In 2002, when the United States openly suggested resorting to a pre-emptive military strike against Iraq in its fight against terrorism, then French President Jacques Chirac, in the New York Times, fiercely opposed this approach as being contrary to international law - opening a door to abuse and setting a wrong precedent. “Suppose that China would invade Taiwan because Taiwan would be an alleged security threat to China. What would the world say?", the French president exclaimed.

By Geert-Jan Knoops*

Yet, on the 2nd of May 2011, this type of criticism vanished. The world lauded the execution of Osama Bin Laden by US Special Forces as being an achievement of ‘international justice’. One wonders though to what kind of justice one was referring? Justice by revenge or justice by law?

Extrajudicial killing
That this could be qualified as an extrajudicial killing and not an act of self-defence can be gleaned from several sources. In the full text of Obama's victory speech on the 2nd of May the president literally says: "After a firefight, Bin laden was killed…". Thus, not during a firefight. It is therefore implied that there was a firefight, after which Bin Laden apparently was still alive and subsequently killed by the US Special Forces. A number of reports also indicate that Bin Laden was unarmed during the assault on the compound in Abbotabad where he was found. These observations therefore indicate that the US conducted an extrajudicial killing, which is in principle not permissible under international law. Not to mention the violation of Pakistani state sovereignty by the US operation which involved a team of Navy SEALs who entered Pakistani soil.

War on terror
Proponents of the elimination of Bin Laden argue that UN Security Council resolutions 1368 and 1373 (2001) provide legitimate grounds for a war on terror and therefore Bin Laden was simply to be treated as an enemy combatant. Resolution 1368 states, for example, that States may “take all necessary steps to respond to the terrorist attacks of 11 September 2001, and to combat all forms of terrorism.” But clearly, these resolutions cannot be interpreted in such a way that the territory of the whole world becomes one gigantic battlefield where every nation has the right to eliminate foreign nationals if they are suspected terrorists. Suppose that an American citizen, suspected of terrorism, would have been killed during a similar action by security forces of Iran somewhere around the globe. For sure, the US administration would have invoked the illegality of such action as being contrary to international law. Therefore, the United States conducting the same type of action, must be judged on the same principle.

Furthermore, Bin Laden has never been formally charged with the attacks of 9/11. Thus far he has been charged with murder of U.S. nationals outside the United States for his alleged role in the bombing of a US-operated Saudi National Guard training center in Riyadh of November 14, 1995, and the bombings of the US embassies of Tanzania and Kenya on August 7, 1998.

World of difference
Of course, there is a world of difference between morality and law. Morally, the targeting of (potential) terrorists to preemptively eliminate them may be understandable. But legally, such killings are in principle contra legem. And we all teach our law students that international law should apply equally; otherwise we would have anarchy. According to international law, if applied strictly, Bin Laden should have been apprehended and brought into a court of law. The law enforcement model, applicable here since no 'war' exists in a legal sense, denotes proper extradition procedures.

It is not without reason that we have international legal institutions such as the International Criminal Court in The Hague. Currently, several criminal investigations and prosecutions are pending against current and former political leaders such as president Omar Al-Bashir, Colonel Moammar Gaddafi and former president Laurent Gbagbo, also accused of killing thousands of people. Why are they subjected to criminal law proceedings while Osama Bin Laden is simply shot? As I have pointed out in my latest book “Blufpoker”, published last week, the selectivity in how our politicians apply international law should, after the 2nd of May, perhaps be one of our biggest concerns.

*Geert-Jan Knoops is Professor of International Criminal Law at Utrecht University

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Earlier IJT editions:

• International Justice Tribune, 127 (27 April 2011)
• International Justice Tribune, 126 (13 April 2011)
• International Justice Tribune, 125 (30 March 2011)
• International Justice Tribune, 124 (16 March 2011)
• International Justice Tribune, 123 (2 March 2011)
• International Justice Tribune, 122 (16 February 2011)
• International Justice Tribune, 121 (2 February 2011)
• International Justice Tribune, 120 (19 January 2011)
• International Justice Tribune, 119 (14 December 2010)
• International Justice Tribune, 118 (1 December 2010)
• International Justice Tribune, 117 (17 November 2010)
• International Justice Tribune, 116 (2 November 2010)
• International Justice Tribune, 115 (20 October 2010)
• International Justice Tribune, 114 (4 October 2010)
• International Justice Tribune, 113 (21 September)
• International Justice Tribune, 112 (8 September 2010)
• International Justice Tribune, 111 (25 August 2010)
• International Justice Tribune, 110 (14 July 2010)
• International Justice Tribune, 109 (30 June 2010)
• International Justice Tribune, 108 (16 June 2010)
• International Justice Tribune, 107 (2 June 2010)
• International Justice Tribune, 106 (19 May 2010)
• International Justice Tribune, 105 (5 May 2010)
• International Justice Tribune, 104 (21 April 2010)
• International Justice Tribune, 103 (7 April 2010)
• International Justice Tribune, 102 (24 March 2010)
• International Justice Tribune, 101 (10 March 2010)
• International Justice Tribune, 100 (24 February 2010)
• International Justice Tribune, 99 (10 February 2010)
• International Justice Tribune, 98 (27 January 2010)
• International Justice Tribune, 97 (13 January 2010)
• International Justice Tribune, 96 (23 December 2009)
• International Justice Tribune, 95 (9 December 2009)
• International Justice Tribune, 94 (25 November 2009)
• International Justice Tribune, 93 (11 November 2009)
• International Justice Tribune, 92 (28 October 2009)
• International Justice Tribune, 91 (14 October 2009)
• International Justice Tribune, 90 (30 September 2009)
• International Justice Tribune, 89 (16 September 2009)