An Act of Judgment?
By Oliver O’Donovan
The week before the raid that killed Osama bin Laden at Abbottabad in Pakistan, NATO air forces came close to hitting Colonel Gadaffi in a raid on Tripoli and may have killed one of his sons. The suggestion of an assassination attempt was met with a disapproving denial. The targeted building was positively identified as a command-and-control center, the British Prime Minister insisted; the rationale of NATO operations was military, and would not envisage assassination — though, of course, if the colonel had happened to be on-site commanding and controlling when the planes came over, that was his lookout. A compound may house families as well as facilities for military planning, but it does not follow that in targeting the military offices you are targeting families, too. All of which was in conformity with international law and traditional Just War doctrine, which prohibits assassinations but allows attacks on the enemy’s command facilities.
About a week after the raid that killed Osama bin Laden, a parallel account of that operation has begun to emerge. Material recovered from computers has shown that the compound was a center of planning operations. Bin Laden’s continuing role, which experts had for some time discounted, now appeared in a more significant light. And so in retrospect the military reasons for his death have come to seem clear: “an enemy commander in the field,” he was a legitimate target of hostilities. But this is all in retrospect. In the hours and days just after the raid the justifications, doubts and criticisms all bore a very different cast.
There was, to be sure, a good deal of debris swirling around in the pool of early commentary which can easily be dismissed, questions lurking at the back of pundits’ minds which, in the rush to get a comment out quickly, surfaced to create a distraction from the point in hand. Did the United States have a just cause of war in the area founded on the attacks of ten years ago upon New York and Washington? Did the military alliance with Pakistan allow for such independent American activity on Pakistani soil? Discussable, certainly, but not getting to the heart of the bin Laden case.
But can we also dismiss the strident declarations of patriotism, valor and vindicative justice with which the news was greeted? It is, of course, the kind of thing that tends to upset observers abroad, reinforcing the superficial impression of a highly-strung national narcissism, but those who know the United States best know that behind the parade of popular passions there is always much cool and careful thinking about public affairs — off-Broadway, as it were. The fact that in the heat of the moment elected politicians could not tell the difference between good reasons for the raid and bad ones — or, worse, believed that the voters were more interested in bad ones than in good ones — need not mean that national policy had all the time been at the mercy of bad reasons.
And yet the questions remain: What were the goals of this mission when it set out? What did those who authorized the mission intend that it should accomplish? If, as CIA director Leon E. Panetta has said, the recovered material “only further confirms” the importance of Osama bin Laden as a target, what exactly was the nature of that importancebeforethe material was recovered? Perhaps one day last month or last year, somewhere deep in the bowels of the Pentagon, one old hand on the Pakistan desk may have said to another, “You know, I feel in my bones that if we only can catch up with bin Laden, we’ll be at the heart of this Al Qaeda business.” But official and political actions don’t rely on that kind of feeling. Catching up with bin Laden has long been a project that seemed to afford its own justification. “Since 9/11,” Mr. Panetta added, “this is what the American people have expected of us.” And it is on that point that any attempt to ask a moral question has to focus sharply.
Why do the Christian ethics of war and the law founded on it prohibit assassinations? Because assassination cannot be a true act of judgment. The logic of armed conflict is a logic of collective judgment on collective responsibility for wrong. War enacts justice between nations, taking over judgment, as the old saying had it,ubi iudicia cessant,where the courts run out. Its justice is attributive, denying the facility to do wrong, rather than vindicative, setting right old wrongs. As judgment it is pretty rough, lacking the detailed discernment to attribute personal responsibility.
It is easy enough for an angry community to project blame for its wrongs on the leaders of an enemy people, but that is the justice of the lynch mob. Only inquiry can determine individual merits, even approximately. In the fog that rises with the fight against terrorism, where all the shapes are undefined and we never clearly discern who or where the enemy is, we must not lose sight of the difference. For it is we who make war in the fog; it is we, therefore, who need to know quite clearly what kinds of things can and cannot be accomplished by war.
But the prohibition of assassination is not the sole point to consider in relation to the search for bin Laden. With the recent appearance of war-crimes tribunals on the international landscape there is a new link between the attributive judgments of war and the vindicative judgments of criminal courts. As we saw in the antecedents of the invasion of Iraq, once an international tribunal has made an authoritative ruling something has to be done to enforce it, and that something may be indistinguishable from an act of war. The new fact of international criminal tribunals has forced us into a world of international manhunts for accused persons, sometimes pursued by military means. The collective logic of war now acts as a launch-vehicle on which the personal logic of criminal process penetrates the outer space of international law.
The goal of the new logic is clear: it is to bring the accused before a competent court. Anything else would not be mere attainder. How much that goal may have shaped the planning and execution of the Abbottabad operation is not clear, but if it did so we should not refer to the raid as an “assassination.” We have been told that the assault team was ready to recover its target alive if that should prove possible. If military arrest meets resistance, of course, military necessity requires it to be forcibly overcome, and if that costs the target’s life, the loss may be proportionate to the evil of leaving him at large. That the target was personally unarmed in this case need not be decisive if he was effectively defended by others, though how much resistance was actually offered has still not been made clear. Can this serve as an explanation of what happened? Perhaps. Yet on this account we might have expected to hear a word not very much used in recent days: it was surely afailedmission!
Christian citizens need not expect, and should not pretend to, total certainty about the rights and wrongs of this or any other public act. It is no part of God’s plan for their holiness or for their service of the neighbor that they must be all-knowing about the morality of what others have done, even when it is done in the name of the political community. Christians can be useful citizens, though, by being rather fussy about the justifications and explanations offered by political actors for their consumption and approval. Faced with extraordinary actions, they may demand thorough and coherent explanations on morally serious and law-regarding grounds. For myself, I am left thinking that whatever good account there is to be given of why bin Laden was killed, it has yet to be fully made public.
Originally published in The Living Church, republished with permission. This article is one of two on the subject, the other, by Deonna Neal is published on Fulcrum here
The Rev Dr Oliver O’Donovan, Professor of Christian Ethics and Practical Theology at the University of Edinburgh, is the author of The Just War Revisited (Cambridge, 2003) andThe Ways of Judgment (Eerdmans, 2005).
These posts are by guest authors for Fulcrum