Should John Brennan or Eric Holder Simply Have Quoted Harold Koh?

by Kenneth Anderson

I wonder whether the current kerfuffle over whether there was a legal obligation to invite OBL to surrender would be different had the Obama administration, and John Brennan and Eric Holder in particular, not inexplicably displayed a certain hesitation on the question of capture versus kill.

Suppose that faced with that initial, and entirely predictable, question — did the SEALs attempt to capture Bin Laden? — Brennan had instead brooked no opposition and snapped back with visible irritation — of course they were not attempting to capture him, they were there to attack and kill him, to attack him with lethal force.  This was an armed lethal attack upon a a criminal adversary of the United States in an armed conflict, without cavil or apology.  They were sent to attack and kill him as someone who was targetable with lethal force and no warning at any time.  Which, as explanations go, and (at least as it appears at this particular moment) does have the virtue of being true, as well as legally sound.

Brennan’s response was weak – he’s not the legal counsel, after all – but Holder’s was also weak.  Particularly as differing accounts have dribbled out, the administration has found it surprisingly hard simply to say (with apologies to Mary Ellen O’Connell), it is not law enforcement, and of course it was legal to target OBL, legal to target with lethal force, legal to target without warning or invitation to surrender, and that has always been the US legal position.  I don’t understand how this entirely obvious question wasn’t briefed and anticipated, with an answer directly from Harold Koh’s 2010 American Society of International Law address on exactly this point:

Some have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in an armed conflict or in legitimate self-defence is not required to provide targets with legal process before the state may use lethal force ….

The principles of distinction and proportionality that the US applies are … implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law ….

Some have argued that our targeting practices violate domestic law, in particular, the longstanding domestic ban on assassinations. But under domestic law, the use of lawful weapons systems — consistent with the applicable laws of war — for precision targeting of specific high-level belligerent leaders when acting in self-defence or during an armed conflict is not unlawful, and hence does not constitute ‘assassination’.

Isn’t that what the US government actually thinks is legally correct?  Of course it is — it was stated a year ago as the “considered view” of the United States government by the chief international and foreign relations legal counsel to the United States.  And isn’t this what it must eventually get around to saying, no matter what?  It seems peculiar that high level officials would seem unprepared to articulate this.  And had it done so, I wonder if some of the challenges to its position that the administration faces on its Europhile left wing would not have found far less traction.  I agree that ultimately these are not politically serious objections and generally are aimed at appealing to various constituencies among the advocacy communities.

Still, the administration is in a strange position — not one I would have anticipated.  And not one the administration would have anticipated either, I reckon:

  • A strand of the left wing insisting that OBL should have been arrested or at least killed resisting arrest for the sake of good legal form;
  • a strand of the right wing crying vindication for enhanced interrogation techniques and, it desperately hopes, crucial information obtained through waterboarding; and
  • a middle wing, including most of the left and right and in-between, looking at where OBL was living in Pakistan and among whom, and thinking, WTF?

The further  question is whether, accepting that there was no obligation to invite surrender, the attackers refused quarter or surrender.  It is a separate issue.  Firing on a lawful target, even an unarmed one and even when one knows a human target is unarmed, is not unlawful — that is what potentially happens when one drops a bomb, after all.  Refusing to grant quarter or refusing to grant surrender, on the other hand, is a serious war crime.

However, precisely because it is so serious, the act of surrender requires clear evidence of completion and, because it is fraught with risk and unknowns, is a far more difficult act to establish as a legal fact than is ordinarily supposed.  Over the last several years, I’ve had many discussions with DOD lawyers and JAG, reviewing draft manuals and the like, and at first I was astonished at how much attention was paid by operational law of war lawyers — the JAG tactically advising in the field — to the nitty-gritty of this topic.  They anxiously wanted to discuss and write down practical instructions on many distinct situations.  They wanted to cover the many ways in which forces should not rush to assume that surrender was intended, or assume who exactly was surrendering, whether they would stop surrendering when their own superiors or comrades told them no or kept firing, what happens when individuals try to surrender piece-meal, by individuals but not under responsible command, if you an even know who that is on short notice, and you’re not sure who or whether it’s real — under what circumstances does any of this stop combat and with respect to whom?

We walked through these and many other situations from records of what had happened in many actual tactical situations, and not infrequently with grim results for attackers who had thought surrender by the other side was underway, and it wasn’t. In most of those cases, no perfidy or bad faith was involved, just uncertainty and fog of war on both sides.

