BIN LADEN AND THE LAW


No doubt that Osama Bin Laden is loathsome. He was accused by the civilized world for perpetrating the most murderous crime against humanity committed in recent years: the World Trade Center bombing that claimed the lives of at least 3000 civilian lives. He is also said to be the leader of the dreaded al Qaeda, a notorious terrorist group that has either claimed responsibility or said to be responsible for many terrorist acts worldwide. So when news broke out that Osama Bin Laden was killed, most of the civilized world rejoiced.

Be that as it may, human rights and humanitarian law advocates have sounded the bells of alarm. Despicable as he may have been during his lifetime, the circumstances of his killing may have undermined the normative system that we have nurtured to provide protection to human beings against potential abuses of states. Specifically, nagging doubts have now been expressed on the legality of his killing under international law, and with good reasons.

The right to life is a cornerstone of Human Rights Law. It is a guarantee against the arbitrary taking of life. According to the United Nations Human Rights Committee, this right is absolute. Side by side with Human Rights Law, International Humanitarian Law is also the applicable law where there is an on-going armed conflict. Here, the point of divergence between these two branches of international law is on the issue of culpability. While human rights law provides that the right is absolute, humanitarian law nonetheless exempts those who may kill from criminal liability if the killing is done pursuant to the laws and customs of warfare. In times of armed conflicts, killings would not be criminal if combatants will target only valid military objects, the definition of which is a person, thing, or object whose destruction will contribute to the military objective, that is: subjugation of the enemy with minimal collateral damage. All killings of civilians, including combatants who have laid down their arms, are hence prohibited and criminal.

Given that the right to life is absolute under Human Rights Law, the first issue is whether Bin Laden’s killing is justified under International Humanitarian Law. The US impliedly says it is when its authorities invoke “self-defense” as a justification for the killing. Problem here is that “self-defense” may only be invoked in case of an armed attack. In the case involving the US backed Contras out to topple the then Sandinista government in Nicaragua, the International Court of Justice defined an armed attack as the “sending of regular armed forces or its equivalent into the territory of another state”. The questions insofar as the Al Qaeda is concerned are: does it have regular armed forces or its equivalent? Did it send its forces into the territory of another state? And if so, whose territory?

Furthermore, self-defense is subject to both necessity and proportionality. According to United Nations Special Rapporteur on Extrajudicial Killings, Philip Alston, a targeted killing is legal “only if it is required to protect life (making lethal force proportionate) and there is no other means, such as capture or nonlethal incapacitation, of preventing that threat to life (making lethal forcenecessary)”.

The American Supreme Court has had at least two instances to rule on the characterization of the US “war against terror” In the cases of Hamdan and Boumediene, the Court refused though to categorically rule that the conflict was either international or non-international. Instead, it nullified the measures adopted by the Guantanamo Military Tribunal as contrary to the rules and customs of warfare. It ruled that its procedure was contrary to Common Article Three of the Geneva Conventions, specifically, the provision that the imposition of penalties must be done only after judicial determination that conforms to minimum standards recognized by civilized nations. The invalidated procedure included a refusal to grant the accused access to evidence presented against him.

While these two American decisions may be read to mean that the “war against terror” is governed by International Humanitarian Law, it still does not answer the question of whether the killing of a combatant, even assuming Bin Laden to be one, is justified under all circumstances. It is hence no different from the question of whether all combatants may be killed all the time.

Interestingly, the Supreme Court of Israel may have already ruled on this issue. In the 2006 Targeted Killings case, two human rights NGOs challenged Israel’s policy of targeted killings or assassinations as violative of International Humanitarian Law and Human Rights Law. The Court found that a civilian taking a direct part in hostilities, including members of a terrorist organization – may be lawfully targeted, provided four conditions are met i.e., the attacking State must have accurate and verifiable information about the target; any killing must be thoroughly investigated and if innocent civilians are killed compensation must be paid; any killing must not violate the principle of proportionality; and most importantly, “a civilian taking a direct part in hostilities cannot be attacked if a less harmful means can be employed”.

Since US authorities have admitted that Bin Laden was unarmed when he was killed, the conclusion is that his killing was not justified. As explained by the Israeli Court, it is because: “Trial is preferable to use of force. A rule-of-law state employs, to the extent possible, procedures of law and not procedures of force.”#

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8 comments on “BIN LADEN AND THE LAW

  1. ricky a. pollo says:

    No objection your honor. Five thumbs up for a good description based on the law both humanitairan, civil and international law.

