Author of “No Easy Day” Admits to Committing a War Crime

by Kevin Jon Heller

Of the 1500+ posts I’ve written for Opinio Juris over the past seven years, none angered my fellow progressives more than the post in which I claimed that the killing of Usama bin Laden was perfectly legal under international law.  Here is what I wrote:

To begin with, I think the applicable legal regime is international humanitarian law (IHL), not international human-rights law (IHRL) — a conclusion that can be reached in a number of different ways.  The best rationale is that UBL was a member of an organized armed group (“original” al Qaeda) taking part in the armed conflict in Afghanistan.  In the alternative, I think we can say (although it is a closer call) that the hostilities in Pakistan rise to the level of armed conflict and that UBL was a member of an organized armed group (original al Qaeda or al Qaeda Pakistan, if the two are distinct entities) taking part in that conflict. Either way, UBL was legitimately targetable with lethal force at any time, subject only to the principles of distinction and proportionality.  And nothing I’ve seen indicates that the attack on UBL’s compound violated either of those principles.

I based the conclusion that bin Laden’s death was legal under IHL on Nicholas Schmidle’s account of the bin Laden operation in The New Yorker.  He described bin Laden’s final moments as follows:

The Americans hurried toward the bedroom door. The first SEAL pushed it open. Two of bin Laden’s wives had placed themselves in front of him. Amal al-Fatah, bin Laden’s fifth wife, was screaming in Arabic. She motioned as if she were going to charge; the SEAL lowered his sights and shot her once, in the calf. Fearing that one or both women were wearing suicide jackets, he stepped forward, wrapped them in a bear hug, and drove them aside. He would almost certainly have been killed had they blown themselves up, but by blanketing them he would have absorbed some of the blast and potentially saved the two SEALs behind him. In the end, neither woman was wearing an explosive vest.

A second SEAL stepped into the room and trained the infrared laser of his M4 on bin Laden’s chest. The Al Qaeda chief, who was wearing a tan shalwar kameez and a prayer cap on his head, froze; he was unarmed. “There was never any question of detaining or capturing him—it wasn’t a split-second decision. No one wanted detainees,” the special-operations officer told me. (The Administration maintains that had bin Laden immediately surrendered he could have been taken alive.) Nine years, seven months, and twenty days after September 11th, an American was a trigger pull from ending bin Laden’s life. The first round, a 5.56-mm. bullet, struck bin Laden in the chest. As he fell backward, the SEAL fired a second round into his head, just above his left eye. On his radio, he reported, “For God and country—Geronimo, Geronimo, Geronimo.” After a pause, he added, “Geronimo E.K.I.A.”—“enemy killed in action.”

As recounted by Schmidle, the SEALs’ actions were consistent with IHL.  A member of an organized armed group engaged in a non-international armed conflict (like a government soldier involved in an international armed conflict) can be targeted with lethal force at any time, subject to the exception stated in Art. 41(1) of the First Additional Protocol: “A person who is recognized or who, in the circumstances, should be recognized to be hors de combat shall not be made the object of attack.”  A combatant is hors de combat in three situations: (1) “he is in the power of an adverse Party” (ie., captured); (2) “he clearly expresses an intention to surrender”; or (3) “he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself.”  In Schmidle’s account, bin Laden was not in the power of the U.S. when he was killed; he was not wounded or sick; and — most relevantly — he had not clearly expressed an intention to surrender.  That intention requires an affirmative action, such as waving a white flag, raising arms, or verbalizing a desire to give up.  (Examples mentioned in the U.S. Soldiers Manual.)  It is thus perfectly lawful to kill a combatant who is unarmed and making no attempt to resist capture; indeed, the drafters of the First Additional Protocol specifically rejected an earlier draft of Art. 41 that would have deemed an unarmed or defenseless combatant hors de combat.

The author of the new book “No Easy Day,” however, provides a very different account of bin Laden’s death — one that has to be taken seriously, because the author is one of the two SEALs who fired the fatal shots.  Here is the Huffington Post’s summary of the author’s account (emphasis mine):

As the SEALS ascended a narrow staircase, the team’s point man saw a man poke his head from a doorway, wrote a SEAL using the pseudonym Mark Owen (whose real identity has since been revealed by Fox News) in “No Easy Day,” a copy of which was obtained at a bookstore by The Huffington Post.

