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UN Week – 5/9/11

May 8, 2011

John and Douglas Carey, Editors,

Contents of this issue: legal issues on bin Laden’s death; ICC Prosecutor readies charges against three Libyans.

 Legal Issues on bin Laden’s death.

          Two important questions have been raised about how bin Laden met his end. First, did we have the right to go into Pakistan without  permission from its government? And second, did we have the right to kill him instead of capturing him?

          The question of our right to go into Pakistan without permission has been analyzed by Ashley Deeks, Academic Fellow at Columbia Law School and formerly Assistant State Department Legal Advisor for Political Military Affairs. Her views were published last week by the American Society of International Law,[1] of which I (John Carey) used to be Vice President and a board member. I also served 25 years as Alternate US Member of the UN Human Rights Sub-Commission, thanks to the State Department.

          Deeks points out that when a terrorist group based in Country A forcibly attacks Country B, the decision by B whether to go after the group inside A’s territory, depends, in the absence of consent by A or valid UN Security Council authorization, on whether A is unwilling or unable to go after the group itself. A’s position would be that its sovereignty over its own territory forbids any unauthorized incursion by another government.

          Deeks concludes that “Pakistan’s defense of its sovereignty in this case, while understandable from a political perspective, seems weak as a matter of international law.”

          As to our right to kill bin Laden instead of capturing him, the law of armed conflict says that a combatant has the right to surrender, after which he is entitled to be protected by his captors. Otherwise, the law allows him to be killed as an enemy soldier. No claim has been made that bin Laden tried to surrender, and that would seem to have been out of character, at least the character he apparently wanted to project.

          Two UN experts in this area last week asserted that, “the norm should be that terrorists be dealt with as criminals, through legal processes of arrest, trial and judicially decided punishment.” But legal norms have their exceptions, and this norm must give way when armed conflict is overtly declared and put into effect by a terrorist organization acting like an enemy government.

          The two UN experts are Christof Heyns and Martin Scheinin. Heyns, the UN’s Special Rapporteur on extrajudicial, summary or arbitrary executions, is Professor of Human Rights Law at the University of Pretoria, South Africa.

Scheinin, UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, is Professor of Public International Law at the European University Institute inFlorence,Italy.

The two experts said on May 6th that, “theUnited States should disclose the supporting facts to allow an assessment in terms of international human rights standards. For instance, it will be particularly important to know if the planning of the mission allowed an effort to capture Bin Laden.”

As far as human rights law is concerned, its rules certainly contemplate the use of deadly force in raiding the premises of a violent mass murderer if self defense reasonably appears necessary. But what these two experts ignore is that the law of armed conflict also applied in this case, and it allows the killing of sworn enemies who have not surrendered.


ICC Prosecutor readies charges against three Libyans.

          On May 4th, Luis Moreno-Ocampo, Chief Prosecutor of the Interna-tional Criminal Court, reported to the Security Council on his Office’s response to Council resolution 1970 onLibya. The Office had interviewed 45 individuals and reviewed 549 documents. In order to protect witnesses, it had not done interviews insideLibya.

          Referring to the Commission of Inquiry created by the UN Human Rights Council, the Prosecutor said, “We are discussing with the Commission Chair the difficulties to unveil the truth while an armed conflict is ongoing and the importance of the Commission’s field activities. The evidence collected has confirmed the fears and concerns expressed in resolution 1970.”

          Further, he said that the evidence established reasonable grounds to believe that the widespread and systematic attacks, including murder and persecution were crimes against humanity. Additionally, since February there had been an armed conflict inLibyaand, in that context, there was information on alleged commission of war crimes. As to crimes against humanity, the evidence showed that security forces had been systematically shooting at peaceful protestors, following the same modus operandi in multiple locations.

          The Prosecutor told the Security Council that, “The efforts to cover up the crimes made it difficult to ascertain the precise number of victims, but there is credible information that estimates that, just as the result of such shootings, 500 to 700 persons died in February alone,” noting that bodies had been removed from streets and hospitals. Doctors had not been allowed to document the number of dead and injured admitted to their care.

          “Being injured became evidence of opposing the regime, and challenging the authority of the regime is a crime under Libyan law,” he said. “In addition, citizens ofEgyptandTunisiawere arrested and expelled en masse because of their perceived association with the popular uprising; the mosques they preyed in were destroyed,” he added.

          During the Security Council’s discussion, the representative ofFrancesaid that when a government attacked civilians instead of  protecting them and such atrocities “seared the human conscience,” the international community had the responsibility to intervene and protect civilians.” SC/10241.

          The reference to responsibility to protect, known as R2P, recalls the approval of such a doctrine by the General Assembly a few years ago, and its de facto approval by the Security Council in adopting resolution 1970.

That’s all for this May 9th issue of United Nations Week: News and Views. We’ll be back with the next issue. Meantime, do send along your own views on UN-related issues to

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