Al-Qaeda leader Bin Laden 'dead'. Again.

[Jan Klimkowski]

Here's lawyer Michael Mansfield with an introduction to the legality or otherwise of this SEAL operation.

I disagree with some of Mansfield's analysis, but at least it's an attempt to place the operation, as relayed by the White House to MSM, in an international legal context:

The Osama bin Laden operation must be made transparent lest it's seen as frontier justice

The US needs to clarify the thinking behind the operation that led to the death of the al-Qaida leader so others don't take the stance of might over right

Michael Mansfield guardian.co.uk, Sunday 8 May 2011 00.06 BST Article history

George W Bush's remark about wanting Osama bin Laden "dead or alive" reminds us that many people have not moved on from the concepts of "frontier justice". The events provide an important opportunity for re-examining the role and respect to be accorded to the rule of law and the principles of international justice. If they are to mean anything when applied to other people, everyone needs to know the basis upon which the operation was launched that led to the killing of Bin Laden.

There is a growing and conscientious feeling of "discomfort" that can be allayed only by a thorough and transparent revelation about the objectives and actions taken. Unless this happens quickly, the powerful forces that work in our world, whether nation states or otherwise, will interpret this as a licence to take the law into their own hands, circumvent international norms and convert "might" into right.

President Barack Obama made a measured and carefully drafted announcement . The terms he used are specific. He began his speech with the inevitable reference to 9/11 and stated: "We were … united in our resolve to protect our nation and to bring those who committed this vicious attack to justice". He then moved on to deal with the development of intelligence, and a lead that arose last August in relation to the location of Bin Laden. "And finally, last week, I determined that we had enough intelligence to take action and authorised an operation to get Osama bin Laden and bring him to justice."

It is noticeable here that there was nothing about an operation in self-defence against a commander in the field during armed conflict; nor any hint of an operation conceived in vengeance and in order to avenge the multitude of deaths in cities around the world. It was an entirely proper and judicious expedition against a man who was undoubtedly responsible for persistent crimes against humanity.

Since Obama spoke these words, however, different interpretations and discrepancies have unfolded. Many of the observations have come from American commentators. For example, Michael Scheuer (CIA) told the BBC World Service: "This operation was not a capture operation, it was meant to kill him." Daniel J Coleman, who in 1996 was the first FBI agent attached to the CIA's Bin Laden investigation, told the New York Times that in relation to the attack on the destroyer USS Cole in 2000 "that the deaths of those young men and women were never avenged".

What therefore needs to be ascertained are the rules of engagement and briefing given to the taskforce, because if its real objective was not to bring Bin Laden to justice but to kill him this begins to have the appearance of an extra-judicial killing or assassination.

The president had little more to say about the operation itself other than: "After a fire-fight, they killed Osama bin Laden and took custody of his body."

For most listeners this gives a clear impression that the Navy Seals were caught up in an exchange of fire with an armed man or men wherein Bin Laden was killed as a matter of necessary self-defence. This description, however, is deficient in two important respects: there was no exchange of fire and Bin Laden was not armed.

How these errors could have arisen is perplexing, because the president, Hilary Clinton and many other officials were, unusually, watching the operation on a live feed through to the situation room in the White House.

While it is entirely understandable that there should be a reluctance to publish any images at the present time, the availability of film and photographic evidence must be preserved for the benefit of an independent judicial examination.

There are other discrepancies concerning the actions of Bin Laden's wife, which also need to be considered.

The principle of self-defence
Self-defence is a long-standing and well-recognised principle of domestic and international law. While the United Nations has a monopoly on the use of force internationally, Article 51 of the UN charter makes an exception to this in its preservation of the right of self-defence if an armed attack occurs against a member of the UN.

Article 31 (1) c of the Rome Statute of the International Criminal Court (ICC) in the Hague also excludes criminal responsibility for an accused whose actions might otherwise constitute a crime in order to defend himself or another.

Article 2 (2) of the European Convention of Human Rights contains similar provisions, with a proviso that no more force than "is absolutely necessary" is used.

Underpinning this body of law is a consistent prerequisite that the force of the attack or threatened attack to be resisted is imminent. Hence the need for and significance of the "dodgy dossier" and the "45 minute" warning in the case of the Iraq war.

It is far from clear that these preconditions have been satisfied in the Bin Laden case. Normally, one might expect the UN or its security council or its secretary general to have raised these matters, but the euphoric and unquestioning speeches in the council suggest once more that an independent judicial body should be appointed to investigate these issues. Without it, public confidence in the point and utility of international law will be severely undermined.

Beyond the law?

There are some who argue that Bin Laden was above and beyond the law and that his case was not susceptible to the complexities and dangers of bringing him to justice in the Hague or even for that matter in the US. It is worth remembering that a case against Bin Laden had begun in the federal district court in Manhattan on 10 June 1998 and has been on-going and substantially amplified since then. According to the New York Times (May 5th), the original indictment was kept secret at first, coming at a time when the CIA was considering a plan to capture Bin Laden and turn him over for trial either in the US or in an Arab country.

In any event, the whole thrust of international treaties and conventions has been towards ensuring "due process" on the basis that no one can be considered to be above the law. Hence there has been a string of international tribunals dealing with equally heinous crimes committed by equally vicious perpetrators, stretching from Nuremburg and Tokyo to Yugoslavia and Cambodia. The US has steadfastly refused to sign up to the ICC for fear, no doubt, of the risks that it might end up in the dock. Nevertheless there have already been significant and successful prosecutions in the universal endeavour to bring about accountability and fair trial.

We should not allow truth and justice to become victims to the law of retribution along with other innocent victims of terror.