The Killing of Osama Bin Laden by United States Forces - Dissertation Example

?The Killing of Osama bin Laden by United s Forces: Legal perspectives, history shaping the legal principles, and implications A Dissertation Prospectus I. Introduction The right to due process under the law and rule of law are legal principles highly valued worldwide by freedom-loving peoples like the United States of America. They are important principles that people in a democracy have fought since time immemorial in democratic states. Those charged as criminals are presumed innocent unless proven by the courts as guilty and punishment are imposed on criminals and law violators in accordance with law and under the due process of laws. It is presumed that only the courts have the right to sentence a criminal or the erring to death or imprisonment. On 2 May 2011 Osama Bin Laden was killed. President Barack Obama’s 2 May 2011 account of the circumstance of the killing is this: “…We quickly learned that the 9/11 attacks were carried out by al Qaeda --- an organization headed by Osama bin Laden, which had openly declared war on the United States and was committed to killing innocents in our country and around the globe. And so we went to war against al Qaeda to protect our citizens, our friends, and our allies….I directed Leon Panetta, the director of the CIA, to make the killing or capture of bin Laden the top priority of war against al Qaeda, even as we continued our broader efforts to disrupt, dismantle, and defeat his network….Today, at my direction, the United States launched a targeted operation against that compound in Abbottabad, Pakistan. A small team of Americans carried out the operation with extraordinary courage and capability. No Americans were harmed. They took care to avoid civilian casualties. After a firefight, they killed Osama bin Laden and took custody of his body.” British Broadcasting Company’s documentation of President Barack Obama’s 2 May 2011 statement on Osama bin Laden’s death corroborated the version posted in the official webpage of the White House. The British Broadcasting Company’s documentation of Obama’s 2 May statement also reflected that President Barack Obama said that Osama bin Laden was killed AFTER and NOT DURING A FIREFIGHT. The 2 May 2011 press briefing provided by the US President Office of the Press Secretary via conference call described the Obama killing in this manner: “Bin Laden was a sworn enemy of the United States and a danger to all humanity, a man who called for the murder of any American anywhere on Earth. His death is central to the President’s goal of disrupting, dismantling and ultimately defeating al Qaeda and its violent allies. He was responsible for killing thousands of innocent men and women not only on 9/11 but in the 1998 East Africa embassy bombing, the attack of the USS Cole, and many other acts of brutality.” Although the same official Whitehouse official press briefing transcript mentioned near the end of the press briefing that Osama bin Laden was killed in the firefight as he resisted, it is clear from President Obama’s 2 May 2011 statement that Osama bin Laden was killed AFTER and not during a firefight. Further, even if we assume that Osama bin Laden was killed during the firefight, the press briefing transcript confirmed that the objective of operation of the US forces was to kill bin Laden because bin Laden’s death is “central to the President’s goal of disrupting, dismantling and ultimately defeating Al Qaedda and its violent allies.” Thus, whether bin Laden was killed during the firefight as one Whitehouse employee articulated or AFTER the firefight as reflected in the official statement of President Barack Obama posted in the official U.S. Whitehouse website, the fact remains that assassinating Bin Laden has been the official and central policy of the United State government under President Barack Obama. This work would like to examine the legal issues of the policy under international law as well as domestic laws of the United States, the international and United States human rights laws impinged or upheld by the policy, understand the historical context that produced the situation, and identify whether international law reforms or international institutional reforms are required for upholding human rights even as the fight against terrorism is maintained. In particular, the study would like to cover whether the Osama bin Laden killing upholds or challenges the doctrine of rule of law and due process promoted by all peace-loving governments and democracies. Related to this, the work has to cover whether the killing of Obama and targeted killings/assassinations are legal under international and U.S. laws and whether they pose a challenge to international laws on human rights and advancing and expanding the scope of human rights advocacy. Research Problem The research problem that this work will address is as follows: what are the legal perspectives and implications on the killing of Osama Bin Laden by US forces on 2 May 2011? What justifications are offered for the alleged legality of the kill? What historical circumstances shape the legal opinions on the killing? What are the cons and pros on the legality of the killing under international law? What are the implications on international law that follow from each perspective using international