Well, the case of Osama bin Laden, there were two ways you could handle his
assassination. You could use Predator drones which the
United States has been using throughout Afghanistan, throughout Pakistan, in
Yemen, in Iraq, in other countries. Other countries are starting to use
Predator drones. And what they are, are basically
automated little mini aircraft that carry hell fire missiles.
And these are controlled by either a CIA operator somewhere in the vacinity but
more frequently today, by someone back in the United States.
Could be a soccer mom or dad who during the day, operates a joystick.
And puts these terrorists in the crosshairs and pulls the trigger and then
in the afternoons or in the evenings goes off and coaches his kids little league or
soccer team. now the other alternative, the one that
ended up being used in the Osama case is to go in and send special forces.
And have him killed directly by pointing a gun at him and pulling the trigger.
What are the pros and cons of the two? Well the Predator drone is much safer.
You have a less likely hood that your people are going to be captured or killed
or wanting, wanted for extradition. And it's unlikely, that the person who's
back in the United States operating the drone, that their identity will ever be
known. So it's a cleaner operation, but when you
do the Predator drone, the hellfire missiles boom, they make a big explosion.
They could take out an entire house or even a block or in some cases a mountain
side, and therefore they can result in a lot of collateral damage.
And in this case as we'll talk about in a few minutes Osama's house was in the
middle of a neighborhood. And you wouldn't want to take out the
other surrounding homes. But more importantly in this case are two
factors. One is, they thought that when they went
in there they could find all sorts of documents, computers, and other things
that showed what Osama bin Laden had been planning for the future.
And also the names of all the other people in Al Qaeda.
And secondly they thought that if they just blew up his house, because he had
been sort of missing for so long and hiding out the international community
wouldn't believe that he was really killed.
His followers would think he was just in hiding and therefore, there would be no
closure. And that was something that the Obama
administration really, really wanted especially with an election coming up.
So what happens? They find out where he's located.
They find out that the location is in Pakistan just a mile from a military
base, in the middle of a suburb that is fairly heavily populated.
They get this information as you seen in the Academy Award.
nominated movie, Zero Dark Thirty, by following the people who were his
messengers. And they follow him to a place where they
have a very high likelihood, a confidence level, that that's where he's hiding out.
Now they don't know for sure, and there's a great scene in that movie where they
ask around the table, you know, how likely is it that he's really there.
And the CIA director says well about 60% and the defense department says it may be
as high as 70. And the individual who was responsible
for tracking him over the ten year period, said, I know you hate to hear
this, but it's a 100%. Well anyway with that kind of confidence
they decided to go forward. Now they found him in this little town,
Abbottabad, right outside of the capital of, Pakistan.
And this is, a picture that the satellite showed of where his compound was.
And you can see that its in the middle of a suburb with lots of other houses
nearby. An in fact, during the operation, people
came out of the houses, an said, what are you doing?
Go away you invaders. An they had to be held back and, and
things could have gone wrong. so, this is a picture from ground level,
of the, compound. And you could see it has a, a big fence
around it, an it's also in the middle of an area that has, cows, an livestock, and
sheep. Now, this shows the actual layout of the
compound and where Osama bin Laden was believed to be was on the second floor of
the taller room. So they would have to go land on the
compound, get through these high security fences.
There were supposed to be five to seven other armed people there that they would
have to fight through and then they would get up to Osama bin Laden.
Now, the operation takes place in the middle of the night and so far things are
looking good and then all of a sudden one of the helicopters crashes.
Oh no, It could be a repeat of what happened when the U.S tried to rescue the
Iranian hostages in 1979. But, they had two helicopters and the
second helicopter succeeded. Everybody from the first helicopter
jumped out, rescue helicopters came and were able to take them as well.
And, and they went through, floor by floor, and they shot the individuals that
were there. There was some gunfire initially, but
when they got up to Osama bin Laden's room, there is no evidence that he came
out like Butch Cassidy in the Sundance Kid.
You know, shooting his gun. we don't know exactly, because there has
not been a video released. but we do have some of the books, these
kiss and tell stories that had become best sellers.
That tell us that basically it was a kill operation they went in there to kill him,
they did kill him, and when they found his body and there are pictures of his
body all over the internet. that they shot him in the stomach, or the
heart, the chest area, they shot him in the head, they killed him with the old
famous Double Tap. Okay, so, was it legal to go into
Pakistan and assassinate Osama bin Laden the way that he was killed?
That's a good question. That's a question that we need to wrestle
with. First of all the UN charter says that you
cannot go into another country and use force with out violating article two.
