The Death of bin Laden and a Global Order of Rights
The Death of bin Laden and a Global Order of Rights
Mark Philip Bradley: The Death of bin Laden and a Global Order of Rights
?If Hitler falls into our hands,? Winston Churchill told his war cabinet in 1942, ?we shall certainly kill him.? Hitler himself eventually took that problem off his hands. Yet Churchill continued to insist as the Second World War drew to a close that the best way to deal with the Nazi leadership was to ?execute the principal criminals as outlaws.? Cooler heads, Americans among them, eventually prevailed. The subsequent Nuremberg Trials were not without the taint of victor?s justice. But they established a revolutionary set of global principles that sought to guarantee the right to trial for individuals accused of war crimes and crimes against humanity.
Whether Osama bin Laden, the Hitler of the war on terror, would have, if captured alive, found his way to the International Criminal Court in the Hague or some other state or transnational juridical body, we will never know. But if his killing by American forces is to be considered just, at home and abroad, we must know more than we do today. If it was a ?kill-or-capture? mission, why was bin Laden killed? One day the Assistant to the President and Deputy National Security Advisor for Homeland Security and Counterterrorism John Brennan says bin Laden ?was engaged in a firefight with those that entered the area of the house he was in.? The next day White House Press Secretary Jay Carney acknowledges that bin Laden ?was not armed.?
The circumstances matter, as do American intentions. Even in the wake of the terrible loss of American lives on 9/11, and perhaps especially because of them, vengeance is not justice. After almost a decade of officially sanctioned torture and extrajudicial killings, knowing what was meant to happen in the Abbottabad compound on Sunday, and what actually happened, is critical. It may determine if the United States can ever recover its credibility as a guarantor of the global human rights order it first sought to construct in the waning days of the Second World War.
In those days, talk of evil was as commonplace as it can be today. Churchill?s observation that Hitler ?was the mainspring of evil? was widely shared by the Allies even if his sensibilities about what do about it were not. The Nuremberg moment, however, was about more than war crimes. It marked a turn to the global articulation of individual human rights–among them that everyone had the right to life and to equal protection under the law, and the guarantee that no one should be subject to torture–in the aspirational 1948 Universal Declaration of Human Rights and to protections for noncombatants in times of war in the 1949 Third Geneva Convention.
This emergent global rights order of the 1940s, in whose creation the United States played an important part, was seldom honored during the long and devastatingly destructive Cold War. Political assassination and massive rights violations became all too common in much of the global South, often directly or indirectly aided by U.S. policies.
But after 1989, the magical ubiquity of human rights talk–which in part appeared to have brought down the Soviet empire–and a renewed American embrace of it hovered over a new world order once again in potentially transformative ways. It brought with it a return to the Nuremberg project and the establishment of the International Criminal Court (ICC) as the first permanent global juridical forum designed to try perpetrators like bin Laden for gross violations of human rights.
Without question the United States could sometimes sit apart from these developments, most notably the establishment of the ICC itself, in part because we argued that our own exceptional status as a guarantor of rights meant belief and action at home rather than the creation of institutions in transnational space.
Until 9/11. And even then, until Abu Ghraib, Guantánamo, and extraordinary rendition. The promise of the Obama campaign was to turn the page: to close Guantámamo and to try its prisoners in open court in order to restore the dimmed magic of the place of the United States in the global rights order. That has proved more difficult than the president once believed.
The Churchillian retributive glee following the killing of bin Laden does not honor those who were killed by him on 9/11. Nor does the more somber posture of nondisclosure at the White House. Why ?kill? and not ?capture?? The stakes in answering–fully, without the cover of ?classified operational details? or the fog of war–are now exceptionally high. Indeed, perhaps the only way for the United States to reestablish itself in the global imagination as a place where the rights and duties of a human rights order can flourish is for all of us to learn how, in the President?s words, ?justice was done.?
