How Should the OBL Operation be Characterized?

by Michael W. Lewis

The United States military sent some of its most highly trained combat experts into Pakistan without asking for Pakistan’s permission. They entered Pakistan’s airspace in military helicopters specifically equipped to defeat the Pakistani air defenses. According to a national security official in the immediate aftermath of the operation they went there for the sole purpose of killing Osama bin Laden, a goal which they quickly accomplished. These facts support characterizing this as a military operation conducted under the laws of armed conflict and not a law enforcement operation. The fact that John Brennan is now describing it as a “capture-or-kill” mission does not change this characterization because the laws of armed conflict treat all missions as “capture-or-kill”, requiring that an enemy offering to surrender may not be killed.

The legal justification for this use of force cannot have been based upon Pakistani consent because it was never sought. It is extremely unlikely that the legal basis for the operation was hoped for Pakistani acquiescence after the fact. The justification that was almost certainly relied upon was Article 51 self-defense as described by Jordan Paust.

This is significant because it represents the use of Article 51 self-defense against non-state actors. While the ICJ’s opinions in the Palestinian Wall case and Congo v. Uganda both called into question whether Article 51 self-defense can support the use of force against non-state actors, the separate opinions of Judges Simma and Kooijmans recognized that in a post-9/11 world containing failed states, state practice strongly supports the view that an expansive reading of Article 51 to include non-state actors is appropriate. Sunday’s operation was another example of state practice undertaken with the belief that the boundaries of the battlefield are not determined by geopolitical lines but rather by the location of participants in an armed conflict, whether the participants are states or non-state actors. This continues to be the standard for determining where the law of armed conflict is properly applied.

http://opiniojuris.org/2011/05/03/how-should-the-obl-operation-be-characterized/

15 Responses

  1. With UBL being unarmed and shot twice how does that change the characterization of things and why aren’t more questions being raised on that fact? I mean can’t the highly trained SEALs take a non-lethal shot even though he was resisting unarmed? The SEALs shoot non-lethally the woman who was in the room with UBL, shooting her in the leg when she charged at the officers. Do the relevant conflict laws call for the killing of the target if they are resisting and unarmed and outflanked tactically?

  2. That is the difference between war and law enforcement.  In war there is NEVER any requirement to take a “non-lethal” shot.  The only time in which you are obligated not to kill your enemy during wartime is if they are surrendering or have been rendered hors de combat by illness or wounds.  Your questions would be perfectly valid if this were a law enforcement operation, because in that case there are a number of limitations on the use of lethal force and requirements to use less force if the situation allows.  The WH clarifications today that OBL was not armed further underscore the point that this was an operation conducted under the laws of armed conflict and not under the rules governing law enforcement.

  3. So the bigger picture of gaining past and current intelligence from Bin Laden is irrelevant? I raise this question, because Obama and the Administration repeatedly stressed the war with al Qaeda is not over during and after the announcement.
     
    Seems highly inconsistent to say where doing all we can to beat al Qaeda after killing the person that could have answered the most questions on al Qaeda and the Pakistani ISI involvement in harboring him.

    Considering the deep tactical and human intelligence information UBL possessed on al Qaeda do you think it was wise to kill him while he was unarmed?
     
    Do you think Article 51 and any other relevant laws of war should be modified to allow for the first course action to be non-lethal engagement of unarmed yet “high value” information rich targets?   

  4. Clear,

    Those are policy questions rather than legal ones.  There is no LEGAL requirement to attempt capture of an intelligence-rich source, but there may be policy reasons for doing so. 

    To be clear, Article 51 deals with the jus ad bellum justification for the use of force in self-defense.  The rules that you are proposing are jus in bello limitations on how the war is fought (e.g. creating a rule saying that unarmed enemies must be engaged non-lethally at first and only if absolutely necessary may lethal force be employed).  There are those that have proposed such changes to the laws of war based upon a narrower reading of the concept of “military necessity”, but those views have not been sufficiently accepted as to constitute customary international law.

  5. I understand the difference between policy and law analysis and application. Just seems like the bigger picture is being ignored by the MSM and celebrated by the kids whopping it up that al Qaeda is still a threat and soldiers just killed a good source, if not the best source of vital informatio, not because it made tactical sense, but simply because they could legally. Seem like a blunder to me that could cost lives globally.
     