“We were less than five steps from getting to the top when I heard suppressed shots. BOP. BOP,” writes Owen. “I couldn’t tell from my position if the rounds hit the target or not. The man disappeared into the dark room.”

Team members took their time entering the room, where they saw the women wailing over Bin Laden, who wore a white sleeveless T-shirt, loose tan pants and a tan tunic, according to the book.

Despite numerous reports that bin Laden had a weapon and resisted when Navy SEALs entered the room, he was unarmed, writes Owen. He had been fatally wounded before they had entered the room.

“Blood and brains spilled out of the side of his skull” and he was still twitching and convulsing, Owen writes. While bin Laden was in his death throes, Owen writes that he and another SEAL “trained our lasers on his chest and fired several rounds. The bullets tore into him, slamming his body into the floor until he was motionless.”

Then the SEALS repeatedly examined his face to make sure he was truly bin Laden. They interrogated a young girl and one of the women who had been wailing over Bin Laden’s body, who verified that it was the terror leader.

By the author’s own admission, bin Laden was wounded but not yet dead when he and his fellow SEAL “fired several rounds” into his chest.  He and his fellow SEAL thus intentionally killed bin Laden while he was “otherwise incapacitated by wounds” and hors de combat.  That was a war crime — the war crime of wilful killing.

I imagine some readers will respond by pointing out that bin Laden was already fatally wounded when the SEALs shot him.  There are two problems with that response.  To begin with, the author is not a doctor; bin Laden might not have actually been fatally wounded.  More importantly, though, it makes no difference if he was dying — he was still alive when the author and his fellow SEAL shot him, and that is all the war crime of wilful killing requires.  That is not a controversial idea; no domestic criminal-law system would consider shooting a person dying of a fatal heart attack to be anything but murder.  If your actions deprive someone of even one second of life, you are both the factual and legal cause of their death.

There is no chance, of course, that the two SEALs will ever be prosecuted for killing bin Laden.  But that doesn’t mean, assuming the author’s account is accurate, that what they did was legal.  It wasn’t — it was a war crime, pure and simple.

http://opiniojuris.org/2012/08/29/author-of-no-easy-day-admits-to-committing-a-war-crime/

38 Responses

  1. It was not a war crime. The ‘body check’ firing incident is standard operating procedure for rapid speed operations. The intention is to ensure beyond all doubt, that the target no longer poses a threat. The SEALs were operating in a situation that was still fluid and was not under their control.  Your argument of the legal ramifications rests on a flawed notion of understanding re- US law vs International law. US Military personnel are bound to the UCMJ and Federal law.

  2. Actually, American soldiers are direcly bound by international law, as well.  And although it is not criminal to put a bullet into someone you believe is dead, it most certainly is criminal to put a bullet into a combatant you know is alive, even if you think he is dying.  A dying combatant is hors de combat by even the most conservative definition. 

    Moreover, and more importantly, there is no distance between US military law and international law on this point.  The US Rules of Engagement for Operation Desert Storm instructed soldiers to “not engage anyone who has surrendered, is out of battle due to sickness or wounds, [or] is shipwrecked.”  The US Operational Law Handbook prohibits the “killing or wounding of enemy who have surrendered or are incapacitated and incapable of resistance.”  The US Naval Handbook provides that “Members of the armed forces incapable of participating in combat due to injury or illness may not be the object of attack,” and specifically deems a war crime “[o]ffenses against the sick and wounded, including killing, wounding, or mistreating enemy forces disabled by sickness or wounds.”

  3. There is obviously going to be a discussiona bout the applicable law here, but agreeing that IHL is the applicable law…

    If he was still alive and incapacitated (even mortally wounded), you would be absolutely right that there is a war crime here of targeting someone who is hors de combat.

    However, I think we need to be careful not to assume medical expertise either.  While we may be inclined to think that “twitching and convulsing” means that he is still alive, it is well documented that involuntary muscle spasms happen for a time after death.

    If he was already dead, it certainly is not a grave breach.  APII requires measures to prevent the dead from being despoiled, but as the US is not a party, one would have to rely on customary international law.  I will conceed that there is a long history of practice that indicates this would be customary law, but we are not talking about a grave breach here if he was already dead.

