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A C Grayling, Stephen Rapp and Osama bin Laden

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confused?

This morning I was listening to the always interesting AC Grayling giving a talk and participating in a panel discussion on ways Australia and other nations might engage with China. Linda Jaivin and Hugh White were the other speakers on the panel. It wasn’t live, it was a recording from the Sydney writers’ festival of a few weeks ago. All the speakers were stimulating, but Grayling, speaking apparently extempore, demonstrated a knowledge of Chinese life and history that surprised me, though I know he’s a great proselytiser for historical study. He’s spent quite a bit of time there, I discovered. Ah, la jalousie.

Grayling was unsurprisingly pushing the human rights issues, while acknowledging the difficulties, especially for rather China-dependent nations like us, but he did happen to mention that our difficulties in preaching human rights to China are somewhat compromised by our preference, at times, for assassinating our enemies rather than bringing them to trial. He was of course referencing the bin Laden murder, so I’m delighted that he agrees with me on that one, though I wouldn’t have expected less.

So I’ll return to that subject, as there were many points about that assassination that I failed to make. First, there were contradictory reports about bin Laden’s behaviour that day. He used a human shield, he didn’t use a human shield; he was armed, he wasn’t armed; he was going for a gun [a statement about intention that is by its nature unverifiable], and so on. Only those present in the room with bin Laden really know, and it’s unlikely that they will be encouraged to provide the truth, as far as they can provide it, to the public. My concern is that there was probably no serious intention to bring bin Laden out alive. Again, let me compare the case of Mladic. Had it been announced by the Bosnia-Hercegovina government that a team had been sent into Serbia to ‘bring the mass-murderer Ratko Mladic into custody for the commission of crimes against humanity, during which operation Mladic had been killed while resisting arrest’, there would no doubt have been a general outcry, and the US government would have been one of the voices crying out. Demands would have been made for full disclosure of the events leading up to and following Mladic’s death. So what was the international response to bin Laden’s slaying? According to this post , it was pretty lame:

“This was a complex operation and it would be helpful if we knew the precise facts surrounding his killing. The United Nations has consistently emphasized that all counter-terrorism acts must respect international law.” says UN High Commissioner for HR, Navy Pillay, leaving the discretion to do so with the US and with no commitment on her part to pressure US to declare facts and information related to the murder and violation of Pakistan’s sovereignty.

Of course it’s no surprise that the world’s most powerful nations are the most resistant to international law. They have, by and large, the most to lose by conforming to such law. And of course there’s some collusion here by the international community and its representatives, because the international community is in fact no community at all, it’s hopelessly divided and largely impotent. Many want the US to act as a world policeman, because the alternative is intolerable. Allowing certain breaches of reasonable and civilized behaviour is deemed a small price to pay.

Yet we can still prevail upon this ‘policeman’ to act responsibly and to set an example. The US likes to imagine itself as a beacon of democracy, fairness, good governance and decency, as any self-respecting superpower would. We can appeal to this sense of fair play by hammering away at US inconsistencies, and making that nation, or some of its most thoughtful [and hopefully influential!] inhabitants feel ashamed at their double standards. It’s probably all we can reasonably do. And at the same time we should continue to work on that rough, raw, but gradually improving process known as international law. It’s a slow, frustrating process especially for those working at the coal-face at any particular time, but we must remember that it only really began in the second half of the twentieth century, and our impatience sometimes blinds us the fact that teeth have begun to emerge on that particular tiger.

My hat is off, once again, to Geoffrey Robertson, and to Grayling and other voices crying in the wilderness. I noted that when Robertson complained about the flouting of international law and human rights in bin Laden’s assassination, just after the fact, he was drowned out by triumphalist voices crowing about bin Laden’s demise. You would think that, here in Australia, more reasonable voices might have been raised – and maybe some were, but I didn’t hear them.

As to the possibility of an ICC case against bin Laden, this talk given less than a week ago in the Philippines by Stephen Rapp, the US ambassador-at-large for war crimes issues, is both illuminating and confusing. He begins his Q and A with this:

It would not have been possible to try either Saddam or Osama in the ICC for the major crimes for which they were alleged to be responsible, because these occurred before July 2002 when the ICC came into being. The Court cannot try any crimes committed before that date, even on referral from the UN Security Council.