laws? Are the perspectives consistent with jurisprudences established earlier under international law? What appears to be the dominant legal opinion under international laws on the killing of Bin Laden? What are the consequences for human rights or on the United Nations Charter on human rights, if any? Meanwhile, just as important, is the killing of Bin Laden by US forces legal under the laws of the United States of America? What are the most important legal opinions on the matter articulated by some of the most important legal luminaries in America? If jurisprudence adopts the legal opinion, what will be the consequences for human rights in the United States, especially to human rights in the country based on the United Nations Charter on human rights, if any? Given the proposals years before Obama’s killing or assassination to make or convert the kill order against Obama into an order for targeted killing instead of an order for assassination, is targeted killing legal under international law and under the laws of the United States especially if the one targeted for killing has been a captive or it was possible to arrest him/her and put him or her under captivity? Study Objectives 1. Document the circumstances of the Bin Laden killing or assassination for its possible legal value and jurisprudence that it can create, strengthen, or raise under international law 2. Identify the legal issues or assess the pros and cons of the legality of the Bin Laden killing from the perspective of international law and the United Nations’ declaration on human rights 3. Identify the legal issues or assess the pros and assess the pros and cons of the legality of the Bin Laden killing from the perspective of the laws of the United States and its position relative to the UN declaration of human rights 4. Assess whether the right to due process under both international and US laws are impinged by the killing and the potential implications of the killing on the de facto legalization of assassinations under both the international laws and US laws 5. Assess the role of historical circumstance in moderating or shaping legal opinion/jurisprudences 6. Identify weaknesses if any in our international legal system that may have been indicated in the Bin Laden killing or assassination 7. Assess whether possible excesses, if any, in the Bin Laden killing or assassination can be examined by international bodies or whether there is a need to strengthen existing international legal institutions or create new ones Overview on Methodology The method that will be followed for completing this dissertation will not be extraordinary. Basic legal documents, jurisprudence and laws will be used to assess legal questions. The work of legal scholars will be consulted for legal opinions on the subject matter and insights on how research on the issue or topic can be advanced. Most important, the legal context or historical circumstances or historical data will have to be used to make the legal assessments that will be asserted by the dissertation valid for the historical circumstances and contexts of the Osama Bin Laden killing and similar circumstances that can emerge in the future. The most important component of the methodology is the legal assessment that uses the United Nations Declaration of Human Rights and the documents of the UN International Commission on Human Rights. II. Preliminary Review of Literature More than six years ago, focusing on the case of Osama bin Laden, Howard Watchtel examined the legality of assassination as a tool of U.S. foreign policy from the standpoint of the laws of the United States of America and international law. Even during that time and even much earlier, many writers have acknowledged “the practice of state-sponsored assassination as an invaluable method of protecting the interest of the United States against dangerous foreign leaders and terrorists” (Watchtel 677). Even during that time, more than six years from the assassination or killing of Osama bin Laden, Watchtel asserted that “one thing is certain: assassination is illegal under both U.S. and international law” (677). Yet, we saw in President Barack Obama’s statement that assassination was practically a key objective of the United States government with respect to Osama bin Laden. Given his belief that assassinations are illegal, Watchtel gave two recommendations. His first recommendation is that Executive Order (EO) be “amended to include a working definition of assassination” (Watchtel 677). His other or second recommendation is that the United States congress “pass a joint resolution clarifying the permissible legal bounds of government-sponsored targeted killing” (Watchtel 677-678). Watchtel argued that “defining assassination would help lawmakers, government officials, and members of the public understand some of the distinction between assassination and otherwise permissible uses of lethal force against state leaders and nonstate actors” (678). In Watchtel’s view, “a definition of the word “assassination by either the executive or legislative branch would also correctly shift the debate away from E.O. 12,333 and back to the proper context of assassination under the international law of armed conflict” (678). In other words, Watchtel basically argued that assassinating bin Laden should be continued to be pursued as a policy of the