  4. Robert,

    You are absolutely right about the distinction, and we need to know exactly what “Owen” writes in the book.  Given the quotes above, it seems clear to me that he believed bin Laden was dying, not dead.  But I will post again when I get access to the book itself.

  5. We will see what other details are available when we have access to the book, but just a note that even if Owen believed bin Laden was alive, a mistake in fact (if he was actually dead) would negate the crime.

  6. Robert,

    Actually, it would make him guilty of attempting to commit the war crime of wilful killing.  Factual impossibility is not a defense to a crime; only legal impossibility is.  If the facts were as Owen believed them to be (bin Laden alive), it would have been legally possible for Owen to wilfully kill him.

    See, for example, U.S. v. Thomas, in which two soldiers were convicted (in a court martial) of attempted rape because the woman they believed was unconscious during sexual penetration was actually dead. 13 USCMA 278 (1962).

  7. Actually, American soldiers are direcly bound by international law, as well.

    Under what treaty does international law impose conditions of justice onto American soldiers?

    it most certainly is criminal to put a bullet into a combatant you know is alive, even if you think he is dying.  A dying combatant is hors de combat by even the most conservative definition.  

    ?? He is a combatant until he can no longer present a threat. A dying combatant is still a threat – that is the whole reason for ‘body checking’. This is basic military tactics – You shoot until the threat is resolved.

    The US Operational Law Handbook prohibits the “killing or wounding of enemy who have surrendered or are incapacitated and incapable of resistance.”

    The operative point is ‘incapable of resistance’. From the perspective of the SEALs, Bin Laden was still capable of resistance. Their beliefs were reasonable. There is nothing controversial about the actions the SEALs took. 

  8. Hi, Tom;

    If your definition of a non-combatant is one who cannot pose a threat, and the only way of removing that threat is to kill said combatant, then wouldn’t this tend to imply that prisoners could never be taken? Or in the alternative, that it would be permissable to shoot prisoners in any event under the guise of removing a threat?

  9. Kevin,
    While bin Laden being dead previously would still allow prosecution for attempted willful killing, it should be recognized that this is not the same thing as willful killing.
    Even though the UCMJ and, if the they had jurisdiction, the ICC have the ability to prosecute attempted breaches, there is not necessarily an obligation on States to prosecute.  GC I Art 49 only would require if they willfully killed or were ordered to.

     

  10. No treaty required, Tom – it has been established since Nuremberg that international crimes give rise to individual criminal responsibility under international law.

  11. This probably isn’t the place to raise it, but I haven’t seen anything else closer recently.

    Did anyone else read the recent NYT’s piece titled “Life with Syria’s rebels in a cold and cunning war” ( http://www.nytimes.com/2012/08/21/world/middleeast/syrian-rebels-coalesce-into-a-fighting-force.html?pagewanted=all) and think that it contains all the elements of a fairly obvious war crime?  I was kind of surprised that nobody seems to have made an issue of it.

  12. Kevin, why do you cite to Protocol I, which the U.S. hasn’t ratified (to my knowledge)?
    Common Article 3 seems to support your argument equally well.

  13. Cameron and Chris-

    I know there is an international obligation against war crimes.. But the US has the first sovereignty in determining what constitutes a war crime. Most certainly in my opinion – the bin laden killing does not. As such, the US would (rightly) never transfer the SEALs from US custody.

    Clearly prisoners should still be taken, but the bin laden operation was one in which bin laden even when on the ground could still reasonably have been perceived to pose a present danger to the SEAL team/operation. The building had not been secured, the operation took place in a non-permissive security environment and speed was of the essential essence. 

  14. Anderson – because certain provisions of API are viewed as codifying customary international law, including article 41. The prohibition on attacking persons hors de combat is a longstanding norm of customary international law applicable in both international and non-international conflicts. I assume Kevin’s reference to A41 was to reference the rule in its most clearly codified form.

  15. Tom – the U.S. certainly does not have ‘the first sovereignty’ in determining what may constitute a war crime, rather in the case of its own soldiers it has the primary responsibility to prosecute. The two are very different.

  16. Tom – the U.S. certainly does not have ‘the first sovereignty’ in determining what may constitute a war crime, 

     I guess we are just going to have to disagree here then. The US Constitution is supreme over international law. International treaties become Federal Law but cannot supplant the Constitution. Reid v Covert.