I’m sure that Ratko Mladic and his lawyers would be delighted to hear this news, since, in defiance of this ‘rule’ the ICC is trying Mladic for crimes committed in the mid-nineties. I begin to smell a rat here. Rapp goes on to say this:

On the Osama question, I do think that it is important to note that while it happened before the ICC statute took effect, the crime of Osama bin Laden on September 11, 2001, was a crime against humanity. Of course, it was also an act of terrorism, which is a crime under international humanitarian law based on the Additional Protocols to the Geneva Convention. We obtained convictions for the international crime of terrorism at the Special Court for Sierra Leone against defendants who terrorized villages by chopping off hands and raping women. It was terrorism because they committed these acts to intimidate and gain political advantage. However, the authors of the ICC statute decided not include terrorism as a crime in the statute, because it was a controversial issue. But the acts of 9/11 were crimes against humanity, because they were “widespread or systematic” in having targeted four buildings full of civilians, and were done as part of an organization’s plan or policy. Osama could have been charged with this crime had the ICC statute been in effect at the time.

What Rapp appears to be saying is that the September 11 attacks [and bin Laden’s role in them isn’t even discussed, instead it seems to be simply taken for granted] were a ‘crime against humanity’ but cannot be prosecuted as such because this crime wasn’t on the statutes until 2002. He acknowledges, though, that these were acts of terrorism, but seems to fudge the obvious conclusion that bin Laden could be tried as having committed acts of terrorism. Instead he seems to be claiming that he could only be tried for crimes against humanity. This is clearly absurd.

This news site breaks down the 15 charges laid against Ratko Mladic by the ICC. It includes 2 counts of genocide, 6 counts of ‘war crimes’ and 7 counts of ‘crimes against humanity’, all of which were committed before 2002. There was nothing to stop bin Laden from being prosecuted for such crimes. It appears that Ambassador Rapp has been telling fibaloonies. It’s a classic case of post-hoc rationalisation, albeit pretty piss-poor rationalisation. It gets much worse though. Here are his final comments on the slaying:

But regarding what happened to Osama earlier month, it is our position that the United States was in an armed conflict with the Al Qaeda from September 11, 2001, to the present. It is an armed conflict like the one we had with the Japanese government in World War II, where we were justified in attacking the commanders of those who were attacking us. It is not an action against civilians; it is not a police operation. We do not have to knock, and we do not have to be shot first before we can shoot back. We can target the commanders. If the targeted person voluntarily surrenders, throws up a white flag, throws up his hands, then we can take him prisoner and prosecute him for war crimes in our courts. We would have done the same thing with him in terms of having a trial.

But obviously that did not happen. In the future, however, it is important to recognize that there is an overlap between acts of terror and other atrocities. On 9/11, innocent civilians from scores of countries, including more than a dozen Filipinos, were murdered because of somebody’s political agenda. These were atrocities and should be recognized as such. There needs to be an ability to prosecute these cases. This will often be at the national level, but it should also be possible to deal with them within international institutions when circumstances arise.

This armed conflict with Al Qaeda is presumably based on various rhetorical comments made by Bush and others declaring a ‘war on terror’. This war was never defined or fully explained, and it has as much legal validity as any other rhetorical statement. It is on a par with the ‘war on drugs’, it has no specifics, no properly defined targets, no time-frame or clearly stated purpose or possible resolution. Just as the ‘war on drugs’ doesn’t give carte blanche to shoot drug pushers or members of organised gangs on sight, without concern for borders or rights, the unilaterally declared war on terror does not permit the flouting of national and international laws in any way. I strongly suspect that from any legal perspective, the ‘war on terror’ is nothing more than pure fiction. How can any serious legal expert accept the complete suspension of the rule of law for an open-ended, unilaterally declared conflict – it’s quite egregious.

When Rapp begins that last para with ‘obviously that did not happen’ he seems to be referring to the claim that bin Laden didn’t throw up his hands in surrender. But it is not at all obvious what happened in that place. His attitude in this last para seems to be that, well, obviously we were going to take bin Laden out, but from now on we’re going to try to be good and deal with atrocity-committers within the confines of national and international law, if possible. Sounds really convincing. I was annoyed that this piece of spin from Stephen Rapp didn’t allow for comments. This stuff should never go unchallenged.

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Written by stewart henderson

June 12, 2011 at 10:12 pm

Posted in Uncategorized

2 Responses

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  1. The ICC is not trying Mladic – that’s a special court set up for crimes committed during the Bosnian war. No Rome Statute involved in the Mladic prosecution.

    Thank you so much for your words of sanity regarding the technique of assassination versus prosecution. I was glad to learn through you that Grayling has the same perspective.

    Sarah Hambrick

    July 21, 2011 at 1:55 am

    • Thanks for dropping by Sarah and thanks for the correction and for prompting me to clue myself in on the Rome Statute. Part-timers and dilettantes like me have a hard time getting their heads round all the detail. Glad you agree with the general argument though.

      luigifun

      July 22, 2011 at 1:53 pm


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