If looked at purely rationally - and I freely acknowledge how hard this is to do, given the despicability of OBL - how can there be any argument about the illegality of the action taken?
To sum up some of the points made earlier in this and the two other concurrent threads...
1. The US was not at war with Al-Qa'eda or OBL. You cannot go to war against an ideology or an organisation, any more than you can against an individual. The much trotted out phrase "the war on terror" is meaningless in terms of international law. Therefore, OBL was not in any way a victim of war... that's self-evident.
2. All these emotive claims that OBL was "a rabid dog" or had, via his perpetration of atrocities, ceded his right to fair legal process or become "less than human" are nothing more than emotive hot air and stand up to no rational scrutiny. I know next to nothing about the US Constitution or the Bill of Rights, but denying OBL his rights under the International Covenant on Civil and Political Rights (part of the United Nations International Bill of Human Rights, duly signed and ratified by the US and most of the world) is a clear breach.
Wikipedia wrote:Rights of the accused and Right to a fair trial.
Article 14 recognizes and protects a right to justice and a fair trial. Article 14.1 establishes the ground rules: everyone must be equal before the courts, and any hearing must take place in open court before a competent, independent and impartial tribunal, with any judgment or ruling made public. Closed hearings are only permitted for reasons of privacy, justice, or national security, and judgments may only be suppressed in divorce cases or to protect the interests of children. These obligations apply to both criminal and civil hearings, and to all courts and tribunals.
The rest of the article imposes specific and detailed obligations around the process of criminal trials in order to protect the rights of the accused and the right to a fair trial. It establishes the Presumption of innocence and forbids double jeopardy. It requires that those convicted of a crime be allowed to appeal to a higher tribunal, and requires victims of a Miscarriage of justice to be compensated. It establishes rights to a speedy trial, to counsel, against self-incrimination, and for the accused to be present and call and examine witnesses.
Article 15 prohibits prosecutions under Ex post facto law and the imposition of retrospective criminal penalties, and requires the imposition of the lesser penalty where criminal sentences have changed between the offence and conviction.
Article 16 requires states to recognize everyone as a person before the law.
From what Cail's been posting, I suspect that the action taken against OBL contravenes the US constitution as well, but I'll leave that discussion to those who know what they're talking about and who can quote chapter and verse.
3. The US took a unilateral decision to make an unannounced and thus unpermitted incursion into the territory of another recognised sovereign state. Forget that some of the Pakistani governmental hierarchy must have known where OBL was and were therefore at least passively colluding in his harbouring... that's an irrelevance. On this basis alone, the US contravened international law... that again is self-evident.
The least weak arguments I've read over the three threads to counter points 1 and 2 above are:-
A. The defence of the realm argument, but that doesn't sanction kill orders. In fact, the "live by the sword, die by the sword" attempted justification with the bitterest irony smacks of Sharia law, as others have mentioned.
B. The "killed while resisting arrest" argument, but it's turned out that OBL was unarmed. Leaving this aside, the incursion into Pakistan was clearly illegal in itself and thus makes the arrest attempt equally illegal.
Surely this is a situation where those attempting to justify the POTUS's kill order - or sanctioning of the action, if you'd rather - are solely arguing from the irrational point of view of natural (i.e. emotive) justice as compared to rational (i.e. dispassionate) justice that depends on legally enshrined process.
Allowing the power of life and death to reside unilaterally in the hands of one individual without his requiring any mandate is a massively dangerous precedent, as several have commented - it's medieval in nature. Moreover, it tarnishes the much-trumpeted fairness and democratic process of the West that (allegedly) maintains the rights of the individual above all else - we're meant to be better than this.
