The role of the US forces in Abbottabad raises an important question: from where do governments derive the authority to kill people? It has been argued that it is lawful to kill ‘enemy combatants’ in a war and, therefore, it was well within the power of the US commandos to kill Osama bin Laden as
he was an enemy combatant. However, law scholars are divided on this issue. This underscores the need for more information from the US about all aspects of the killing.
Bin Laden was reportedly unarmed at the time of his killing and if this is true, the question remains as to what was the authority under which he was killed. A related question is whether it is lawful to kill an enemy combatant who could be forced to surrender?
While international law allows for the legitimate exercise of the right to self-defence and the use of force against State and individuals, one of the questions in this case would be whether bin Laden was armed or whether there was a threat of use of force by him or his associates leading to the exercise of self-defence in the operations?
The larger question is whether the US became the judge, jury and executioner in this case denying him an opportunity to surrender, which would have involved capturing bin Laden and putting him on trial. There is no doubt that a trial could have posed a lot of difficulties for the US. There would have been international scrutiny of the process, but it is also possible that valuable information could have been obtained from him.
While the death penalty as a form of punishment continues to be used in the US as a method of achieving justice, there is an emerging global trend of abolishing the death penalty. It is useful to note that out of the 193 independent states that are UN members (or have UN observer status), 95 countries (49%) have abolished the death penalty: 41 (21%) have the death penalty in both law and practice; 8 (4%) retain it for crimes committed in exceptional circumstances as in times of war; 49 (25%) permit its use for ordinary crimes, but have not used it for at least 10 years.
While the question of bin Laden's killing is being debated for its conformity to international law, there is a need for the international community to seriously reflect upon the relevance of the death penalty as a form of punishment for any crime, including the most egregious of crimes against humanity.
All tribunals and courts established by the United Nations do not have the authority to impose the death penalty. It would have been more appropriate for underscoring the US’s commitment to international law, if bin Laden was captured and put on trial as opposed to being summarily executed. The world should get more accurate information about the use of the right to self defence leading to his killing in these circumstances.
C Raj Kumar is the Vice Chancellor of OP Jindal Global University and Dean of Jindal Global Law School. The views expressed by the author are personal.