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Best of 2011: The murder of Osama Bin Laden


Osama Bin Laden'When thy enemy shall fall, be not glad, and in his ruin let not thy heart rejoice.' Proverbs chapter 24, verse 17.

We have not achieved justice, as US President Obama announced, by acting unjustly.

The Universal Declaration of Human Rights, which Eleanor Roosevelt, widow of another Democrat President of the United States, brought to magnificent life on 10 December 1948 provides that:

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

The US adopted the UDHR, and it has not ratified any significant international human rights treaty since. It committed itself morally, if not in domestic law, to outlawing the kind of extra-judicial killing that mars the public lives of governments in Africa, South America, parts of Europe and other 'advanced' countries that have presidents, parliaments, and coups and under-classes.

These are killings not authorised by courts and judges after a fair trial. Extra-judicial killings are, as Osama bin Laden's death was, murder. Bin Laden was not brought to justice. His execution by agents of the sovereign people of the United States was a fundamental breach of Article 10 of the UHDR.

Even the Israelis — not renowned for their embrace of the internationally recognised human rights of Palestinians — acknowledged this distinction when, more than 40 years ago, they put Adolf Eichmann on trial in Jerusalem, after kidnapping him in South America, to face formal charges that he had planned and facilitated horrendous crimes against humanity.

We have slipped, politically, far from the objectives of both the International Court of Justice in The Hague — where Bin Laden could have been tried — the domestic tribunal that tried (then ordered the execution of) Eichmann, and the extraordinary nobility of the aims of the Nuremberg trials.

It was the US and their second world war allies who set the extraordinary precedent of providing independent courts of justice to address the massive crimes against humanity carried out in Europe by Nazis against their own and others' citizens: not only murder, but genocide; torture, retaliation killings of citizens in response to unrelated partisan atrocities; retrospective laws and politically partisan 'courts' that sent men and women to horrible deaths after travesties of 'hearings'. All of it condemned, and all of it challenged by the concept of justice for all, no matter who wins the war.

I do not argue that Obama is an international criminal, but that the laws of civilised behaviour must apply to every actor in every circumstance. Killing Bin Laden, rather than capturing him and putting him on trial, was obviously the objective of the attack on his retreat, so let us not pretend otherwise.

Politically, Obama had every reason to do what he did, but in the process he committed his people to a legal and ethical mistake which will be a continuing obstacle to the West's integrity in its pursuit of freedom and democracy, internationally recognised standards of justice and human rights, and lasting peace.

The author of Proverbs speaks for every one of us who respects the Book that is the common heritage of men and women of goodwill who are Jewish, Christian and Muslim, and every good and humane leader whether or not she is committed to an organised or institutionalised faith. A quote commonly attriubuted to Martin Luther King sums up my sentiments most precisely:

I mourn the loss of thousands of precious lives, but I will not rejoice in the death of one, not even an enemy. Returning hate for hate multiplies hate, adding deeper darkness to a night already devoid of stars. Darkness cannot drive out darkness: only light can do that. Hate cannot drive out hate: only love can do that.

When I was admitted to practice I committed myself to the rule of law, because without order and predictability and an agreed limit to power there can't be any self-control, room for liberty to flourish or confidence to grow that an individual can safely lower their guard and share with strangers, which we need to move away from the comforting cage of family, tribe, village and city and nation.

We are still faltering over at the frightening realities of the global village and the global economy, and genuinely scared about the responsibilities that come with the globalisation of human rights (look at how we treat refugees).

But what are now UN-initiated 'universal human rights' had their genesis in so-called natural or divine laws, and an effort to make us see that our deities aren't shaped by particular human culture, and wrongs have unintended long-term consequences.

There may be exceptions to a particular rule of the law, which is a living instrument, but the regulation of revenge was what made local customs 'common', and nations grow. Both law and spirituality define revenge as an outlawed reason for any act, no matter how brave and skilful or how great the provocation. 

Moira RaynerMoira Rayner is a barrister and writer. She is a former Equal Opportunity and HREOC Commissioner. She is principal of Moira Rayner and Associates.

Topic tags: Moira Rayner, Osama bin Laden



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Existing comments

I'm with Moira on this one. There is no doubt in my mind that the objective of the exercise was to kill Bin Laden, not to capture him and bring him to trial for alleged offences. And by using its military might and technology to achieve that, the US has sadly undermined again the fundamental importance of the rule of law in inter-national as well as intra-national affairs.

Ginger Meggs | 04 January 2012  

Thanks Moira Rayner for you clear and powerful article. It is important that articulate people, such as yourself, put out such a point of view. Seduction of our society by the "justice" of retribution and revenge occurred in the way distant past and we are now like old married couples in our livng rooms, comfortable and cosy with accepting as fair the need to get even - this as reasonable as having the heater on in winter.

Paul | 04 January 2012  

I am not sure the case is as clear-cut as Moira suggests. If an enemy soldier is trying to kill you, you are entitled to kill him first. Are leaders of military organisations (eg Al Qaeda) exempt from the consequences of engaging in combat? In 1942, British commandos launched an unsuccessful raid on Rommel's Afrika Korps HQ presumably to kill/capture him. He was a threat to British forces. The real problem in this case, it seems to me, is that Obama, for political reasons, misrepresented an attack aimed at eliminating a military threat to US forces and citizens as "justice". Of course, if he was an unarmed prisoner of war, that would be another thing...

Hugh Dillon | 06 January 2012  

Here an alternative scenario reapplying the words from this article and some from Wikipedia. Its 22 July 2011 and your teenage children are part of the group in Norway enjoying a camp of the Workers' Youth League (AUF) of the Labour Party on the island of Utøya. Anders Behring Breivik is shooting them one by one, after bombing government buildings in Oslo that resulted in eight deaths. The police are tasked to stop his murderous activity, and while he has your teenager in his sights, the police chief orders one of his snipers to shoot Breivik. However, since he has not had a fair trial and his killing was not authorised by courts and judges after a fair trial, Breivik‚Äôs death would be murder because he will not have been brought to justice. His execution by agents of the sovereign people of Norway would be a fundamental breach of Article 10 of the UHDR. Fortunately the police chief does not listen to the lawyers and the teenager is saved. Politically, the police chief had every reason to do what he did, but in the process he committed his people to a legal and ethical mistake which will be a continuing obstacle to the West's integrity in its pursuit of freedom and democracy, internationally recognised standards of justice and human rights, and lasting peace. Obama made a hard choice that will save more than a few teenagers. Certainly it would be better to have captured him alive, interrogated him, captured all the baddies from that intelligence, put him on trial and then put him in prison for life. Sometimes, though life does not work out as it is supposed to in theory.

Obama Fan | 07 January 2012  

I agree we should never rejoice in the killing of our enemies. However, murder is unjustified killing. I think the killing of Osama was a just act. We don't need courts to condemn Osama, his guilt was undeniable. When Samuel struck down Agag, there was no trial, and yet it was still a just action, however horrible it may seem. Sometimes justice is a terrible thing to behold.

Alex | 08 January 2012  

I'm aware of a couple of previous occasions when the objective was to capture him alive, and he evaded capture. My understanding is that the wording of the order changed to state that the preference was he be taken alive, but that he be killed if there were any resistance or if he attempted to evade capture. Whether this change in scope was justified is a very valid question. However, I suspect those involved had to weigh this against the possibility that he might evade capture again and that more civilians would die as a result of his continued activities.

David | 22 April 2012  

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