Wednesday, May 11, 2011

The Legality of Osama Bin Laden's Killing

Interesting story in the New York Times today. Osama Bin Laden's son, Omar, says that the US unlawfully killed his father and that by raiding his compound and killing him the principles of international law "have been blatantly violated." That old fraud Noam Chomsky said the same thing earlier in the week. It's fascinating that neither of these two gentlemen have law degrees (or a law degree and a masters degree in Jurisprudence and Legal Theory like your humble correspondent) but I assume that before they issued their statements they must have familiarised themselves with Article 51 of the UN Charter which states:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.

Article 51 goes on to stress the importance of the Security Council in sorting out disputes. The Security Council has of course condemned the 9/11 attacks and authorised action against Osama Bin Laden the man who organised them. But even more important than that and the key to understanding Article 51 are the two words "inherent right". Let me unpack that a little. The UN charter is merely a treaty signed by most of the world's sovereign states. Treaties are important but they exist in the pre existing legal framework of customary international law, rather like the thin layer of icing on a thick sponge cake.

Bin Laden and Chomsky presumably also have read the classic work on this subject,  De Jure Belle Ac Pacis, by the Dutch jurist Hugo Grotius. Chapter 4 of this text is all about the killing of belligerents in wartime. I need not remind loyal members of this blog of Grotius's remarks but I'll quote them for any strangers who might have popped by: 

V. The lawfulness of injuring or destroying the person of a public enemy is supported by the testimony of many of the best writers, both poets, moralists, and historians. In one of the tragedies of Euripides, there is a proverb, which says, that “to kill a public enemy, or an enemy in war is no murder.” Thus the custom of the ancient Greeks, which rendered it unlawful and impious to use the same bath, or to partake of the same festivities and sacred rites with a person who had killed another in time of peace, did not extend to any one who had killed a public enemy in war. Killing an enemy is indeed everywhere called a right of war.

“The rights of war, says Marcellus in Livy, support me in all that I have done against the enemy.” And the same historian gives the address of Alcon to the Saguntines, where he says, “You ought to bear these hardships, rather than suffer your own bodies to be mangled, and your wives and children to be seized and dragged away before youreyes.”

Cicero in his speech in defence of Marcellus passes a high encomium upon the clemency of Caesar, who, “by the laws of war and the rights of victory, might have put to death all, whom he had spared and protected.” And Caesar observes to the Eduans, that “it was an act of kindness in him, to spare those whom the laws of war would have authorised him to put to death.”

But the rights of war, for which these writers plead, could not perfectly justify the putting prisoners to death, but could only grant impunity to those who availed them selves of the barbarous custom. There is a wide difference however between actions like these, and destroying an enemy by proper means of hostility. For, as Tacitus says, “in the leisure hours of peace the merits and demerits of every case may be examined and weighed, but, in the tumult and confusion of war, the innocent must fall with the guilty”: and the same writer, in another place, observes, that “there are many actions, which the principles of humanity cannot entirely approve, but which the policy of war requires.” And it is in this, and no other sense that Lucan has said,“the complexion of right may be assigned to what is wrong.”

VI. This right of making lawful what is done in war is of great extent. For in the first place it comprises, in the number of enemies, not only those who actually bear arms, or who are immediately subjects of the belligerent power, but even all who are within the hostile territories, as appears from the form given by Livy, who says, that “war is declared against the sovereign, and all within his jurisdiction.” For which a very good reason may be assigned; because danger is to be apprehended even from them, which, in a continued and regular war, establishes the right now under discussion.

What does this mean? The US (and all sovereign nations) have a right to self defence under customary international law as well as a right to self defence under Article 51 of the UN Charter. That right extended to the killing of Osama Bin Laden and those who assisted him in his compound. Whether you agree with the killing or not is a moral question, but the legality of the SEAL team's actions is not in any serious doubt.