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SCIENCE-FOR-THE-PEOPLE  May 2011

SCIENCE-FOR-THE-PEOPLE May 2011

Subject:

Re: Spiegel - What International Law Says about the Killing of Bin Laden

From:

David Westman <[log in to unmask]>

Reply-To:

Science for the People Discussion List <[log in to unmask]>

Date:

Tue, 17 May 2011 17:53:53 -0700

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (271 lines)

Given that the grounds for prosecution of Israeli governments for their 
targeted assassinations of
Palestinian leaders are as strong as the grounds for prosecuting Obama 
for the assassination of
Osama bin Laden, does Mr. Balter wish to give the Israeli government a 
pass for their killings
just as he wants to give Obama a pass for his killings?   (not just bin 
Laden, but the thousands
of Iraqi and Afghan civilians who have died since Jan. '09 when he took 
office)?  And does he
also want to give Obama a pass for not prosecuting Bush, Cheney, 
Rumsfeld, and their other
henchmen for the killings that they presided over, not to speak of his 
eagerness about keeping
Defense Secretary Gates around even though his hands are as bloody as 
the rest of them?
Just because we presently have no means to prosecute these war criminals 
for their continual
crimes against the laws of civilized society, does that mean we should 
shut our mouths about
these atrocities and move on to more important things?   I suggest that 
this implies an eagerness
to wear blinders about the crimes of the imperialist government under 
which we live.