United States government but there must be a redefinition of the word “assassination” in EO 12,233 to make the assassination legal. More than this, Watchtel basically argued that assassinations should be continued as a tool of America’s foreign policy but the word “assassination” should be defined better in legal documents so assassinations can become permissible and legal. Watchtel lamented that “although U.S. officials are correct to presume that assassination is illegal, they fail to recognize that assassination is merely an exception to the rules relating to the use of force” (678). In effect, Watchtel argued that assassinations are illegal but there are exceptional situations where it is permissible or even morally right and the exceptions must be legalized under the laws of the United States. In the case of killing of bin Laden in 2011, however, we must recall that Osama bin Laden was already captured: do the international rules of war and of peace allow that prisoners or captives be killed or summarily executed? In addition to the two recommendation’s discussed earlier, another Watchtel’s advocacy is that “when policy makers discuss the legality of killing foreign leaders and terrorist, their discussion must always begin with the U.N. Charter and the customary law of armed conflict” and must NOT use EO 12,333 as the starting point for discussing the legality or illegality of assassinations (678). In other words, Watchtel’s advocacy is to make the targeted killing or assassination legal by the way of exceptions or by a claim that the United States is in a state of armed conflict with the forces or network of Osama bin Laden. Watchtel conceded nevertheless that even if EO 12,333 banning assassinations does not exist, “assassination would still be prohibited by international law” (678). According to Watchtel, redefining the term assassination in EO 12,333 is not an option is because “it will catalyze a negative response from other states and the general public” (678). On the other hand, redefining the word “assassination” would justify the killing of Bin Laden without “engendering widespread criticisms” (Watchtel 679). Watchtel further argued that “even in a case in which assassination would seem to be most justified, (and here Osama bin Laden is clearly the worst offender of the modern era), assassination is still illegal, but targeted killing is not” (679). Thus, basically, Watchtel’s advocacy was to make the killing of bin Laden appear as targeted killing rather than assassination to make the killing or assassination legal, probably both in international and U.S. laws. We can point out that the Watchtel’s perspective is that while assassination is illegal, targeted killing is not illegal. At the same time, we must recall that based on data available and accounts on the killing of bin Laden, “facts” as reported by the perpetrators of the killing of Bin Laden suggest that Bin Laden was killed as a captive or prisoner of the U.S. forces which raided his compound in Pakistan. Recall also the immediately after World War II, the worst perpetrators of genocide that killed far so many people than Bin Laden deserved a trial although they were executed. Many of the war criminals of World War II who have killed thousands if not millions of people were brought to trial and not summarily executed as what seems to be suggested in the case of Osama Bin Laden. Meanwhile, against the view Watchtel that targeted killing is not illegal, Steven David argued that targeted killing is associated with assassination nonetheless and “both international treaty and customary law outlaw assassination (112). Writing for the Congress Library in June 2007, Issam Michael Saliba even assessed that the implication of United Nation Security Council Resolution 1757 of 30 May 2007 makes assassination an act of terrorism (1-4). On the other hand, writing for the Law, Culture and the Humanities sometime mid-year 2011, Roger Berkowitz described the Obama bin Laden killing as an act of “assassinating justly” (346). Jennifer Elsea proposed another route: try suspected terrorists as war criminals before Military Commissions (Summary Section). This can be difficult when government is civilian and not military. Meanwhile, the benign view of Nils Mezler in the book, Targetted Killings in International Law, deserves a closer look because of the risks it may create on respect for human rights as Mezler posits for a “legal regulation of targeted killings” (Abresch 450). Based on a quick look at the existing legal and non-legal literature on the subject matter, the work has the potential to make unique contributions in the following areas of the current literature. First, on whether the killing of Osama bin Laden was legal under international and domestic laws of the U.S. and the implications it will have on human rights, right to due process of alleged offenders and terrorists to due process, and rule of law. Second, on whether targeted killings are legal under international and U.S. laws and on whether targeted killings should cover alleged offenders and terrorists in captivity and those who can be captured alive by authorities. And, thirdly, the work has the potential to advance reforms based on its analysis of the first two concerns. III. Methodology and Dissertation Plan A. Methodology This work will assess the legality of assassinations