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Justice is served?

May 4, 2011

As revised information and details surrounding Osama bin Laden's death continue to flow from the United States, questions are beginning to be raised over the legality of the mission and actions that led to his demise.

sign and flags appear on the street sign at Tom Burnett Lane and Stoneridge Drive in Pleasanton, California, on Monday, May 2, 2011 after it was announced that the mastermind of the 9-11 terrorist attack, Osama bin Laden had been killed on Sunday in Pakistan by U.S. Navy Seals.
The US sees bin Laden's death as a legal end to its manhuntImage: picture alliance/landov

While details remain sketchy of the exact nature of the raid and the orders given to the elite Navy SEAL Team 6 who carried out the mission, the apparent commitment of the team to kill rather than capture, and to do so even if the target was unarmed, is beginning to generate concern.

Alarm bells began ringing on Tuesday when Leon Panetta, director of the Central Intelligence Agency (CIA) claimed that the SEAL team who shot bin Laden had orders to capture him if he hadn't posed a threat. "Under the rules of engagement, if he had in fact thrown up his hands, surrendered and didn't appear to be representing any kind of threat, then they were to capture him," Panetta told PBS television before adding that he did not believe bin Laden had a chance to speak before he was shot in the head.

Counter-terrorism chief John Brennan then argued that bin Laden would have had to have been naked for the SEALs to have taken him alive - the only way they could have been sure that he did not have any hidden weapons or explosive devices on his person.

US Attorney General Eric Holder responded to the growing concern by defending the action as lawful when he told the House of Representatives' Judiciary Committee on Tuesday that the mission was "lawful, legitimate and appropriate in every way" and that everyone involved, from the decision-makers in Washington to the Special Forces troops on the ground in Pakistan, had "handled themselves well."

Gray areas

Osama bin Laden is seen in this image broadcast Wednesday April 17, 2002
The US claims the war on terror justifies the hit on bin LadenImage: AP Photo/MBC via APTN

There is an argument in the US that since it is in a declared war with al Qaeda, the operation was legal under international law and that it was lawful for it to target bin Laden for no other reason than he launched an attack on American targets. However, analysts say that while this argument can be applied to a battlefield situation, it enters a legal gray area on missions such as the Abottabad raid.

"Under the laws of war, you are allowed to target enemy fighters unless they are clearly surrendering or are disabled by injury; whether they are armed or fighting at that particular moment or not," Anthony Dworkin, an international law expert at the European Council for Foreign Affairs, told Deutsche Welle.

"Under law enforcement standards, you can only use lethal force if it is strictly necessary to prevent the loss of other lives or to prevent the escape of someone you are seeking to arrest."

He added that in this case it appeared the US was justifying the shooting by appealing to a mixture of these standards:

"It was in the context of a fire fight, the US forces were meeting a lot of resistance, bin Laden was not giving himself up to the US forces even if he didn't have a weapon. However, there is a lot of disagreement internationally about the exact legal framework that applies in such a case."

Ali Dayan, Human Rights Watch's South Asia expert in Lahore, says the issue is a legal gray area.

"Much depends on whether the situation could be considered one of armed conflict, in which the laws of war apply, or a policing situation, in which international human rights law applies," he told Deutsche Welle.

"Both bodies of law allow the use of lethal force, but not without limits. One reason we are seeking a full report from the US is to be able to assess which body of law was applicable here and whether it was appropriately applied."

Fulls details needed

Until the full details of the raid are released, along with photographs and any video footage from the operation, there will continue to be questions about the mission's legality

A view of Osama bin Laden's compound in Abbottabad, Pakistan, on Tuesday, May 3, 2011, after a U.S. military raid late Monday which ended with the death of the al-Qaida leader Osama bin Laden and others inside the compound.
The true nature of events in Abottabad are still unknownImage: AP

"Full details of what happened in the killing of Osama bin Laden are not available and probably never will be due to the so-called fog of war clouding the perceptions of those involved," Professor Chris Brown, an expert on international and terrorism law at the London School of Economics, told Deutsche Welle.

"If one regards the killing as an act of war, which I would, then it was clearly legitimate. There is no suggestion that bin Laden was attempting to surrender, nor is it likely that he would."

There is also the question of whether any sovereign state laws were violated by the US when its forces entered Pakistan without the knowledge or permission of the Pakistani government. The US claims that only a select few within Washington knew of the mission and that Pakistan wasn't informed to keep the operation as secret as possible.

"I think there is a reasonable argument that this was not a violation of Pakistani sovereignty because there is a legitimate argument for self-defense for US action against bin Laden; Pakistan has also made it clear after the event that it does not object to US action in this case and that Pakistan has previously given at least tacit consent for US action against senior al-Qaeda members on its territory," Dworkin said.

Europeans favored trial

11. September 2001
Some preferred to see bin Laden stand trial for his crimesImage: AP

A host of European figures - including former West German Chancellor Helmut Schmidt who called the actions "a clear violation of international law" - have made it clear that they would have preferred to have seen bin Laden put in front of the International Criminal Court (ICC).

However, capturing bin Laden and bringing him before a court to be tried would have created their own set of problems.

"Conceivably the Security Council could have set up a special tribunal to try him for crimes against humanity," Dworkin said. "Otherwise he could have been prosecuted in the US under US criminal law or before the US military commissions although this would be a much worse and complicated option."

However Human Rights Watch's Hasan said it would have been a viable alternative.

"Putting bin Laden on trial before a court that met international fair trial standards, such as in US federal courts, would have served justice in a manner that cannot now be achieved," he said.

Assassination debate

Libya's leader Moammar Gadhafi
In the crosshairs: Could Gadhafi be the next targetImage: AP

The killing of bin Laden has also stoked the debate surrounding the use of assassinations in Libya which arose last month when US Senators John McCain and Lindsey Graham announced that they supported the targeting and killing of Libyan leader Moammar Gadhafi, an end-game scenario mooted by both Britain's Defense Secretary Liam Fox and Foreign Secretary William Hague.

Libyan rebels have hailed the targeted killing of bin Laden by US forces, urging the Americans to kill Gadhafi next and calling the Libyan leader's assassination "the next step."

However, coalition leaders do not want to be seen as pursuing regime change by their own hand, hoping instead that Gadhafi's demise comes from within Libya, and they have regularly stated that its policy does not target Gadhafi the individual, but Gadhafi's pillars of power.

"All NATO's targets are military in nature and have been clearly linked to the Gadhafi regime's systematic attacks on the Libyan population and populated areas," said NATO mission commander Lt. Gen. Charles Bouchard said in a statement on Sunday. "We do not target individuals."

Author: Nick Amies

Editor: Rob Mudge

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