Bin Laden unarmed when killed
Backtracking on original reports, the White House tells reporters that Osama bin Laden was unarmed during the raid on his compound.
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The US resembles the land of the munchkins as it celebrates the death of the wicked witch of the East. The joy is understandable but, to many outsiders, unattractive. It endorses what looks increasingly like a cold-blooded assassination ordered by a president who, as a former law professor, knows the absurdity of his statement that "justice was done".
Amoral diplomats and triumphant politicians join in applauding the summary execution of Osama bin Laden because they claim that real justice - arrest, trial and sentence - would have been too difficult in the case of public enemy No. 1. But should it not at least have been attempted?
The future depends on respect for international law, with which the US has always had an uneasy relationship. The circumstances of bin Laden's killing are unclear and the initial objection (by Pakistan's former president Pervez Musharraf and others) that the operation was an illegitimate invasion of state sovereignty must be rejected. This indicted and active international criminal needed to be captured, and Pakistan's abject failure to do so (whether through incompetence or connivance) justified Obama's order.
Osama bin Laden ... redefined the threat of terrorism.
But the terms of that order, as yet undisclosed, are all important. Bill Clinton admitted recently he had secretly approved the assassination of bin Laden by the CIA in the 1990s, and George Bush publicly stated after September 11, 2001, that he wanted bin Laden's "head on a plate". Did Obama order his capture, or his execution?
Details of the ''firefight'' are still obscure. The law permits criminals to be shot if they or their accomplices resist arrest in ways that endanger those striving to apprehend them. They should be given the opportunity to surrender, if possible, but even if they do not come out with their hands up, they must be taken alive if that can be achieved without risk. Exactly how bin Laden came to be ''shot in the head'' therefore requires explanation. And why a hasty burial at sea without an autopsy, as the law requires?
The US is celebrating summary execution, rationalised on the basis that this is one terrorist for whom a trial would be unnecessary, difficult and dangerous. It overlooks the downsides - that killing bin Laden has made him a martyr, more dangerous in that posthumous role than in hiding, and that his legend and the conspiracy theories about September 11 will live on, undisputed by the evidence that would have been called to convict him.
Moreover, killing bin Laden gave him the consummation he most devoutly wished, namely a fast-track to paradise. His belief system required him to die mid-jihad, from an infidel bullet - not of old age on a prison farm in upstate New York. He would have refused any offer to surrender, and no doubt died with a smile on his lips.
I do not minimise the security problems of holding a trial or overlook the danger of it ending up as a squalid circus like that of Saddam Hussein. But the notion that any legal process would have been too hard must be rejected. Khalid Sheikh Mohammed - also alleged to be an architect of September 11 - will go on trial shortly. Had bin Laden been captured he should have been in the dock alongside him, so that their shared responsibility could have been properly examined.
Bin Laden could not have been tried for the attacks on the twin towers at the International Criminal Court, since its jurisdiction only came into existence nine months later. But the United Nations Security Council could have set up an ad hoc tribunal in The Hague, with international judges (including Muslim jurists), to provide a fair trial and a reasoned verdict that would have convinced the Arab street of his guilt.
This would have been the best way of demystifying this man, debunking his cause and de-brainwashing his followers. In the dock he would have been reduced in stature - never more to be remembered as the tall, soulful figure on the mountain, but as a hateful and hate-filled old man. Since his videos exult in the killing of innocent civilians, any cross-examination would have emphasised his inhumanity. These benefits that flow from real justice have been forgone.
The obsessive belief of the US in capital punishment - alone among advanced nations - is reflected in its rejoicing at the manner of bin Laden's demise. Barack Obama has most likely secured re-election by approving the execution. This may be welcome, given the alternatives of Sarah Palin and Mike Huckabee (who have both urged that Julian Assange be hunted down in similar fashion) or Donald Trump. But it is a sad reflection on the continuing attraction of summary execution.
It was not always thus. When the time came to consider the fate of men more steeped in wickedness than bin Laden - the Nazi leaders - the British government wanted them hanged within six hours of capture. The president Harry Truman demurred, citing the conclusion of Justice Robert Jackson that summary execution "would not sit easily on the American conscience or be remembered by our children with pride . . . the only course is to determine the innocence or guilt of the accused after a hearing as dispassionate as the times will permit and upon a record that will leave our reasons and motives clear".
He insisted upon judgment at Nuremberg, which has confounded Holocaust-deniers ever since. Killing bin Laden instead of capturing him was a missed opportunity to prove this charismatic leader was a vicious criminal, who deserved to die in prison, not as a martyr to his inhuman cause.
Geoffrey Robertson, QC, is the author of Crimes Against Humanity (New Press).
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