and targeted killings using several materials in international law: 1. The Articles of War of the Geneva Convention 2. Other international laws on war 3. The United Nations Universal Declaration of Human Rights 4. Other international agreements signed or unsigned by the United States pertaining to human rights 5. The Charter of the United Nations formulated in 1948 and its subsequent modifications 6. The relevant rulings or principles established by the International Court of Justice 7. Other documents that may relevant as identified in the course of research With regard to the laws of the United States, the work will refer to the following materials: 1. The Constitution of the United States of America 2. The laws of the United States pertaining to civil liberties, human rights, right to due process, and rule of law 3. Relevant laws and U.S. Congress resolutions that were applicable at that time of Osama’s bin Laden’s killing or assassination 4. Relevant executive orders of the executive branch of the United States government that were applicable during the time of Bin Laden’s death or assassination 5. Other documents that may relevant as identified in the course of research Even as the basic documents are used, the work will review and use the relevant works of legal scholars as they appear in the legal journals as well as the legal opinion of the most popular writers or legal luminaries on the questions covered by this work. The legal questions and other questions that will be covered by this work are as follows: 1. Whether it was legal under international or U.S. laws to kill Bin Laden or anybody when the person or offender targeted for killing is a captive or can be captured alive at the moment of the kill or assassination 2. Whether a legal definition of “assassination” can be re-articulated or distorted such that an assassination can still be implemented under the terminology “targeted killing” as argued by Howard Watchtel 3. Whether targeted killing is really legal under international and U.S. domestic laws and, as applicable, the circumstances under which targeted killings can be legal under international and U.S. domestic laws 4. Whether the Osama Bin Laden killing or targeted killing impinge on the rights of individuals laid down by the UN Declaration of Human Rights and documents of the United Nations Commission on Human Rights, the rights of individuals to due process under applicable laws, and the principle of the rule of law in apprehending and punishing alleged criminals and terrorists 5. Whether legal reforms are necessary in both the international and U.S. international arenas for promoting human rights as necessary even as terrorism both at the international and national levels are addressed B. Tentative Dissertation Outline For the work, the prospective author of the dissertation has adopted the following working outline: I. Introduction II. Review of Literature III. Methodology IV. Results A. Legal History: Assassination and Targeted Killing Under International and U.S. Laws B. Historical Circumstances in the Case of Osama Bin Laden C. Legality of Killing Osama Bin Laden and Offenders Under Captivity or Where Captivity is Possible Under International and U.S. Laws D. Legal Feasibility of Justifying Assassinations Under the Term State-Sponsored Targeted Killing Under International and U.S. Laws E. Legality of Targeted Killing Under International and U.S. Laws F. Implications of the Bin Laden Kill on the Right to Due Process, Rule of Law, and Human Rights in General V. Conclusion and Recommendations for Reforms C. Implementation Plan For writing my dissertation, I believe that the following schedule of work can be feasible. However, it is possible that the difficulty of the course work can force me to add a contingency period of one year. In any case, fully completing the dissertation is possible in two years or less. Work Working Period Introduction, Review of Literature, Methodology (Chapters I to III) 3-6 months Results and Conclusion (Chapter IV and V) 6-12 months References Abresch, William. “Book Review on Nils Melzer’s Targetted Killing in International Law.” EJIL 20 (2009): 447-485. Berkowitz, Roger. “Assassinating Justly: Reflections on Justice and Revenge in the Osama Bin Laden Killing.” Law, Culture and the Humanities 7.3 (2011): 346-351. British Broadcasting Company. “Obama on Bin Laden’s death.” 2 May 2011. Web. 31 December 2011 . David, Steven. “Israel’s Policy of Targetted Killing.” Ethics & International Affairs 17.1 (2003): 111-126. Elsea, Jennifer. Terrorism and the Law of War: Trying Terrorists as War Criminals before Military Commissions. US Congress: CRS Report for Congress. Mezler, Nils. Targeted Killings in International Law. Oxford University Press: 2008. Obama, Barack. “Remarks by the President on Osama Bin Laden. U.S. Whitehouse.” 2 May 2011. Web. 30 December 2011. “Press briefing by U.S. Senior Administration Officials on the killing of Osama bin Laden.” U.S. President’s Office of the Press Secretary. 2 May 2011. Web. 30 December 2011. Saliba, Issam Michael. “The Hariri Asssasination: A Nobel Development in International Criminal Law.” The Law Library of Congress 3 (June 2007): 1-8. Watchtel, Howard. “Targeting Osama bin Laden: Examining the legality of assassination as a tool of U.S. foreign policy.” Duke Law Journal 55 (2005): 677-710. Read More