. Of course, when I say it was wrong, I do not mean every aspect of it was, only that the explicit intent to kill (rather than to capture) was not good. The Americans may have, as it is claimed (but who will ever know?), asked OBL to surrender, which he did not.

  8. I heard the news from a colleague during morning coffee this morning. In the space of about two minutes (and on the same kind of conflicting/unclear information reflected in the above comments: was it an assissination or a case of lethal force during an arrest attempt?) we covered: what it would mean for Obama politically (good, obviously), whether it was legal (I thought not), whether it would inflame the situation, and how we felt about what people said was a "party atmosphere" in North America. (But hang on, surely they were still asleep?) At one point the thought crossed my mind: well they burn our flags and were celebrating on 9/11, they shouldn't be surprised if Westerners, and in particular New Yorkers, celebrate his death. Then I thought: hang on, Peter, that's really not coming from a place of love.

    The above isn't supposed to be a serious ethical analysis (obviously), but sometimes it's good also just to observe what kind of discussions and thoughts one has in the first few minutes after one hears such news. I'd be interested to know if others had similar experiences. In any case the title of this post is a question that needs to be asked, and I share Paul's concern about the consequences. In addition to the legal questions, an obvious point is that they have created a martyr.

    Still, as far as counterproductive expressions of anger over 9/11 go: Iraq > Afghanistan >> killing OBN. (Actually the first inequality may be dubious judging from present situation, but Afghanistan was at least more understandable as a knee-jerk reaction, and didn't divide the world (including Europe) in the way that Iraq did.)

  9. After a night's sleep, here's how I see it. Yes it may be that the only way to see this as legal is to see it as an act of war, and that this may be counterproductive. An alternative would be to see it as illegal but somehow OK. The disadvantage of this of course is that it erodes respect for the rule of law, but perhaps under the circumstances the actual damage done is relatively modest.

    A third, perhaps better way to look at it as follows. This was a quick, clean way to close a chapter on 9/11 and its aftermath, both for New Yorkers and for millions of people around the world, including many Muslims. Now it's time to open a new chapter: towards a rejuvinated West, an arab spring, a democratic China, and a prosperous India.

    Also let's take a moment to remember that Bin Laden was not actually "evil": he was a troubled man who through a series of choices and accidents became the figurehead for a deadly organisation, and a hate figure for the world's most powerful nation.

  10. The first reports are now invalidated. Bin Ladin was NOT armed. Bin Ladin did NOT use his wife as a shield. The order WAS to kill him, not capture him. In short, this looks like a war crime. Murder is not legal even in war even against the enemy leader.

    The act of murdering Bin Ladin is also morally wrong for distinct consequentialist reasons: it is just the very symbolic culminating act of US exceptional transgression against international law that for a decade has brought us Abu Ghraib, Guantanamo, Secret rendition sites, Drone bombers wiping out entire villages of civilians, the wikileaks documentation of murder and on and on… and not a single higher up US official prosecuted! To let the US get away with that in one final act of unlawfulness and propagandism is terribly damaging. Rather than a "clean end" the US instead manufactures a "clean slate" that ensures that the long history of US atrocities against civilians will repeat itself in the next wars to come (Later this year? next Year? Surely they will think up some reason to go at it again.) Osama Bin Ladin was a dangerous man with repugnant moral ideals. But as a plain matter of consequences the "war on terror" has in total brought much more harm and death than it has prevented. If a man murders someone then it would be wrong for the police to torture and kill 70 other innocent persons as a means to catching the murderer. That is, only on a larger scale, the story of the last decade. This was an opportunity to start setting things right, to return to the rule of law, to start respecting international conventions and drop the "anyting is justified in the war on terror ™" propaganda. It was a chance to show that at least this time we will do things according to the rules. We will have a trial, a long and tiresome and complex one. Perhaps it will not be as immediately emotionally thrilling and gratifying. But that is how a democracy with rule of law proceeds. That is what is supposed to make one side the "good guys" in the first place. Without that, what are we more than one bloodthirsy tribe chanting and cheering that the leader of the competing tribe has been slain?