Which is sort of, the, the hallmark of the UN.
It's the first commandment of the UN charter.
It says thou shall not invade another country.
And it applies not just to wide spread invasions but anytime you use serious
military force in another country. So, this operation was clearly a
violation of article two, paragraph four of the UN charter.
A very important article. There is only three exceptions to that
rule, against using force in another country.
One is if the country gives you permission.
And the U.S could have argued that they had permission to do counter terrorism
operations on behalf of Pakistan near the border with Afghanistan.
But this operation was 150 kilometers farther away.
It was in the middle, right near the capital, is the middle of a populated
city. There was no permission for this.
So the permission argument isn't going to work.
The second argument is that the security council has authorized the use of force.
And the U.S is allowed to use force in Afghanistan based on the fact that the
Taliban and the Al Qaeda, were joined at the hip.
They were working together and the security council passed a resolution
saying that use of force against the perpatrators of 9/11 and those supporting
them, including the Taliban, was lawful. But did that apply to Pakistan?
Pakistan's not an enemy of the United States, they're not supporting Al Qaeda
generally. They're supporting the U.S in, the, in
the allies in their war against Al Qaeda. So, it's not clear that they come not at
all clear that they would come within that authorization.
And then finally, is the idea of article 51, this is the self defense exception to
the UN Charter. And it says that nothing in the present
Charter shall impair the inherent right of individual or collective self-defense.
If an armed attack occurs against a member of the United Nations, until the
Security Council has taken the measures necessary to maintain international peace
and security. And when this happens, the country has to
report immediately to the Security Council.
Now it is true the United States reported immediately that they had killed Osama
bin Laden. But does this fall within article 51?
Was the United States allowed to us self-defense in a country that was a
friend and ally of the Unites States. Well the US theory on this, is that if a
country is unable or unwilling to stop the terrorists from operating from within
their boarders. Then the United States can take forceful
actions under article 51 to take matters into its own hands and protect itself
from the ongoing terrorist threat. This is a really controversial question
in International Law. And that's because the International
Court of Justice has several times said, that in order for a country to attack
non-state actors, which include terrorists or revolutionaries, that are
operating within the borders of another country.
The prerequisite is that their actions have to be imputed to the other country.
Because otherwise it's too destabilizing to allow countries to just attack people
all over the world. Just because they are in a country where
the country either didn't know about them or couldn't control them, or was you
know, hunting them down. And the irony is, there are terrorists
even operating from the United States. So this justification would allow other
countries to come in and attack in the United States.
They could assassinate Americans and say well, we thought they are terrorists or
drug lords that were going to be a threat to us.
So this was a problem for the international community under the series
of precedents that the international court of justice had set.
That said that you had to have some kind of connection beyond mere tolerance.
You had to have involvement of the state where the action was going to take place.
Now arguably after 9/11, the law has changed, because the United Nations
applauded, the US operation in Afghanistan.
It seemed to be saying that if the US or any country wants to go into another
country, to take out the terrorists after 9/11, that,that was okay.
But, in two ways, the US justifications that came after that were too broad for
the international community. One was, President Bush said, you're
either with us or you're against us. If you're not with us, then we consider
you an enemy and we will attack you along with the terrorists.
And that was seen as really scary to the international community.
If they had green, given the green light to that it could have been very
destabilizing. Countries would be attacking each other
all the time just because there were some dangerous non-state actors that maybe
weren't even being aided by the government but were just hiding out in
its territory. The second thing the United States
government said is, we will not only act in anticipatory self-defense, that's when
you know that an attack is imminent. But we will act in preventive
self-defense, meaning, we're just going to wipe out Al Qaeda, wherever they are,
around the world. And that's because, it will prevent In
the future some other kinds of terrorist incident against us.
And another problem with this is that Al Qaeda used to be a very small group.
But its grown, not because its recruited more members necessarily, but because all
the terrorist organization throughout the world saw the success of 9/11.
And said we want to be associated with that brand.
And so Al Qaeda, it's business model was basically to outsource and, and setup a
distribution of all of these little groups.
And let them have the title Al Qaeda in Egypt, Al Qaeda in Yemen where these
groups were. Prior to that, not actually Al Qaeda.
So what I'm saying is that, Al Qaeda now is spread out throughout the world and
under the U.S policy announced by President Bush.
There could be the possibility of attacks everywhere and anywhere at any time.
And this, I think, scared the international community.