This is a topic for another post, but surrender is a vital rule and an easy one to state in the abstract — but far more complicated, even when acting in good faith on both sides, on the ground.  And, operational law lawyers emphasize, until that quite fraught legal act of surrender is accomplished, an attacker has no obligation to stop, or even pause in the attack, because so pausing might well cause the attacker to cede the initiative in the element of surprise on the other side that allows the adversary enough time to regroup and turn the tide.  Is that subject to bad faith?  Yes, just as perfidy and bad faith on the other side might happen.

(All comments welcome, of course, but I am personally particularly interested in the views of JAG or former JAG on the question of clearly evidencing an intent to surrender.  Don’t feel any obligation to identify yourself if you’d rather not.  Thanks.)

http://opiniojuris.org/2011/05/05/should-john-brennan-or-eric-holder-simply-have-quoted-harold-koh/

16 Responses

  1. I have followed your posts and you still have not answered my question (or I missed it). What if the relatives of OBL disagree with the U.S.’s legal argument. They might believe that it is just a case of plain murder. This is not impossible to believe, as professor Schabas proves. In what court could those relatives challenge the U.S. argument? Is there any Pakistani, U.S. or International Court where they could sue U.S.?

  2. Mihai Martoiu TIcu:  I’ll let others take that up other places, as it is not really the subject of this post, but with regards to US courts or international courts, I’d say the short answer is no.  I have no knowledge of jurisdiction in Pakistan’s courts.

  3. @Kenneth

    They certainly cannot sue U.S. in Pakistani courts, because of the state immunity. They cannot sue in U.S. courts because of the political question doctrine. They cannot sue U.S. in international courts because they don’t exist. And they don’t exist because U.S. opposed repeatedly giving individuals the right to sue states in international courts, or enacting International Courts of Human Rights. That means that whatever Koh says goes.

    Does that not strike you as unjust?

    What would you do if you lived in a state where Johnny could kill your relatives, actually killed them, and there were no courts where you could sue Johnny, because Johnny always refused to fiat the enactment of courts?

  4. Mihal, the world is not a state.  There is no universal sovereign, there is no universal criminal law.  Because of this your “Johnny” hypothetical is completely irrelevent.  Unless and until sovereign states cede that sovereignty through some legitimate process trying to hold international interactions to the same standard as domestic interactions is a quest doomed to failure.

  5. “I am personally particularly interested in the views of JAG or former JAG on the question of clearly evidencing an intent to surrender.”

    Hmmmm.  I learned Laws of War first from you….but I did practice in that area for a number of years after so maybe built some on the foundation you helped me lay.

    My understanding when on active duty, and still today, is that there is no obligation to ask for a surrender, only to accept it when offered. 

    The history of perfidy on the part of those associated with the enemy in the operations associated with this war (against Al Qeada, and in Iraq and Afghanistan) with respect to surrender, of course, has an effect on what actions a soldier might reasonably expect and require to properly manifest a surrender.  This is why perfidy is illegal: it tends to create a risk for legitimate noncombatants who do seek the protections of their privileged status, by creating disincentives to honor the privilege.

    Given the high risk of a perfidious feigned surrender, guidance could be laid down in a very situation specific or case specific manner in mission ROE or special instructions provided and rehearsed for a particular operation.  Trigger pullers (soldiers, or sailors in this case) may be given specific guidance on the level of risk they should accept for themselves and their unit in deciding whether or not to shoot.  That level of risk will be calibrated to the political and military situation, as well as to considerations of unit self defense.  In some cases, units will be required to accept a very high degree of risk — so high as to create a fair probability that they will take the first hit — so as to lower risks in other areas.  In other cases, probably such as this one, the guidance would be to take very low risk.  In other words, if in doubt, shoot.

    In  the case of this operation, and given the perfidious history associated with this target, it would seem to me that a requirement for a very unambiguous and abject surrender would have been reasonable and lawful.  By that I mean that the SEALs would have been guided to take very low risk to themselves, and to the unit.

    As described by CIA Director Panetta, the ROE for this mission appear to reflect that understanding.  As quoted on the Lawfare blog, Panetta stated on Jim Lehrer’s News Hour:  “The authority here was to kill bin Laden. And obviously, under the rules of engagement, if he had in fact thrown up his hands, surrendered and didn’t appear to be representing any kind of threat, then they were to capture him. But they had full authority to kill him.