  17. Tom;

    There seems to be a bit of confusion between the incidence of a crime and its enforcement. If the facts are are relayed in the book, then there is argument that a war crime has occurred – irrespective of whether or not there is any enforcement. To take another example, Robert McNamara and Curtis Le May freely admitted with respect to the firebombing of various major Japanese cities that had they been tried at the close of WWII, they would have been found guilty of war crimes.

    Thus, US adjudication or enforcement is neither here nor there – the incidence of a crime is not dependent on whether or not a determination as to the crime has been made by a judicial authority.

    But that said, if it is a war crime, then it is subject to the universal prescriptive jurisdiction of any state per the ICJ’s decision in Arrest Warrant, leaving open the possibility of a trial in absentia by another state’s court’s, though like you I very much doubt that would ever happen.

    Now, your second point, that the US won’t be giving up the SEALs any time soon is a good one, and almost certainly true. Indeed, I believe that US domestic law prohibits the surrender of any US service personnel to an international criminal tribunal (i.e. the ICC).

    As to the third point, do you believe there is any circumstance in which a person in Bin Laden’s situation would have left his compound alive, or were the SEALs entitled to shoot him as a potential threat in any event?

  18. Response…
    AW: yes, and see HC No. IV (1907), Annex, art. 23(b)-(d), although some language provides room for ambiguity with respect to the alleged facts here.
    The treaty law would, of course, include the 1949 Geneva Conventions and the 1907 Hague Convention noted above (especially since the international armed conflict in Afghanistan has migrated to parts of Pakistan, i.e., the theatre of war is in parts of Pakistan and was right over bin Laden’s head at the time of his death).
       However, bin Laden was, in my opinion, not a “combatant” (and had never been one vis a vis the U.S. — with “combatant immunity” and such).  He was a civilian DPH (direct participant in hostilities against the U.S.) and was targetable. Recall http://ssrn.com/abstract=1718548
    The question of fact is critical, however, as Kevin points out.  And yet, “mistake of fact” can be used to deny responsibility.  See, e.g., Rome Statute of the ICC, art. 32(1); Paust, Bassiouni, et al., International Criminal Law 127 (3 ed. 2007) [the 4th ed. is at the printers, Carolina Academic Press -- for publication for use in the spring -- Profs: get your free copy for classroom use!].
    Tom: in addition to the above, note that the UCMJ, however indirectly, incorporates all of the laws of war as offenses against the laws of the United States “by reference” and the next questions  become: who is bound, where can they be prosecuted, etc.  Ex parte Qurin; In re Yamashita, U.S. v. Schultz, etc.  See 50 Tex. L. Rev. 6 (1971).

  19. Although we still need the book, Peter Bergen’s review in the Washington Post summarizes Owen’s account as follows: “The SEALs moved slowly toward this room and inside found a man lying on the floor in his death throes. Owen and another SEAL finished him off with a few more rounds.”

  20. What was the legal justification for violating Pakistani sovereignty?  That the battlefield included the part of their country in which his house was located?
    This seems to be a war with a moving battlefield that follows people around wherever they may be and whatever they may be doing.
     

  21. Diane: I think the most rational argument for the violation of Pakistani sovereignty is that Pakistan was unwilling or unable to act against al Qaeda, which organises armed attacks against the US from within Pakistan’s territory. If we accept that the Article 51 right of self-defence is dynamic and capable of adapting itself to present-day circumstances (one of which is that non-State actors have proven themselves capable of carrying out armed attacks similar in scale and lethality to those executed by States), we could plausibly argue that there is a right of self-defence against non-State actors such as al Qaeda. Add to that the obligation on States to ensure that their territory is not used to carry out attacks against other States (see the Friendly Relations Declaration), and we have plausible grounds for arguing that Pakistani sovereignty must give way to the US right of self-defence, at least to the extent that Pakistan was being wilfully blind to OBL’s presence or was genuinely unable to do anything about it.

    Having said all that, this argument is not watertight. The US would still have to satisfy the ad bellum conditions of necessity and proportionality. Absent evidence of a concrete, imminent terrorist attack by al Qaeda in the lead up to OBL’s killing, I think necessity would be difficult to prove. Arguably, 11 years on, 9/11 does not operate as a “continuing” armed attack warranting incursion into the territory of any State that gives safe haven to al Qaeda. Some might say that this is unpalatable in light of current-day terrorist threats, but to that, the answer is that such threats are most appropriately dealt with by way of international law enforcement and cooperation between States (which is, incidentally, what a litany of Security Council resolutions mandate for redressing terrorism).

