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

by Kevin Jon Heller

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.

http://opiniojuris.org/2012/08/31/my-response-to-ken-about-bin-ladens-death/

8 Responses

  1. Have not read Ken but have read your first post and response.  I am in Galway on a bucket list trip (from a two summer ago brush with cancer – all fine now – the Aran islands were the only place I still desired to go and friend this summer encouraged me to come out this summer for which I thank them.  Went to Innis Orre or East Island which is the smallest of the three.  Recommendation of the Ti Coile pub barman Angus and other locals.  All this is relevant.)
     
    My question to you Kevin is that in a setting where different soldiers are firing at different times on UBL why is your vision of the attack only that these soldiers had not shot him.  Does it make a difference that they had not shot him or if they had shot him.  I would think it would not make much of a difference because in moving soldiers with different ones at the point of attack it is very likely that the first soldier might hit someone and the second soldier be shooting at someone who is already hit in the moving space.  Each time I agree a soldier would look to see if they needed to shoot – but this depends on what their training was in these kind of operations at close quarters.

    Second, the soldier here is anonymous (or only just revealed) and we are in an election campaign season that is white hot and one of the efforts of the Republicans since the day of the operation has been to diminish the Obama success of getting UBL.  Of course, from the moment of his television interview Obama has been taking part of the credit for getting that scalp – to use an old West term dear to a part Native-American like me.  So both the official and this version are suspect to me.  I would like to hear what one of the children or wives say, though I know they have their agenda too.  I believe there were cameras on the heads of the soldiers so there is a tape.  Would be nice if this one was not destroyed like the Al-Qahtani tape.

    Third, assuming UBL is on the ground and brains and blood as you describe, the question is whether he is “incapacitated by his wounds”.  I say that I would not think him incapacitated – he was a tough bird – and in that setting I would have shot him like these soldiers did.  When he was dead, I would know there was no risk from him.  If that is a war crime in your book, so be it. but it does not seem to me it is one.  An objective review may look at that moment with hindsight and make determinations about it.  But, looking forward from the point of the view of the soldier, I think that I would have taken that shot too and that shot would have been according to my training.

    Fourth, that for me would be the most interesting thing, though I imagine it is a secret, as to what is the training for a soldier in that spot.  If they diverted from that training that would be one thing.  If they were consistent with that training then I am curious to see whether the training would be dictating a war crime result.
    No answers, but thought I would make the try.
    As to “incapacitated by wounds” I can imagine someone unconscious and prone or in a coma or someone with both hands blown off etc (horrible images I am sorry to say of war) fitting that definition.  I have not read the report but my sense of the report is that UBL was wounded but not unconscious.

    Fifth, the view would be different in a law enforcement space. I also wrote about this on May 2, 2011 at Jurist and compared the line at IHL, Self-Defense, and IHRL/Law Enforcement. If what is said by the soldier is the truth, I think the IHRL/Law Enforcement space vision of this is no longer on the table while I still think that IHL would allow this as would Self-Defense.

    But, what do I know.

    On Innis Orre met an Australian from Melbourne.  We talked about the 5 Australians who died.  Spoke about the David Hicks saga and he said Australians were more focused on him getting a fair trial as opposed to sympathy for what he had done.  They did not think the military commissions were fair – and so we agree from the Antipodes.  No rocket science to figure that out with the strategy of the Bush and now Obama Administrations.
    Best,
    Ben

  2. Ben,

    As for your first comment, my point is that the critical question is whether the SEALs had time to determine that UBL had been incapacitated by the wounds inflicted by whomever shot him.  Had the SEAL who shot UBL continued to fire at him even as he fell to the ground with his brains spilling out, I would accept that he would not have had time to recognize that his earlier shots had rendered UBL hors de combat.  But that is not the situation here.  The two SEALS saw UBL shot (or at least shot at), “took their time entering the room,” saw UBL on the ground with his brains spilling out and in his death throes, and then killed him.  That is not a continuous attack, and I think it is very difficult to argue that the SEALS did not have time to recognize that UBL had been rendered hors de combat by his wounds  (And that assumes, of course, that the SEALs honestly believed that he was not hors de combat when they fired at him, which is anything but clear from Owens’ account.)

