Was the Bin Laden Killing illegal? Ask Israel

On May 3, 2011, the day after the United States announced that a US Navy SEAL team had killed Osama Bin Laden in Pakistan, an American Human Rights lawyer posted an article online stating that this targeted killing was illegal.

The next day, news outlets published reports that rights activists were now declaring that the killing may have been an international crime.

An Australian Human Rights lawyer called the killing not only a perversion but a violation of international law. A Dutch-based international law specialist was quoted as saying, “the Americans say they are at war with terrorism and can take out their opponents on the battlefield.  But in a strictly formal sense, this argument does not stand up.”

In addition, MSNBC.com reported that waterboarding was used during interrogations to get the information needed to find Bin Laden, and that such treatment, according to one former US official, met the legal definition of torture. At least one US Congressman asked if this use of torture has rendered the entire SEAL mission illegal.

On May 6, UN Human rights investigators called on the US to disclose all facts surrounding the killing, because, they said, it is uncertain if deadly force may be used in operations against terrorists.

American citizens’ reactions were unanimous: Bin Laden deserved to die; if any human rights violations occurred, it was the day Bin Laden ordered the 9/11 attack that killed nearly 3,000 innocent civilians; a terrorist never gives his victims any ‘human rights’ consideration, so he therefore deserves none himself.

Unfortunately, these Americans are wrong, despite US declarations that the killing was legal.

Part 2, Article 8 of the Rome Statute of the International Criminal Court suggests that the killing could be illegal.

There may have been a time when the nations of the world supported America’s claim, but those days might be gone. As Israel herself learned in 2009 with the UN’s Goldstone Report, the world today does not view defensive military action by a sovereign state the way it once did.

Since the Fourth Geneva Convention outlined rules for war in 1949, the rules have been amended.

More important, the rules do not appear to have been altered in order to protect sovereign states. Instead, the rules seem to have been changed to make it criminal for a sovereign state to protect itself against ongoing non-traditional military attack.

At least, that’s the way it looks.

For Israel, even attempts to pre-warn Gazan civilians about pending air attacks was considered  irrelevant;  so, too, for America, the attempt to execute the raid at a time to minimize casualties has no weight for human rights activists:  both Israel and America, they claim, committed international crimes.   

Perhaps you missed this, but no human rights activists called news conferences to proclaim the criminal violation of human rights when two passenger planes were hijacked and flown into the Twin Towers of the World Trade Center on 9/11/2001. But for actions initiated by Israel and America to protect themselves, there were plenty of news conferences.

What we see happening today with America, has already happened to Israel: to attack the attackers is to violate international law and, perhaps,  international human rights codes.

That call by UN investigators is serious business for two reasons: first, there are laws now ‘on the books’ that make America’s actions potentially illegal-- and prosecutable; and second, human rights specialists take these rules, codes and statutes seriously.

Modern international law may unfairly handcuff sovereign states. To paraphrase George Gilder, writing in The Israel Test (2009), by allowing violent attack on civilized democracies to unfold without comment—while then condemning the necessary retaliatory defense—these writers of new war rules allow no solution but tyranny—and the tyrants know this.

The rules that make defense against asymmetrical war virtually illegal appear to be but another form of the asymmetrical war being waged against America and Israel.

In the up-side down dictionary of the new world order, Israel becomes the new Nazi who occupies and abuses entire populations, and America becomes the Perverted  Giant, whose military power illegally oppresses.

While we were sleeping, international law has been transformed: the law now seems designed to protect Bin Laden and his agents, not American civilians or Israel’s Jews.

Both Israel and the US—and any other Western nation who seeks to protect itself—are on notice: if you dare strike back, you will stand accused of crimes; you are advised to remain ‘legal’, even if that means you allow your enemies to remain free.

Indeed, current international law suggests that you must allow them to remain free.

With Goldstone, Israel was the first to learn this lesson. Now, through Bin Laden, we see that America is second.

Perhaps we should re-read Goldstone.

We might learn something.