    Bin Laden, and perhaps others, were essentially declared hostile — in other words designated as lawful targets regardless of their intent or actions to resist.  ROE of this nature would, once upon a time in the US military, have been called “wartime ROE.”  To oversimplify somewhat, wartime ROE turn upon legal rights and obligations in armed conflict, while peacetime ROE turn upon legal rights and obligations associated with the use of force in self defense (both of the individual and of the unit).

    The legal authority to use force in this case, therefore, was founded in a state of armed conflict, and not an arrest or other kind of law enforcement action, in which use of force would have been founded in considerations of personal or unit self defense.  Ina state of armed conflict, an enemy combatant or other individual engaged in direct hostilities, or in a continued course of conduct in direct hostilities (which would be the case for bin Laden) is a lawful target who has lost his right to life and may be killed on sight, no questions asked.  This is not the same as “no quarter.”  Surrender must be accepted, but need not be solicited.  Surprise attack is legal.  Shooting a lawful target in the back is legal.  Killing a lawful target while he sleeps is legal.  No need to wake him up and ask first if he wants to surrender.  That’s harsh, and that’s war.

    The status of this operation as one occurring in armed conflict is consistent with the AUMF .  The AUMF authorized the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

    We should not confuse the right of national self defense exercised here with an individual’s right of self defense.  Only the former can produce a state of armed conflict; and once it has, then individual right’s of self defense become largely subsumed by the scope of the combatant’s privilege:  which is to kill and be killed in turn.

    So Koh, it seems to me, has this right, and the ROE and actions taken under the ROE to kill bin Laden on sight legal in that view.

    I wish our national security team had taken greater pains to communicate these views more explicitly and clearly, if it is on these views that this operation found its legal foundation.

  6. Ken,

    I think you, and of course Alan Kaufman, have neatly identified the legal issue: clearly expressing an intention to surrender. To some extent, after that the issue is one of fact — what does amount to a clear expression of intent to surrender — and one for operators to determine based on operator knowledge. Lawyers can advise that a tank flying a white flag but retreating from the battlefield remains a lawful target, but that is because operationally it is apparent that such actions are inconsistent with clearly expressing an intention to surrender. No surprise to the operators there.

    Another issue which I think you alluded to, and one that Alan is better placed to comment on than I, is that there is a distinction between land forces and maritime (and, I add, air). At the simplest level, a lone sailor on deck with his or her hands in the air is unlikely to be accepted as a manifestation of surrender on behalf of the warship and an attack can proceed on the warship in such a manner as to directly endanger the ‘surrendering sailor’ even if the warship does not appear to be currently engaged in hostile action.

    No doubt you are already familiar with the debate as to whether ground forces can surrender to aircraft. The issue is canvassed in the Harvard Air & Missile Warfare manual.

    One final point — there is, strictly speaking, no obligation to accept a surrender. By that, I mean if the enemy is clearly expressing an intention to surrender, you need not capture them or take them as a PW. Your legal obligation is limited to not make surrendering forces the object of attack. It is an operational decision what to do past that point.

  7. Ian, that last point is an interesting distinction…if one does not accept a proffer of surrender and does not make the surrendering combatant an object of attack, does there exist any legal compulsion to protect him from the effects of military action?  For example, let us imagine a firefight in which there are two fortified positions with a munitions bunker in between.  The soldiers in one bunker make an unambiguous proffer of surrender while the soldiers in the left hand bunker do not.  Destroying the bunker is an objective of the mission, however doing so would kill the soldiers proferring surrender as well as the soldiers continuing to fight.

    Can the bunker be destroyed?

  8. “Can the bunker be destroyed?”

    George -  The bunker may certainly destroyed.  It remains a lawful target.  The issue becomes how.  And again, how much risk should the combatants take to ensure safety of privileged noncombatants (those who have surrendered).  Should the bunker be bombed, with the high collateral damage you posit, or assaulted so as to preclude harm to those who have surrendered?

    It seems to me that the analysis would be one regarding proportionality of collateral damage.  The surrendered soldiers in one bunker have become hors d’combat — now privileged non-combatants.  Therefore, if the value of the military objective is outweighed by the foreseeable but unintended collateral damage (the wounding and killing of those who have surrendered in the nearby bunker), then attack may commence.  As Ian stated in a different context, the application of this rule is “one for the operators to determine based upon operator knowledge.”

  9. I think the reason that these things are so complicated for these people is that they are explaining things to vast numbers of Americans who have never served in the military, who think they know their military from watching movies, and whose closest thought pattern to this in real life is police arresting a dangerous violent criminal.  Also, I am not sure to what extent the persons advising on this have military experience also or JAG experience.  Finally, given the debate between all of us on law of armed conflict, self-defense, and law enforcement visions (trimodal visions) of what happened here and even the debate as to whether there is a self-defense category (or one has emerged) (bimodal vision a la Mary Ellen), getting a little lost in the subtleties is not surprising.

