No ‘exceptionalism’

During the course of the 'war on terror', principles of rule of law – representing the core values of supremacy of law over arbitrary state powers – have come under serious attack, in many instances being undermined. States around the world have made regular justifications for violations of fundamental principles of human rights and human dignity based on the rhetoric of 'exceptionalism', the idea that threat from terrorists is so overwhelming that exceptional measures are justified, including undermining fundamental values of human rights. Over the past decade, the reliance on exceptionalism by governments across the region and the world has led to a long list of legally questionable actions, including the targeting of religious and ethnic minorities, indefinite detention, disappearances, extraordinary rendition, absence of fair trail, torture, physical and psychological abuse, and even killings.

Policies of exceptionalism have not only been highlighted in the practices of pariah states, military dictatorships and unstable democracies (for instance, Pakistan). In recent years such approaches have also become associated with liberal and established democracies such as the US, the UK and members of the European Union. In the context of the UK, for instance, the Anti-Terrorism, Crime and Security Act of 2001 authorised indefinite detention of foreign terror suspect and the probability of acceptance of evidence by UK domestic courts based on torture conducted by a foreign state outside of British jurisdiction. While both policies were deemed unacceptable by a committee of the House of Lords, their purported application illustrates violations of principles of rule of law. The passage of this legislation also inflicted considerable damage on the relationship between the British state and communities that felt most directly affected – ie, British Muslim minorities.

Much has also been said about US policies since the attacks of 11 September 2001, which ushered in legislation such as the British Anti-Terrorism Act noted above, as well as the US's own controversial Patriot Act. Outside of civil liberties within the US, a potent example of violation of rule-of-law principles based on exceptionalism is Washington's reliance on and continued justification for extrajudicial targeted killings through unmanned 'drone' attacks. Within international human-rights law, pre-meditated intentional killings – for instance, through a 'shoot to kill' policy – is unlawful and can never be justified. In other words, it is unlawful if the killing of a person is the sole objective in a non-armed conflict situation. All global legal traditions as well as modern human-rights law have a common approach on this particular issue. Unfortunately, President Barack Obama's administration has insisted on, and has increasingly relied upon, targeted killings in the form of drone attacks.

Drones have accounted for the deaths of several hundred people in Pakistan in recent years. These killings are disproportionate, resulting in the deaths of many civilians. In this mechanical form of targeted killings, mistakes are made at the cost of great human suffering. The disproportionate nature of such drone attacks can be seen in the 2009 killing of Baitullah Mehsud, the Taliban commander. The drone that killed him also accounted for the deaths of his wife, father-in-law, mother-in-law, a medic who was treating Mehsud for kidney problems, along with several others. In such a scenario, not only is the battle for 'hearts and minds' being lost in Afghanistan and Pakistan, but these deaths have become a focal point for further radicalisation.

Unfortunate conflation

The Obama administration is not the al-Qaeda leadership, of course, nor can the people of the US be compared to the violent thugs of an extremist network. Unfortunately, the events of the first week of May 2011 have left little to distinguish between the US administration and the tactics adopted by al-Qaeda. Cold-blooded execution of a political opponent was followed by rejoicing in the streets of Washington and New York, scenes that were reminiscent of those who rejoiced after 9/11.

Initial accounts of what took place in Abbottabad had suggested that Osama bin Laden had resisted attack, and had used one of his wives as a human shield. According to Washington's 'revised' version, however, the al-Qaeda leader was in fact unarmed and was in no position to kill any of the US military personnel. International human-rights law provides absolute sanctity to the right of life of all individuals, even those who are accused of serious crimes, including terrorist offences. The only permissible allowance for the US Navy SEALs to kill bin Laden would have been in self-defence; until that is established, the killing cannot be regarded as lawful under international law.

It is also unsustainable to argue, as some have, that due to the serious nature of bin Laden's alleged offences, a trial would have been too 'complicated' all around. In fact, the world is increasingly witnessing trials and accountability for those accused of having committed the worst crimes against humanity – for instance, genocide and war crimes. In this context, it would have been far more appropriate to charge bin Laden with serious terrorist offences in an internationally constituted tribunal and, once proven guilty, to have held him accountable.

Also problematic is what took place after bin Laden's death, when his body was reportedly 'eased' into the Arabian Sea from a US military ship. The Obama administration has claimed that such a burial at sea is consonant with Islamic law, and the official rationale for such an action was to prevent bin Laden's grave turning into a shrine. The truth is somewhat more complicated. Islamic law insists on ensuring dignity and respect to a dead person, and demands an 'appropriate' funeral. Burial at sea is only permissible when the death has occurred on board a ship, without the possibility of a burial at land. Furthermore, Islamic tradition requires a body to be handed over to the relative of the dead person to perform the necessary religious rites and accord a burial with all dignity and grace. This applies to all and sundry, including those who are accused or convicted of serious criminal offences.

The US administration will undoubtedly continue to assert the lawfulness of its actions in killing bin Laden. Most likely, the international community is simply too intimidated to either set up an independent enquiry or to investigate the facts surrounding the raid in Abbottabad. Ironically and unfortunately, this whole incident could now serve the purpose of those who are avowed enemies of democracy and human rights: instead of being captured and the prospect of a humiliating trail, bin Laden's supporters could now draw inspiration in their own misconstrued version of martyrdom. In the fuzzy details that have emerged thus far about bin Laden's death, it remains unclear as to whether his killing was intentional and based on pre-planned orders – in this, the frequently revised version of events has certainly proved unhelpful.

It is important for lawyers and human-rights scholars to challenge policies that contravene the principle of rule of law, as well as common fundamental human-rights values. The continued support for exceptionalism as a counter-terrorism strategy is dangerous for any and all societies. True democracies are not driven by policies of revenge or hatred, but must at all costs uphold the fundamental principles of rule of law, based on respect for human dignity and human rights.

~ Javaid Rehman is head of the law school at Brunel University in the UK.