  2. Renato Pacifico says:

    Let us not worry about Osama Bin Ladin. He did not die in Abbotaland. Osama died of kidney failure sometime ago. For Americans to get a move on with their life and a satisfaction of blood-lust sense of justice, Americans staged the firefight. There are plenty of missing pieces in Obama’s press releases. They must have thought that Americans think like Filifinos. Or, maybe, because their cook is a Filifina, Obama must have taken a Filifino virus that is incurable.

  3. Renato Pacifico says:

    This is not conspiracy. These facts are physically impossible. Here goes:
    1. 1:00 a.m. A Pakistani tweetered a noisy wop-wop of helicopter. Debunking White House press release that the Blackhawk helicopters were enhanced to muffle the noise
    2. 40-minute firefight. They swooped in at 1:00a.m. “firefight” lasted 40-minutes that makes it 1:40 a.m. Then they burried Osama’s body in the Arabian Sea at 2:00a.m. which is 1,200 miles away from Abbotland.
    3. Ponder this, Blackhawks has 350-mile range. Blackhawks speed is 190 knots at roughtly 225mph. Calculate the time from Abbotaland to Arabian Sea to dump Osama’s body. 1,200miles divided by 225mph. How many refueling along the way?
    4. Several days later, White House made another press release that they did not whisked Osama’s body to Arabian sea after all. They dropped by Baghram airforce base in Afghanistan. Took pictures, DNA samples and body scan. Still doesn’t explain the 20-minute ride-and-dump in Arabian Sea.

  4. Renato Pacifico says:

    5. DNA matching takes a minimum of 3-days. The fastest available may you be in the Philippines (in the Philippines days is equivalent to forever).
    6. Why bother dumping Osama’s body in Arabian Sea when they can have a decent burial in Afghanistan?
    7. Why hastily dump Osama body in Arabian Sea ? Because Osama is badly decomposed after dying of natural cause.
    8. Why are they not releasing the blown-head of Osama when it is OK to release the obliterated body of american civilians and their attrocities?
    9. Why not release the video which each SeAL has propped on their head? It is not graphic! It is just a shoot-out which we can see everyday in Glorieta movie house

    OBAMA MUST HAVE THOUGHT AMERICANS ARE BUNCH OF FILIFINOS.

    That is why Obama is dogged with follow-up press release to convince the Filipino-think-alike Americans that Osama died in the firefight.

    OSAMA BIN LADIN DIED OF KIDNEY FAILURE. SOMETIME AGO. SO THEY HAVE TO COME UP WITH PLANS THAT NATURE OVERTOOK AMERICAN’S BLOOD LUST

  5. Renato Pacifico says:

    Maybe, just maybe, Obama might be reading the murder/suicide of Trining Failon where her journalist husband have his house slaves clean up the crime scene and the stupidiest of all instructed them to put the gun back where it was found. ! WoW! And I thought journalsits are intelligent. And all Filipinos swallowed it. And Failon was never charged of tainting crime scene and obstructio of justice.

    Well, if they didn’t cancel Lacson’s passport, freeze assets, which is so elementary in law enforcement if they are flight risk, then anything goes.

    What good are memorizing litanies of laws in the Philippines when they don’t know what to do with it.

  6. Renato Pacifico says:

    Where Failon’s house slaves trained by CIA in biohazard clean-up? CIA call these people who covertly clean-up crime as “CLEANERS”. And I knew all this from American movies. Philippine movies are only good in geometric plot called Love-TRIANGLE. And let us not forget the Adarnas, too.

  7. Renato Pacifico says:

    Philippines has plenty of laws that are being ignored. It is only used when it is convenient. Like Child Abuse on Wilie Revellame when the government-sponsored general child neglect is sooo obvious in the streets of Metro Manila. Well, Willie must have rankled some competetors. And Voila, Filifinos suddenly have “child abuse”. What about government-sponsored child abuse? Hey, yo, Jollibee! See those children dumpster diving for those morsels of left-over burgers? Can’t you see them?

  8. Renato Pacifico says:

    Based on the killing of Osama Bin Laden and White House excuses and its lawyers, I CAN SAY PHILIPPINE LAWYERS DO LEARN FROM AMERICA 🙂 … MORE and BETTER 🙂

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