My Response to Ken About Bin Laden’s Death (Updated)

A recent post at Mother Jones mentions my view of UBL’s killing and provides Ken’s brief thoughts on his death:

Kenneth Anderson, a law professor at American University Washington School of Law, disagrees. “Being wounded does not necessarily render one hors de combat; hors de combat means they’re not actually posing a threat to you,” Anderson says, citing moments where wounded combatants have used hidden guns or explosives to kill American servicemembers who thought they were surrendering or incapacitated. “There have been far too many incidents in the past, including in Afghanistan and Iraq…cases where American soldiers get killed because they were mistaken about the other side, or parts of the other side surrendering… There’s still no obligation to pause the attack, you’re allowed to put your own safety first.”

Ken had not read my post when he offered these comments, so it was inaccurate for me to say — as I did in an earlier version — that he misstated my argument.  To be clear, though, I am not claiming that being wounded necessarily makes a combatant hors de combat.  I chose my words carefully: UBL was hors de combat because he was “otherwise incapacitated by wounds” — the language in Art. 41(2)(c) of the First Additional Protocol.  Wounding is not enough; incapacitation is required.  So of course a combatant who is wounded but still able to fight continues to be a lawful target.  Nothing I wrote indicates otherwise.

I also think that Ken’s comments are difficult to reconcile with Owens’ account of UBL’s death.  Owens clearly states that UBL was shot and fatally wounded by someone else; after “[taking] their time entering the room,” Owens and his fellow SEAL found UBL lying on the floor, “blood and brains” spilling out of his skull, being attended to by his wives.  Only at that point did they shoot him.  It is thus problematic to see UBL’s death as part of a continuous attack — or to imply, as Ken does, that viewing UBL’s death as a war crime requires imposing “an obligation to pause the attack” on Owens and his fellow SEAL.  The facts clearly indicate that their attack on UBL began when they first discovered his prone, dying body.

Finally, and most importantly, we need to recognize the implication of the “danger” argument made by Ken and a number of commenters on my previous post: if a combatant who is in his death throes with his brains spilling out of his head does not qualify as “incapacitated by wounds,” Art. 41(2)(c) is a complete nullity, because by that standard no wounded combatant could ever be considered incapacitated. If UBL’s wounds were not incapacitating, what wounds could be?  Nor is it an adequate response to say that the key is whether the wounded combatant had been captured prior to his killing (and thus presumably neutralized); that response also renders Art. 41(2)(c) a nullity, because Art. 41(2)(a) already deems a combatant “in the power of an adverse Party” to be hors de combat.

Here is my question for Ken or for anyone else who believes UBL’s killing was consistent with IHL: can you please identify a situation in which a wounded but non-captured combatant cannot be lawfully killed?

NOTE 1: Ken’s response, like many of the comments, appears to assume that fear or suspicion that a wounded soldier might continue to engage in combat justifies killing him.  That assumption is incorrect.  As the ICRC’s authoritative commentary on the First Additional Protocol makes clear, the wounded soldier loses his presumptive hors de combat status only if he engages in some kind of positive act that indicates he intends to continue fighting (emphasis mine):

The wounded and sick in the sense of Article 8 (Terminology), sub-paragraph (a), of the Protocol, are those persons who need medical care as a result of a trauma, disease or other physical or mental disorder or disability, and who refrain from any act of hostility.…  On the other hand, there is no obligation to abstain from attacking a wounded or sick person who is preparing to fire, or who is actually firing, regardless of the severity of his wounds or sickness.

In other words, a soldier cannot simply assume — even based on past experience with different wounded combatants — that a seemingly incapacitated combatant will continue to fight if given the chance.  That is an important limitation in the context of UBL’s death; nothing in Owens’ account indicates that they believed UBL was capable of harming them — much less that he actually tried to harm them.

NOTE 2: Don’t forget that the First Additional Protocol was adopted in the immediate aftermath of the Vietnam War.  The Viet Cong relied heavily on nearly every perfidious tactic imaginable, yet the drafters of AP I still adopted Art. 41(2)(c).  So it impossible to argue that al-Qaeda’s tactics somehow render the “incapacitated by wounds” provision obsolete.