Open Comment Thread for Harold Koh’s Post on the Osama Bin Laden Operation

by Chris Borgen

Readers are invited to comment on Harold Koh’s post on the legality of the Bin Laden operation. As always, we expect and anticipate that all comments will be substantive, responsive, and civil. The permanent contributors will moderate any comments that depart from this norm.

http://opiniojuris.org/2011/05/19/open-comment-thread-for-harold-kohs-post-on-the-osama-bin-laden-operation/

28 Responses

  1. As far as I can make out, this person is saying the US can kill whoever it wants wherever it wants…and we should trust them that they follow a rigorous procedure to ensure that such killings are covered by their laws – which they passed to make sure they could kill whoeever and wherever they want.
    Don’t get me wrong, I think the Osama hit was one they could come pretty close to justifying, but they use the same justification for the slaughter of people with drones, some, possibly many of whom are innocent.  And the Iraq invasion was also covered by the same justification. They would be more honest if they didn’t bother with the pretence of legality. They don’t really believe in the rule of law, they just like it for window dressing.

  2. Is the USG prepared to say that it is engaged in an armed conflict in Pakistan? Or if not, will we see evidence of the immediacy of an attack and at the same time be presented with evidence of the unwillingness or the unableness of the Pakistani government to address that threat?
    For what it’s worth, the AfPak terminology seems to be on the rise again. In the case of the targeted killings outside Afghanistan, it must be heartbreaking for Mr Koh to see proper legal justifications give way to political expediency.

  3. So Koh’s response is essentially to cut and paste his ASIL speech? There are important legal questions that continue to be unanswered, which Koh’s response has done nothing to clarify.

    Oddly, he says nothing about the legal grounds for violating Pakistani national sovereignty–he doesn’t even make the claim that Pakistan was unwilling or unable to prevent bin Laden from conducting further attacks, though no doubt the US believes this to be the case.

    He also suggests both self-defense and ongoing armed conflict were justifications for the use of force–yet does nothing to clarify the nature and scope of either, particularly whether there are any recognized geographic boundaries/territorial nexus in the armed conflict or such limits on the use of self-defense.

    That the administration considered bin Laden a combatant and legal target against whom lethal force could be used has been clear since the initial US statements after the operation–particularly those statements that articulated the ‘capture’ option in terms of hors de combat and not as the primary, legally obligated objective of the operation.

    Though there is little doubt bin Laden qualified as a combatant, evidence collected after his killing can’t be used to establish his status; the US seems to have simply relied on OBL’s connection to 9/11, not a clear legal definition of combatancy and evidence that OBL fits within it. Moreover, the claim that bin Laden constituted an ‘imminent threat’ that would have triggered right to self-defense is somewhat doubtful, particularly given the fact that the US denied he had an ongoing operational role in AQ.

    Much of the confusion and dispute over the legality of the killing has arisen because the administration was reluctant to simply and publicly reiterate what Koh said in his ASIL speech (as has been mentioned on this blog previously). UN human rights officials initially praised the raid but then pushed back as it became increasingly apparent that the US never intended to capture bin Laden.

    UN officials and others are concerned with the expanding use of targeted killing outside of traditional battlefields, and with no clear legal basis or framework that governs its use and assures its being conducted consistent with IHL as well as human rights law, where applicable.

    Koh’s response does little to address these concerns and fails to answer the most relevant, fundamental legal questions that circumscribe where, when and against whom the U.S. can conduct targeted killings outside of traditional battlefields.

  4. Pretty much the way I figured it. I’m not a lawyer, but if ever a norm was peremptory, it is self defense. My huge preference would have been, before uttering the words, “justice has been done,” spelling out why nations have the right. Not that it’s a perfect standard, all of our cold war misadventures overseas were ostensibly done in self defense, for instance.

  5. Agree with Chris Rogers’ last two paragraphs:

    “UN officials and others are concerned with the expanding use of targeted killing outside of traditional battlefields, and with no clear legal basis or framework that governs its use and assures its being conducted consistent with IHL as well as human rights law, where applicable.
    Koh’s response does little to address these concerns and fails to answer the most relevant, fundamental legal questions that circumscribe where, when and against whom the U.S. can conduct targeted killings outside of traditional battlefields.”

