The New Yorker Blog on the OBL Rules of Engagement

by Kenneth Anderson

At The New Yorker blog, a useful discussion of the legal issues in the OBL attack. As Raffi Khatchadourian writes:

What was true in Iraq and in the Second World War also applies in the ongoing conflicts in Afghanistan and Pakistan. Targeted air strikes are status-based operations. The drone strikes are status-based operations. Raids conducted by Special Forces to kill key militants—as in the case of Abu Musab al Zarqawi, who was killed in Iraq by Special Forces working under the command of General Stanley McChrystal—are status-based operations. A status-based target can become a non-combatant (that is, illegal to kill) only if he is wounded to the point where he no longer poses a threat, or if he is in the process of surrendering. This is why Eric Holder said, during a recent Congressional hearing, that if bin Laden “had surrendered, attempted to surrender, I think we should obviously have accepted that, but there was no indication that he wanted to do that, and therefore his killing was appropriate.” In such a circumstance, the law suggests that the onus is on the target to immediately revoke his combatant status. Soldiers do not have to wait.

The executive director of Human Rights Watch, Kenneth Roth, has criticized the White House for its public handling of the killing. He recently wrote on Twitter, “White House still hasn’t clarified: OBL ‘resisted’ but how did he pose lethal threat to US forces on scene? Need facts.” This may be a worthwhile thing to know for broader ethical or policy or tactical reasons, but it is not the most pertinent question when judging the action against our existing military laws. The key legal question is not whether bin Laden was armed before he was killed, or even whether or not he posed an immediate “lethal threat,” but whether he was “positively identified” before the trigger was pulled, and whether Holder is accurate when he says that “there was no indication” that bin Laden was actively attempting to surrender. Those are the more relevant facts.

That is correct, at least as far as how I understand the US government would see the legal situation, and very well put (my emphasis above).  I have two modest legal criticisms of Khatchadourian’s fine piece.

One is that the US executive order banning assassination is much narrower than many commenters seem to understand, to judge by the amount of ink spilled over asking about the meaning of assassination and so on.  The term is not defined in the order itself, and the US government’s interpretation — stated in 1989 by then-Legal Adviser to the State Department Abraham Sofaer and re-stated in 2010 in current Legal Adviser Harold Koh’s ASIL speech — is that the assassination only applies to a killing that is otherwise unlawful.  If the killing is otherwise lawful — such as the targeting of a lawful target — then it does not apply.

If that looks like the assassination ban does no independent work, since it is merely a ban on something that is already unlawful, that is perfectly correct.  It is also consistent with the history of the executive order, which seems to have been a 1970s concession to a Congress investigating the CIA to affirmatively state something in a single sentence with an undefined term, easy to say and not much at stake except rhetorically.

The second is to emphasize that surrender is an act that requires completion, and is harder to accomplish that one might have thought merely reading the law in the abstract.  I emphasize this because I have had so many conversations privately in the last week with JAG or former JAG who have advised on the rules of engagement on which Khatchadourian is writing.  These are not high level political decisions; these are the rules for relatively routine, tactical engagements undertaken every month in Afghanistan by special ops teams.  Those rules have been worked out over years — and when the operation is intended to be lethal, the reliance is upon speed and surprise, and killing the target before the confusion lifts. These JAG emphasize the risks involved in “pausing” operations that depend fully on surprise in order to see if someone is trying to surrender for real; they have no legal obligation to do so — and don’t.  The manifestation of clear intent to surrender is much more complicated and much more fraught than it might seem to a human rights monitor merely reading off an abstract rule.

These folks are concerned that the traditional legal interpretation of surrender might be eroded if the Bin Laden operation were to cause a highly technical act in tactical operations to become politicized.  They worry particularly about interpretations given by high level political appointees who, worried only about putting the best light on the OBL operation, wind up making implicit concessions on the rules of surrender that are not the current understanding of the law for operations involving many ordinary but lawful targets down the road. One would not want, for example, an Eric Holder defending the OBL attack by saying something like — had he so much as raised a hand, we would have stopped to ask if he was surrendering, but he didn’t so we didn’t.  It is not the legal standard, and might undermine future combat missions by implying that it is.

(See also the communication to Ben Wittes at Lawfare by an active duty Navy JAG, Michael Montgomery, writing in his personal capacity.)

http://opiniojuris.org/2011/05/09/the-new-yorker-blog-on-the-obl-rules-of-engagement/

10 Responses

  1. Just in bello, clairly applies in this case. Pakistan failure to comply with international obligations cannot justified as a countermeasure is the use of military force.

    Osama bin Laden was clearly not an enemy combatant.Al-Qaida members such as bin Laden aren’t legitimate military targets.

    International law does not permit the killing of an opponent. Under international law, he must be arrested and handed over to the US to stand trial.

    The US regards itself as being in a state of war against terror and therefore as having the right to eliminate its enemies on the battlefield, but the Geneva Conventions and other laws of war do not permit this sort of action.
     
    At the time of his death, bin Laden was subject to U.N. sanctions including an asset freeze and travel ban. But US hadn’t territorial control over OBL area, wasn’t within custody of US forces & was hors de combat for the purposes of IHL/OBL.

    In the light of the evidence and The rule of Law: In the case of OBL, UN “Basic Principles on the Use of Force and Firearms by Law Enforcement Officials” be useful.

    In the light of OBL, International criminal Law and International Law rule is completly divergenge of  Human Rights.
    The terrorists are looking to destroy westerns values… US, UN and International comunity set a dangerous precedent for the way in which the right to life will be treated in future instances. And they just set a defense precedent for all those dictators, genociders, killers and all the atrocities committed during their rule…Under US new rule, When you kill someone in the name of your own law it is not longer a killing, it becomes just JUSTICE. Now, I began wondering…Who are the terrorists?