    Holder’s presentation essentially went to self-defense (I heard the echo of Koh) in what he said, but my sense is he has little understanding of law of armed conflict and was trying to respond coherently.

    I think another part of this is the supreme hash made on all of this back at the beginning of the armed conflict with all the word game playing on Geneva etc and the unlawful combatant stuff etc.  The result was to give flexibility but little guidance.  Then, to avoid walking back those ideas but with the Supreme Court decision, you have had this hodgepodgey approach going on as we iterate out in this improvised space.  I am beginning to see the self-defense space coming out of that ersatz space (sort of like rock and roll coming out of the blues and country music by taking a little bit of this and a little bit of that as Chuck Berry once said).  I think Mary Ellen is more right in her bimodal approach then the improvisers in the trimodal approach who are arguing so ardently this self-defense space.

    America may want that self-defense space for purposes of instrumentalization of law, but I can understand a certain resistance to this enterprise from those who are less willing to improvise on these matters.

    Best,
    Ben

  10. I would like to add that I fall in the category of one of those Americans who has never been in the military, but who works hard not to get my sense of all this from movies and who endeavours to understand the difference between law enforcement and law of armed conflict and self-defense.
    Best,
    Ben

  11. “America may want that self-defense space for purposes of instrumentalization of law, but I can understand a certain resistance to this enterprise from those who are less willing to improvise on these matters.”

    Ben -

    You are exactly right, in my opinion. 

    I for one do not know what America wants here, in terms of the instrumentalization of the law (it may very well be the trimodal approach, as you call it, with a wide discretionary and improvisational space for self defense ) , but what troubles me is that I am not sure our national security team has thought it through — and see little to no evidence that it has. 

    This is the field of battle for those who wage lawfare, in my view.   The US should have a legal strategy that communicates its view of the normative landscape in ways that conform that landscape to be supportive of US national security strategies and operations.  In the absence of such a strategy, we cede this space to others, and may not like the result. 

    It seems to me that it is important that America does think it through, and approach the matter strategically.

    The defensive and reactive nature of response by the lawyers speaking for the US in this case is another example of the failure of the US national security establishment to have a lawfare strategy in support of its other, overall efforts.  Shouldn’t these legal objectives be built into the operational planning and into the talking points for later…this was a missed opportunity…and once again cedes the lawfare initiative to the critics.

  12. George,

    A good question. I generally agree with Alan. The bunker would be the object of attack, not the hors de combat soldiers.

    If I can refer to article 41 of Additional Protocol I, the rule is to ‘not be made the object of attack’. The ICRC Commentary states at para 1605 that the wording of article 41 seems to be stricter than the wording in Article 23(c) of the Hague Regulations, and further that the words were adopted to make clear that what was forbidden was the deliberate attack against persons ‘ hors de combat, ‘ not merely killing or injuring them as the incidental consequence of attacks not aimed at them ‘ per se ‘. In addition: “This argument is all the more convincing because even civilians are not totally sheltered from military operations in modern warfare, even in the best conditions. Article 57 ‘(Precautions in attack),’ paragraph 2, recognizes this fact explicitly in admitting to the possible incidental loss of civilian life, and only prohibits that which would be excessive in relation to the concrete and direct military advantage anticipated. Accidents of this nature are also to be expected on the battlefield itself, and the combatants are not necessarily responsible for them. However, it is specifically prohibited to deliberately make persons ‘hors de combat’ a target.”
    I do not have current access to the conference reports or preparatory material, so I will have to trust the ICRC! J
    Of course, operationally it is probably poor form to incidentally kill the hors de combat as, inter alia, the other side may be less likely to surrender in the future. The ICRC CIL Study states: “The United Kingdom pointed out that it may not be possible to accept surrender from a unit while under fire from another position. Hence, a party which “takes” surrender is not required to go out to receive surrender; instead, the party offering surrender has to come forward and submit to the control of the enemy forces.” So, a good option would be for the surrendering force to move away from its fortified position under the direction of the attacking force. However, in direct answer to your question, attack away.
    Alan says the question would be one of proportionality. My preliminary view is that I respectfully disagree. At least under API rules, I believe it is arguable that the only people who ‘count’ in the proportionality equation are civilians (see arts 51(5)(b) and 57(2)(a)(iii)) and not just any ‘protected person’. For example, I am of the view, until persuaded otherwise, that while military medical personnel and chaplains are protected from attack, they are not ‘counted’ when tallying up expected collateral damage (shorthand for ‘incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof’).


