The (Il)legality of Killing Osama, or 'Bin There, Gun that'

With regard to the Taliban’s responsibility for the attacks (as demanded by the AUMF), the United States’ own 9/11 Commission Report concluded that, “we have seen no evidence that any foreign government – or foreign government official – supplied any funding.”

Do these reports absolve bin Laden of responsibility or prove his innocence? No, of course not. But that’s what trials are for.

One does not have to believe that Osama bin Laden is a good person or that he didn’t deserve life imprisonment or even the death penalty (if one supports capital punishment) for his crimes to believe that revenge is not justice.

Nevertheless, the questions which inevitably arise from such suggestions are dismissed outright by progressives like Serwer, who equates any questioning of the official 9/11 narrative with ludicrous conspiracy theories worthy of the Elders of Zion. Apparently, for Serwer, any skepticism about the official story is tantamount to wholly endorsing the conclusion that 9/11 Was An Inside Job™ and therefore deserving of derision. This is both disingenuous and embarrassing for such a rational and well-informed analyst.

With regard to the legality of bin Laden’s killing under international law, Serwer quotes Daphne Eviatar of Human Rights First, “As the leader of al Qaeda –an armed group against whom the U.S. is at war — who appears to have had a significant role directing its fighting forces, [Osama bin Laden] is targetable. It’s similar to the targetability of the commander-in-chief of any regular armed forces at war.” Eviatar later elaborates, stating that “two states at war could target each other’s heads of state IF the head of state is the Commander-in-Chief, or otherwise in the military chain of command. If he’s only a civilian, then not unless he picks up a gun and starts shooting, in which case he’d be directly participating in hostilities.”

Leaving aside the question of whether the so-called “War on Terror” or the Orwellian moniker “Overseas Contingency Operation” can actually be classified as a “war” (since the combatants and geographical limitations are completely undefined and determined solely by the President of the United States), Serwer claims that, although the U.S. had legal authority to kill Osama bin Laden (as the leader of al Qaeda), members of al Qaeda do not have a similar authority to target Commander-in-Chief Barack Obama because al Qaeda “is a criminal organization,” and not a national military. Wait, didn’t Serwer just argue that al Qaeda was a military organization against which the U.S. is waging a “war”? Is Serwer arguing that al Qaeda, as a non-state actor, does not enjoy the same rights as the U.S. to target the leader of the military force against which it is fighting?

Additional Protocol II to the Geneva Conventions, adopted on June 8, 1977, relates specifically to “cases of armed conflict not of an international character,” that is, not between two states at war. Article 6, which “applies to the prosecution and punishment of criminal offences related to the armed conflict,” holds that “No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality” and maintains that “no one shall be convicted of an offence except on the basis of individual penal responsibility.”

Serwer also points out that “the United Nations passed a resolution in the aftermath of the 9/11 attacks expressing support for ‘all necessary steps to respond to the terrorist attacks of 11 September 2001.'” But Serwer conveniently omits the end of the quoted sentence which is vital to understanding the legal implications of the Security Council resolution itself. United Nations Security Council Resolution 1368 (2001), passed the day after the attacks, actually states that the Security Council,

[e]xpresses its readiness to take all necessary steps to respond to the terrorist attacks of 11 September 2001, and to combat all forms of terrorism, in accordance with its responsibilities under the Charter of the United Nations;

The responsibilities of the United States under the UN Charter also include respecting Pakistani national sovereignty, especially since the United States is not at war with Pakistan. More important, however, is Serwer’s implication that the UNSC authorized the United States to “take all necessary steps,” which it didn’t do; instead, it addressed only the Security Council’s own readiness to respond to the 9/11 attacks. Even before the portion quoted by Serwer, the resolution states that the UNSC,

[c]alls on all States to work together urgently to bring to justice the perpetrators, organizers and sponsors of these terrorist attacks and stresses that those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of these acts will be held accountable;

A subsequent UNSC resolution, passed on September 28, 2001, calls upon States to “[e]nsure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts.”

Justice and accountability, not revenge and execution. These resolutions, which are legally binding, clearly hold terrorist actions to be criminal offenses, not military aggression, regardless of what George W. Bush proclaimed on September 20, 2001 or what Barack Obama said on January 7, 2010. Serwer leaves this piece out of his analysis even though he describes himself “as someone who believes terrorism is a crime crime not a war crime.”

Tom Brokaw, reporting live on the morning of September 11, 2001, was prophetic:

We’re the most powerful nation in the world and national security officials and terrorist experts have been saying for some time, a small band of very willful and sophisticated people can bring us to a halt and they have done just that. There’s a psychological terror as a result of all this as you can only imagine how it plays out across the country today. People looking in, who don’t live in New York or don’t live in the nation’s capital are wondering ‘what happens around me?’ It is hard to overstate the consequences of all of this and this is just the beginning. We’ll be living with this story and dealing with the consequences of it for some time. The United States will change as a result of all of this…This is going to change this country profoundly in not just the coming days, but the coming months…

How right – how tragically right – he was.