(Twenty minutes after finishing this post, this article was published stating the UN is following a very similar argument)
I was reading the news, looking for something to write about and among the 1000s of article regarding Bin Laden this and Bin Laden that I came across this article by Alan Dershowitz. If you are lucky enough to not know Alan Dershowitz, here is a basic preface of his background. He is an American lawyer who was the youngest full time professor of law at Harvard University in Boston. Around 2000 it seems his interest seemed to peak in the issue of Israel-Palestine. He has taken a general right wing view, mixing it with his interpretation of emotional law (as he disregards most international law in his arguments, or human rights in general). He had a tiff with Norman Finkelstein following the release of his book “The Case for Israel” after Finkelstein accused and put forth his argument of plagiarism against Dershowitz’s book (if interested for a full rebuttal read Finkelstein’s “Beyond Chutzpah”). Dershowitz from there went on the offense against Finkelstein and had a strong influence in the denying of Finkelstein tenure at DePaul University. Since this time Dershowitz has invested most of his time and energy into writing/being an activist on the subject of Israel/Palestine which has amounted to a few books, many articles, and personal attacks on critics of Israel.
One of his most important points that he stresses is that he supports targeted killing, also known as extrajudicial assassination. Under US and International Law this is illegal, no question. Now one may wish to justify morally or emotionally that extrajudicial killing is right, but that does not change the fact it is illegal under international law. Dershowitz has argued this is one of the most effective tools Israel has used to “fight terrorism.” Dershowitz opens his article by saying:
“The decision to target and kill Osama bin Laden is being applauded by all decent people. Approval to capture or kill this mass-murdering terrorist leader was given by presidents Obama and Bush. It was the right decision, morally and legally.
Although bin Laden wore no military uniform and held no official military rank, he was an appropriate military target. As the titular and spiritual head of al-Qaida, he was the functional equivalent of a head of state or commander in chief of a terrorist army. From the beginning of recorded history, killing the king has been a legitimate goal of military action. The phrase “checkmate” means “the king is dead,” signifying the successful end of a battle.”
In what some would call lawyer speak Dershowitz tries to link events that are not the same, put some fluff on, and PUFF argument made with a minor sentence saying it is legal. I do not doubt that attacking kings was considered a legitimate move in battle over 500 years ago, but unfortunately for Dershowitz this is not the 15th century in England or other parts of Europe. We have these things called states, who abide by a thing called international law. The two most important documents of this very easy idea of international law are the Hague Conventions of 1907 and the Geneva Conventions. Extra-judicial killings are found to be illegal under the 3rd Geneva Conventions and the International Covenant on Civil and Political Rights (part 6). From an article on the issue (here) “Prof Nick Grief, an international lawyer at Kent University, said the attack had the appearance of an “extrajudicial killing without due process of the law…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”.”
Dershowitz’s other point of “all decent people” are applauding the killing is dubious at best. I do not disagree that many governments have expressed some form of support, but there are many people in these countries that are voicing very vocal opposition to this illegal act. The most important actor in Pakistan, the Army, has expressed anger at the raid here. As the former argument says “Whether or not the Pakistan government authorised the assault on its territory might technically affect the legality of the operation under international law.” Fidel Castro openly expressed opposition to the legality of the killing in an editorial summed up here. There are numerous articles in European papers (for these articles please see the bottom for a few-email me for others-but most are not in English, fair warning) that condemn this killing. Now I am sure the Pakistani Army and Castro are not included by Dershowitz in the realm of “decent people” but European editorials, activists, and various international law lawyers must be.
Dershowitz’s next paragraphs are as follows:
“Yet there are those who claim that all targeted killings are immoral and illegal. These critics characterize such actions as “extrajudicial executions,” and demand that terrorist leaders and functionaries be treated as common criminals, who must be arrested and brought to trial.
The operation that resulted in bin Laden’s death was a military action calculated to kill rather than “arrest” him. It is possible, though highly unlikely, that he could have been captured alive and brought to trial. The decision to employ military personnel with guns, rather than a drone firing rockets, was probably made by generals rather than lawyers.”