  2. Osama had almost 10 years to turn himself in. He knew he was wanted. There was a reward on his head. If he wanted a fair public trial, he could have turned himself in to any consulate or embassy of any country and be guaranteed personal safety and a fair trial. If he had done this, he could have caused as much or more trouble and embarrassment for the US than he did. However, he wanted to stay free so he could kill more people. He brought it on himself.
     

  3. OBL clearly was an enemy combatant.  He was the leader of a paramilitary organization par of whose objective was armed violence against the United States and its allies, in order to bring about changes in policies.  That comprises warfare.  As such he was a legitimate target.

    Good shooting.  The garbage has been taken out.

  4. Dr. Carlos Reyes,

    You made 8 separate assertions in your posting.

    You provided 0 citations/references/documentations for any of those assertions.

    Please tell us in what subject you received your PHd.
    First guess is Education. Second guess is Journalism.

    I would suggest legal action against whichever school you attended as the degree you bought is obvisously worthless.

    Grade: F

    Rewrite that essay with VERIFIABLE FACTS and not ASSUMPTIONS.

  5. Response…
    First, an order to the Navy seals merely to kill (and not to kill or capture as circumstances permit) would be like an order to take no prisoners, a refusal of quarter.  The Obama Administration states that the order was not merely to kill.
    Second, bin Laden was not a “combatant” or an enemy “combatant” — the nonsense of the Bush Administration should not be repeated because a “combatant” is a member of the regular armed forces of a party to an international armed conflict that is a state, nation, or belligerent and al Qaeda does not represent a state, nation, belligerent, or even an insurgent (that controls substantial territory as its own, that is able to field military units in sustained armed hostilities, that has the semblance of a government, etc.).
    Third, bin Laden was targetable as a leader of al Qaeda and a direct participant in armed hostilities (a DPH) in Afghanistan and parts of Pakistan during what has been and still is an international armed conflict between the United States and the Taliban — assuming that bin Laden still engaged in some command and control functions through his couriers.
    Fourth,  bin Laden was targetable under Article 51 of the U.N. Charter as one leading and directly participating in armed attacks against U.S. nationals in Afghanistan and elsewhere (a DPAA)– assuming such functioning through his couriers.
    Fifth, under either the law of war paradigm or the self-defense paradigm, the U.S. did not need the consent of Pakistan for the operation — and apparently did not during the several months of CIA monitoring and during the actual use of Navy seals.

  6. Response…
    Regarding prior postings here and a recent ASIL Insight setting forth a supposed test regarding self-defense targetings in another state without that state’s consent involving a supposed requirement of unable or unwilling — what nonsense!  If rockets are fired from state X by non-state actors every two minutes for the last 10 minutes into state Y and result in many deaths and injuries in state Y, state Y does not need the consent of state X to target non-state actors who are continuingly firing the rockets from state X and state Y does not need to ask or show whether state x is unable or unwilling to stop the non-state actor armed attacks (whether the facts nearly show that in this hypo or not).  Further, if state Y is at war with state Z and the commander of state Z armed forces is in state X, state Y does not need the consent of state X or to show that state X is unwilling or unable to engage in certain conduct in order for state Y to lawfully target the state Z military commander.  U.S. Army Field Manual 27-10, para. 31 notes that attacks on individual soldiers or officers of the enemy whether in the zone of hostilities, occupied territory, “or elsewhere” is not prohibited under the laws of war.  Of course, there may be political problems in doing so, but not an unable or unwilling limitation. see also http://ssrn.com/abstract=1520717
    The Field Manual also concludes that such lawful targetings of enemy military personnel are not “assassination” — assuming, of course, that the enemy military are not within the effective control of those engaged in the targeting (e.g., as detainees under effective control).

  7. Good column here, which puts the first comment above in perspective, and thoroughly impeaches its reasoning:

    http://www.huffingtonpost.com/frank-schaeffer/president-obama-confounds_b_859246.html

    An excerpt:

    “Bin Laden was the world’s leading fan of the suicide belt, the booby trap, the rigged roadside bomb hidden in a Coke can or even in the body of a dog. He was the leader of a group of killers that rigged houses to explode with trip wires. A military man or woman who found an “unarmed” bin Laden would think that he might reach for a switch that was wired to blow up the building. Does that concern seem farfetched?
    As the father of a marine hearing the news that all the Navy Seals got home alive I’m glad they did, glad that President Obama had the moral courage to not simply level the compound, killing all the women and children therein.
    It takes arm’s length critics with no connection (no skin in the game) with our military to make inane comments about wishing that the Navy Seals had waited to see what bin Laden might have done, read him his rights and carried him of to the World Court or wherever, at risk to themselves and to all the rest of us… if they’d failed.
    Moreover, did the Navy Seals know 100 percent that their cover wasn’t blown by the lying Pakistani government? For all they knew at the moment they walked into the bin Laden compound he was getting a message from the friendly Pakistani military people down the road. They were in a part of the world where betrayal is the norm.
    For all the Seals knew the whole place was about to go up in flames. The Saudi rich kid brat who urged others to use explosives and suicide to kill women and children wouldn’t have thought twice about a scorched earth, I’m-taking-them-all-with-me scenario as a grand finale to his murderous non-career. . . .”

  8. Response…
    TORTURE by U.S. CIA or military personnel that occured re: use of waterboarding, stripping persons naked and using dogs to induce terror, the cold cell, mock executions, etc. did NOT produce relevant intell re: Obama’s compound or his courier — notes Sen. John McCain today in a remarkable speech on the Senate floor!

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