Bin Laden’s Killing and the Rule of Law
Bin Laden’s Killing and the Rule of Law
On May 2nd, the United States Navy SEALs stormed the compound of Osama bin Laden killing the world’s most wanted terrorist. A month later, this killing continues to affect the international community.
This article shows how an idea developed by the ancient Italian political philosopher Machiavelli –states are selfish entities out to protect their national security with little regard for human rights— has come to the forefront of policymaking.1 Human rights have been relegated to the back-burner of policy-making.

Bin Laden’s killing reinforces the de facto rule that national security trumps human rights observances. Bin Laden’s killing underscores the notion that humans live in a world where realpolitik is a stark reality, and liberalism is only dream.2 As Machiavelli points out, countries are selfish, and only ruthless means keep them alive.3

This article looks at three aspects of how Washington’s drive for national security has trumped international law and human rights in Pakistan.  First, Washington’s desire to protect itself against bin Laden drove U.S. officials to disregard Pakistan’s sovereignty. Second, the violation of Pakistan’s sovereignty enabled the Taliban to rise. With the Taliban in operation of western Pakistan, civilians are subject to human rights abuses. Third, Washington’s policy to kill bin Laden instead of capture him can be viewed as undermining the meaning of justice.

The disregard for human rights and disruption of justice, all in the name of national security, highlights how little the world has changed in terms of prioritizing national security over human rights.

American National Security

Anthony DiMaggio, a professor at Illinois State University,  asserts that the US pursues a policy of Machiavellianism – meaning states can do whatever is necessary to protect their national security, including violate human rights. The U.S. uses Machiavellian policies because it feels the terrorist organizations in the Middle East threaten American national security. The US relies on the Middle East’s oil for American livelihood. Since 9/11, some in the U.S. believe that the Middle East terrorist organizations are trying to prevent the US from obtaining oil for its livelihood.

Therefore, the U.S. pursues a policy of protecting its national security. To protect itself, the U.S. initiated military action in Afghanistan, which harbored bin Laden – the mastermind of the 9/11 attacks. The mission of the war in Afghanistan- to kill bin Laden – has reinforced an international precedent that gives states the right to pursue enemies on another country’s territory. This military action in Afghanistan has cost more civilian lives than the 9/11 terrorist attacks4 and has recently spilled into Pakistan.

Ian Brownlie, a leading international lawyer, states, “Military action across a frontier to suppress armed bands, which the territorial sovereign is unable or unwilling to suppress, has been explained in terms of legitimate self-defense on a limited number of occasions in the present century.5 This reveals a policy approach that disregards national sovereignty in the name of national security.

The lack of formal charges against the U.S. for violating Pakistan’s sovereignty, Mark Kersten argues, reminds the world that national security is still a top priority.6 Future legal scholars will determine whether bin Laden’s assassination created a new precedent for the violation of national sovereignty.

Pakistan and India

One can argue that the assassination of bin Laden, carried out in the name of U.S. national security, may lead Pakistanis to be more exposed to human rights violations.7 Because the U.S. angered Pakistan with the killing of bin Laden, the U.S. now has limited ability to operate on Pakistani territory. The Pakistani government wants U.S. military presence minimized as a result of the disrespect they received over their sovereignty.8 The Taliban is likely to rise because Pakistani civilians will lose U.S. protection and it is unclear whether Pakistan’s army will be able to or even wants to fill the void.9

Instead of focusing on fighting the Taliban, Pakistan will most likely use its military to focus on Kashmir and India. Since independence, when the British divided Kashmir between India and Pakistan, Pakistan has wanted all of Kashmir since they believe that India oppresses Kashmir’s predominantly Muslim population. This continuous dispute over Kashmir has affected all aspects of Indo-Pakistani relations. Pakistan fears India is also trying to take all Pakistan’s territory because India helped Pakistan’s former province, Bangladesh, become independent.10

Now that India is becoming involved in Afghanistan, Pakistan fears India will try to create unrest in Pakistan’s western most province of Baluchistan to break away the province from Pakistan. Pakistan has allied with Afghan warlords and Pakistani terrorists forcing India to become militarized.11 Meanwhile India is training Afghan civilian and military personnel to prevent Afghanistan from becoming a safe haven for terrorists and to monitor and influence Pakistan.12 There have been back-and-forth skirmishes have caught Pakistan and India in a cycle of conflict that prevents both from fighting the Taliban.

However, the Taliban is considered mainly a Pakistani problem, and Pakistan needs Washington’s help. The U.S. has the power to persuade Pakistan and India to compromise on Kashmir.13 With U.S. help, Pakistan can move troops to the western border where the Taliban dominates, instead of concentrating troops on the eastern border that lies next to India.14 However, the U.S. refuses to help.15

It will not pressure Pakistan to stop supporting terrorist, Lashkar-e-Toiba,16 and it continues to make economic and nuclear alliances with India to improve business relations.17 This alliance with India only pushes Pakistan to further their alliances with Afghan warlords to counter a growing U.S. presence in Afghanistan.18

This alliance between the U.S. and India also makes India think its better than Pakistan so that it does not have to compromise on Kashmir. An alliance that was perfectly useful to persuade India to be flexible on Kashmir has propelled Pakistan to focus its military efforts even more heavily on India.19 With the U.S. presence minimized in Pakistan, civilians are left even more vulnerable to Taliban rule. If the U.S. leaves Afghanistan, Shariah law is likely to be enacted once again.

