Terrorists Have Rights Too -- International Law and Bin Laden

[ArcticFox]

From 5/13 -- http://www.spiegel.de/international/world/0,1518,762417,00.html
Very informative and true to international law.

Terrorists, even Osama bin Laden, are humans. As such, they have rights; human rights. Among these rights are the right to life, the right to humane treatment and the right to a fair trial. Fundamental human rights remain valid even in a state of emergency; they are impervious to such exceptions.

. . . .

Here is the problem. A targeted killing of a terrorist does not, contrary to what US President Barack Obama has suggested, do a service to justice; rather, it runs contrary to it. A state governed by the rule of law, treats even its enemies humanely. It arrests terrorists and brings them before a court. This is exactly what Germany did with the Red Army Faction (RAF) and what it does today with al-Qaida members. This is what the US did in Nuremberg with the Nazis and what it promotes all over the world with other criminals against mankind. Why are the criminals of al-Qaida treated differently?

. . . .

In the case at hand, the targeted killing was not permitted since the US -- contrary to the misleading rhetoric of "the war on terror" -- is not involved in an armed conflict with al-Qaida. A loose and decentralized terrorist network does not fulfil the criteria for classification as a party to a conflict within the context of International Humanitarian Law. It lacks, above all, a centralized and hierarchical military command structure and the control of a defined territory.

Were we nevertheless to proclaim an international armed conflict against al-Qaida, the whole world would become a battlefield and the classic understanding of an armed conflict as being on a defined state territory and thus involving limited military confrontation, would be extended so as to know no bounds. While one cannot deny that armed conflicts can entail "spill over effects," such as via the retreat of one of the parties to the conflict into the territory of a neighboring state (as, for example, occurred when the Taliban fled from Afghanistan to neighboring Pakistan), the extra-territorial reach of such conflicts always reverts back to the original territorial armed conflict.

. . . .

[tritsofme]

1. Are we pretending the 2001 AUMF does not exist? nt

[RaleighNCDUer]

2. Sure it exists.

It's just not legal, under international law.

We are now, and have been for many years, the definition of a rogue nation.

[dkf]

3. International law demands we become sitting ducks.

How can there be legal enforcement in an uncooperative country? Just the fact we went in there is probably illegal. I guess the only legal way is to declare war on Pakistan.

[MrDiaz]

4. I'm glad we got Osama

[Demeter]

6. [phone] 0000000000000 00000000000000

Too bad the title "Cry, the Beloved Country" is already taken.

[Confusious]

5. Osama was an armed and dangerous criminal

There was a standoff in my town where the armed and dangerous criminal didn't come out alive.

Neither did Osama. He should have given up sooner.

I have other things to loose sleep over, and frankly, this hand-wringing is making me sick.

[Igel]

7. Interesting.

Isn't it entailed that AQ and its allies don't have soldiers and that there's no war?

What does that do to the idea of detainees being POWs under the Geneva Convention? Ps, to be sure. But in the absence of a W you still get Gitmo, n'est-ce pas?

But there's the issue of whether everything allowed must be stated. It's the ol' "what's not explicitly prohibited is allowed" versus "only what's explicitly permitted is allowed." It's often been touted as one difference between Europe and the US: In Europe, rights are granted, and no right that's not granted is deemed to exist; in the US, traditionally, rights exist unless they're limited or abrogated.

Moreover, what to do when there *is* no legal way to accomplish the purpose. The instances cited all involved a government or governments in control of the territory in which the perps brought to justice resided; alternatively, we can view things like Nazis in S. America as still being under the perview of extradition treaties, with upstart Nazi-hunters not shy about embarrassing countries that might, all things considered, wish to protect ex-Nazis. Would Pakistan have helped move bin Ladin if they'd been told preliminary intelligence? Would the information have leaked? How secure a vessel is Pakistan for US trust?

Oddly, R2P is a greater violation of what the writer complains about than bin Ladin. One's a hapax. One's not.

[bhikkhu]

8. Much of that depends on whether we are at war or not

as you can shoot or bomb or otherwise kill people you are at war with, as long as they aren't actively surrendering. That Bush declared war (essentially) on an organization rather than a nation-state is a little problematic, but in retrospect he had little choice.

If you admit that we were at war with OBL's al-Qaida, then all the usual things of war apply. Officers have always been targeted, and command centers have always been bombed whenever possible. I think its a piece of bravery that the military went in the way it did, as the risks were much greater than (and the collateral harm much less) than bombing the compound.