If the United States decided to release pictures of Osama bin Laden, would it violate international law?
It's a tough question the United States has faced before. Back in 2003, the Pentagon decided to release photographs of the bodies of Uday and Qusay Hussein, Saddam Hussein's two sons who were killed in a shootout in Iraq. The pictures were bloody, showing the brothers with significant wounds on their faces.
At the time, Defense Secretary Donald Rumsfeld defended the decision, saying it was in line with the Geneva Convention.
"These two individuals are particularly vicious individuals," Rumsfeld told reporters at the Pentagon, according to a Washington Post report. "They are now dead. We know that. They have been carefully identified. The Iraqi people have been waiting for confirmation of that, and they, in my view, deserved having confirmation of that."
The bin Laden pictures are in a legal gray area, University of Michigan Professor of Law Steven Ratner told us. Ratner has been thinking about these issues for a long time. He worked in the legal division of the International Committee of the Red Cross in Geneva and in the late '90s he was appointed to a panel by the U.N. Secretary General to consider how to bring the Khmer Rouge to justice.
When people talk about the Geneva Convention, they're usually referring to Article 13, which stipulates that prisoners of war should be treated "humanely," and that "prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity."
But Ratner said the operation that killed bin Laden happened outside an international armed conflict, so Article 13 doesn't cover it. There is a section — Common Article Three — of the Geneva Convention that does cover other conflicts, but that doesn't address the treatment of bodies.
So, then, said Ratner you move to a 2005 publication by the Red Cross called Customary International Humanitarian Law. That publication was written to fill the gaps left by international treaties and it addresses how bodies should be treated.
Rule 113 reads:
Each party to the conflict must take all possible measures to prevent the dead from being despoiled. Mutilation of dead bodies is prohibited.
That word "despoiled" is key, said Ratner. It's up for interpretation. But the bottom line is there doesn't seem to be a rule "of international human rights law that, per say, prohibits release of photos of the dead."
Ratner said for the most part it'll be up to what's customary. States, he said, tend to avoid releasing graphic images that cause hurt to the family of the dead.
In 2003, CNN reported that the U.S. release of photos of Uday and Qusay was legal. The brothers were not prisoners of war and there is "no stipulation in the Geneva Convention against releasing pictures of dead bodies."
The release, however, brought calls of hypocrisy from people who said the United States was publishing the kind of pictures it criticized others for releasing. During a press conference, Rumsfeld said he weighed the issue carefully.
"As the one who made the decision to do it, I can say it was not a snap decision," Rumsfeld said. "This is not a practice the United States engages in on a normal basis."
As NPR reported earlier, the White House is considering releasing photos as "visual proof" of bin Laden's death. The president's Press Secretary Jay Carney acknowledged there were "sensitivities," during today's press briefing. He also said the pictures were "gruesome."
Update at 6:55 p.m. ET. A Little More On Article 13:
Scott Horton, an adjunct professor at Columbia University School of Law, says that first of all the Geneva Convention would not apply because bin Laden and his "colleagues were not prisoners but combatants." And even if it did apply he says with no uncertainty that the Geneva Conventions do not preclude the disclosure of the photographs. To say otherwise, he said, is "nonsense:"
Horton said he appeared before the U.S. Court of Appeals for the Second Circuit as an expert arguing the point against the U.S. Army. The court agreed with them and Horton made the point the U.S. government had made the opposite argument earlier.
So what does it mean?
Photography for record keeping, healthcare and safety is entirely appropriate, though it may be subject to reasonable measures to protect legitimate privacy expectations of the prisoners. Photography intended as documentation of historical events is also entirely appropriate and should be made public, though it may be appropriate for the government in certain cases to blur identifying features of individuals if the publication might reasonably be expected to cause them public embarrassment.
The video and photographic materials associated with the raid on OBL's compound clearly fall into this latter context. There is no reason why they cannot be disseminated, though the government may find it appropriate to edit them somewhat.