    Considering the intel lost by killing OBL, do you think now is the time to change or review the laws as to how tactically outflanked and unarmed enemies, especially those that are vitally important are engaged? Considering the lives at stake, do you consider it a practical blunder to kill the guy with the most information?
     
    Again, I understand these are policy questions, but at some point laws should be reviewed for real world efficacy.

  6. I wouldn’t call them laws, but rather rules of engagement.  We could have imposed more restrictions on our guys than the law does because we viewed OBL as an invaluable intelligence source.  However, I’m not sure how much intelligence we could have actually extracted from OBL that we won’t be able to gather from the hard drives and documents recovered from his mansion.  Had he been captured there would also have been the same questions about trial and where that would be held that have still not been definitively resolved for KSM and others like him.  Also, assuming that he was not immediately cooperative (and I would not have expected him to be) what sort of interrogation techniques would have been permitted against him?  Would we have limited ourselves to the Army Field Manual techniques, or might a case have been made for using additional techniques if OBL was not forthcoming in the short term?  On balance this might have been the better result. 

  7. I guess we will never really know for sure, but the conversation we are having should be taking place on the streets of Main Street USA and in the MSM. I won’t hold my breath for that day. Anyways, thanks for the civil dialogue.  

  8. I might add that the problem with amending the law (the jus in bello part) to limit the circumstances for killing an unarmed, outgunned or outflanked enemy is that you normally are only certain that they were unarmed etc after the mission. Also, the main target might be unarmed but how certain are you that his or her colleagues are not behind the next tree, in the next room etc?

    As Prof Lewis has alluded to, an enemy combatant (or a non-State fighter in a NIAC) can make his or herself lawfully immune from attack at any stage — all they have to do is surrender. So, if you are unarmed, outgunned and outflanked, you have a pretty clear choice.

    As the potential intelligence value of capture versus kill is well known in military and intelligence circles, I think we can be confident that an informed decision would have been made in this case. This was not a spontaneous action occurring after accidentally stumbling upon a high-value target, but was clearly a methodically and meticulously planned and considered operation.

  9. Ian,
     
    Respectfully, what you are saying all sounds like nonsense. In close quarter combat with visual support you can be pretty confident of tactical advantage.  Fact, the SEALs in the OBL raid had tactical advantage with visual/ air support. By your logic that “his or her colleagues [maybe]behind the next tree, in the next room etc” an extraction is never possible or should never be attempted, and everyone in the room should be killed, because some unknown operative will prevent a successful mission. If there ever was a mission to try an extraction this was the one.
     
    Does it sound reasonable to kill a person even if resisting if you can take a non-lethal shot? And every type of resistance even the unarmed kind from an information-rich source is to be met with lethal force? Again, does that sound reasonable and proportionate to you? As I mentioned before, the SEALs shot the lady that charged at them in the legs, she was an enemy also, so why not take OBL down the same way, what was different? I am not arguing from a legal standpoint from a policy/ military tactics standpoint.
     
    “I think we can be confident that an informed decision would have been made in this case. This was not a spontaneous action occurring after accidentally stumbling upon a high-value target, but was clearly a methodically and meticulously planned and considered operation”
     
    All in all, please stop carrying the water for the Administration and have them explain why they think the number one terrorist in the world does not have additional intelligence that they can get somewhere else in time to save lives from the next attack. Considering it took 11 years to find OBL and the fact he was hiding in plain sight in a mansion in a supposed friendly country says a lot about the savvy detective skills and priorities of the WH both past and present.
     

  10. Clear,

    Perhaps I did not express myself as well as I could have. In my view, the LOAC allows for the fact that the enemy has (in an IAC) the lawful right to attack you as well. Generally, the LOAC makes no discrimination between more or less capable adversaries. As the old saying goes, if your attack appears to be going well, you are in an ambush.

    You say the SEALs had a tactical advantage with visual/air support. Some might think the people in the compound had the advantage of being on home ground. Either way, what I hoped to be saying was there may be operational reasons to prefer capture and extraction, or operational reasons to prefer kill. Either way, that is an operational call and not a legal issue.

    As to the Administration issue, perhaps I erred by stepping outside the legal lane. You say ‘have them explain why’, whereas I indicated trust the experts. Of course, which approach to adopt is a personal/political issue and not a matter of law (at least not international law). I should leave that debate to those who get to vote in US elections.

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