Musings on OBL

(I will try to keep this post as non-legalistic as possible, and to abstain from delving too much into jurisprudence and legalese.)

My initial reaction to the news that Osama Bin Laden (“OBL”) died was joy. Who couldn’t help but feel happy that someone who embodied evil was finally gone? However, as the details of the circumstances surrounding his death surfaced, the lawyer in me started to doubt the legality of his, for lack of a better term, execution.

Of course, people would object. They would say that it is only right that he was killed. But the law is the law – it may not always be fair or just, but it is the law. This maxim is instilled in lawyers all over the world, and it’s a hard mindset to break free from.

My main issue concerns the disregard of Pakistan’s sovereignty. The sovereignty of a State within its own territory is not just a peremptory norm, but it is also enshrined in the United Nations Charter. Undeniably the operation that finally ended in OBL’s death was a state-sanctioned one which was performed in a foreign soil. Now there are standards under international law which govern the use of force in a foreign territory. There may be instances wherein this use of force may be sanctioned (i.e. defense of oneself and/or another State), but to condone the idea that a State may disregard another sovereign State’s sovereignty and claim that the latter consented to such action after the fact, as implied by the other’s actions, is just frightening. To use a rather crude analogy, this is tantamount to a bully saying that the bullied kid consented to the bullying since he allowed the bully to push him around, and the latter did not even say anything to his defense after the bullying.

Now, one argument for the legality of the action against OBL states that the United States was engaged in a non-international armed conflict with Al Qaeda. This would, however, mean that Common Article 3 of the Geneva Conventions would apply. (Indeed I am reminded of an instance, a few years back, wherein the Bush administration admitted that Common Article 3 applied to terrorists.) Under Common Article 3, the combatants are still entitled to certain rights, i.e. those not actively taking part in the hostilities shall be treated humanely. Corollary to this is that murder and summary executions are prohibited. And, incidentally, there are reports that OBL was not armed when he died.

It's just a shame that OBL wasn't just captured instead and brought to trial. True, there's a chance that OBL on trial may be seen as martyrdom on his part, but this is better than having his followers perceive him as an assassinated hero for their cause.