About the Killing of an Enemy

What law covered the shooting of bin Laden? The laws of the United States require a process before the death penalty. A legal state prohibits all executions. International laws also do not cover the U.S.’ action. The decision to kill the terrorist sponsor was a political one.

The U.S. has the death penalty. However, were the U.S. soldiers allowed to kill Osama bin Laden just like that, without trial? “Justice has been done,” assured U.S. President Barack Obama.

But how is this justice measured, by the unanimous condemnation of the Western world against bin Laden? Perhaps the deep satisfaction the Americans are feeling? Certainly bin Laden was responsible for the deaths of thousands of people, and he bragged about it. He is and he was a terrible criminal. Is execution by a U.S. military command — if that’s what happened — then a just punishment?

Penalties in a constitutional state are sanctions imposed by an independent court. Does that not extend to top-terrorists? Bin Laden was being searched for under an international arrest warrant. Such an arrest warrant is an instrument of the law. Was it that the U.S. operation against bin Laden was a kind of police action trying to execute the warrant under which the head of al-Qaida was to be arrested? In other words, was he shot because he resisted arrest?

An Act of Political Expediency?

It is probably naive to assume such a scenario. One can assume that killing bin Laden, for the U.S. president, was an act of political expediency. They wanted to kill bin Laden. And whether the killing was in accordance with international law may not have been of concern to the Americans. Arbitrary actions are illegal under international law. A planned killing by a commando team would be arbitrary — despite the many people who wanted the terrorist bin Laden dead.

The U.S. has tried for years to legalize extrajudicial actions by using the word “war.” They declared a global war on terrorism after September 11, 2001. Wherever terrorists are, from the U.S. perspective, there is war. In war, under the rules of war, international law comprehensively permits the killing of the enemy — even if he happens to be on lunch break or asleep in his barracks.

The U.S. war on terror, however, is not a war in the classic sense of international law. The U.S. also has never subjected itself to the rules of martial law in this war on terror. The war on terror is a U.S. war of its own kind, to which the Americans do not apply the rules of classical law.

If you want to somehow explain the execution through the law, then it is only possible with the arguments of the so-called enemy combatant law. The enemy combatant law — which officially does not exist, but is discussed in conservative political circles — is very different from the normal criminal law. It is actually not even a right but a euphemistic term for the fact that, for these “enemies,” none of the protective rules exist. Legal safeguards that apply to ordinary defendants thus are overridden. Who the enemy is, in this system of thought, is not a legal but a political issue.

The so-called enemy combatant law promotes the expulsion of a person, an enemy, from the law. The U.S. had apparently decided politically that for bin Laden, who had distanced himself from any right, such an expulsion should occur.