Should Osama Bin Laden have been caught and tried? By Jon Silverman

Professor of media and criminal justice, University of Bedfordshire Published duration 4 May 2011

image caption From Abbottabad to Guantanamo?

US special forces shot Osama Bin Laden in the head, rather than arresting him, so America's "most wanted man" will not face trial, but should he have?

Quite rightly, jurists will always argue that due process is preferable to revenge. To (almost) paraphrase Winston Churchill: law law is better than war, war. But it comes at a price.

Would adherents to Sharia law have regarded the laborious legalism of a Milosevic-style trial, with its emphasis on history and geopolitics, as an appropriate means of decapitating the al-Qaeda hydra? Would the majority of Americans have?

And where could Bin Laden have been securely housed while awaiting a trial?

Location, location

With the lesson of the trial of Saddam Hussein in mind, whose moral authority would have been enhanced, as America's entanglement with the mujahideen in the 1980s unfolded as background evidence?

From a jurisdictional point of view, the obvious venue for a trial would have been New York City. That's where the majority of the deaths on 9/11 took place.

Yet, for security reasons, the trial of Khalid Sheikh Mohammed, the man accused of being the organisational mastermind of the attacks, will not be tried in a Manhattan courthouse but before a military commission at Guantanamo Bay.

image caption Would a trial have boosted Bin Laden's hero status?

While such tribunals have a long provenance in trying acts committed during a war, their validity in these circumstances is regarded as dubious by many commentators.

Moreover, those who argue that at least they produce quicker results are confounded by the facts: in the nine or so years since the Guantanamo commissions were announced, only five cases have reached a verdict, three by plea bargain.

Thus, it is unlikely that a Bin Laden trial at Guantanamo would have delivered the kind of effective closure America has sought.

So, if not in a civilian or military courtroom in the US, what about before an international forum? After all, the al Qaeda-inspired jihad is often portrayed as a declaration of war on global institutions and mores, rather than a targeted assault on the US alone.

Bin Laden could not have been tried for 9/11 at the International Criminal Court because its jurisdiction runs only from 2002.

The UN Security Council could have set up an ad hoc tribunal - as it did for crimes committed in Rwanda and the former Yugoslavia - but in those cases, the world community was sending a message about the ending of impunity for those who wilfully commit crimes against humanity and genocide.

Inspiration or mastermind?

The only precedent for a tribunal set up specifically to deal with an act of terrorism, the Special Tribunal for Lebanon, is not a happy one. It was established in 2007 to investigate the assassination of the former Lebanese Prime Minister, Rafik Hariri, and has yet to hold a trial.

Many believe that, given the ultra sensitive politics of the Middle East, it may never do so.

A Bin Laden prosecution in an international forum might also have been hostage to the perennial argument that the pursuit of justice can jeopardise peace.

With continuing instability in Pakistan and Afghanistan and an uncertain future in the Middle East, provoked by the Arab Spring, this argument would have particular force in this case.

But supposing some of these difficulties had been surmounted and Bin Laden had stood trial, like a latter day Milosevic or the Liberian president, Charles Taylor, would the cause of justice have been served and the prospect of martyrdom dealt a blow?

Not necessarily. A prosecutor would have had to prove Bin Laden's responsibility for 9/11. Not merely as a symbolic Pied Piper of wannabe terrorists, but as someone who organised a criminal conspiracy to kill thousands in the United States.

Distance and intent were difficult connections to make in the case of Milosevic (and, of course, we will never know what the outcome would have been had he not died mid-trial).

Hero worship

They have been difficult connections to make in the trial of Charles Taylor, currently awaiting a judgment.

And in both Serbia and Liberia, there were many whose hero worship for their former leaders was reinforced rather than weakened by seeing them in the dock.

Sadly, it hasn't and, in the age of the Internet, malicious fabrication about the Nazis still pulls in gullible converts.

How much more seductive is the viral propaganda of Islamist extremism and what contribution would Bin Laden, giving evidence in his own defence and imprisoned for the rest of his natural life - like Rudolf Hess - have made to the myth?

Churchill never regretted being talked out of his original preference for the surviving Nazi leaders to be summarily shot.