So the International Court of Justice in two subsequent cases reaffirmed that 9/11
did not change the law. That, in fact, you can only attack the
country, when the non-state actors are being aided or supported by the
government. And its not enough to just say that the
government isn't doing enough to stop them, that its tolerating them.
Okay, so Pakistan predictably says on national TV, you've got the Prime
Minister Musharraf saying, United States, you have violated our territory.
And, and there's a map, that shows, that the operation started in Afghanistan, at
the U.S Air Base, and went across the border into Pakistan.
And Pakistan says, you can't justify this.
You have violated International Law. Now, I will say this, they made this
protest but they didn't try to go to the UN to get a General Assembly resolution.
and they didn't really protest so strongly and that's because the
relationship between Pakistan and the United States is a complex one.
Pakistan is getting a lot of foreign assistance from the United States.
And so you know its not an ideal situation to test the law.
Okay, the other issue that this involved, this legal question was, was the way he
was killed consistent with the international law?
So here you have the way he was killed. You have in this picture, the snipers
went up and they gave him the double tap, they blew him away.
They did not take him, ask him if he would surrender, they did not try to take
him down and put him in handcuffs for prosecution.
By the way, why do you think it would have been a bad idea for the United
States to try to bring Osama bin Laden back to the U.S for prosecution?
I think there's a number of reasons that would be.
One is, it could have created a situation where his followers would start amping up
all of the action against the United States and against US allies to try to
coerce the US into releasing him. secondly it would be dangerous.
Where would you prosecute him? New York has been asked to prosecute some
of the Al Qaeda fugitives. That would be the logical place, but can
you imagine how dangerous that would be? And then third, and this is probably the
most important one, under U.S precedent, if you cannot guarantee, that a trial
will be orderly. If the trial becomes a literal circus,
there is a famous case, the Sam Sheppard case that went all the way up to the
Supreme Court it was argued by F Lee Bailey.
And it says in a situation, and let me tell you just briefly about that case,
because it has a Cleveland connection. And of course, I'm a Cleveland professor.
the case involved a doctor. Who was conked on his head and when he
came to his family, his wife had been killed.
And the prosecutor said, no you killed your wife and you conked yourself on the
head. And he was a very well often connected
person. And he kept proclaiming his innocence and
his trial was a media circus. And there was no control at all, there
was television and cameras in the court room and it was just a, a completely out
of control spectacle. And so F Lee Bailey argues that he didn't
get a fair trail and ends up getting the, the trail nullified.
Now the, this was so famous it became the subject of a TV show and a movie called
the Fugitive, starring Harrison Ford. You know that one, I suppose.
But, this is the same question that makes it difficult to prosecute someone like
Osama bin Laden in a US court. How can he get a fair trial in a New York
Federal Court? There's not a juror in the country, that
doesn't know about 9/11, and to prosecute him just down the road, from where those
two towers used to be, would be really difficult.
So I think the United States, for a variety of reasons thought, we don't want
to bring him back for prosecution in the U.S.
And therefore, in my opinion, there was no attempt.
There were no directions for him to be abducted and brought back as a prisoner.
This was an operation that looks to me, from the publicly available evidence, as
one in which he was just going to be assassinated.
Now the U.S Government claims that it was legitimate to do this because he was
terrorist leader with a continuing command function.
In other words, the U.S is saying that the field of battle against Al Qaeda is
worldwide. And that we, the United States, can kill
its leaders anywhere at anytime, as long as they have a continuing command
function. For other members, it would require under
precedent from the Israeli Supreme Court and the Human Rights Commission.
That they be literally engaged in the hostilities in the battle field, but for
the command function leaders you can take them out anywhere.
One of the wrinkles here is that the U.S has been using targeted killing with
these drones for people who are lower level than Osama bin Laden.
Al Awlaki is one example. He was a U.S citizen who was a cleric and
a propagandist for Al Qaeda and he was killed in Yemen.
And their theory again was he had a continuing command function.
So while he drove across the desert and he wasn't an immediate threat, boom, they
blew him up. This is something that is a very
controversial question about whether and how far down you can go and use this
theory. Now the second thing the United States
says is though Osama bin Laden was unarmed, the Navy Seals had met with
resistance when they entered the compound.
There was crossfire and there was the possibility that Osama bin Laden may have
had some kind of button that he could push to bring the whole.
Place down and kill everybody in a, a massive suicide explosion.
So the theory is that in that context you can't just like say, put up your hands
and surrender. It's happening too fast and you have to
do what you can to protect the operation. And then finally the Navy Seals claimed
that they were prepared and hand the means to take him into custody.
