Osama bin Laden:

Neil James, Executive Director, Australia Defence Association, writes: Re. “Crikey Clarifier: was it legal to kill Osama?” (yesterday, item 12). Professor Don Rothwell from the ANU is one of only two or three civilian academics in Australia with detailed knowledge of the subset of international humanitarian law (IHL) known as the Laws of Armed Conflict (LOAC). If he says the right of the US to conduct the raid, and the conduct itself, were essentially legal then I would be inclined to trust his judgement.

Two problems tend to confuse public argument. First, international trends, and responses to them by governments, tend to run ahead of the formal negotiation of treaties in international law. Both sets of Geneva Conventions, for example, followed rather than preceded the World Wars. The UN-endorsed international campaign against Islamist terrorism (not a so-called “war on terror”) continues to break new ground in developing international law through both UN Security Council Resolution and evolving customary law. As does the responsibility-to-protect doctrine in regard to preventing countries from violating IHL within their borders simply by claiming state sovereignty means they can do anything.

Second, as seems exemplified by Adam Stone’s questions (yesterday, comments), few Australians have much of a grasp of LOAC as the specialist international law applying when different parts of such law might apply (the principle of lex specialis). They therefore tend to assume, wrongly, that other domestic or international law applies — especially if they are think only in narrow human rights terms and particularly if their experience or knowledge is only in domestic civil law.

LOAC is primarily based on the UN Charter and the Hague and Geneva Conventions. In summary (and it’s a bit more complex than this), the UN Charter essentially details when wars can legally be fought, the Hague Convention and some other customary international law governs how they can be fought, and the four Geneva Conventions and their three protocols mainly concern the protection of various types of non-combatant during wars.

In international law, an armed conflict (the legal name for war) essentially exists as a material fact alone, chiefly so the Hague and Geneva Conventions kick in automatically and governments or individuals cannot claim a war does or does not exist. Since the UN Charter was signed in 1945 no country has been able to “declare war”, for example, as many people still incorrectly believe the sole grounds for a country to resort to force under the UN Charter are self defence (generally now interpreted to include some right to protect your citizens, not just narrowly to defend your territory), or as authorised by the UN Security Council to restore international peace and security (1950 defence of South Korea, 1991 liberation of Kuwait, 2001 intervention in Afghanistan against Al Qa’eda, no-fly zones in Iraq (1991-2003) and Libya (2011), etc).

Within LOAC wars are classified as international or non-international, with some differences in how the UN Charter and the Geneva Conventions apply (especially the protocols). This can be complicated and the international campaign against al-Qaeda as an organisation rather than a nation-state complicates it further. As does the US position that they are in a type of conflict with al-Qaeda as a belligerent enemy as well as a bunch if international criminals. al-Qaeda and its affiliates certainly regard themselves as at war with all who they class as their enemies (basically anyone who opposes their bigoted perversion of Islam).

In 2006 the US Supreme Court, in the Hamdan ruling (concerning Osama bin Laden’s driver), made some clear statements that have won wide acceptance as emerging customary international law. First, domestically, the Court struck down the military commissions set up under US presidential (executive) authority to try captured terrorists as criminals who had committed terrorist acts against the US. This is why the military commissions had to be re-established under legislation.

Second, in an armed conflict, the Court reaffirmed the right of the US (and indeed any nation-state) to intern captured enemy belligerents for as long as they posed a threat of resuming their belligerence if released. Hence the legality of the detention camps at Guantanamo Bay and in Afghanistan, the obligations on the US as a detaining power to comply with the relevant parts of the Geneva Conventions (some controversy here),  and consequently the regular inspection of such facilities by the International Committee of the Red Cross as the designated protecting power under the Conventions.

Third, the Court noted that while captured terrorists did not qualify for prisoner-of-war status under the Third Geneva Convention (because they were not subject to any international authority responsible for their actions and because their method of mounting attacks violated IHL), they were still covered by Common Article three of all four Geneva Conventions. This involved certain protections for them and certain responsibilities for the US (and other Geneva Convention signatories) as detaining powers under the Third Convention.

The upshot of all this is that international terrorists may be criminals (and subject to criminal trial) but they are also subject to LOAC (under certain circumstances) with regard to their targeting, capture, detention or killing during an ongoing armed conflict.

In the case of a US military attack on an al-Qaeda facility in Pakistan sheltering the head of that organisation, the US would no doubt argue that they were targeting only al-Qaeda, that there was no use of force directed against the territorial integrity or political independence of Pakistani sovereignty, and hence no violation of Article 2(4) of the UN Charter. Furthermore as a signatory to the UN Charter, and under several UN Security Council Resolutions, Pakistan is bound to assist the international community to eradicate terrorism undertaken by al-Qaeda. The presence of Osama bin Laden in Abbottabad in such a manner would tend to indicate Pakistan was in such serious breach of its international obligations (by default or design) that US military action was justified and Pakistani inaction cancelled out any perceived minor compromise of their territorial integrity or political independence.

Peter Anderson writes: Re. “Ringside at a rally to celebrate bin Laden as a hero” (yesterday, item 10). One key element missing in virtually all the coverage of Osama’s death I’ve seen is any discussion/examination of why followers of Osama will continue on in their attacks on America and its allies long after his death.

There seems no interest in looking at the cause of Islamic terrorism against the West and how it might be negated through (dare I suggest) changes in American Foreign Policy.

Before I enter what has become forbidden territory in public discussion around the Middle East, I should state that I have no religious beliefs or political leanings whatsoever — I was born and bred in Australia and have nothing to do with anyone from the Middle East.

Here are some facts:

  • The American Government provides billions of dollars in foreign aid and military assistance to Israel, while millions of Palestinians live in Refugee camps and virtual prisons (see Gaza and West Bank).
  • Neither side is without blame in its conduct over the last 30-40 years, but have a look on the web at the death toll on respective sides and relative living conditions, then ask yourself why militant supporters of the Palestinian cause (of which I am certainly not one) might get angry after years and years of oppression and resort to terrorism as the only form of response.
  • Also, have a look at what Mohammed Attah is recorded as having said regarding his views on this issue and what drove 19 people to suicide in four planes on American soil.
  • Finally, have a look at the 1967 agreement re borders and where thousands of settlements have been/are being built by Israel as I type.

The bottom line is that the killing of Osama (which I’m quite happy with as an aside) is not the main game, America has not managed to positioned its eye on the ball since September 11 and they’ve been off fighting battles for which there are no winners.

Until America seriously considers (and acts on) what is the main issue, that is the disparity in living conditions and assistance given by the West to the two sides, the current risk of terrorist attacks will continue and no amount targeted assassinations and military operations will reduce it.

Niall Clugston writes: Re. “Spy versus spy … when even the closest allies have secrets” (yesterday, item 1). Damien Kingsbury wrote:

“Pakistan’s Inter-Services Intelligence (ISI) organisation has a long history of support for Afghanistan’s anti-Soviet era Mujahideen and subsequently with the Taliban.”

This is true, but the USA also supported the Mujahideen, including Arabs like Osama bin Laden. Pakistan would not have taken on the USSR without the backing of its American hegemon.

With breathtaking hypocrisy, Pakistan is being made the whipping boy for blowback of the Cold War. By all accounts, bin Laden began recruiting his movement at a base (al-Qaeda in Arabic) set up for foreign anti-Soviet fighters under US auspices.

As for the Taliban, the initial American attitude was at best indifferent. In 1998 former National Security Adviser Zbigniew Brzezinski dismissed them as merely “some stirred-up Moslems”. They only became enemies after September 11. Let’s not sweep it under a Pakistani carpet.

Peter Fray

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