I do not disagree that the mission was meant to kill and not capture, but that does not make it legal. The US did not go through the proper channels to get the authorization for this attack. For right or for wrong, there are guidelines and procedures to do this kind of killing and the US did not go through with them. So to argue that it would be difficult to arrest him does not matter, they followed the man for 10 years, he was unarmed when killed, so to assume he could not have been arrested is dubious. His statements about there “being some” who wish to bring him to trial is misleading. It is the law, not some, who demand he stand trial. If the US was so sure it was Bin Laden who committed 9/11 and other crimes, they would easily win a court case. It would show that the US does in fact differentiate itself from war crime committing organizations and does in fact stand for justice. Dershowitz follows up by saying:
“The operation directed against Bin Laden may have been designed, in part, to have preserved the theoretical option of arrest, though a live capture was virtually impossible under the circumstances. Indeed, it is likely that bin Laden’s death was deemed preferential to his capture and trial, because the latter would have likely resulted in al-Qaida taking hostages and trying to exchange them for bin Laden”
To argue that we need to kill someone to avoid future hostage taking is rather defeatist. If you believe the West and the United States in general stand for human rights, you can not break human rights to protect them. This is the price of human rights to show the world you do in fact stand for human rights and international law. The hostage taking could happen whether he is alive or not, and one’s believe that it may result in the future in hostage taking does not justify killing someone. Next in his article he says “Indeed, a US national security official has confirmed to Reuters that “this was a kill operation,” and there was no desire to capture bin Laden alive. This was a targeted kill, appropriate for a military combatant, but not for an ordinary (or even an extraordinary) criminal.” Which contradicts his earlier point about arrest and is more than unnecessary for his article as it does not apply. Next Dershowitz says
“Nonetheless, the government felt it necessary to announce that bin Laden was shot after he resisted, thus suggesting he was not killed in cold blood. But it’s clear that he would have been killed whether or not he resisted, since this was a kill operation from the outset, and it is unlikely he was ever given the opportunity to surrender – an opportunity not required under the rules of war.”
Again he is only solidifying the point that this falls under illegal extrajudicial killing.
After quoting various EU/UN representatives’ quotes regarding extrajudicial killing (but not about Bin Laden) he states
“none of these nations, groups or individuals have criticized the targeted killing of Osama bin Laden by the US! The reason is obvious. All the condemnations against targeted killing were directed at one country. Israel, of course…Israel developed the concept of targeted killings, and used it effectively against the “Osama bin Ladens” of Hamas, who directed terrorist attacks against Israeli civilians, killing and wounding far more Israelis (as a percentage of Israel’s population) than the number of Americans killed by bin Laden. It was when Israel managed to kill the head of Hamas that the international community, with the striking exception of the United States, decided that targeted killing was illegal and immoral.”
First and foremost to try and compare Bin Laden to members of Hamas is more than disingenuous. Now let us believe that Bin Laden did do 9/11 that resulted in over 3000 people killed in just over 24hrs, a whole city being covered in rubble, thousands of hospital patients, and for the more capitalist-leaning, billions of dollars lost. Bin Laden was considered the most wanted man in the world, leader of a movement that wanted to abolish the whole world’s state system and put it under an Islamic Caliphate with no recognition of national anything. Hamas is a religious-nationalist political party, organization, and social services network. They have stated goals that become more moderate by the day (including 1967 borders, peace with Israel possibilities) and have renounced suicide bombings, and adhered to ceasefires with Israel many times, which are subsequently broken by Israel.
Next Dershowitz says: “the use of targeted killings by Israel has been closely regulated by its Supreme Court, and permitted only against terrorists who are actively engaged in ongoing acts of terrorism. In the United States, on the other hand, every decision to use this tactic is made by the president alone, without any form of judicial review.” To argue that because the Israeli Supreme Court has legalized it somehow means that it MUST be legal is insane. The Supreme Court has legalized numerous settlements, military actions, etc that are illegal under international law, so to claim this unfounded article is more than ridiculous.
His conclusion statement is “So let the world stop applying a double standard to Israel, and let it start judging the merits and demerits of military tactics such as targeted killing. On balance, targeted killing, when used prudently against proper military targets, can be an effective, lawful, and moral tool in the war against terrorism.” I do not disagree one bit and in international law it is more than explicit that these acts are illegal. The United States is the world hegemonic power and the world is generally dependent on it, what country’s leadership is going to stand up on this moment and scream “illegal?” Israel, although very strong, is not the United States so yes they are going to receive criticism as Israel contributes little to the world economy and political institutions. It is not so much a double standard as in inherent hatred of Israel, but more an exercise of power politics. The vast majority of states and people may believe in international law and its merits, but actions are different. That does not suddenly change the legality of something illegal, but shows a systemic problem in the state system.