    It’s also important not to conflate jus ad bellum and jus in bello issues. It is entirely possible that the operation violated Pakistani sovereignty, and thereby breached article 2(4) of the UN Charter (a jus in bello issue), but was nevertheless lawful under the jus in bello.

    However, your concern that the unfortunately titled “war on terror” is akin to a “moving battlefield” is a very valid one. I think – and I know not everyone agrees with this – that the only way to address that concern is to say that the law of armed conflict applies only within the theatre of combat (i.e. wherever the NIAC intensity threshold is met), not wherever in the world members of the organised armed group happen to be. Otherwise, members of an al Qaeda cell operating from a Parisian apartment building could be attacked in accordance with humanitarian law principles, which would, I dare say, have rather dire implications for the surrounding French civilians who have little idea that they are technically within a warzone.

  22. Kevin’s assumption is that the applicable legal regime is international humanitarian law (IHL), not international human-rights law (IHRL). I think there are valid and relevant legal reasons for both views. However, the first information from the mission was that Bin Laden had a gun which gave the impression that the Navy Seals used lethal force in self-defence and thus was supposed to be acting under the law enforcement paradigm (i.e. IHRL). This changed in the subsequent reporting on the mission. The first impression that I got reappears in an other extract from the piece in the Huffington Post: “During a meeting with top commanders, a lawyer from either the Pentagon or the White House ‘made it clear that this wasn’t an assassination,’ writes Owen, who recounted the instructions: ‘I am not going to tell you how to do your job. What we’re saying is if he does not pose a threat, you will detain him.’ “From this, it appears as the US administration and its legal advisors gave the instructions to the military that the the mission was to operate under IHRL. From the account in Huffington Post it appears as the NAVY Seals failed to follow the instructions and also may have violated IHL/IHRL.

  23. Mark,

    I find it difficult to believe that the US ever took the position that the raid was governed by IHRL, not by IHL.  First, the US has taken the position time and again that it is in a global non-international armed conflict with al-Qaeda, such that any attack anywhere on a member of al-Qaeda is governed by IHL.  Second, the US has always refused to accept that IHRL applies extraterritorially, either conventionally (the ICCPR) or customarily.  I disagree with both points, but they’re worth noting.  I think the comments you note were designed to make the US look better in the eyes of the international community; I don’t think they were assertions of the relevant law.

  24. A wounded enemy can not necessarily be deemed to be hors de combat, for a wounded person still may find the energy to toss a granade or pull the trigger, as he is dying. That is why, it is standard procedure that you “kill” your enemy and you are sure about it! That is why, one is told to put two bullets in the chest of the enemy and one in the head, if possible.
    In the fog of war, you better be an unassuming professional, which Special Forces operators are.
    What branch of law governs the war/fight between Al Qaida and the US is a tricky one, though! I tend to believe that it is IHL.
     

  25. Gokhan,

    By your logic, no wounded person could ever be hors de combat — in which case Art. 41(2)(c) is completely meaningless.  That is an absurd position.  A soldier who is shot in the leg may not be hors de combat, but one who is shot in the head and in his death throes most certainly is.

  26. Response…
    Chris: permissible self-defense under U.N. art. 51 is not limited to a circ. where the state from which non-state actor armed attacks emanate is unable or unwilling, although if a process of armed attacks has been initiated and is still occurring it would not be difficult to conclude “unable.”  Moreover, the self-defense paradigm is different than the law of war paradigm, although in the case of a migrated de facto theatre of war in parts of Pakistan the U.S. can claim (and has, e.g., Harold Koh) that both apply there. Additionally, al Qaeda had continued to attack U.S. soldiers in parts of Afghanistan.  Therefore, there was a continual process of armed attacks by the non-state actor that allowed self-defense responsive action.  Bin Laden was still involved with planning and approving attacks on U.S. nationals there and elsewhere.  See the http site in my prior response.
    With respect to human rights, Kevin is correct that (1) they continue to apply in time of war, and (2) they apply iniversally wherever the U.S. would have “effective control” over a person (e.g., U.N. Charter, art 56 [no geographic or contextual limitations]; ICCPR, as supplemented by some General Comments of the H.R. Comm.; the CAT).  But was bin Laden in the “effective control” of the U.S.?

