is the subject of my Trade Tripper column this Friday-Saturday issue of BusinessWorld:
One problem with public discussions is that it’s filled with so-called analyses that actually were warped by the commentator’s ideology, insecurity, or bias. Objectivity is usually thrown away, and logic and common sense along with it. The problem is further compounded when those proffering their opinions have no idea of what they’re talking about. The alleged analysis by the Pro-RH (and liberation theology) crowd is a good example. Another is that unquestionably condemning the illegality of Osama bin Laden’s killing.
One crucial factor that must be considered in determining whether Bin Laden’s killing was legal is the nature of international law itself. Public international law is a very misunderstood field, innately nebulous and complex, quite different from domestic law. International law is highly fluid, demanding that one makes various considerations from several disciplines within a conjectured context and time. Domestic law, comparatively, is simple as one is normally provided with a basic starting point: what the law is on a specific case. It then becomes a mere task of determining under what law a defined set of facts fall.
International law works far differently. Not only are we uncertain what’s the actual law, we have to construct that law from various sources while identifying prevailing relevant conditions. For example, what’s written in a treaty is only binding upon states party to that treaty and what’s contained in that treaty may not necessarily be what international law really is. This becomes important particularly when determining what the law is then between those states not party to the treaty. Not only that but the law could and does change through time, without any apparent or clear benchmark indicating that a change (or even a new international law) has actually occurred.
Ironically, another thing that distinguishes international law from domestic law, despite it having a sinuous, even ambiguous nature, is the incredible degree of precision analysis that it requires. To get a remote feel of what I’m talking about, try reading a foreign published article by Florentino Feliciano, James Crawford, or Ian Brownlie. Nowhere else will you find a field of law that contains such a superb balance of broad synthesis and minutely fine delineation of concepts and ideas.
That is why, for me, anybody prone to making blanket conclusions on matters involving international law either does not (despite foreign schooling) actually "get" international law, or is letting his peculiar ideological bias screw his analysis, or is simply out to get popularity by posturing before the media. Such are all constituting a disservice to the public and leads them to being unfortunately misinformed.
Which leads me back to this question: Is the killing of Osama bin Laden legal? An obvious point that must be made is that none of us making a public discourse on the matter was actually there when it happened and a substantial amount of facts will most likely be kept secret by the US for national security reasons. This alone puts an automatic crutch on the analysis. But proceeding from the scarce information we do have, an argument could be made -- contrary to what has been published in other local newspapers -- that such is legal.
Legal from the viewpoint of US domestic law. Any local prohibition there may be regarding assassinations under Executive Order 122333 could be argued as inapplicable. Bin Laden has been consistently labeled by the US as an enemy combatant during an armed conflict. This puts him within the ambit of the US’ 2001 Authorization to Use Military Force Act.
Under international law, the same could still be argued as legal. And again, it could be maintained that this is not an "assassination." Taking the argument that the "War on Terror" is a case of armed conflict (and who can conclusively argue that it isn’t when several countries aside from the US have consistently maintained that it is and remembering the nature of international law?), then the killing of an enemy combatant is clearly permitted. Did it matter he was unarmed? No, because he was in a state of combat (that’s Bin Laden’s problem considering he was promising further attacks on the US). What if he tried to surrender? There were no indications that he wanted to. Didn’t this attack violate Pakistan’s sovereignty? Well, Pakistan apparently went along with it (either before or after the attack, the effect is the same). But didn’t an Israeli court rule that assassinations are illegal? So what? Very basic international law tells us that rulings of domestic tribunals are not binding at the international law level. And, again, this is not an assassination but the killing of an enemy combatant during armed conflict.
The point I’m making is not that we should conclude Bin Laden’s killing was legal but that valid arguments for both sides could be reasonably made. While it would be fun to play crusading lawyer before the public, frankly, I’ll take clear-headed thinking anytime.