  11. I haven't enough time to write something structured or to answer (sorry, I left comments on other posts unanswered), but this is quite interesting. An Brazilian IN specialist in the middle East wrote something interesting precisely about this topic. The article is here, in Portuguese:

    This is a summary of his reasoning:

    Killing was the best choice. Had the US arrested him, a sequence of kidnapping of US-citizens would follow, and, sooner or later, Obama would be given the choice of releasing OBL in exchange of the lives of US-citizens. This would be a high political and human cost. Besides, with wikileaks, OBL's judgment could somehow suffer some kind of hindrance (I didn't understand why, though). Moreover, he would easily become a martir and violence would escalate.

    For the US-army, selective murder is acceptable as a way to "diminish collateral damage". This was done in this operation: Obama rejected a previous plan of bombing OBL's residence, because it would cause unnecessary damage (and, of course, make OBL's identification difficult). There, invading with marines was an application of the "less collateral damage" principle.

    Therefore, his reasoning is that there was a calculation of the costs. OBL alive VS dead; air bombing VS invasion on foot. Anyway, isn't that the nature of war? If something is wrong in killing OBL, the objection must be directed at war in general, not in particular actions that reflect the nature of war.

    He ends his article saying that the problem with selective murder is that they tend to go out of control.

    Anyway, my opinion is that is very disrespectful and quite immature to commemorate the death of an enemy. Not even so called "primite" groups such as native americans or celts did that in this manner.

  12. Theo: killing in war is morally not very different from killing in civil society. It is allowed under specific justifying circumstances. If your enemy is no threat in the situation and if you have an option to capture him alive then that is what you should do. That was an option here and that makes the killing of OBL wrong. Similarly, a cop who tracks down a murderer and finds him unarmed in a room can't shoot him twice in the head because he is a murderer (or because the cop suspects that the murderer will become a martyr if captured).

    The other argument you summarize is consequentialist and makes a string of shaky causal assumptions. Why would capturing OBL alive cause more kidnappings than killing OBL? There is inductive evidence from historical empirical facts to support that belief. Why would capturing him alive cause him to be a martyr more than killing him will? Again, no evidence for that. There is, however, very well researched psychological bias towards retribution and people very often try to rationalize brute, reactive eye-for-an-eye attitudes to make themselves feel better.

    Add to this the consequentialist arguments that not breaking the US habit of unlawful transgressions and frat boy agressivism in the international area will lead to more wars and more innocents killed and harmed (the track record from Vietnam, Iraq 1, Iraq 2, Afghanistan is clear).

  13. Dear Peter, as I see it, this was a murder of one individual, committed in peacetime. As such, the International Criminal Court (ICC) would not have jurisdiction. The International Court of Justice (ICJ) deals with disputes between states, so would not have jurisdiction either.

    OBL could not be tried at the ICC for 9/11, as it took place before the establishment of that court. Geoffrey Robertson has argued that the US should have asked the UN Security Council to set up an ad hoc tribunal in The Hague to try OBL. This is what the Special Tribunal for Lebanon is. It applies domestic Lebanese law in considering responsibility for crimes related to the death of PM Rafic Hariri. I personally think there is a lot of merit in this idea. It would have sent out the signal that the US does not consider that it is at war, and would have subjected OBL's ideology to the rigour of public cross-examination.

  14. I wasn't necessarily suggesting that either international court would have/have had jurisdiction in this case, but rather that this could be a good opportunity for the US to say, OK we killed the beast, now it's time to reassure the rest of the world about our commitment to international law.

    Having now had a few days to digest this news I'm glad they got him. Obama's "justice has been done" comment was rhetorical: no need to take it as statement of policy. What we do need to see is some gesture from the US to convince us (and more particularly our Muslim brethren) that they really have got some closure now and are ready to move on. Obviously Obama's election was a good step in this direction, but it would be great if they did something symbolic of this nature.

    By the way, i heard the following comment from one of the (north African) cleaners/technicians at the office today (I'm translating from French): "I heard they captured Osama. Killed him even! Now it's Gaddafi's turn. He's killied all those people."

