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By James Bowden
Once upon a time, during a conflict that similarly spanned a decade, the aggrieved friend of a soldier killed in battle took vengeance upon his friends’ killer in a duel outside the gates of Troy. The vengeance of death was not enough for him, so he tied his victim to his chariot and dragged the body around the city walls before taking the body back to rot without burial. We’ve come a long way since the great warriors of the bronze age. After Osama bin Laden was killed by U.S. Navy SEALs on Sunday, his body was taken back to a U.S. Navy ship, where it was bathed and a ceremony in Arabic was held before the body was given to the sea all within 24 hours, as required by Muslim tradition.
The raid that resulted in bin Laden’s death was by no means anything but extra-legal, despite some counter-arguments. Pakistan is technically an ally, and was not informed of the mission until it was well in progress. The mission is not without its legally-problematic analogy: in 1960, Israeli Mossad agents captured Adolf Eichmann, a Nazi responsible for the logistics that made the horrific, mechanical efficiency of murder that was the Holocaust possible, in Buenos Aires, Argentina. The dispute over Eichmann’s capture led to the U.N. Security Council’s Resolution 138, which in effect recognized that Eichmann was an evil guy who deserved his comeuppance, but gingerly noted that Israel’s methods were not altogether on the up-and-up. Israel and Argentina later effectively agreed that, while Israel’s actions had infringed on Argentine sovereignty, seeing as how Eichmann was such a bad guy, no harm, no foul. Eichmann was tried in a civilian court in Israel, found guilty, and executed by hanging. Despite the result, not exactly the precedent you’d want to cite to support the legality of the bin Laden raid.
The war on terror has always been a bit of a slippery legal concept: it is one where the theatre of war is not reasonably limited to certain geographic areas, as a technical matter was never subject to a declaration of war by congressional action, and is not against an easily identifiable opponent. Similarly, there really is no definable victory; there will never be a surrender on the deck of a warship, or a treaty signed in a neutral city. Even more troubling, it appears that information, including the information that led to the discovery of bin Laden, may have been extracted from detainees held without charge by the use of interrogation tactics that were, by most definitions, tantamount to torture.
The issue that may become a minor flashpoint now is that bin Laden will not face trial. It is probably an unnecessary digression to point out that suspects shot and killed by police while resisting arrest are similarly exempt from trial, but some may insist that the mechanism of a trial gives legitimacy to the final disposition of an enemy by providing the gloss that the outcome is not pre-ordained. I’d have to insist the outcome of the trials of war criminals are rarely anything but a forgone conclusion. A very close friend of mine from law school who worked for the Special Court for Sierra Leone once told me that trials for war criminals are necessary as distinguishing between civilization’s respect for the rule of law and the chaotic anarchy that war criminals represent, even if the facts of the case are never in doubt. The trials are mechanisms for applying international law to punish persons who would claim to be immune from prosecution or outside the jurisdiction of the tribunal; the accused person’s immunity or the tribunal’s jurisdiction over them are generally the only disputed issues. In essence, holding trials is the difference between us and them, between due process and the cold injustice of revenge. If bin Laden had been captured, would a trial have been the correct procedure? Undoubtedly, yes, but what intricacies would be necessary to ensure due process is a question we will never have to ask. Perhaps we are fortunate not to be so required.
So bin Laden will not face trial, and will not have an internationally-televised news event to use as a platform to spout propaganda and turn the knife in the hearts of his victim’s families. That fact will likely not only avoid the logistical nightmare that a trial presents and save heartache – it will likely save lives. The night that Achilles killed Hector, Hector’s father Priam, the King of Troy, snuck to Achilles’ tent in disguise to beg for his son’s body, so that it could be buried according to tradition – essential, in the eyes of the Trojans, so that their city’s hero could cross the river Styx and enter the afterlife. Achilles, seeing Hector for the first time as not the murderer of his friend but as a noble opponent, granted Priam’s wish, and Hector was buried a martyr to Troy and dignity, and a symbol of the waste that is war. Osama bin Laden was killed in a pitch battle with the soldiers of his self-declared enemy, who showed him more respect and courtesy in death than he ever showed to a one of them in life. Bin Laden was buried at sea, where his grave will never be a monument and its occupant will never be a martyr.
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