Was the killing of Osama bin Laden lawful? And, whether or not it was lawful, was it justified? If we leave aside answers to these two questions that are either non-committal or so qualified as to fall somewhere in between a direct 'yes' and a direct 'no', there are four possible viewpoints in response to them. These are that the killing of Bin Laden was: (1) lawful and justified; (2) unlawful but justified; (3) lawful but not justified; and (4) neither lawful nor justified. I shall discuss these four positions in turn, with a few supporting links and some commentary on each. I offer a sort of critical typology of the discussion of this issue that has been going on since the beginning of last week. In certain cases I have fitted someone into a category who doesn't fit it exactly or fits it only in part; but I have tried to register that 'looseness' wherever applicable.
(1) That the killing of Bin Laden was both lawful and justified is the view I have defended myself, albeit only briefly, on this blog. It is also the view taken by Oliver Kamm (behind the Times paywall), and it centres on the notion that the human target of the US action in Abbottabad was 'a major enemy protagonist'. As Oliver writes (£):
[T]he Archbishop [of Canterbury] appears to be placing a lot of weight on the possibility that bin Laden was unarmed. The terrorist leader wouldn't thereby have become a noncombatant. He had incited and ordered the deaths of thousands of civilians.
Similar argument may be found here, here and here. Note that it is perfectly possible to see the US action as not only lawful but justified as well - justified in the specific sense of dealing out justice - without this entailing a claim about what justice under principles of law requires. Obama said in his original statement and has lately repeated that justice was done. But this is a statement about the morality of the killing and not part of the legal case for the action decided upon by the president. When, therefore, Jeremy Waldron (whose overall viewpoint I will come to in a moment) writes that 'What is certainly forbidden is targeted killing for the sake of justice or vengeance, both of which have been cited by American authorities as justifications in this case', and goes on to refer to 'rule-of-law processes' as embodying that forbidding constraint, he presupposes an intention behind the US justification that needn't have been there: justice in a moral sense may well have figured as a motivation for targeting Bin Laden, without the administration's legal case resting upon this.
(2) I have no pure exemplar of the unlawful but justified position, but I adapt two pieces of advocacy I've seen to fit it. The first is the opinion reported to have been expressed on Twitter by Kenneth Roth, director of Human Rights Watch. As this was only a tweet and a few words, it would be unwise to ascribe it to Roth as being his definitive view, but it may serve to fill out my schema here all the same. What he wrote was: 'It's not "justice" for him to be killed even if justified; no trial, conviction'. Appealing explicitly as he does to a notion of justice for which due process is required, Roth assumes a rule-of-law model here as opposed to a targeting-in-war one; and, by the former, the killing of Bin Laden cannot be lawful. But Roth allows the possibility of its having been justified nonetheless. Jeremy Waldron's place under (2) I arrive at differently. He, for his part, says that targeted killings 'can be problematic from a legal point of view', but in the argument he follows up with Waldron appears less to invoke what he regards as hard and fast norms of international law than to reflect critically on what would be better and what worse as norms of international law in this area. Thus, he asks whether we are 'happy to have the principle on which this killing was conducted made available' to other governments. In any case, Waldron says that the killing of Bin Laden was 'probably justified' - as an act of defensive war. Yet even though he doesn't say it was unlawful, he does moot - normatively - a state of international law under which maybe it ought to be unlawful.
The question I would pose in order to put pressure on this viewpoint (whether or not it accurately fits either Roth's or Waldron's thinking) is a 'put your money where your mouth is' question. Here is what I mean by this: if we postulate or imagine that Obama's decision and the action it authorized were unlawful, should Obama be brought to trial for a crime under international law? Yes? I would be mighty surprised if either Roth or Waldron thought so. It seems unlikely; and one of the reasons it does is their willingness to concede that the killing of Bin Laden may have been justified. But this invites the question why it was justified when it was unlawful. One reason, I will go on to suggest - at (3) - is that the model of due process is not a good one for the case in hand.
Waldron, just by the way, gives as a reason against legitimating the targeted killing of terrorists the danger of unscrupulous use being made of the notion of 'terrorism' by governments. But this is a discussion of what is permitted or prohibited in law. Since when were courts, lawyers or indeed the general public bound in their judgements by the standards of unscrupulous misuse of legal principles? Terrorism is not just any old form of opposition, whatever some government or regime may want to claim.
(3) The view that the killing of Bin Laden was lawful but not justified I take to be represented by Henry Porter. In truth, Porter only says 'it is just about arguable that they [the Americans] acted lawfully'; but let's assume that that argument goes through, as I think it does for the reasons I've given. Porter still regards it as wrong. We need, he says, to be able to tell right from wrong - in the present instance, to be able to tell 'the difference between an act of war and state-sponsored murder'. Calling it murder begs the crucial question of course. It shows that Porter simply falls back on the presuppositions of due process under law in a context where the norms of war - jus in bello norms - might be seen as more apt. Consider, for example, that included in the category of combatant for practical purposes are munitions workers. When they're at work, where they form part of the war effort and consequently of the danger to the opposing side, munitions workers are a legitimate target in war. If this is is so, then how much more is it the case that a top terrorist operative, part of the military leadership and planning of deadly operations, is properly to be regarded as a combatant. Any conception of moral justification in this arena that sees it as permissible to shoot at an ordinary conscript soldier but not permissible - indeed wrong - to target someone at the very centre of conceiving and helping to carry forward lethal acts against civilians, and this on a mass scale, has some rethinking to do.
(4) Noam Chomsky and this editorial from Tribune represent the position that the American action in Abbottabad was neither lawful nor justified. Chomsky calls it 'a planned assassination, multiply violating elementary norms of international law'; Tribune says, 'President Obama is wrong... to talk about justice having "been done". Murder does not deliver justice. It only delivers death.' (I think Michael Mansfield also sketches this view, though in his case it is put interrogatively rather than assertively: raised as a question still to be answered.) I've said enough already to indicate why I don't agree with the 'unlawful' argument. As for 'not justified', I am at a loss to understand why anyone might think killing a mass murderer in warfare, and observing the norms of jus in bello in doing that, is wrong. Barack Obama said yesterday (£):
As nervous as I was about this whole process, the one thing I didn't lose sleep over was the possibility of taking bin Laden out. Justice was done.
And I think that anyone who would question that the perpetrator of mass murder on American soil didn't deserve what he got, needs to have their head examined.
It's only a manner of speaking that they need their heads examined. Unfortunately they don't. But they do need a better set of moral principles. Oliver gets it right (£):
The American civilians who thronged the streets to celebrate bin Laden's death have a more nuanced and sophisticated grasp of ethics than the Archbishop of Canterbury [who questioned the justice of the US action].
(I have also found this piece by Whit Kaufman useful in helping me to think about the issues, though I disagree with some of it.)
