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Was bin Laden's killing and burial legal?
Key change in narrative of bin Laden's death sparks suspicion over possible legal violations.
Last Modified: 05 May 2011 20:07
An inconsistent narrative of bin Laden's killing raises questions about its legality [AFP]

A key detail in the initial narrative of the historic operation that killed the world's most wanted man – al-Qaeda leader Osama bin Laden – has proven to be inconsistent, raising concerns about what really happened at the lavish gated compound in Abbottabad, Pakistan.

US president Barack Obama and his officials announced Sunday night that bin Laden "was engaged in a firefight" and was killed by US Navy SEAL commandos after an intense exchange. But the story was altered when White House press secretary acknowledged on Tuesday that bin Laden was unarmed when shot dead.

Amid accusations of possible violations of international laws, the US attorney general justified the raid "as an action of national self-defence" against "a lawful military target".

Boosted by Obama's refusal to release photos of bin Laden's body, suspicions of foul play during the 40-minute high-profile covert operation are being posed:

If bin Laden was an unarmed target, how can the SEAL commandos' lethal gunshots qualify as an act of self-defence against an imminent risk during a high-profile covert operation?

Did the US have the right to perform a targeted killing against Osama bin Laden?

Was it legal for the US to carry out a military operation on Pakistani territory without notifying its government?

Why was bin Laden's burial held in such haste?

Experts weigh in.

Justified self-defence?

The Obama administration's policy on targeted operations and the use of lethal force against specific individuals is that they do not constitute unlawful extrajudicial killing or "assassination" when a state is "engaged in armed conflict" or in "legitimate self-defence".

Harold Koh, legal adviser to the US state department, defined the government's stance in a March 25, 2010 speech to the American Society of International Law. There he argued that US domestic laws banning political assassinations reinforce the notion that targeted operations are lawful when acted in "self-defence" or "in armed conflict".

Kenneth Anderson, professor of law at American University Washington College of Law, analysed in a blog post that Koh's speech "expresses a view that when acting in lawful self-defence (which might or might not be 'armed conflict' in a specifically legal sense of that term), targeting specific high-level belligerent leaders is not (independently) unlawful, and because it is not, it thus does not constitute 'assassination'."

But what kind of threat or risk the unarmed bin Laden posed to the SEAL commandos during the firefight and whether such a threat warranted an act of self-defence, remain to be divulged.

On that point, White House press secretary Jay Carney commented that although unarmed, bin Laden was in "constant resistance".

Answering a question about how an unarmed man can resist, Carney said, "I think resistance does not require a firearm."

Whether constant resistance without a firearm constituted enough risk against US special forces has yet to be determined.

Osama bin Laden – 'in a category of his own'

Some legal experts have said until all circumstances surrounding the military operation in Abbottabad are revealed, bin Laden's death has the appearance of an extrajudicial killing without due process of the law.

But a leading authority on Guantanamo Bay, laws of detention, torture, and America's human rights policies begged to differ, saying that the question of legality is a non-debate in the case of Osama bin Laden.

Karen J. Greenberg, executive director of New York University School of Law's Centre on Law and Security, says while laws about heads of other states cannot be applied to the non-state actor Osama bin Laden, he should be treated no differently as one would for an "armed enemy".

"This is not a legal question… It's a strategic war question in which we're talking about a general [of an army] essentially," Greenberg said.

"This is a guy who declared war on [the US] in 1998… Whether it was legal or not, it's always acceptable to kill the head, the armed enemy that is opposing you."

Greenberg says dealings with bin Laden, who masterminded the catastrophic September 11 attacks that left nearly 3,000 killed, cannot be likened to that of other enemy combatants and terrorist targets.

"I really do think Osama bin Laden is in his own category," she said. "[Osama bin Laden] was the head of al-Qaeda. He is the person that all of our counterterrorism strategy has been directed against for the past 10 years. He has brought more harm to the US than any other person in history."

Ilya Somin, a professor at George Mason University's School of Law, echoed Greenberg's argument that "targeting individual enemy combatants in war is perfectly legal and moral".

Somin points at US targeting of Admiral Isoroku Yamamoto, the commander of the Japanese fleet during World War II, and the British and the Czechs' killing of German SS General Reinhard Heydrick in 1942, as precedents.

"Surely international law does not give terrorist leaders greater protection than that enjoyed by uniformed soldiers such as Admiral Yamamoto."

"And if it is legal to individually target the commander of a uniformed military force, it is surely equally legal to target the leader of a terrorist organisation, including Osama bin Laden," he told Al Jazeera.