  6. “Oddly, he says nothing about the legal grounds for violating Pakistani national sovereignty”

    Under the circumstances, Pakistan is lucky *we* did not declare war on *it*.  You don’t want your sovereignty violated?  Don’t harbor the world’s most notorious terrorist leader.  No one who has been paying any attention finds it plausible that Army/ISI elements (at the very least) were not sheltering OBL.

  7. Response…
    I agree that self-defense justifies the use of force without Pakistan’s consent to target bin Laden.  I will add a short postscript to my to-be-published Denver J. Int’l L. essay on self-defense targeting re: the death of bin Laden later this month or next.  see author’s site at
    http://ssrn.com/author=47938
    for the Denver J. essay
    and for the main article on lawful targeting in Pakistan under the self-defense and the law of war paradigms and related issues, please see
    http://ssrn.com/abstract=1520717
    Jordan

    p.s. can’t comment more today because of stuff to do around the house.

  8. Response…
    p.s.  Denver J. without the postscript on bin Laden’s death is http://ssrn.com/abstract=1718548
    The postscript will also pay some attention to the law of neutrality and the self-defense, UN 51, override.

  9. I completely agree with Harold Koh’s analysis, and would only add two points:

    1. On Pakistan’s sovereignty.  Pakistan’s sovereignty was technically violated, but this did not infringe its territorial integrity or political independence and the violation appears to have been ratified ex post, given statements by Pakistan’s Ambassador to the US and its Prime Minister.  Before the mission, this factor might be expected to be a legal violation, but with limited or no damages, and therefore acceptable.  After the fact, it is clear that Pakistan has waived its right to claim that this was a violation.  Understandably, Pakistan wants to ensure that this type of mission does not become routine, but given the exceptional circumstances, has consented to it.  Moreover, the primary violation of Pakistan’s sovereignty–which did undermine its territorial integrity and political independence–was by bin Laden himself, a point repeatedly emphasized by Pakistan.

    2. On the legal status of conflict between the US and Al-Qaida. As many readers of Opinio Juris know, most of international law is based on custom as generated by state practice. In a decentralized system such as the international community, law is shaped when one state makes a claim, other effective actors make counterclaims, followed by replies, rejoinders, and so forth until stable expectations of right behavior emerge.  That’s how this legal system operates.  While there may have been ambiguity as to the status of conflict with Al-Qaida on Sept. 10, 2001, nearly ten years later it is clear that the US has been and is at war with Al-Qaida and its use of force against Al-Qaida is justified as self-defence.  This has been reaffirmed across US administrations and the three branches of government over now nearly ten years.  Moreover, Al-Qaida declared war against the US in the first place and has launched numerous attacks against the US.  As to the territorial scope of this war, it appears to have been confined thus far to Afghanistan, Pakistan, Iraq, and Yemen with the overall consent of each host government.

  10. If Al Qaida is in war with the US, it means that under international law they could legitimately attack the Pentagon (i.e., a military target), the USS Cole and any other similar target throughout the world. Does the US really accept this? Could Obama be legitimately targeted due to his unquestioned leadership position within [the US] and his clear continuing operational role?

  11. The fact is that Al-Qaida has not followed any rules of international law and has indiscriminately targeted civilians throughout the world, so I don’t see the relevance of your questions, Guy.  And the truth is that Al-Qaida will continue to attack US and non-US military and civilian targets, including our heads of state and military–and our children–regardless of whether we describe their actions as illegitimate.

    The legal questions posed by the mission to capture or kill bin Laden are about our decisions and whether or not they are lawful.  As discussed by Harold Koh, with a technical caveat as to Pakistan’s sovereignty I tried to highlight, this mission was clearly lawful and legitimate, and if similar circumstances arise in the future, we should–we must–do the same again and again with clarity and confidence.