  27. Kevin,
    I agree with your with initial observations and I also agree with your above comment that someone “shot in the head and in his death throes” most likely is a person hors de combat. However, it all depends on the circumstances. Someone shot in the leg may well be hors de combat also (if he does not have a weapon or cannot reach it anymore, and is as such defenceless, and he abstains from hostile acts), but someone who is fatally wounded  – yet still alive – might actually be capable (and willing) to take action against the opposing force: imagine the suicide bomber with his hand on the cord of his bomb jacket.
    According to art 41 AP I and as explained at Rule 47 in the ICRC’s Customary IHL Study, “immunity from attack is conditional on refraining from any hostile act or attempt to escape. […]The commission of these acts signifies that the person in question is in fact no longer hors de combat and does not qualify for protection under this rule.” Some of the comments above refer to a threat that OBL might still have posed to the SEALs. In RoEs a hostile intent is lower on the scale than a hostile act, yet both often allow for the use of deadly force. Article 41 only refers to “hostile act”, but even if (perhaps from a personal self-defence point of view) the hostile threat would also be considered to take away the hors de combat status, it would be hard to imagine though in what way OBL would have been able to pose a threat – let alone engage in a hostile act or intent.
    In relation to the “twitching and convulsing” of either dead, or still alive, bodies, the following is an interesting question: May someone who is (barely) still alive, clearly hors de combat, but who due to “twitching” (whilst it would not be in the person’s power anymore to control or prevent such twitching) may pose a threat (e.g. because he has his finger still on the trigger of his automatic rifle or is holding on to the pin of a hand grenade or to the cord of a bomb vest) still be shot? The prohibition to kill persons hors de combat is absolute, so one could not rely on military necessity here. But would the right to personal self-defence allow for shooting the person dead in order to stop the ‘threatening’ twitching? (This might be slightly theoretical as in practice shooting someone in the aforementioned situations might be far more dangerous – given the impact of the bullet on the body – than the actual twitching…)
    In this series of comments, no-one has made reference to the fact that perhaps OBL was shot in order to ‘end his suffering’ (albeit not a likely scenario as OBL was probably the person most hated by the average US citizen, especially soldiers), but I heard this argument in other (non-legal) discussions about the situation. Philip Alston has made some good observations on the issue of mercy killings in his Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions (A/HRC/4/20, 29 January 2007) at paras 29-38. He explains that:
    “Although such “mercy killings” are sometimes presented as a “necessary evil” of war, such an analysis contradicts the foundations of the applicable law. Once enemy combatants have been rendered hors de combat by injury, they are no longer a threat to the opposing combatants, and there is simply no reason why it would be “necessary” to kill them.[…]
    It warrants underlining the fact that international humanitarian law does not allow – under any  ircumstances – the taking of the life of another as a purported act of “mercy”. The obligation to treat injured soldiers “humanely” and the obligation to “respect and protect” the wounded are incompatible with the idea of “mercy killings”.”
    He goes on to say something that ties in nicely with the comments made above on not assuming medical expertise: “Individual parties to the conflict, who lack medical training, may not take the medical care of the wounded into their own hands by deciding to end the life of an injured person on the battlefield. Such killings are an unequivocal violation of international humanitarian law.”

  28. Response…
    p.s., with respect to global human rights law (not that for Parties to the Eur. Conv.), the test would relate to whether or not the killing of a person in “effective control” (outside of U.S. terr. or terr. that the U.S. occupies) was, per art. 6 of the ICCPR, “arbitrary” under the circumstances.

  29. Mark Thompson at Time’s Battleland blog: “By the time the SEALs got to him, he had fallen to the floor with a bullet wound to the right side of his head. The SEALs trained their guns on the still-alive bin Laden and fired into him several times until they were sure he was dead.”

  30. Jordan: actually I think there is no option in the case of infringing Pakistani sovereignty other than to claim that Pakistan was unwilling or unable to deal with AQ. There is no allegation that Pakistan itself has committed an armed attack against the US warranting resort to self-defence, nor is there any plausible suggestion that the actions of AQ are attributable to Pakistan under the law of state responsibility.

