America resembles the land of the munchkins, as it celebrates the death of the Wicked Witch of the East. The joy is understandable, but it endorses what looks increasingly like a cold-blooded assassination ordered 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 real justice – arrest, trial and sentence would have been too difficult in the case of Bin Laden. But in the long-term interests of a better world, should it not at least have been attempted?
America resembles the land of the munchkins, as it celebrates the death of the Wicked Witch of the East. The joy is understandable, but in some respects, unattractive. It endorses what looks increasingly like a cold-blooded assassination ordered 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 real justice – arrest, trial and sentence would have been too difficult in the case of Bin Laden. 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. The circumstances of Bin Laden’s killing are as yet unclear and the initial objection that the operation was an illegitimate invasion of Pakistan’s 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. However, the terms of that order, as yet undisclosed, are all important. Bill Clinton admitted recently to having secretly approved teh assassination of Bin Laden by the CIA after the US embassy bombings in the1990s, while President Bush publicly said after 9/11 that he wanted Bin Laden’s head on a plate. Did President Obama order his capture, or his execution?
Details of the so-called “fire-fight” remain obscure. The law permits criminals to be shot in self-defence. 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 (especially if it was in the back of the head, execution-style) therefore requires explanation. Why the hasty “burial at sea” without a post-mortem, as the law requires?
But the chorus celebrating summary execution is rationalised 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 at his trial.
Even worse, 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 minimise the security issues at his trial or 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 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 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.
This would have been the best way of de-mystifying this man, debunking his cause and de-brainwashing his followers. In the dock he would have been reduced in stature – never more 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 exalt in the killing of innocent civilians, any cross-examination would have emphasised his inhumanity. These benefits flowing from justice have forever been foregone.
America’s belief in capital punishment 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 Roy 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 Barak Obama has most likely secured his re-election approving the execution of Bin Laden. This may be welcome, given the alternatives. But it is a sad reflection on the continuing attraction of summary justice.
It was not always thus. When the time came to consider the fate of men much more steeped in wickedness than Bin Laden – 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.
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 QC is author of Crimes Against Humanity (Penguin)
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