  13. I know it’s somewhat besides the point, but in response to Mihai: In contrast to other common-law countries (cf. in the US e.g. the Letelier- and Liu-cases) Pakistan’s law on state immunity doesn’t include an exception for tortious conduct on it’s territory, so that at a first glance (without any knowledge of the niceties of pakistanian law) legal proceedings seem indeed to be barred by state immunity as you said.
    And in his defense: at least as far as the law de lege ferenda is concerned I wonder why victims harmed by a state abroad shouldn’t be allowed to sue that state (at least) in front of his own courts. I do not think that barring victims from any recourse to the judicial system should be seen as self-evident as suggested above in a system based on the rule of law. My viewpoint might be european and I have to admit that my knowledge of the US legal system is superficial at best, so maybe there are in fact good reasons. But to be sure, in my opinion such a position of the naional legal system is certainly not dictated by international law as indicated by George.

  14. Pretty good link here, found through Lawfare blog and Benjamin Wittes’s post today:

    http://www.humanrightsfirst.org/2011/05/05/was-killing-osama-bin-laden-legal/

  15. I come late to this, but Mr. TIcu has posted singing this same tune on several of Ken’s threads – that he does not believe US targeted killings in Pakistan and elsewhere are properly part of war or self-defense, that they are therefore illegal as well as unjust, and that they ought to be actionable in a court of law.  His sense of moral outrage is so great – and so blinding – that he is now seriously arguing that moral justice demands it be possible to sue the United States for killing Osama bin Laden.

    There may be a colorable legal case that killing bin Laden violated international law.  But unless you are a radical Islamist or a thoroughgoing pacifist, there is no moral one.  That is why even the most left-leaning legal theorists are now rushing to argue that the operation to kill bin Laden is justifiable under their preferred theories.

    Mr. Ticu is fond of arguing, not only here but elsewhere, that justice would be done if only there were international courts where individuals could sue states.  He is mistaken.

    All a court produces is words.  It has, In and of itself, no coercive power.  None.  If its judgments are to be put into execution, an external power must carry them out.  It is for this reason that a court’s jurisdiction has traditionally been limited to the realm of action where the authority that constituted the court possesses the raw power to enforce the court’s writ.  Without that jurisdictional limitation, courts would make all kinds of pronouncements which would not be obeyed – therein becoming a mockery.  It is hardly conducive to the rule of law if the courts become a mockery.

    What then has the power to coerce states against their will?  -On Earth, only other states.  Ultimately, the stubbornly recalcitrant can be coerced only by war. 

    Shall a court then order a group of states to go to war with the US to enforce its judgment that the killing of bin Laden was illegal and requires restitution?  Or let us try another example.  Iran supplies rockets to its proxy militia Hezbollah, and also Hamas, for the express purpose of firing them at Israeli population centers.  Where shall the families of Israeli civilians targeted by Iranian rockets fired by an Iranian proxy militia find justice, or even effective injunctive relief?  Short of war or (perhaps) strangling economic blockade, Iran will keep sending the rockets.  Shall a court order war or blockade to enforce its judgment in favor of the Israeli families?

    Shall a court, deciding in favor of the families of Syrian protesters murdered by Assad, order another state to go to war with Syria to enforce its judgment?  Shall a court order the US to go to war with China – or even to cut off economic relations – to enforce a human rights judgment in favor of Falun Gong practitioners?  Shall a court order a worldwide embargo on Saudi oil to enforce a judgment against its pervasively misogynistic laws?  Shall a court order an Indian war with Pakistan to enforce its judgment in favor of the Jews murdered in the 2008 Mumbai raid and against the complicit Pakistani ISI?

    Absurd – absurd in all cases.  There is an entire realm of action where no court imaginable, if constituted under any power presently existing in the world, could make its writ be obeyed.  That reality, more than US objections, is why no such court exists.

    Finally, though Mr. Ticu’s prime concern is moral – remedying what he perceives as the injustice of US targeted killings, especially in Afghanistan and Pakistan – his legal case hangs upon the question of whether there is a war.

    It is possible to answer Mr. Ticu both legally and morally with one link to the New York Times.  He can ask the most recent victims of the still thoroughly unrepentant Taliban whether or not there is a war.

    http://www.nytimes.com/2011/02/10/world/asia/10afghanistan.html?_r=1&hp

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