The Killing of Osama bin Laden and International Law

Creating a paradigm for a just domestic system of law, from picking a form of government to effectively implementing the laws it creates, is extremely difficult. Creating such laws for the international community is likely impossible. I am not a fan of the phrase "international law", largely because I do not believe such a thing really exists. That has not stopped many people from using the phrase to condemn actions they dislike. This phrase was often dragged out against former President George W. Bush's policies, in particular keeping captured combatants at Guantanamo Bay and the Iraq War. Rather than attempt to write a book on the subject of international law, I will apply the laws as put forward by proponents of international law during the Iraq War to the recent operation that killed Osama bin Laden in Abbottabad, Pakistan.

For starters, this operation occurred in Pakistan, a nation the United States Congress and the United Nations have not sanctioned the United States military to attack. It was often pointed out that the Iraq War could not be legal without U.N. approval (former Secretary General Kofi Annan made this point, for instance). Simply put, if those who opposed the Iraq War did so on principle rather than politics, they should be just as adamant that this operation into Pakistan was equally illegal and that President Obama is also a war criminal. To their credit, a few hard core members of the American Left, such as Noam Chomsky and Michael Moore, are indeed saying this. This argument was ridiculous in 2003 and remains so today. The majority of nations composing the United Nations are not democratic or respect human rights; a great many of them have a vested interest in hurting the United States. It is beyond insane to believe this rabble of tyrants and corrupt oligarchies can create a just and consistent international law. The repeated condemnations of Israel and the deafening silence concerning Palestinian atrocities proves this point. Furthermore, we are a sovereign nation; our government has a responsibility to its people, not to the international community, to keep us safe from harm.

Opposition to the Iraq War may be legitimate on the grounds that it did not further the goal of keeping us safe (I will not weigh on that here). Opposition based on not having a U.N. resolution was, well, stupid. Those who used that as an excuse must now explain their hypocrisy concerning the Abbottabad operation or declare the United States illegal in violating Osama bin Laden's rights; I do not envy them that position. This should serve as a lesson against using empty phrases. If you cannot clearly tell me where international law comes from, what it is, how we can uniformly tell what international law says, it may be best not to base arguments on it. The same is true for terms like "fair prices" and "social justice." Perhaps some other source of international law could or was cited against the Iraq War, but I am willing to bet it is no stronger than a U.N. resolution. At the very least, we can tell when the latter exist or do not. Other sources of international law will likely not be clear and even if such clear laws do exist, it remains to be proven that they trump the goals of governments to secure their own citizens' rights.

Secondly, it is now clear that Osama bin Laden was unarmed when Navy SEALS burst into his room. There are accounts (admittedly from bin Laden's wife and hence suspect) that the terrorist leader was executed. It is certain that the order to the SEALS was to kill rather than capture bin Laden. The most likely holding treaty here is the Third Geneva Convention, often used as an authority against the status of Illegal Combatant used by President Bush. Neoconservatives, President Bush's administration, and myself argued that as Al Qaeda terrorists are not signatories to the Geneva Conventions, do not meet the specifications required by Article 4, and do not follow the Conventions themselves (which, according to Article 2 would entitle them to protection), these combatants are ineligible to such legal protection.

Again, those making the case that holding prisoners at Gitmo and waterboarding a small number of them was illegal need to be in an uproar against what President Obama has ordered in Abbottabad. Osama bin Laden was unarmed and likely executed on the spot; if the Third Geneva Convention rules apply to Al Qaeda, this is a gross violation of Article 3, section 1, subsection a (banning "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture"), subsection d ( prohibiting "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples"), and Article 13 in its entirety. Again, a small number of hard core Leftists are making this argument, but the vast majority of Americans who criticized waterboarding, Gitmo, and the status of Illegal Combatant celebrated the death of bin Laden. Once again, these people need to explain their hypocrisy or defend poor bin Laden; once again, I do not envy that position.

I cannot repeat this enough: using vague phrases like "international law" and "social justice" may be persuasive as a cheap sophistry trick on the unthinking, but they carry very little intellectual rigor. Furthermore, they tend to trap their users when the situation changes. A great deal of criticism against Bush's policies can now be used to criticize Obama's mission against Osama bin Laden; those scoring political points during the last decade are going to do their best to forget their past positions now, but those of us who prefer truth to partisanship have a duty to hold those people accountable.