Some in the international community say “no.”
In an op-ed, U.S. justified in killing Osama Bin Laden Jed Rubenfeld disagrees:
An “extrajudicial execution,” that’s what many in the international community are now calling the killing of Osama bin Laden. The U.N.’s Office of the High Commissioner for Human Rights has called for an investigation. According to a U.N. special rapporteur, if the U.S. commandos were under shoot-to-kill orders and did so without offering Bin Laden a “meaningful prospect of surrender,” his killing could have been a “cold-blooded execution.” In that case, the soldiers who shot him, together with President Obama and any other U.S. commanders who issued the kill orders, would in principle be guilty of murder and should be prosecuted as war criminals.
These claims are absurd. Under any sane construction of the laws of war, the killing of Bin Laden was lawful regardless of whether he “raised his hands in surrender” or whether the American soldiers were under orders to shoot without giving him a chance to surrender. By suggesting otherwise, human rights lawyers only make international law look out of step with basic morality and common sense.
Agreed, but the problem with this argument is that the International Community and our war against some terrorists but not others has nothing to do with common sense.
Can we apply the laws of war to this? Are we at war with al Qaida? Despite the fact that we know that al Qaida, the Taliban and other enemies are supported by the Pakistani government, the Saudi government and other mukhabarat states, we consistently pretend that these state-supported terror militias are ‘stateless’ entities. As far as I know, there has been no formal declaration of war against these state-supported ‘stateless’ entities. I don’t think we’ve made a formal declaration of war since the end of WWII. Hiroshima and the possibility of war leading to the end of the world as we know put an end to the concept of war as we knew it. We only fight proxy wars now.
Our actions towards al Qaida and other frenemy-supported armies is not a police action either. When local governments hope to successfully fight mob/criminal organizations, they don’t ally with the crime bosses. If we did, a Gotti would be president and the USA would be worse off than Juarez City, Mexico. If we really wanted to eliminate these terrorist armies, we would target and/or arrest the real crime & terror bosses – our allies and friends in the Pakistani, Saudi, UAE and other governments.
We don’t seem to have any plans to do that.
We’re not fighting Terrorism Inc., we’re only herding it, trying to keep it manageable to use in our proxy wars against other nuclear-armed frenemies like Russia and China (who ally with their own mukhabarat terror supporters). This is how we keep the relative ‘peace’ worldwide. This is the system that the international community supports, yet it’s the system that we all deny exists. This is why our debates about this issue, and the laws that don’t really apply to it inevitably circumvent the issue.
We and our ‘allies’ use terrorist armies as tools of statecraft in the same way that European royals used used pirates, or privateering, during the 16th century. It took them hundreds of years to realize that these proxy wars were self-destructive and stupid. How long will it take us to come to the same conclusion?