  12. To my mind -if the US were at war, then I would wholeheartedly agree that the attack on OBL was a legitimate targeting. Unfortunately, while the Bush administration put us on a footing of “military action” authorized by congress, the Obama administration has done everything it could to trivialize even that hazy distinction – defaulting back to the “law enforcement” approach. I find it troubling that we have now set a precedent that law enforcement can include hunting you down and killing you, as long as you are awful enough to deserve it. I think it is critical that we should retain, and in fact, restore, those distinctions. There are different rules for what is acceptable at war and at peace, and congress should be required to be on the record as to which one we are in.

  13. Generally i see nothing new here in regards to the administrations legal position on target killings.

    What struck me however, is that Koh clearly avoids to classify the US v. Al-Qaida conflict as non-international armed conflict.
    Instead, he confines his characterization on the term “armed conflict”, which in its singularity caries no weight in regards to the applicable rules of international humanitarian law.
    One can only speculate about his motive to do so.
    Evidently, if he had named it what it is, he would have consequently had to give sound argument as to why the pakistani city of Abbottabad is within the territory/region of that non-international armed conflict.
    In view of the fact, that Abbottabad is controlled by neither of the conflict parties and situated reasonable remote from the afghan/pakistani border region, i don’t see how he could have convincingly done that.

  14. Bin Laden officially declared war on the United States of America in 1998. At the time I thought who is this guy? How does he think he can go to war with the US? I, mistakenly, dissmissed him as being a nut who could do nothing.  He openly waged war against the US, attacking via terrorist operations on two US embassies in Africa, the USS Cole, and 911. He had the oportunity to surrender or sue for peace but he did not. He continued to openly threaten the US and was planning new attacts on the US. Of course he was a legitimate target, he openly threated lethal force against US citizens which gives the US every right to take him out. Point a gun at a cop and see what happens to you. It’s no different.

  15. What about the justification that Pakistan is currently itself engaged in a Common Article 3 (Non-international armed conflict) (the internal threat in Pakistan and the response by the government/military of Pakistan makes a strong case for a CA3) and that the US was acting as an intervenor on behalf of the government of Pakistan.  Granted – no alleged particular knowledge  by the Pakistanis on this particular strike raises some eyebrows – but I don’t think the US needs to only rely on self-defence /AUMF rationales.

  16. Many people seem to have raised questions about (1) whether LOAC or IHL is the appropriate framework for analyzing the killing, more or less based on whether this is an “international armed conflict,” a “non-international armed conflict,” or a “law-enforcement action”; (2) whether there’s any issue with whether this part of Pakistan is part of the conflict (or if that is even relevant); and (3) whether the Hague Convention language on neutral state duties (or some other international law principle) applied to allow us to enter Pakistan and conduct the action without consent.

    Although I think the US was on the right side of this, it seems like the US government should take a coherent and complete public position on these questions.  In particular, the question of whether there can be armed conflict with transnational non-state actors and when it arises is bound to come up again.

  17. Dear professor Koh,

    In your “1998 Frankel Lecture: Bringing International Human Rights Home” you urged us “to promote obedience to international law” and told us that “we have a duty not simply to observe transnational legal process, but to try to influence it.” This is what I’m going to do, try to influence the U.S. through you. As a philosopher I am not convinced of your above arguments, I’ll have a couple of questions and two suggestions for improvement of the International Law.

    Imagine that the relatives of Osama bin Laden disagree with your legal argument and wish to challenge it in a court of law, as they told New York Times. Is there any court where they can do that?

    They cannot sue U.S. in Pakistani courts, because of the state immunity.  

    You contributed greatly to the book “International human rights litigation in U.S. courts.” You participated as lawyer in Alien Tort Statute litigation. Therefore you probably agree with Jeffrey Davis when he writes in his book “Justice across borders: the struggle for human rights in U.S. court” on page 90 the following: “When ATS suits are prosecuted against the United States and U.S. officials they typically fail. To date plaintiffs have been unable to overcome the government’s sovereign immunity, political question, and state secrets defenses.” The question is: If bin Laden’s relatives wanted to start a legal procedure in U.S. courts, what is their chance of getting a court to hear their case? Probably none.

