05.03.11 2:48 PM ET
Bin Laden Should Have Been Captured, Not Killed
America today resembles the land of the Munchkins as it celebrates the death of the Wicked Witch of the East. The joy is understandable, but to many outsiders, unattractive. It endorses what looks increasingly like a cold-blooded assassination as the White House is now forced to admit that Osama bin Laden was unarmed when he was shot twice in the head.
Photos: Inside bin Laden’s Compound
The order was given by a president who, as a former law professor, knows the absurdity of his statement that “justice was done.” Amoral diplomats and triumphant politicians join in applauding bin Laden’s summary execution because they claim that real justice—arrest, trial, and sentence—would have been too difficult in the case of public enemy No. 1. But in the long-term interests of a better world, should it not at least have been attempted?
That future depends on a respect for international law, with which the U.S. has always had an uneasy relationship.
The circumstances of bin Laden’s killing are just being clarified, and the initial objection (by former Pakistani President Pervez Musharraf and others) that the operation was an illegitimate invasion of state sovereignty must be rejected. Necessity required the capture of this indicted and active international criminal, and Pakistan’s abject failure (whether through incompetence or connivance) justified Obama’s order for an operation to apprehend him.
In the dock he would have been reduced in stature—never more to be remembered as the tall, soulful figure on the mountain, but as a hateful and hate-filled old man.
However, the terms of that order, as yet undisclosed, are all important. Bill Clinton admitted recently to having secretly approved the assassination of bin Laden by the CIA after the U.S. Embassy bombings in the 1990s, while President Bush publicly stated after 9/11 that he wanted bin Laden’s “head on a plate.” Did President Obama order his capture, or his execution?
The White House has been guilty of disinformation in first pretending that bin Laden was killed in a “firefight.” It now admits that he was unarmed when he died, which suggests that he could easily have been overpowered. They still maintain that he was asked to surrender, although in what language (he does not understand English) is not clear.
The law permits criminals to be shot in self-defense if they (or their accomplices) resist arrest in ways that endanger those striving to apprehend them. They should, if possible, be given the opportunity to surrender, but even if they do not come out with their hands up, they must be taken alive if that can be achieved without risk. Exactly how bin Laden came to be “shot in the head” (especially if it was the back of his head, execution-style) therefore requires explanation. Why a hasty “ burial at sea” without a post mortem, as the law requires?
All that seems to have been done is to clean his body and take a photograph of it, which the White House says it is reluctant to release—no doubt for fear that it will become iconic like that of Che Guevara on the slab. But if the government kills people in this way, it must live with the consequences. Pakistan law requires a colonial inquest on violent death, and international human rights law insists that the “right to life” mandates an inquiry whenever violent death occurs from government or police action. The U.S. is therefore under a duty to hold an inquiry that will satisfy the world as to the true circumstances of this killing.
But the U.S. is celebrating summary execution, rationalized on the basis that this is one terrorist for whom trial would be unnecessary, difficult, and dangerous. It overlooks the downsides: that killing bin Laden has made him a martyr, more dangerous in that posthumous role than in hiding, and that both his legend and the conspiracy theories about 9/11 will live on undisputed by the evidence that would have been called to convict him at his trial.
Moreover, killing bin Laden gave him the consummation he most devoutly wished, namely a fast-track to paradise. His belief system required him to die mid-jihad, from an infidel bullet—not of old age on a prison farm in upstate New York. For this reason he would have refused any offer to surrender, and no doubt died with a smile on his lips.
I do not minimize the security problems that would have arisen at his trial or overlook the danger of it ending up as a squalid circus like that of Saddam Hussein. But the notion that any form of legal process would have been too hard must be rejected. Khalid Sheikh Mohammed—also (and confusingly) alleged to be the architect of 9/11—will shortly go on trial, and had bin Laden been captured he should have been put in the dock alongside him so that their shared responsibility could have been properly examined.
Bin Laden could not have been tried for 9/11 at the International Criminal Court—its jurisdiction only came into existence on 7/12, nine months later. But 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 that would have convinced the Arab street of his guilt and his unworthiness. This would have been the best way of demystifying this man, debunking his cause and de-brainwashing his followers. In the dock he would have been reduced in stature—never more to be remembered as the tall, soulful figure on the mountain, but as a hateful and hate-filled old man, screaming from the dock or lying from the witness box. Since his videos exult in the killing of innocent civilians, any cross-examination would have emphasised his inhumanity. These benefits that flow from real justice have forever been foregone.
America’s obsessive belief in capital punishment—alone among advanced nations—is reflected in its rejoicing at the manner of bin Laden’s demise. It is ironic to reflect that Bill Clinton secured his election by approving the execution of Ricky Ray Rector (a convict so brain-damaged that he ordered pumpkin pie for his last meal and said that he would “leave the rest until later.”) And now Barack Obama has most likely secured his re-election by approving the execution of Bin Laden. This may be welcome, given the alternatives of Sarah Palin and Mike Huckabee (who have both urged that Julian Assange be hunted down in similar fashion) or Donald Trump. But it is a sad reflection on the continuing attraction of summary execution.
It was not always thus. When the time came to consider the fate of men much more steeped in wickedness than Osama bin Laden—namely the Nazi leadership—the British government wanted them hanged within six hours of capture. President Truman demurred, citing the conclusion of Justice Robert Jackson that summary execution “would not sit easily on the American conscience or be remembered by our children with pride…the only course is to determine the innocence or guilt of the accused after a hearing as dispassionate as the times will permit and upon a record that will leave our reasons and motives clear.” He insisted upon judgment at Nuremberg, which has confounded Holocaust-deniers ever since its delivery. Killing instead of capturing Osama bin Laden was a missed opportunity to prove to the world that this charismatic leader was in fact a vicious criminal, who deserved to die of old age in prison, and not as a martyr to his inhuman cause.
Geoffrey Robertson Q.C. is the author of Crimes Against Humanity. (New Press)