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Thursday, 12 May 2011

"We got him" - but was justice done?

One of the reasons I love politics is that there is rarely a right answer. The question of whether Osama Bin Laden should have been captured alive at all costs and tried in a court of law is one of them. You would imagine it is a simple answer - yes - he should have a fair trial and the Western World should act as an exemplar of what to do with people who commit crimes. But, as with everything in global politics especially, it is far more nuanced than that.

Let's start with the members of Navy Seal Team 6 who performed the actual operation. In the UK especially we lack understanding of the chain of command (which is why many still want the person who shot Jean-Charles de Menezes in 2005 to be put on trial instead of the person or people who ordered him to do it). In the US they don't have that problem, and they understand that the man who shot Osama Bin Laden was aware of the need not to risk anyone's lives and had to make a split second decision on whether he or others were in danger.  We know wasn't armed and he didn't use his wife as a human shield (what WERE they thinking saying that?!) but he was retreating into the bedroom, and as far as the soldier know could have been getting a weapon. The only way to know he wasn't carrying a suicide bomb underneath his clothing was if he had been naked. In fact his clothes were bulky (which turned out to be money sewn into them).  As more information comes out of the US, it is becoming more and more clear that capturing Bin Laden was most probably a secondary objective, killing him the first.  But is that wrong?

First of all, and most importantly, you will hear many people talk about 'international law'. There is no such thing (yet). There are some agreed principles and an attempt at global governance through the United Nations but there is no binding body of law that covers all eventualities all over the world. So the argument that Bin Laden should have been tried under the principles of International law is not as applicable as many think. To illustrate the complications, we have an International Criminal Court (in which we attempted to try Slobodan Milosevic and are trying Charles Taylor) but it's jurisdiction applies from when it was created (April 2002) and it can exercise jurisdictiononly in cases where the accused is a national of a state party, the alleged crime took place on the territory of a state party, or a situation is referred to the court by the United Nations Security Council. Effectively, Osama Bin Laden could not be tried by this court.

So could the USA have tried him in one of their courts? Well, the National Defence Authorization Act that went through Congress recently effectively bars anyone that would be detained in Guantanamo from being tried on USA soil. There is little chance that Osama Bin Laden would have been held in a prison on USA soil as no state would have agreed to take him. So it would have been a military tribunal at Guantanamo Bay, the results of which would not have been recognised by many people.

But let's get away from practicalities and look at the reality. Holding Osama Bin Laden in captivity would have most probably unleashed a wave of terror the like of which we haven't seen in order to secure his release. The USA were never going to be prepared to risk that. Even retaining his body on land would make it a shrine and a focus for serious disturbances. Furthermore, the trial process would have dragged on for many years as it was a very complicated case. We are looking at someone, for example, who was for a fact armed and trained by the Americans in the 80s in order to help the fight against the Soviet invasion of Afghanistan. There are serious skeletons in Osama's cupboard, and many would not want them to come out. Finally, Eric Holder, the US Attorney General pointed out that it is a War on Terror and Bin Laden was an enemy combatant so the USA had the right to kill him.

The most important reality is that the USA wanted closure. Yes, it wasn't 'justice' in many peoples' sense of the word. There is a reason why people get tried in Western Courts in front of a jury of their peers and victims aren't allowed to decide on guilt or sentence, and in a way the USA was a major victim of Osama Bin Laden and decided to be the judge jury and executioner. We can certainly question this. But the Americans in this particular case felt that justice was done for the crimes Bin Laden committed, including the 1993 World Trade Centre bombing, the bombing of the USS Cole in 1998 and 9/11 most of all meant he should face the death penalty and in the long term the world is a safer and better place without him.

The irony of it all was that Al-Qaeda had been weakened beyond all recognition by the events of the last few months. They believed, and stated often, that the Muslim people wanted to live under Sharia Law and Islam wasn't compatible with democracy. Yet the Arab Spring in Tunisia, Egypt, Libya and other places makes it quite clear that young Muslims especially really DO want to have some input into their lives and really DO want some form of democracy. Effectively then, all Al-Qaeda were doing were killing people who didn't share their view of how the world should be run, which is why more victims of Al-Qaeda were Muslims than those of any other faith.

The argument that killing Bin Laden will unleash a new wave of terrorism is irrelevant. It can be added to all the other explanations and excuses for new waves of terrorism which are likely to happen all the time.

On a personal level, I would have preferred if at all possible for the West to have shown the restraint and respect for justice as an example to everyone else of how to treat those who have comitted a crime. I do understand though why it just wasn't possible, or even advisable, in this particular instance.

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