In earlier posts I’ve talked about some of the gatekeeping points in the submissions process, although I’ve largely described them from a procedural angle. Today’s post deals with the substantive angle. Take the cursory review stage, when editors might sort incoming submissions into reject and consider further piles. Each journal and each editor will have their own policies (and thus...
I suspect that many of our readers already receive ASIL Insights, but for those of you who do not, I wanted to flag the release yesterday of Pakistan's Sovereignty and the Killing of Osama Bin Laden by Ashley Deeks, a former colleague of mine in the Legal Adviser's Office at the U.S. State Department. Deeks is now a fellow at...
For my final guest contribution regarding Bin Laden's killing, I'm reposting (with permission) a piece that was just published by Foreign Policy magazine entitled The Bin Laden Aftermath: Why Obama Chose SEALs, Not Drones. I look forward to comments from the OJ community.
Why did the United States choose to launch a raid against al-Qaeda leader Osama bin Laden's compound in Abbottabad, Pakistan, rather than bombing it? It wasn't because of a "law enforcement mindset." And it wasn't compelled by human rights law. Rather, it was the best option based on the military objectives, available intelligence, and the law of armed conflict.
On the one hand, practical considerations dictated this riskier kind of raid. The United States needed to have a body to prove, once and for all, that the hard-to-kill Bin Laden was in fact dead. The recent media fascination with whether the U.S. will release photos of his body lends credence to this concern.
A second issue prompting the raid was that the Obama administration was worried about collateral damage. This problem is more serious than some may initially suspect. Abbottabad is a heavily populated city, with nearly 1 million residents. Moreover, numerous civilian residences and the Pakistani military academy were near bin Laden's "drone-proof compound." There's little doubt that the risks to nearby residents certainly weighed on the minds of senior policymakers and President Obama. The matter of collateral damage alone, though, may not have been enough to tip the scales away from a bombing operation.
Instead, the issue may have been the uncertainty over whether Bin Laden was even in the compound. Nation-states are simply not permitted to drop bombs in the hope they will kill the right person; they need to be reasonably certain they are attacking the right target. That fact leads us to the legal concerns that may have necessitated a raid rather than a bombing operation.
The Requirement to Positively Identify a Target
Most contemporary discussions of collateral damage skip the threshold legal question likely posed by the Obama administration, namely whether bin Laden or some other lawful military target was actually inside the compound. Unless that question could be answered to a reasonable degree of certainty, any bombing operation would have been unlawful, even with no or minimal collateral damage to surrounding persons and objects.
This reality flows from the principle of distinction, (or "positive identification" in U.S. military parlance) a fundamental tenet of the law of armed conflict. Armed forces are required to "at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives." Positive identification, according to U.S. policies, requires that commanders know with reasonable certainty that "a functionally and geospatially defined object of attack is a legitimate military target." In short, directing attacks against civilians (in this context, non-uniformed personnel) is not permitted, unless they are directly participating in hostilities.
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’.
The video is here. No big surprises. Dellinger's argument is based on the post-9/11 Authorization for the Use of Military Force and that under international law "you can kill enemy combatants." Dellinger explains that drones attacks on other al Qaeda members are legal too. However, regarding drone attacks, I wish he hadn't said that that there was "a policy judgment" to be made...
Following up on my previous post, Obama has announced that he will not release photos of Usama bin Laden's body: It is important to make sure that very graphic photos of somebody who was shot in the head are not floating around as an incitement to additional violence or as a propaganda tool," said the president. "We don't trot...
His name? John Ashcroft. Yep, that John Ashcroft: The consortium in charge of restructuring the world’s most infamous private-security firm just added a new chief in charge of keeping the company on the straight and narrow. Yes, John Ashcroft, the former U.S. attorney general, is now an “independent director” of Xe Services, formerly known as Blackwater. Ashcroft will...
Mary Ellen O'Connell has written a more detailed analysis of the international law involved in the bin Laden killing responding to some of the comments on her Opinio Juris post. Here's a taste: The use of lethal force is governed by two types of international law: the law of peace and the law of armed conflict. In peace, international law supports...
Cross-posted at Balkinization In response to my post a few days ago lamenting the post-bin Laden urge to rehash debates about torture’s efficacy, Ben Wittes writes to disagree. “Pearlstein is right, of course, that we will never know with any certainty whether any specific piece of information that the CIA program developed would have been developed had the program used no coercion–or...
[Major John C. Dehn is an Assistant Professor in the Department of Law, US Military Academy, West Point, NY. He currently teaches International Law and Constitutional and Military Law. He is writing in his personal capacity and his views do not necessarily represent the views of the Department of Defense, the US Army, or the US Military Academy. The analysis...
A number of students and colleagues have asked me if I believe that Usama bin Laden's killing was legal. I'm swamped with teaching and writing responsibilities, so my ability to blog is limited. But I thought I'd at least put my thoughts on record, skeletal though they may be. And I want to reply to what I think are two...
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...
