Monday, 2 May 2011

When is an execution not an execution?

Will the legally rather dubious killing of Osama Bin Laden (carried out by special forces on the soil of a sovereign state that had, unofficially, been protecting him) cause any awkwardness in Brussels? It seems not. In its initial response to the news, the EU has been able (somewhat conveniently) to describe the death of Osama Bin Laden as "not an execution" - indeed, it was "completely different" - and thus to claim that it "in no way questions the basic principles and values we have always supported". The spokeswoman added that "We continue to be against the death penalty."

An interesting distinction, this. The extra-judicial killing of "the world's most wanted man" does look like an act of retribution, rather than (formally at least) one of justice. There was no attempt made to capture Osama bin Laden with a view to putting him on trial. George W Bush announced, in the wake of 9/11, that he was wanted "Dead or Alive", but Obama's order seems to have omitted the "or alive" part. No, the Americans just wanted him dead. As such the EU may be technically correct to describe the killing as "not an execution". Execution, after all, implies a trial, a verdict given by a legally-constituted court, a sentence handed down by a judge, appeals all the way up to the Supreme Court and finally a medically supervised procedure supposed to ensure that the termination of the condemned man's life is carried out in a relatively humane manner. Oh, and no-one else getting killed at the same time for the crime of being a "human shield", as appears to have happened to an unfortuate woman in Bin Laden's compound.

The EU reaction would tend to imply that if Bin Laden had been taken alive, carried off to Gitmo for a little friendly waterboarding and eventually put on trial and sentenced to death, Brussels would have issued an appeal for clemency. Yet the EU Commission also commented that


Osama bin Laden was a criminal responsible for heinous terrorist attacks that cost the lives of thousands of innocent people. His death makes the world a safer place and shows that such crimes do not remain unpunished.


So it was a punishment for a crime after all. And the killing of a specified individual, ordered and carried out by the state as punishment for a criminal act is, in most normal definitions of the term, an "execution". What the EU is effectively saying, then, is that capital punishment is only acceptable if it is done on the basis of secret orders, issued by a politician, with no trial and no possibility of appeal. How does that work, exactly?