    Can they sue U.S. in international courts? No. Various German, French, Norwegian and Dutch propositions to admit private individuals as parties to the Permanent Court of International Justice were opposed by the American representative. ICJ inherited its rules. The U.S. opposed also the very serious Australian proposition of creating an International Court of Human Rights, during the talks about the Universal Declaration.

    Thus we don’t have any court where bin Laden’s relatives could challenge your legal arguments.

    Therefore it seems to me that U.S. is the sole arbiter of its own conflicts and this is a violation one of the most fundamental principles of law, that nobody should be judge in her own case.

    The people outside the developed countries believe that U.S. has committed, commits and will keep committing great crimes against them. Technology becomes with the day cheaper, more available and more destructive. Think for instance how the two snipers kept the U.S. for months in anxiety. Therefore people will keep committing terrorist attacks against U.S.

    The wars in Iraq and Afghanistan will cost U.S. three trillion or more. And the economy does not promise you golden eggs nowadays. Therefore the U.S. and the world has a problem.

    The solution to this deadlock seems obvious. The U.S. should change its way radically. It should do two things. First it should make the International Court work, by stimulating the declarations accepting it’s jurisdiction or working towards some form of compulsory jurisdiction. Secondly individuals should have the possibility to sue states at international courts, for instance in newly created courts for human rights, modeled after the European one.

  18. Koh does not speak to Pakistani sovereignty for obvious reasons related to us being two weeks after the event and this being a delicate subject.  I am sure these things are being talked about by the various US and Pakistani counterparts. 

    Since I am not in nor have any interest in ever being in an Administration I would hazard the guess that someone in the Pakistani government knew we were coming just like someone in Pakistan knew that Bin Laden was there. 

    That we would go into Pakistan over Bin Laden is something that Obama has made crystal clear since back in the campaign days and I have no doubt the Pakistani government was aware of that position that Obama was stating on behalf of the United States and acquiesced to that, probably, in exchange for various blandishments that they extorted/negotiated from the US.  This is a natural – though we are not supposed to speak of such things I guess.

    What I am saying is that there was Pakistani consent for this operation in a setting where plausible deniability for the Pakistanis was to be provided.  The same game we play in Yemen.  I really do not see the need for us to spend great time on this point since as outsiders we are unlikely to ever be made privy (unless Wikileaks does it) to this public/private game.

    So we should not expect more of an answer from Koh on the Pakistani sovereignty point in this forum. 

    As for the IAC/NIAC game – Koh’s omitting to clearly characterize it one way or the other seems to me consistent with the blurred nature of the Al Qaeda/Afghan Taliban/Pakistani Taliban/Pakistani government relationship.  The studied ambiguity is coherent with an ambiguous space.  In any event, the even if the principles differ in their application, OBL remains a perfectly legitimate target.  Nothing of significance with regard to OBL I believe hinges on making the IAC/NIAC decision other than interesting debates among us international lawyers.

    As to the war with Al-Qaeda – nothing new under the sun – here is a little 17th century Grotius for everyone.

    “Private Men may certainly make War again[s]t private Men, as a Travel[l]er against a Robber, and Sovereign Princes again[s]t Sovereign Princes, as David again[s]t the King of the Ammonites; and [s]o may private men against Princes, but not their own, as Abraham did again[s]t the King of Babylon, and his A[ss]ociates.  So may Sovereign Princes against private men, whether their own Subjects, as David against I[s]bbo[s]eth and his Party, or Strangers, as the Romans against Pirates.”(Emphasis added) – Hugo Grotius,   Rights of War and Peace Book I 178 (1625 (1715 translation)) (Reprint 2001 Gaunt Inc)

    That the private men not have combatant’s privilege in the war is (correct me someone) because they are not acting on behalf of a given state – the essence of the risk that they take in situations where they do not fit categories like GCIII-POW or, even if GCIII-POW do war crimes.   I am leaving to the side US domestic law reasons on all this.

