Some people find it difficult to square the killing of Osama bin Laden with the actions of a law abiding state. There are questions in some quarters about extrajudicial killings, even of execution, and suggestions that he ought to have been captured alive – at any cost – and put on trial like the Nazi leaders of Germany were after the Second World War. But I think that confusion is entirely the result of regarding al-Qaeda “operatives” as ordinary criminals who should be prosecuted according to civil law. That is wrong. al-Qaeda is at war with us, and consequently, we with them.
It is true that we have developed the concept of war crimes since Nuremberg and we now have a permanent international court to aggressively prosecute anyone, including heads of state who offend international morality. Former President of Serbia Slobodan Milosevic is the most recent high-profile defendant to have been arrested and brought to trial. He died before his trial was completed, but the warning is currently being given to Colonel Gaddafi of Libya and President Bashar al-Assad of Syria regarding the mass murder of their respective civilian populations.
However, in all of these cases, prosecution followed, or would follow, the end of hostilities. The war with al-Qaeda is still on-going. So yes, bin Laden had a case to answer for war crimes, but that had to take second place to dealing with him not just as an active combatant, but as the leader of al-Qaeda. He was actively engaged in planning and directing continuing acts of terrorism against the West. He had a “second front”, as it were, against other Moslems who did not conform to his radical vision of Islam and his legacy is that he killed more Moslems than Christians.
Any reasonable person should accept that bin Laden was actively directing al-Qaeda from his Abbottabad compound and that he was not just a legitimate military target, but a necessary target. His death was therefore no different to any other combatant on the field of battle. An opportunity to surrender is not always offered to an enemy, a soldier’s first duty is to himself and his comrades, especially with an enemy who uses suicide as a weapon of war. As it is, the actions of the US Navy SEALs will go down in history as one of the outstanding commando raids.
In brief, we are at war with al-Qaeda and Osama bin Laden was tracked down and killed at a location where he was actively planning and directing a war against us.
It is a nonsense to regard al-Qaeda as civilians and to put them through civil courts and prosecute them in the ordinary way, as if they had committed a traffic offence. These people are at war with us and their chosen weapon is terrorism. The fiasco of Guantanamo Bay shows the folly of such an approach, releasing combatants to go back and resume fighting against us when they should remain locked-up for the duration. We didn’t treat German prisoners of war that way, nor Argentines taken prisoner on the Falklands. We didn’t hand them their weapons back and say, “Now don’t do it again.”
I have blogged on these aspects before:
The problem with treating enemy combatants as civil defendants. It doesn’t work.