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.
