A MID the crescendo of cheers and celebrations after the successful elimination of Osama bin Laden, US jurists and legal minds are questioning the legality of Osama’s killing. On the one hand, US citizens back the daring and clandestine raid which took both Osama and Pakistanis by surprise, but doubts are being raised about the legal basis of the US operation. Neither was there sanction of the operation by the UN Security Council, nor any appellate jurisdiction regarding the operation. Professor Nick Grief, an international lawyer at Kent University, has declared that the attack had the appearance of an “extrajudicial killing without due process of the law”. Cautioning that not all the circumstances were known, he added: “It may not have been possible to take him alive … but no one should be outside the protection of the law.” Even after the end of the Second World War, Nazi war criminals had been given a “fair trial”.
Now that the US government has withdrawn its initial claims of a gun battle between Osama and the US Navy Seals, declaring that Osama was unarmed, there is a lot of explaining required why Osama was not captured alive? The prominent defence lawyer Michael Mansfield QC expressed similar doubts about whether sufficient efforts had been made to capture Bin Laden. “The serious risk is that in the absence of an authoritative narrative of events played out in Abbotabad, vengeance will become synonymised with justice, and that revenge will supplant ‘due process’. “Assuming the mission was … intended to detain and not to assassinate, it is therefore imperative that a properly documented and verifiable narrative of exactly what happened is made public. Whatever feelings of elation and relief may dominate the airwaves,” he said, “they must not be allowed to submerge core questions about the legality of the exercise, nor to permit vengeance or summary execution to become substitutes for justice.” The human rights lawyer Geoffrey Robertson QC 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,” he wrote in the Independent. “This would have been the best way of demystifying this man, debunking his cause and de-brainwashing his followers.”
Claus Kress, an international law professor at the University of Cologne, argues that achieving retributive justice for crimes, difficult as that may be, is “not achieved through summary executions, but through a punishment that is meted out at the end of a trial.” Kress says the normal way of handling a man who is sought globally for commissioning murder would be to arrest him, put him on trial and ultimately convict him. In the context of international law, military force can be used in the arrest of a suspect, and this may entail gun fire or situations of self-defence that, in the end, leave no other possibility than to kill a highly dangerous and highly suspicious person. These developments can also lead to tragic and inevitable escalations of the justice process.
US Secretary of State Hillary Clinton’s echoing of Barack Obama’s assertion, stating: “Osama bin Laden is dead and justice has been done.” Is being questioned as to who was the judge and who the juror to pass the death verdict. Even UNSC Secretary General Ban Ki Moon’s assertion: “The death of Osama bin Laden … is a watershed moment in our common global fight against terrorism,” is questionable. Ban said. “Personally, I am very much relieved by the news that justice has been done.” If that was his personal comment then he is welcome to it but as the head of a solemn, august body like the UN, he cannot make such declarations without a formal debate on the issue. The US too will have to go to great lengths to satisfy the legal minds that justice has really been done. – Dailymailnews