Breach of sovereignty?

While the killing of bin Laden may be a non-legal issue, US violation of Pakistan's sovereignty serves for a definite legal quandary.

The Pakistani government was notified only after all US troops had left the site, to prevent any intelligence from getting leaked and thus possibly jeopardise the operation, Obama's counter-terrorism advisor John Brennan said Tuesday.

Moazzem Begg, a former Guantanamo inmate, says such unilateral approach has serious policy implications for America in its relationship with Pakistan.

"On the sovereign territory of Pakistan – allegedly an ally in the war on terror – we've seen an American operation taking place without the knowledge of that sovereign country," Begg told Al Jazeera.

"We've seen America acting with impunity on Pakistan's sovereign soil and simply saying that it can do whatever it wishes, whenever it wishes… for all intents and purposes an extrajudicial killing," he said.

Carrying out a covert raid in Abbottabad without the Pakistanis' consent would have been "a clear violation of the UN charter and Pakistan's sovereignty were it not for the fact that Pakistan had not objected," international legal expert Chip Pitts told Al Jazeera.

But a "complicit cooperation between the US and Pakistan" allows one to question to what extent Pakistan was aware in the raid that killed Osama bin Laden. (See 'CIA feared Pakistan would alert bin Laden')

'Sea burial' in haste

Separate from the debate over the legality of Osama bin Laden's killing and US right to carry out an operation on foreign territory is the debate over the US military's burial procedure for the deceased al-Qaeda leader's body abided by Islamic laws and traditions.

The body of Osama bin Laden who was killed by a shot to the head was transported via helicopter to the USS Carl Vinson that was headed for the North Arabian Sea. The deceased's washed body that was placed in a white sheet, was "eased into" the North Arabian Sea after a military officer read prepared religious remarks.

The burial was held "in conformance with Islamic precepts and practices" and at sea, as there was "no land alternative", the White House and the US defence department said.

Officials declined to comment on the existence of a video of the burial and whether they will release it or not, provoking further condemnation from religious leaders over the authenticity of the Islamic traditions the military officials followed.

Many muslim clerics have called the "burial at sea" a violation of Islamic tradition, which may incite further military calls for retaliation against American targets.

"Islamic law traditionally allows disposing of a corpse at sea only if the person dies on board ship and there is no possibility of getting the body to dry land before it decomposes," Marion Katz, professor of Islamic law, gender and ritual at New York University, told Al Jazeera.

"[This], however, [is] obviously not applicable here, both because he was taken to sea after death and because modern technology allows a corpse to be refrigerated for however long it takes," Katz said.

Disposing the body into the sea also is "considered by some to be a disrespectful mode of disposal conflicting with the principle of the sanctity of the human body, which is regarded by traditional Islamic law as extending beyond death," she said.

Ideally the body should have been returned to the deceased's family in Saudi Arabia, where bin Laden was born, for them to carry out even the most open interpretation of Islamic law – which would have called for a burial in land as opposed to an easing into the sea, Katz said.

Regarding senior officials' comments on the lack of a land alternative, Katz says it is unclear to what extent the tradition of swift interment would have raised problems for a longer search for an in-land place of burial.

Yahya Hendi, Muslim chaplain of Georgetown University, called the sea burial an "absolute violation" of Islamic traditions, and an unwise decision that mars America's image and raises potential suspicions about what happened or what did not.

"I have no idea who advised [the White House] on this issue, but I can guess that it was someone who is not familiar with Saudi culture and absolutely someone who is not familiar with the full tradition of burial in Islam," Imam Hendi told Al Jazeera.

Rumors circulated of an advisor warning Obama of Muslims from India, Pakistan, and Afghanistan possibly turning bin Laden's in-land grave into a site for idolatry, but Imam Hendi says such a situation could have easily been avoided, by leaving the burial to the deceased's family.  

Bin Laden's legal right to a funeral?

Although she is not an Islamic law scholar, Karen Greenberg says the US government perhaps deserves more credit for their rationale behind the controversial "sea burial".

"Day one at Guantanamo, one of the first things [authorities] talked about at the first meeting was cemeteries, however macabre that may sound," said Greenberg, who co-authored The Torture Papers: The Road to Abu Ghraib.

"They have had this on their minds for a while, on how they would deal with bodies of detainees who die at Guantanamo."

"The whole way in which this killing was decided, whether it be killing versus capture or burial versus shrine, I think it has to do with determination by this government that they don’t want to get into conflicts," she said.

"The only thing that mattered was to take him out of play, and everything else just went away."

Source:
Al Jazeera
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