  3. “saw UBL on the ground with his brains spilling out and in his death throes”
    That is the heart of it – what is “brains spilling out and in his death throes?”  What I am understanding is that he was conscious and moving as his brains spilled out.  How much brains – like Kennedy brains or like someone grazed brains.  Sorry to be gruesome with these things but trying to take this version as it is. 
    I was not in the room and can not determine how that looked. 
    How slowly or fast they go in there is on their choice in a combat setting.  I figure they are trained and do the speed that is appropriate to keep themselves alive and accomplish their military objective that will achieve a military advantage.  Need some other criteria to evaluate their speed.  10 seconds can seem like eons in these settings.  Time is not linear in these hyperreal spaces. Time is distended from what I have heard of or when I have been in this kind of adrenaline rushed environment.  Unless there is some other criteria to evaluate their speed I figure time slowed down for them as it sometimes does in terms of what they were experiencing in their head.
    Based on what is written, if I was those soldiers, I would have taken that shot.  But, I am not a trained soldier just a guy trying to imagine that space as it must have been for them based on two versions of inaccurate information (official version and this guy’s version).  So I may be wrong.
    By the way, this is the way the military industrial complex works especially when it fears that defense budgets will be cut.  Somehow this book coming out gets passed everyone in the hierarchy until it is out in the middle of an election season.  And no person’s fingerprints on it – the old retired vs. in service game that is the way soldier’s get their stuff out.  See the other Seal movie that just came out dissing Obama about this. All part of the effort to diminish this kill because Bush let it go (chickened out?) at Tora Bora and everyone knows that. Nothing new under the sun.
    Best,
    Ben

  4. In my view, Kevin makes quite valid points about the law, as does Ken regarding its application.  I have two observations:

    First, we are discussing one person’s version of events.  More precisely, we have a description or summary or paraphrase of one person’s version of events.  Most who have not only studied but practiced criminal law would not base firm conclusions on one of several possible witness accounts, and an incomplete, second-hand one at that. For that reason I am sure that Kevin means that, based on what we know from this incomplete account, he believes a war crime was committed.  At a minimum, additional questions would need to be asked of those who fired at the wounded UBL to determine whether they had both a subjective and an objectively reasonable apprehension of present or future harm.

    Second, it is often difficult to educate and train soldiers and officers (and future officers) on this topic.  (My practice was to use “Audie Murphy” as shorthand for a wounded fighter who continues the fight.)  The number of “what if” questions can be staggering.  All are aware that soldiers win medals for pressing the fight even when wounded.  And martyrs seek their rewards in death.  So it is often impossble to explain in advance whether a soldier’s perception of a threat or positive identification of a target will later be deemed reasonable by those reviewing his or her actions.  

     

  5. Quick note from Ken – I realize you can’t tell from the article, but I hadn’t actually read Kevin’s piece and didn’t know it was up when I gave the reporter a quick reaction.  Not reacting to Kevin here – I’ve been away from blogging for some family reasons – plan to be back in a week – and haven’t read either Kevin’s post or the Mother Jones piece.  Adam Serwer mentioned Kevin’s blogging in our conversation, and I thought he was referring to Kevin’s post from when UBL was killed.  I’m going to keep my promise to my wife and stay away from this until I am genuinely back, though.  Ken

  6. Adam Serwer’s post led me to believe that Ken was responding to my argument.  I have edited my post to make clear that, though I disagree with Ken’s position, he was not responding directly to me.

  7. Response…
    With respect to the training issue, that might be critical (or not).  The issue also arises whether the orders were actually “kill or capture.” Since the operation was planned and several practice runs occured, issues regarding training and orders (and leader responsibility) in connection with prior practice might arise.

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