I came across this today: UN wants answers

the money quote:
"However, the norm should be that terrorists be dealt with as criminals, through legal processes of arrest, trial and judicially decided punishment."
I'm sure PolarBear will have a few words to say on this and I bet we'll agree. This is a parsing of laws, nothing more. I've been following the discussion regarding location of the operation. Mike has done a much better job that I ever could explaining this "wrinkle."

This, I think, is what PolarBear is getting at (please correct me, if I'm wrong). Blending the law of war and criminal law (I'll use this term rather than RoL since I view RoL as much broader and it was this broader view that led to my slight disagreement with previous RoL vs LoW arguments) leads to confusion on the battlefield. Which rules apply? Can I be prosecuted for taking action? And so on....

I do view RoL as much broader than some and believe it encompasses criminal law, law of war, and many other types of law. Thus, when a military unit engages combatants (lawful or otherwise), captures some, and then turns them over for prosecution, I see this as seemless RoL. In contrast, using military in a law enforcement role akin to what the UN apparently expects according to the story linked above, RoL is still seemless and in effect. In combatting insurgents/terrorists, the opposing force is permitted to choose its own strategy so long as it complies with law. The US has chosen to prosecute a "war" subject to the international laws regarding the conduct of war. The legality of this, I think, is beyond doubt given that many other countries have chosen to do the same (and one might even link the UN-approved action in Libya as support for this approach). Thus, while the UN approach is a lawful one regarding combatting terrorism, it is not the only lawful one.

Now, had bin Laden been captured I think we'd see a trial and thus criminal law would take over. However, this would make the OJ trial look like a common law legal system at its perfection. Thus, having him dead is a much better result in the long run IMO (see the Machiavelli quote below).

Of course, all this would be for nought if Obama had simply made an announcement and left it at that. By constantly changing the story, he has invited criticism. See this analysis for a much better outline of the problem than I could offer.

BTW, I see this UN thing is classic lawfare but that's another discussion...