    What I regret – and I watched the President’s broader speech about the Middle East and North Africa today – is that in all of this Middle Eastern/ North Africa/South Asia strategy, part of our strategy does not seem to include recognizing the dramatic consequences of 1) our war of choice in Iraq or 2) our torture with the complicity of the precise leaders against which we rail (Libya, Egypt, Syria).  Our lack of integrating in our strategy accountability domestically for our own high level perpetrators/enablers of oppression in the Middle East is a bit much.  We rail against Khaddafi in Libya and Assad in Syria in what they do to their own people, yet stand silent about what Bush did in Iraq (the present refers to it as done with the best of intentions) or about taking people like Arar to Syria and Al-Libi to Egypt and Khaddafi’s prisons as part of our rendition and torture program. 

    C’mon man. 

    After two weeks of having the top 
    US torturers serenade us on all channels trying to use the OBL kill to vindicate US torture of Middle Easterners, our President mentions the OBL kill but not one word about the effort in the US to vindicate torture in the weeks after.  Am I the only one who heard that silence in his speech?

    Sorry if this is inconvenient but this seems part of speaking truth on the legitimacy of what we did to OBL.

    But, maybe this is not the place to speak to broader strategy and rather to just stay within the confines that are sought by the Opiniojuris.org space.  If so, then delete the comment, but at least through this effort I attempt to reach Harold in a public and transparent way just as from the floor of the ASIL Annual Meeting.  He and I have had dealings before at the time of the ASIL Centennial Resolution.

    Best,
    Ben

  19. “(the present refers to it as done with the best of intentions)”

    I meant “the President”

    Sorry,
    Ben

  20. “Given bin Laden’s unquestioned leadership position within al Qaeda and his clear continuing operational role, there can be no question that he was the leader of an enemy force and a legitimate target in our armed conflict with al Qaeda.”

    This makes the unsupportable presumption/conclusion that bin Laden was in fact present and then killed during the operation. The only “evidence” provided in this matter is statements made by US officials who demonstrably and habitually prevaricate and have a strong motive of political gain to claim killing bin Laden.

    There is quite a body of evidence that cast significant doubt upon the claims and narrative of US officials, including their own numerous contradictions. A) credible reports from other international leaders and intelligence organizations of bin Laden’s death years earlier B) it is
    unlikely that someone with kidney failure and who could not get out of a car without help could survive in caves and harsh conditions for more than a relatively short time C) bin Laden was also reported to have Marfan Syndrome and died as a result of complications from that condition D) There was no dialysis machine located on the Pakistani compound which would be required of someone in kidney failure E) All the witnesses were reportedly killed F) The body was destroyed quickly and lies were told about the reasons for that course of action G) bin Laden was not wanted by the FBI in connection with 9/11 H) Dick Cheney said bin Laden was not wanted in connection with 9/11 [ http://youtu.be/IxqOESr6Hdw ] I) A Pentagon front group (SITE) was the source of claims Al-Qaeda confirmed bin Laden’s death J) Navy SEALs do not kill high intelligence value targets.

    And I can go on and on with inconsistencies and contradictions in the White House narrative, which is designed to obfuscate the truth.

    The most likely scenario is that Obama felt confident, based upon old intelligence reports, that Osama was dead. He then orchestrated a raid to kill a bin Laden body double and boost his poll numbers and popularity. The SEALs were told that it really was Osama. They would have not known any better. This operation was entirely conducted in way so no media or other entity could verify anything and we would be in the position of glad accepting what the White House put forth as the truth. It could have been conducted with third party DNA experts around the world gathering DNA samples from the body, having them analyzed, comparing the results with known bin Laden relatives and submitting those results to the world. This operation was conducted in a manner to prevent anyone from knowing or verifying the truth of the White House claims.

  21. Bart Szewczyk wrote:
    “it is clear that the US has been and is at war with Al-Qaida and its use of force against Al-Qaida is justified as self-defence.”