David Westman

On 5/17/2011 3:08 PM, Chandler Davis wrote:
> Israel's targeted assassinations are much discussed.  Israeli
> top officials such as Tzipi Livni face prosecution in some
> countries (including South Africa) for overseeing the program,
> and restrict their foreign travel accordingly.  The Center for
> Constitutional Rights is bringing suit to get an injunction
> by US courts stopping the order to the US military to
> assassinate Anwar al-Awlaki.  The argument being made would
> support indicting Barack Obama for the assassination of Osama
> bin Laden, and such an indictment would be possible under
> international law.  Don't hold your breath.  As Michael says,
> grounds for such actions against Israeli governments are as
> strong as against USA.  Among many references, Google led me
> to <http://abcnews.go.com/WNT/story?id=131569&page=1>.
>             Chandler
>
>
> On Mon, 16 May 2011, Michael Balter wrote:
>
>> I have no argument that this is correct from a legal standpoint.
>>
>> But as this discussion goes on, I increasingly wonder why there has 
>> been no
>> discussion on this list (nor much of anywhere else that I have seen) 
>> about
>> Israeli's targeted assasination of Hamas leaders, which has been 
>> going on
>> for years?
>>
>> Leftists do pick their battles, every day, and that is one that I 
>> find much
>> more compelling from the point of view of fighting for justice in the 
>> world.
>> Yet it has been given a very low priority. But if someone on the left 
>> like
>> me says, hey, let Obama have this one, there are other battles to 
>> fight that
>> are more important, all of a sudden everyone is a member of the ACLU. 
>> Like I
>> said before, OBL is dead; if that bothers people, make a donation to the
>> ACLU and go on to fight for the rights of the living.
>>
>> MB
>>
>> On Mon, May 16, 2011 at 9:42 AM, Mandi Smallhorne 
>> <[log in to unmask]>wrote:
>>
>>> 05/13/2011
>>> Terrorists Have Rights Too
>>> What International Law Says about the Killing of Bin Laden
>>> Osama bin Laden: Was killing him the right thing to do?
>>>
>>> http://www.spiegel.de/international/world/0,1518,762417,00.html#ref=rss
>>>
>>> The elimination of al-Qaida figurehead Osama bin Laden earlier this
>>> month was widely celebrated. But was it the right thing for the US to
>>> do? International law expert Kai Ambos argues that killing him was both
>>> illegal and morally dubious.
>>> Info
>>> For reasons of data protection and privacy, your IP address will 
>>> only be
>>> stored if you are a registered user of Facebook and you are currently
>>> logged in to the service. For more detailed information, please 
>>> click on
>>> the "i" symbol.
>>>
>>> Terrorists, even Osama bin Laden, are humans. As such, they have 
>>> rights;
>>> human rights. Among these rights are the right to life, the right to
>>> humane treatment and the right to a fair trial. Fundamental human 
>>> rights
>>> remain valid even in a state of emergency; they are impervious to such
>>> exceptions.
>>>
>>> In peacetime, the right to life can only be limited in extraordinary
>>> circumstances, in particular by reason of self defense. If it is true
>>> that Osama bin Laden was unarmed when he was shot, self defense in
>>> response to an unlawful attack on the part of entering US Special 
>>> Forces
>>> can be ruled out. Clearly, such an operation takes place under extreme
>>> pressure and it is conceivable that the Special Forces acted on the
>>> mistaken belief that they were under attack by bin Laden or his people
>>> -- criminal lawyers call this "putative self defense" -- but this would
>>> not make the killing lawful. It would only cast light on the mental
>>> state of the troops in question, and thus their culpability.
>>>
>>> Yet, these soldiers are especially trained for such an operation, they
>>> are the elite of the elite. If we cannot demand restraint in the use of
>>> force from them, then we can't demand it from anybody -- not from the
>>> ordinary policeman in the street nor from the citizen defending his 
>>> life
>>> or home. From this perspective, it seems unlikely that they shot bin
>>> Laden out of fear or by mistake. Rather they knew perfectly well what
>>> they were doing and killed him wantonly and willingly.
>>>
>>> Why Are Al-Qaida Criminals Treated Differently?
>>>
>>> Here is the problem. A targeted killing of a terrorist does not,
>>> contrary to what US President Barack Obama has suggested, do a service
>>> to justice; rather, it runs contrary to it. A state governed by the 
>>> rule
>>> of law, treats even its enemies humanely. It arrests terrorists and
>>> brings them before a court. This is exactly what Germany did with the
>>> Red Army Faction (RAF) and what it does today with al-Qaida members.
>>> This is what the US did in Nuremberg with the Nazis and what it 
>>> promotes
>>> all over the world with other criminals against mankind. Why are the
>>> criminals of al-Qaida treated differently?
>>>
>>> Should their guilt be established by way of a fair trial, they can be
>>> punished with severe sentences, including in some countries like the 
>>> US,
>>> with the death penalty. The trial must come first, though. A killing in
>>> the absence of a fair trial constitutes an extra-judicial or 
>>> extra-legal
>>> execution, which is unworthy of a state ruled by law (Rechtsstaat).
>>> Indeed, it is an act for which countries not ruled by law
>>> (Unrechtsstaaten) are charged before human rights bodies. Those who
>>> carry out or approve such extra-judicial killings forfeit the right to
>>> reproach authoritarian states for the very same practices.
>>>
>>> War, i.e. an "armed conflict" under International Humanitarian Law,
>>> presents a different legal situation. In such circumstances, people can
>>> lawfully be killed when they directly participate in hostilities. The
