The Death of Mastermind Osama bin Laden: Whose Justice?

4 May 2011

By Dr. Quirine Eijkman

In US President Barack Obama’s speech announcing the death of Osama bin Laden, he stipulated that the targeted operation he authorised was aimed at bringing him “to justice”. Furthermore, he was quoted saying that “justice has been done”, addressing those who lost loved ones due to al Qaeda’s terrorist attacks. The question however remains: what kind of justice has been done? Whose justice was served? On the one hand, President Obama vows the pursuit of justice in his statement and refers to American values including liberty and justice for all. At the same time, Obama emphasised that, shortly after taking office, he directed CIA director Leon Panetta to make the killing or capture of bin Laden the top priority of the US war against al Qaeda, whilst continuing the broader efforts to disrupt, dismantle, and defeat his network. As such, President Obama indirectly referred to the US practice of targeted killing.

Yet whose justice was served with the death of al Qaeda’s mastermind in Abbottabad, Pakistan? In his speech, the US President specifically addresses the victims of 9/11 as well as the Muslim community, who have both suffered from (the effects of) al Qaeda’s violent acts. Nonetheless, the focus seemed to be: US justice for US victims. Even though from an American perspective, the search for accountability for the terrible crimes committed on 9/11 is understandable and justified, one wonders if this sense of justice is similarly experienced by the rest of the world, especially by the people in Muslim majority states such as Afghanistan and Pakistan. Clearly, in addition to a strong legal component, justice also has social and moral connotations. Questions such as ‘who or what gives America the right to conduct arrests in other countries (without prior permission)?’ or ‘is a burial at sea in conformity with Islamic customs?’ arise. Hence, the perception of whether it was justified or not to kill al Qaeda’s leader matters: “Not only must justice be done; it must also be seen to be done”. Would capturing bin Laden alive and trying him in Pakistan, the US or – although unlikely –before an international tribunal not be more just and in accordance with principles of international law? Yes, security concerns would be significant, bin Laden could have used the trial as a last theatrical grandstand, but should this deter the West from respect for established principles of the rule of law?

Furthermore, from an (inter-)national law perspective, the legitimacy of the US practice of targeted killing for national security purposes is narrow, and the criteria for applying this tool of justice, and in particular to whom, are vague. For instance, there is a difference between military necessity and law enforcement purposes, as Melzer argues in his 2008 book entitled “Targeted Killing and International Law“. Essentially, when there is no legitimate military target, targeted killings fall under (stricter) criminal law requirements. Yet, as in the fight against terrorism, the distinction between the war- and the criminal law paradigm is blurred, the US should, as human rights organisations including Human Rights Watch advocate, make a special and public effort to clarify its (legal) position on targeted killings. Even though the death of Osama bin Laden may have been justified, the current US practice of targeted killings violates established principles of (inter-)national law. These principles require independent and transparent assessment if the targeted killing of a potential terrorism suspect is necessary and proportionate. As stressed by international humanitarian law and human rights law, justice can only be done when it is applied in accordance with the rule of law.