  15. OBL was indeed tried and sentenced by a legitimate authority to death by firing squad. The semantics of " legal" justification of a military action simply do not apply to the Commander-in-Chief. One may argue the legitimacy of that authority, whether or not the best possible consequences will result, the legitimacy of war itself. But to diss probate Obama's actions on the grounds of arbitrary rules, which frankly don't apply in this situation, is taking this in the wrong direction, in my humble opinion.
    If for example, as might be perfectly legitimate, Pakistan passed some kind of statute to the effect "no American president may kill OBL," would that change the morality of this situation? What if they amended the law to read that it may not be dispensed with even during war. Make it as absolutely applicable as you'd like. One would have to look at the grounds under which such a statute could be dispensed with. The category could not be merely some kind of confesses that "we agree that this is a war," "we agree that you are a legitimate authority," or any such thing of like nature; as may be concluded, I think with relatively little reflection. If law is to exist then authority to supersede the law must also exist, American law includes as part of its law the legitimization to supersede it. Accountability for ones actions is preserved, through various mechanisms; but the criterion by which one is to be judged can not be any merely statutory law, as I hope I have established.
    I propose that similar rationale may be applied to this case, and that any sort of legal grounds are misplaced.

  16. President Andrew Jackson

    The naivety levels here are vast, awesome and highly instructive into the problematic nature of "ivory tower" versus "realpolitik".

    Some facts:

    #1 The 'fog of news' reportage has changed four times now – from drone strike, to duel forces raid (hard to deny, given the ISI is still holding his wife / daughter), to armed defense, to not armed but hiding behind women to knelt on floor and executed to faked briefing room pictures [yes, people – turn laptops on please]. Zzzz.

    #2 They 'found' Osama Bin Laden in the heartland of Pakistani intelligence [Langley] near the largest officer training site [Sandhurst, School of the Americas] in a compound that is laid out like a prison. With a huge satellite dish attached. Make that two. Occam's razor suggests his much vaunted "ultra secret mountain Bond bunker" was actually "house arrest under proxy until useful to eliminate / use as next terror strike", by proxy who has plausible deniability and who has no issue with rendition / torture within its borders.

    #3 Like Iraq (remember Iraq? Remember that it was responsible for 9/11 and we went on a little war there because of it? Or are we all revisionists now?) Obama Bin Laden was never charged with any involvement with 9/11 – his FBI file relates to bombings in Africa (remember those baby milk factories that Clinton used missiles on? In retaliation for Embassy bombs? Or have we forgotten again?); 9/11 never really parsed out, remember? (Such as… 11 of the 16 bombers are still alive around the globe, because.. they weren't involved. Cough.)

    So let's re-phrase the question, shall we?

    "Is it morally correct to use the alleged assassination of another human being, who has been used as a political tool / ideological instance of psychological fear / terror to alleviate psychosis within a captive audience?" [See further: Goldstein]

    More pertinently: "What is the moral reaction to an audience so debased from normative levels of humanity that celebration of murder is a laudable civic virtue?" [please answer with reference to 'hung, drawn & quartering' punishments in the Middle ages]

    Or short version:

    If you've seen a John Wayne film, you're surprised that 'justice' amounts to 'shoot in the head, in front of family'?

  17. Anthony Drinkwater

    I remain just a little amazed by the reactions to this entirely reasonable post. I thought (obviously very naïvely) that a philosophical approach would be closer to P

    1. President Andrew Jackson

      You're missing the best ironies.

      [i]That's right, the Americans whose interrogation of al Qaeda operatives may have put in motion the death of this mass murderer may themselves face prosecution by the country they were trying to protect.

      It is time for the Holder CIA investigation to end. The death of bin Laden 10 years after 9/11 makes the Holder investigation of the CIA interrogators politically, emotionally and morally moot. [/i]

      Wall Street Journal defines the 'new ethics': since we assassinated the bad guy who forced us to break all international treaties on torture, we shouldn't be held accountable for it since his death brings that era to a close.


      I wouldn't worry though:

      Our own government has just been forced to release files showing the systematic rape, torture, castration, mutilation and murder of circa 100,000 human beings which they attempted to avidly deny / cast aspersion on anyone questioning the line (and still do – look at the comments section for paid shills).

      "Practical Ethics: Ethics in the news" ….

      Really? Or did I miss something here? If you want white-wash, then admit it. Practical Ethics means, well… the title gives it away, methinks.

  18. I don't think Bin Laden should have been killed because actually mentally sick in his depression when (according to wikipedia) “Bin Laden's father Mohammed died in 1967 in an airplane crash in Saudi Arabia when his American pilot misjudged a landing. Bin Laden's eldest half-brother, Salem Bin Laden, the subsequent head of the bin Laden family, was killed in 1988 near San Antonio, Texas, in the United States, when he accidentally flew a plane into power lines.”

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