But he did not immediately surrender or show an indication that he was trying to
surrender when they shot him. And we'll never know exactly what
happened, but it seems to me that it happened very quickly.
And they didn't really say, put your hands up and surrender, they didn't give
him that option. It was just he came around a corner and
boom, boom he was dead. So, there are these questions about
whether it's legal to do this. And that's because protocol one to the
Geneva Conventions prohibits the killing of enemy fighters if they are either
trying to surrender, or if they're disabled.
And I would suppose that if in fact the first shot didn't kill Osama bin Laden.
That the second shot therefore would have violated this rule.
On the other hand, the U.S government says it was a double tap, it happened so
fast. It wasn't like he was disabled and then
they shot him again. But again, we just probably, will never
know. This however, has created controversy
worldwide about the use of force in this context.
Now finally, we've all seen the pictures of Osama bin Laden's corpse, and this is
a bit surprising. I would've thought that those pictures
would not surface. I suppose the reason the U.S published
them was to convince Al Qaeda that their leader really was no more.
And maybe they thought that this would be the end of Al Qaeda and it would take out
all the wind behind it's terrorist acts. But, in fact, these pictures were really
disturbing. An they played throughout the world, and
if you, Google you can, see a whole lot of them on the internet.
This is one of them. Now is it illegal, to show pictures like
this? The Geneva Conventions do say that
prisoners of war, shall be protected against insults and public curiosity.
Had he been alive you couldn't show pictures that show his terrible injuries
or anything like that. because and you wouldn't want to put them
on the internet because that would make them a public curiosity.
But he wasn't alive. However, the Geneva Conventions and
Common Article 3 has been interpreted as saying that you must be respectful to
corpses. There must be respectful treatment of
dead bodies. And the United States I think understood
this clearly because they announced after these pictures were released that they
were going to bury him at sea. And that they were going to bury him
facing Mecca and that this would be respectful to his religious ways.
Now, that's kind of a joke because first of all you don't bury, people at sea
generally when it's the Islamic faith unless they're killed at sea.
and in fact you bury them on land and if you drop someone under water how are you
going to ensure that they're going to be facing Mecca.
The real reason they buried him at sea is because they didn't want to have some.
Location that would become a shrine and a gathering place for martyrdom, where
people would come and have huge rallies in support of Osama bin Laden.
but it does show the United States understood that you have to be respectful
to corpses. And it raises the question of, well, was
it allowable to show these pictures, these horrible pictures, that have been
throughout the internet. and, and this is just again a
controversy, there's no court that is going to litigate these issues.
But it is something that ha I think weakened the United States in its
relationships with the other countries in its fight against Al Qaeda.
It, it was a bit of a set back, and unfortunately what could have been a
moment that was a clear victory, ended up for these reasons to be a little bit more
cloudy. So, let's just sum it all up before we go
to talking about what's coming up in our sessions.
what we have seen today is that when, a, international criminal, someone who's
accused of, crimes against humanity, like Osama bin Laden was, or terrorism, or
piracy, or genocide or war crimes. When their location is known,t here are
options for the international community. The international community doesn't just
have a police force that can go in and apprehend them, so they have to use
extradition, which is full of difficulties.
They can try to use luring which also has its difficulties.
They can try abductions. Again, very difficult, and
assassinations, which, one more time, is something that is full of controversy.
So, the bottom line here, is getting people to justice, is the weak spot, for
international criminal law. And, it's the place where, you know, you,
you have your ideals but then you have to sometimes, kind of get your hands a
little dirty in order to get someone to justice.
And the question is, have you gone too far?
Have you, through getting your hands dirty, done what in our first session.
The judge in the Nuremberg trial said was something that we should never do.
We should never stoop to their level in the life of every country there comes a
moment when its security is threatened. And that's the question when the country
has to ask itself what are we? And, and we're more than Iraq, we're
more, he said the the extension of a leader, we're what a country stands for,
or what a country stands for. When standing for something is the most
difficult. And my most important lesson today is
that when countries think about these different operations they need to think
about the precedent they're setting. They need to be thinking about the
message that they're setting and they need to try to do things as far as they
can with an international due process. [MUSIC].
Now, in the next class, we're going to start looking at Pre-Trial issues.
We're going to look at individuals who want to represent themselves at trial.
Not because they think they're going to do a great job.
But rather, because they want to hijack the trial.
We're going to be looking at Plea Bargaining, and whether that should be
allowed at international trials. And we are going to return to question of
torture but looking at it in terms of the exclusionary work for torture evidence.
So, until next time, do your readings and I look forward to seeing you.
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