    As you pointed out and the US administration including Koh have always maintained that the military mission against Al-Qaida is a war and not a law enforcement/police mission.
    Consequently, while your self-defense argument might count within a law enforcement legal regime, the legality of use of force against a person in armed conflict (IHL) is not assessed by it being an act of self-defense but rather by the question of compliance with the rules of war.
    In other words, self-defense can in the present case justify the violation of Pakistans sovereignty (Art. 51 UN-Charter) but not the target killing of OBL.

  22. Response…
    Has to be an int’l armed conflict for the Seals to have combatant status and combatant immunity.  So State “L” needs to talk to DOD GC about that.
    Can’t intervene in an art. 3 conflict between Pakistan and local insurgents, which does not describe the international conflict occuring de facto in Afg., Pak., etc., without Pakistan’s consent. Nicarag. ICJ case somewhat on point re: collective self-defense.
    BUT U.S. can engage in otherwise lawful UN 51 self-defense against continual al Qaeda armed attacks w/o Pak. consent.  AND we don’t have to be at “war” with al Qaeda (and technically cannot be b/c they are not even insurgents under customary criteria and do not even control terr. as their own w/in meaning of Protocol II, nor do they field military units in sustained hostilities.  SO the law of war paradigm pertains BECAUSE we are still at war with the Taliban id the de facto expanded theater of war (right over bin Laden’s head because he was a DPH in that war).  We are certtainly not at war with Pakistan.
    Perhaps Harold cannot comment on the “war” too much because there is some disagreement within the Exec. branch — but shouldn’t be if we care about combtant status for our military personnel so that they can have combatant immunity for lawful acts of war during an international armed conflict with the Taliban.
    P.S. we can target al Qaeda persons who are in Yemen, etc. if they are direclty engaged in ongoing armed attacks against the U.S., U.S. military, U.S. civilians, et. under UN 51 because they are DPAA (directly participating in armed attacks) even though we are not at “war” with al Qaeda.

  23. Geez Joe – and when the Taliban and Al Qaeda say it was him then I am to think that the news media relating those points to me are in on this whole thing right?  I mean even though states lie it does seem to me that the number of people saying it was Bin Laden who are not the US government including the reports of the other people who were there and survived does seem to suggest it was him.  I mean I can not go to “birth certificate” space/parallel universe space again.
    Best,
    Ben

  24. I’ll join the chorus in being disappointed that Harold Koh did not provide a more detailed response to two important questions highlighted by the bin Laden killing.  First, to what extent is the armed conflict with al Qaeda limited, if at all, by geographic and territorial boundaries (space issue) and second, to what extent is self-defense limited in duration, if at all, as a justification for the use of force by the US against al Qaeda (time issue).  I have little doubt that Harold Koh has thought long and hard about these issues, but his publically available answers to date are, in my view, limited and lacking in scope.     

  25. While the focus of Koh’s brief is the Administration’s legal justification for killing OBL, it’s funny that all the adult males present in the compound when the Seals arrived were dead when the Seals departed.

    That says to me that there was no intention of allowing any adult male (including OBL) to surrender, nor to allow any adult male (including OBL) to remain alive.

    Now Harold Koh may take refuge in the typical lawyer’s weasel-wording to claim that no explicit order was ever given to the Seals to kill all adult males in the compound, but the end results belie the obvious intent.

    And that spells the real meaning of the actions taken in this operation.

    Merely collateral damage? Yeah, right!

    If Harold Koh wanted to sell you oceanfront property in Phoenix, would you buy?

  26. I think Professor Koh missed a very good opportunity to explain in detail the legal justification of OBL’s killing. What he said on his ASIL speech more than a year ago, most of us already knew.

  27. If anyone wants a good summary of America’s prohibition on assassinations (including in times of war), try here:

    Assassination Ban and E.O. 12333: A Brief Summary (http://www.fas.org/irp/crs/RS21037.pdf)

    Reading it is interesting but simply academic because the USA has abandoned rule of law to pursue their ‘war of terror.’

    Lex talonis has many historical precedents, but it was the Nuremberg trials that proved the Nazis were not only militarily defeatable but moral lessers. 

    In Koh’s original post shooting an unarmed man was not justified but I’m sure that will change as the needs of the state dictate.

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