The Legality of bin Laden’s Killing and Its Effect on Justice

There is much controversy surrounding bin Laden’s death, since he was not afforded due process in the court of law. Mark Quarterman, an analyst with the Center for Strategic and International Studies, explains that under Title 50 of U.S. federal law, if the CIA orders a killing, the killing becomes an assassination. The killing is classified as an assassination because the victim becomes politicized as the CIA deals with political intelligence. All assassinations are illegal under international law.20

Therefore, Bin Laden should be classified as a political leader of al-Qaeda, not as an enemy combatant. A U.S. official has disclosed that the CIA ordered bin Laden’s killing.21 As such, bin Laden’s killing was targeted at a political leader making it illegal under international law and requiring a penalty from the international community. The policy of the U.S. to kill instead of capture bin Laden will likely change how justice is delivered because the international community is unlikely to condemn the U.S.

According to Professor Rob Grace, the international community unwillingness to condemn the U.S. sends the message that assassinations are legal if they protect a country’s national security. Grace argues that American action has created precedent in the pass and will do so again especially with Israeli Knesset member Shaul Mofaz already taking the opportunity to call for the assassination of Hamas leaders.23 According to Thane Rosenbaum, people, now, accept that justice is delivered by the simple act of making a perpetrator pay regardless of whether they have a trial.24

Yet, under international law, justice has a whole different meaning. Suspects are to receive justice – a basic human right – through the trial process in a court of law25 to keep the consistency of laws and procedures.26 This consistency was undermined with bin laden’s death.

Conclusion

The notion of a world where the rule of law reigns has been pushed back. Without consistency in laws and procedure, the notion of human rights and justice has lost credibility because these ideas are based on the rule of law.

This inconsistency becomes all too clear with the recent capture of Serbian war criminal Ratko Mladic. Less than a month after the killing of bin Laden, Serbian war criminal Ratko Mladic was arrested on charges of genocide, crimes against humanity, and war crimes during the Yugoslavian War. His arrest was met with enthusiasm as victims rejoiced that justice had finally been served.

These two vastly different approaches to justice in the international arena only prove to opponents of human rights that these ideals are not universal. One must wonder if human rights can thrive, or are these rights just impractical idealism like Machiavelli claimed so long ago.

1  Ioana, Petre. Machiavelli and the Legitimization of Realism in International Relations. Editura Lumen, page 42, 2009.

2  DiMaggio, Anthony. “American Empire and the Legacy of Machiavelli.” Illinois State University, 2004.

3  Ioana, Petre. Machiavelli and the Legitimization of Realism in International Relations. page 42. 2009

4  Bennis, Phillis. “The Killing of Bin Laden: Justice or Vengeance?” Alternet. May 2, 2011.

5  Brownlie, Ian. “International Law and the Activities of Armed Bands.” The International and Comparative Law Quarterly, 1958.

6  Kersten, Mark. “Bin Laden and International Law: Death or Trial?” Justice in Conflict. May 3, 2011.

7  “Taliban swears retaliation for Osama’s death.” The Times of India, May 18, 2011.

8  “Pakistan Warns US Against Future Unilateral Military Action.” VOA News, May 5, 2011.

9  “Is Osama bin Laden killing legal? International Law experts divided.” International Business Times. May 7, 2011.

10  Baughman, Duane and O’Hara, Johnny. Bhutto, PBS Independent Lens, May 10, 2011.

11  Siddiqa, Ayesha. “Pakistan’s Counterterrorism Strategy: Separating Friends from Enemies.” The Washington Quarterly, Winter 2011.

12  Fair, Christine. “India in Afghanistan, part I: strategic interests, regional concerns.” Foreign Policy. October 28, 2010.

13  Reidel, Bruce.  “‘US should encourage India to be more flexible on Kashmir.’”Rediff. February 26, 2011.

14  “India and Pakistan Relations – The Need for Quiet Diplomacy.” National Security Network, February 26, 2010.

15  “No policy change on Kashmir: U.S.” The Hindu. December 22, 2010.

16  Reidel, Bruce. “‘US should encourage India to be more flexible on Kashmir’.”Rediff. February 26, 2011.

17  Rizvi, Dr. Hasan-Askari. “ANALYSIS: Critical issues in India-US relations.” Daily Times. November 7, 2010.

18  Siddiqa, Ayesha. “Pakistan’s Counterterrorism Strategy: Separating Friends from Enemies.”The Washington Quarterly, Winter 2011.

19  Rizvi, Dr. Hasan-Askari. “ANALYSIS: Critical issues in India-US relations.”Daily Times. November 7, 2010.

20  “Is Osama bin Laden killing legal? International Law experts divided.”International Business Times. May 7, 2011.

21  “Special Report:The Osama bin Laden kill plan.” The Citizen. May 21, 2011 and “U.S. team’s mission was to kill bin Laden, not capture.” Reuters, May 2, 2011.

22  Grace, Rob. “Law, Justice, Bin Laden.” Foreign Policy. May 3, 2011.

23  Rosenbaum, Thane. “Osama Bin Laden, Saddam Hussein, Adolf Eichmann — and Revenge.” Huffington Post. May 6, 2011.

24  “Is Osama bin Laden killing legal? International Law experts divided.”International Business Times. May 7, 2011.

25  “What This Core Competency Is and Why It Is Important.” National Association for Court Management. 2011.

26  Lynch, Colume. “General tied to war crimes is captured.” The Sacramento Bee. May 27, 2011.

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