  31. If there is exposed brain matter, you are dead or dying.  No question.  You don’t have to be a physician to know that.

    However, finishing off a combatant is legal if it is to end a legitimate threat and one did not know for certain he was hors de combat.

    Since they were not physicians, and according to you could not make a medical decision, they therefore did not know he was still capable of combat. 

    Therefore he was a potential threat and not clearly hors de combat.

    However, since Obama…ehrr…Osama was an unlawful combatant, e.g.  Francs-tireurs, his life was forfeit because of his unlawful and immoral activity.  No legal process was or is necessary to execute an illegal combatant.

  32. Response…
    Chirs: the vast majority of textwriters recognize that a state can lawfully respond to non-state actor armed attacks under Article 51 of the U.N. Charter and that when doing so the responding state can target the non-state actors who continue to engage in a process of armed attacks over time without the consent of the foreign state from which the non-state actor armed attacks emanate, without “attribution” (e.g., where the foreign state has “control” over the non-state actors (a la test of the ICJ in Nicar. v. US) or imputation with respect to foreign state responsibility, and even if the foreign state is not unwilling (but, again, might logically also be considered to be “unable,” since the armed attacks continue).  It is self-defense whether or not it occurs also during an armed conflict to which the laws of war apply.
    Federale: lets not confuse issues re: “combatant” (which has a special meaning under the laws of war — e.g., member of the regular armed forces aod a party to an international armed conflict (i.e., U.S. military personnel fighting in the real war in Afghanistan)) and “unlawful” or “illegal” — the better phrase would be “unprivileged fighter” (e.g., a civilan DPH [or perhaps what the ICRC terms a civilian with a continuous combat function, CCF] who is NOT a “combatant” and who does NOT have “combatant immunity” for otherwise lawful acts of war, as would a U.S. soldier during an international armed conflict who has killed an enemy soldier or civilian DPH in battle. The Bush-Cheney Admin. confused the matter and turned “combatant” status “on its head”!

  33. @Federale
    I think, it is now clear that there is no such thing as an unlawful combatant in IHL, it is either combatant or civilian. A terrorist like Osama should qualify as a combatant (or a civilian), who comitted crimes and who should be tried and duly punished.
    @KJ Heller; all I was trying to say is that one person cannot be automatically qualified as hors de combat, solely for he is wounded. He may still be in the game.
     

  34. Federale,

    Thank you for articulating, and embracing, the Nazi’s position on unlawful combatants.  And I mean that literally — that is exactly what the Nazi defendants argued in Hostage case.  Fortunately, the Nuremberg Military Tribunal unequivocally rejected that position, holding that it was a war crime to execute an alleged unlawful combatant without due process.

  35. Jordan: I do not quarrel with the proposition that most scholars would agree that self-defence against non-state actors is permissible. I also agree with that position. However, so far as I’m aware, most writers who take this position understand that it is no small thing to violate another State’s sovereignty. If an NSA is launching armed attacks from the territory of a host state, that state must be unwiling or unable to stop those attacks before the state under attack is permitted to violate the host state’s sovereignty – only in THAT situation is it necessary within the meaning of article 51 to violate the host state’s sovereignty, absolving the attacking state of any breach of article 2(4) and the customary prohibition on the use of force. Otherwise, if your position was the correct one, there would be no need for the state under attack to make simple a simple request that the host state take action against the NSA. That is quite inconsistent with the limiting principle of necessity.

  36. Jordan: I do not quarrel with the proposition that most scholars would agree that self-defence against non-state actors is permissible. I also agree with that position. However, so far as I’m aware, most writers who take this position understand that it is no small thing to violate another State’s sovereignty. If an NSA is launching armed attacks from the territory of a host state, that state must be unwilling or unable to stop those attacks before the state under attack is permitted to violate the host state’s sovereignty – only in THAT situation is it necessary within the meaning of article 51 to violate the host state’s sovereignty, absolving the attacking state of any breach of article 2(4) and the customary prohibition on the use of force. Otherwise, if your position was the correct one, there would be no need for the state under attack to make simple a simple request that the host state take action against the NSA. That is quite inconsistent with the limiting principle of necessity.

  37. americans are above international law. They can do what they want. It’s been like that for ages. There are no consequences for them, so the do what they want. Sad but true.

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