Cross-posted on the Invisible College
I won’t retrace and repeat the numerous online discussions on the general question of the legality of Bin Laden’s killing. You can find some thoughts on various blogs, such as EJIL Talk!, over at Lawfare, Opinio Juris and Justice in Conflict.
One issue which has not been put forward in what I’ve read is whether UN Security Council Resolutions could be a basis for the legality of the killing. Indeed, discussing the issue with a colleague this afternoon, we wondered whether some UNSC Res, adopted under Chapter VII could be used to justify the killing. It might seem a little far fetched, because, although Res. 1368 implicitly approved the use of force as part of the right to self-defense after the 9/11 attacks, all Resolutions I’ve seen in relation to Bin Laden or Al Qaeda take measures to freeze assets and call for combating terrorism, but don’t explicitly allow the killing of an individual. But it is true that these Resolutions do clearly recognize the organisation and its leader as threats to peace and security and could be loosely interpreted as allowing to take these measures to stop this threat. But all in all, I didn’t believe that this argument was really valid and that the SC had ever had the intention to authorize such actions…
…And then tonight, I saw this astonishing statement from the President of the Security Council, made on behalf of the Council. Here are some notable excerpts from the statement:
“In this regard, the Security Council welcomes the news on 1 May 2011 that Osama bin Laden will never again be able to perpetrate such acts of terrorism, and reaffirms that terrorism cannot and should not be associated with any religion, nationality, civilization or group.
“The Security Council further reaffirms its call on all States to work together urgently to bring to justice the perpetrators, organizers and sponsors of terrorist attacks and its determination that those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of these acts will be held accountable.”
“The Security Council reaffirms that Member States must ensure that any measures taken to combat terrorism comply with all their obligations under international law, in particular international human rights, refugee and humanitarian law.”
So, reading these paragraphs together in plain English, and if I’m not mistaken, 1) the Security Council approves the death of Bin Laden 2) considers that his death fits the definition of “bringing someone to justice” and “holding him accountable” and 3) considers that his death complies with international law.
Let’s put aside the questionable fact that the SC would explicitly approve the death of an individual, even Ben Laden, and the question of the conformity with International Law, which is nonetheless interesting coming from the main executive organ of the United Nations. What strikes me is proposal number 2. How can a body, which has repeatedly called for the promotion of international criminal justice, and the values of the rule of law and due process that underly it, seriously make such a statement? If that is the definition of accountability, surely we can free some office space in The Hague and just close down the ICC, the ICTY, the Special Court for Sierra Leone and the Special Tribunal for Lebanon. All we need is a naked wall, a blindfold and a firing squad. While we’re at it, we might as well abolish our national criminal law systems. To be clear, I’m not saying that Ben Laden should not have been killed. I’m well aware of the realities of politics. I’m just denouncing the hypocrisy of defending values and then approving actions that run counter to them in the same breath. If you believe in the rule of law and due process, then you cannot approve the killing of Ben Laden, however politically or logistically justified it may be.
What if the bin Laden's next of kin doubt that bin Laden was guilty of anything? Where can the sue the SC?
It's a difficult question. If the UNSC legally authorized the killing (which is unlikely), then you could say that the UN could be jointly responsible for it. However, the organisation has jurisdictional immunity before national courts. Alternatively, you could try to go after the individual States that compose the SC.But if the UN just endorses the killing, as the statement seems to suggest, then it cannot be held responsible for it.