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Should bin Laden have been tried?

Maybe there really was no choice. But we have lost something by not putting bin Laden on trial, and that is a particular view of what Justice is for
Daniele Archibugi
3 May 2011

No one particularly wants to criticise the way in which Osama Bin Laden was killed. Everybody is applauding the successful operation, and in New York, as well as in other American cities, ordinary people exalt with joy. The only compassionate words came from the politically least authoritative source, namely the Vatican: its spokesman declared: “A Christian never rejoices in the face of a man’s death”. I would rephrase the Vatican statement in a less religious and more legal language: “No human being should rejoice for the extra-judiciary killing of an accused”.

There is no need to repeat that Bin Laden has earned the title of the most vicious criminal of the XXIst century. Certainly the victims killed by Al Qaeda in the United States, as well as in several other countries, have cried out for justice for many years. But there is no reason to be joyful for what may appear to be an extra-judiciary execution. The reaction of most of the American public has shown one of the worst sides of American society. It seems that justice can be done only when the culprit is properly punished, even better if this punishment is a brutal death. Retribution is so important that collateral victims are considered a fully acceptable price to be paid. We are, in fact, informed that four people were killed in total: two men, a woman and, of course, the great villain. Are we sure that also the other three individuals deserved capital punishment? I have not seen yet any sorrow for these accidental deaths.

I wonder what the options available to the Obama administration were. It had to operate in a problematic country like Pakistan where security forces are not always trustworthy allies in the fight against terrorism. It is comprehensible that the American administration decided to act unilaterally (or at least with very little coordination with the Pakistani government) in order to flush the most wanted man. But a dangerous precedent is put forward: can a country use force to arrest or, even more, to kill a culprit in a foreign country? Shouldn’t police collaboration be preferred?

The official sources inform us that, if possible, the American Special Forces would have arrested Bin Laden. This, of course, would have been a much more judicially satisfactory option since it will have devolved to Courts, rather than to a commando, the responsibility to judge and punish the culprit. As such, the killing of Bin Laden sees the predominance of the executive over the judicial power. President Obama stated that “justice has been done”, but proper justice is made in the tribunals, not outside them.

Let us imagine that, thanks to their means and efficiency, the United States’ Armed Forces were able to arrest Bin Laden and to transfer him to American soil. What would have been the fate of Bin Laden? It would have been impossible to get rid of this criminal without a proper trial. Guantanamo would not be the place to host someone so illustriously wicked and it is more likely that American ordinary courts would have claimed their competence. A trial would possibly have been held in the State of New York, since the most vicious of the several crimes committed by Bin Laden was the attack on the Twin Towers. The experience of recent trials against other criminals, including Saddam Hussein, shows that it is very unlikely that the defendant would collaborate in Court, perhaps because they know that they are already condemned. He would probably have chosen the same defensive strategy of other Al Qaeda terrorists, namely to attack his prosecutors.

It would have also been difficult to secure a proper defense lawyer for Bin Laden, and certainly any of those willing to volunteer for the job would have faced a risky job. We may speculate that a lawyer such as Jacques Vergès would have offered his services, keen to add to the long list of his egregious clients the name of the leader of Al Qaeda – his rostrum includes, among others, the Nazi criminal Klaus Barbie in 1980s, the Venezuelan terrorist “Carlos” in 1990s, the Iraqi Vice-President Tarek Aziz in the 2000s and he offered his services, without success,  to Slobodan Milosevic and Saddam Hussein.  It is doubtful that any lawyer would have been accepted to Bin Laden. It is possible that any lawyer would have been targeted by Al Qaeda as well as by American avenger groups. To guarantee Bin Laden the “best defense” would have been impossible.

The defense, if any, would have argued that the crimes committed by Al Qaeda are not unique and that Western powers, first and foremost the United States, have committed crimes against civilian population similar to those of Al Qaeda in Vietnam and in Somalia, in Afghanistan and in Iraq. By diverting the attention on other issues, the trial could risk to become a trial of American military policy rather than to terrorism. Even the Nuremberg trial, carefully designed to be a process against Nazi’s atrocities, started to be the occasion to denounce all war crimes, including those committed by the winners of the Second World War. Two wrongs do not make a right, and a series of atrocities do not absolve the individual responsibility in any of them. Nevertheless, an egregious criminal that defends himself by pointing to the crimes committed by his prosecutors may be condemned by the Court but half redeemed by public opinion. If Slobodan Milosevic and Saddam Hussein had not been tried their place in history would be worse.

A fair trial can also help to re-write history but most of the evidence about the 9/11 attacks has already been successfully uncovered and it is very unlikely that new facts would have emerged during the hearings. Indeed, much still needs to be discovered to finally defeat Al Qaeda, but again this is a matter of intelligence rather than of a Court’s investigation. Finally a fair trial also should help to provide closure to the victims and their relatives, but when the size of the crime is so enormous, it is difficult to believe that any victim will find satisfaction by seeing the culprits at the bar.

There are apparently more disadvantages than advantages in envisaging a trial for Bin Laden. Still, the fact that the most egregious criminal of this century was killed in an attempt to arrest him shows that we are still far from a global rule of law. And, quite aside from the euphoria of the population in the very first moments, it will now be more difficult build a just world order.

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