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A moment's thought is enough to expose the difficulties of this analysis. Wars are waged by states, not individuals. Though it may be legitimate to bomb targets in a country with which the US is at war, that hardly applies to a country like Pakistan — with which the US maintains diplomatic relations. US troops are not even meant to operate inside Pakistan without permission, unless there is an overriding threat to national security.

Of course, the position is different once the United Nations is involved. In March, the UN Security Council passed resolution 1973, authorising "all necessary measures" to protect Libyan civilians. The air strike on Gaddafi's compound that killed his youngest son a day before the attack on bin Laden suggests that Nato regards the UN resolution as justification for killing the Libyan leader himself.

There is, inevitably, room for doubt over whether killing Gaddafi is necessary to stop him attacking his people. Some argue that it would be counter-productive. Others pin their faith on the prospect of arresting him and bringing him to trial at the International Criminal Court. All one can say about that is that it has not proved to have been much of a deterrent so far.

Nor was it for bin Laden. Still, says the Left, we should have tried to capture the al-Qaeda leader alive and put him on trial like Milosevic and the Nazis at Nuremberg.

But this misses the point. The wars in former Yugoslavia and Germany were over by the time those responsible were brought to trial. If bin Laden had been captured, his followers would surely have been inspired to launch further attacks on US targets in the hope of persuading the Americans to release him.

International lawyers have always prided themselves on their practicality. In deciding what the law is, they take account of what governments do. They now see states targeting not only international terrorists but also heads of state, who have traditionally enjoyed immunities under international law. Their response tends to be a grudging acceptance of harsh realities coupled with a wish that it did not have to be so.

In the real world, it does. It may not be wise to intervene in other country's wars. We may kill innocent people if we shoot first and ask questions later. But if the law books say it's never lawful to kill tyrants, it's the books that need changing.

The Israelis regard terrorist leaders as ticking bombs that must be neutralised before they cause carnage. Lawyers call that "anticipatory self-defence" — which means you don't have to wait for the other guy to shoot first. Although death must be no ground for rejoicing, that strikes me as a very sound rule of law.

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Herbert Thornton
October 11th, 2011
9:10 PM
Andrew McGee asks - "How can it be self-defence to go to a man's house armed and with hostile intent and kill him? That is an absurd argument." I think that Andrew McGee misses the entire point. If the law says that something is "unlawful" that is not the complete and final answer. The law sometimes ought to be changed and quite often is changed. In our own time for example, so many people have changed their minds about homosexual acts being unlawful that the law against it has been changed so that it now is lawful. As for Osama bin Laden, my own son visited New York not long before the World Trade Centre atrocity and like many tourists, went to the top of the WTC. If he had been there when the atrocity was perpetrated, our son would now be dead. That very much influences my attitude and I would hope that Andrew McGee could understand that - and recognise that my attitude is legitimate. There is no doubt whatsoever that OBL was planning still more such atrocities. Consequently, to my mind, killing OBL was of the very essence of self defence and to call it an "absurd argument" is unsound thinking. If the law books say it is never lawful to kill people in such circumstances, then the law stated in the books ought to be changed. Certainly in the cases of Osama bin Laden and of Anwar al-Awlaki, any law that protects them is clearly very bad law and ought to be changed. Happily, it has - in effect - been changed. If any further steps are needed to confirm that the law has developed in this way then those further steps ought to be taken.

Andrew McGee
June 16th, 2011
11:06 AM
How can it be self-defence to go to a man's house armed and with hostile intent and kill him? That is an absurd argument. The position is in reality quite simple. US forces conducted a military operation in the territory of another sovereign state without that state's permission. The purpose of the operation was to kill a particular individual who was regarded as a threat to the security of the US; but the US cannot be 'at war' with him or with his organisation, which is not a sovereign state. Nor can international law recognise the idea of war on an abstract concept as in 'War on Terror'. The operation was plainly unlawful, however desirable we might consider the result to be.

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