Dershowitz: Killing of Bin Laden Was Just, Legal


alan-dershowitzBy Alan Dershowitz

The decision to target and kill Osama Bin Laden is being applauded by all decent people. Approval to capture or kill this mass-murdering terrorist leader was given by Presidents Obama and Bush. It was the right decision, both morally and legally.

Although bin Laden wore no military uniform and held no official military rank, he was an appropriate military target. As the titular and spiritual head of al-Qaida, he was the functional equivalent of a head of state or commander in chief of a terrorist army.

From the beginning of recorded history, killing the king was the legitimate object of military action. The very phrase “check mate” means “the king is dead,” signifying the successful end of the battle.

Yet there are those who claim that all targeted killings are immoral and illegal. These critics characterize such actions as “extrajudicial executions” and demand that terrorist leaders and functionaries be treated as common criminals who must be arrested and brought to trial.

The operation that resulted in bin Laden’s death was a military action calculated to kill rather than to “arrest” him. It is possible, though highly unlikely, that he could have been captured alive and brought to trial. The decision to employ military personnel with guns, rather than a drone firing rockets, was probably made by generals rather than lawyers.

Had it been militarily preferable to fire a rocket, that option would almost certainly have been selected–as it was by the NATO forces that rocketed Gadhafi’s compound. A rocket attack would have been a pure targeted killing with no possibility of live capture.

The operation directed against bin Laden may have been designed, in part, to have preserved the theoretical option of “arrest,” though the likelihood of a live capture was virtually impossible under the circumstances. Indeed it is likely that bin Laden’s death was deemed preferential to his capture and trial, because the latter would have raised the probability that al-Qaida would take hostages and try to exchange them for bin Laden.

Indeed, a US national security official has confirmed to Reuters that “this was a kill operation” and there was no desire to capture bin Laden alive. This was a targeted kill appropriate for a military combatant but not for an ordinary (or even extraordinary) criminal.

Nonetheless, our government felt it necessary to announce that bin Laden was shot after he allegedly resisted thus suggesting he was not killed in cold blood. But it is clear that he would have been killed whether or not he resisted, since this was a kill operation from the outset and it is unlikely he was ever given the opportunity to surrender an opportunity not required under the laws of war.

Accordingly, those who have opposed the very concept of targeted killings should be railing against the killing of Osama bin Laden.
Among others, these critics include officials in Britain, France, Italy, Russia, the EU, Jordan, and the United Nations. Former British Foreign Secretary once said, “The British government has made it repeatedly clear that so-called targeted assassinations of this kind are unlawful, unjustified and counterproductive.”

The French foreign ministry has declared that extrajudicial executions contravene international law and are unacceptable. The Italian Foreign Minister has said, Italy, like the whole of the European Union, has always condemned the practice of targeted assassinations.

The Russians have asserted that Russia has repeatedly stressed the unacceptability of extrajudicial settling of scores and targeted killings. Javier Solana has noted that the European Union has consistently condemned extrajudicial killings.

The Jordanians have said, Jordan has always denounced this policy of assassination and its position on this has always been clear. And Kofi Annan has declared that extrajudicial killings are violations of international law.

Yet none of these nations, groups or individuals have criticized the targeted killing of Osama bin Laden by the US. The reason is obvious. All the condemnations against targeted killing was directed at one country. Guess which one? Israel, of course.

Israel developed the concept of targeted killings and used it effectively against the “Osama bin Laden’s” of Hamas, who directed terrorist attacks against Israeli civilians, killing and wounding more Israelis, as a percentage of its population, than the number killed by bin Laden. It was when Israel managed to kill the head of Hamas, that the international community, with the striking exception of the United States, decided that targeted killing was illegal and immoral.

But now that it has been used against an enemy of Britain, France, Italy and other European nations, the tune has changed. Suddenly targeted killing is not only legal and moral, it is praiseworthy (except, of course, to Hamas, which immediately condemned the US killing of Bin Laden).

Well the truth is that when used properly, targeted killing has always been deserving of approval-even when employed by Israel, a nation against which a double standard always seems to be applied.

Indeed, in Israel, the use of targeted killings has been closely regulated by its Supreme Court and permitted only against terrorists who are actively engaged in ongoing acts of terrorism. In the United States, on the other hand, the decisions to use this tactic is made by the President alone, without any form of judicial review.

So let the world stop applying a double standard to Israel and let it start judging the merits and demerits of military tactics such as targeted killing. On balance, targeted killing, when used prudently against proper military targets, can be an effective, lawful, and moral tool in the war against terrorism.

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  1. The point about the double standard against Israel is well-taken.

    Another point: Bin Laden declared war against the United States years before 9/11. The U.S. should have taken him at his word and eliminated him back then. While hindsight is 20/20, going forward, the U.S. should consider fair game any terrorist who makes credible threats against America, even if he hasn’t killed anyone yet.

  2. this guy was unarmed !
    is there a justification to killed an unarmed man but in order that he should be brought to trial and speek ?

    this was cold blooded murder ! the al qaida wouldn`t have akted different.

  3. Why did Professor Dershowitz feel compelled to use the double standard applied to Israel as justification for killing Bin Laden? Based strictly on the Augestinian theory of just war, the US had the right to kill Bin Laden, regardless of Javier Solana and his anti-semitism.

    Concerning the double standard of Israel, you can look at US criticism of extrajudicial killings prior to 9/11 and then invading Afghanistan. The current situation with Bin Laden sheds no light on the subject.