>>> prohibition on killing is suspended in international armed conflicts 
>>> for
>>> combatants and in non-international armed conflicts for so-called
>>> fighters or de facto combatants.
>>>
>>> These actors can, under specific conditions, also be the subjects of
>>> targeted killings. The most important condition is that the 
>>> principle of
>>> proportionality is complied with, i.e. less severe measures (such as
>>> arrest) are to be preferred and unnecessary civilian victims must be
>>> avoided. If a targeted killing occurs in foreign territory, the
>>> territorial state must consent to the operation; otherwise the action
>>> amounts to a violation of state sovereignty, prohibited by Public
>>> International Law.
>>>
>>> The Misleading Rhetoric of the "War on Terror"
>>>
>>> None of the United Nations Security Council resolutions on the fight
>>> against international terrorism, and in particular al-Qaida (Res. 1267
>>> of 1999 to Res. 1974 of 2011), authorize the carrying out of operations
>>> on foreign territory, nor the arrest, and even less the killing, of
>>> (suspected) terrorists. These resolutions can, at best, be read, in 
>>> line
>>> with the various Terrorism Conventions, as allowing the extradition or
>>> prosecution (aut dedere aut iudicare) of terrorism suspects.
>>>
>>> In the case at hand, the targeted killing was not permitted since 
>>> the US
>>> -- contrary to the misleading rhetoric of "the war on terror" -- is not
>>> involved in an armed conflict with al-Qaida. A loose and decentralised
>>> terrorist network does not fulfil the criteria for classification as a
>>> party to a conflict within the context of International Humanitarian
>>> Law. It lacks, above all, a centralized and hierarchical military
>>> command structure and the control of a defined territory.
>>>
>>> Were we nevertheless to proclaim an international armed conflict 
>>> against
>>> al-Qaida, the whole world would become a battlefield and the classic
>>> understanding of an armed conflict as being on a defined state 
>>> territory
>>> and thus involving limited military confrontation, would be extended so
>>> as to know no bounds. While one cannot deny that armed conflicts can
>>> entail "spill over effects," such as via the retreat of one of the
>>> parties to the conflict into the territory of a neighboring state (as,
>>> for example, occurred when the Taliban fled from Afghanistan to
>>> neighboring Pakistan), the extra-territorial reach of such conflicts
>>> always reverts back to the original territorial armed conflict.
>>> Otherwise, the whole world would be turned into a battlefield with
>>> unforeseeable consequences.
>>>
>>> Ultimately, this would lead to a worldwide "war on terror" involving 
>>> all
>>> states where "terrorists" reside without them ever having entered 
>>> into a
>>> formal armed conflict with the state waging this war. Indeed, this has
>>> been the position of the US government since Sept. 11, 2001. To the
>>> disappointment of many, the Obama administration has forcefully
>>> reconfirmed this position by killing bin Laden and by the killing of
>>> many alleged al-Qaida members (and civilians) before him by the
>>> increased use of predator drones.
>>>
>>> Triumphing over the Terrorist Injustice
>>>
>>> One may be able to understand this position in the light of Sept., 11
>>> and what it did to the self-esteem of the US, the world's only
>>> superpower, humiliated as never before. But does this justify carrying
>>> out a policy which deliberately sidesteps the recognized principles of
>>> international humanitarian law?
>>>
>>> Lastly, even if one wanted, for the sake of argument, to suppose the
>>> existence of an armed conflict between the US and al-Qaida, only those
>>> directly involved in the hostilities could be subject to military
>>> attack. They themselves must carry out military operations, command 
>>> such
>>> operations or authoritatively plan them. They must further carry out a
>>> "continuous combat function." This is also in no way certain as regards
>>> bin Laden, since many believe he was only the spiritual leader of
>>> al-Qaida and had no influence on concrete military operations. The 
>>> video
>>> footage recently released by the US seems to confirm this view.
>>>
>>> Beyond these complex and indeed contentious legal questions, lies the
>>> much more fundamental issue as to whether the Western world really 
>>> wants
>>> to deprive their terrorist enemies of their right to life and other
>>> fundamental human rights and declare them military fair game. To ask 
>>> the
>>> question is to answer it in the negative. The moral and political
>>> superiority of a free and democratic society dictates that it treats 
>>> its
>>> enemies as persons with minimal rights and does not do as the enemy 
>>> does
>>> -- act with barbarism and contempt for mankind.
>>>
>>> It does not wage "war" against terrorists, but combats them with a fair
>>> and proportional criminal law, in line with the rule of law. This does
>>> not exclude the use of force and even the killing of terrorists as
>>> ultima ratio but only respecting the rules and conditions set out 
>>> above.
>>> This alone ensures the kind of justice that has been promoted
>>> particularly by the US since Nuremberg -- a kind of justice which many
>>> of us thought President Obama had resuscitated. This is the only
>>> foundation from which we can triumph over the terrorist injustice.
>>> _______________________________________________
>>>
>>>
>>> __________ Information from ESET NOD32 Antivirus, version of virus
>>> signature
>>> database 6124 (20110515) __________
>>>
>>> The message was checked by ESET NOD32 Antivirus.
>>>
>>> http://www.eset.com
>>>
>>>
>>
>>
>>
>

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