[Spencer Zifcak is Allan Myers Professor of Law and Director of the Institute of Legal Studies at the Australian Catholic University.]

This post is part of the MJIL 13(1) Symposium. Other posts in this series can be found in the related posts below.

My article on this subject attempts to encapsulate the standing of coercive (Pillar 3) intervention within the framework of the Responsibility to Protect (‘R2P’) following the application of the doctrine in Libya and paralysis with respect to it in Syria. In 2011, the international community was confronted with the prospect that large-scale civilian casualties may occur as a consequence of fighting between government and rebel forces in Libya. The UN Security Council, therefore, was confronted with the dilemma of whether to authorize an intervention to avert what seemed likely to be a humanitarian catastrophe. In this case, the UN Security Council sanctioned an intervention by NATO forces in accordance with the new doctrine. Soon after, the Syrian rebellion took hold and civilians began to be killed and injured in their thousands. In that case, however, the Security Council has been stymied as neither sanctions nor military intervention can be agreed upon. In the article, the Libyan and Syrian cases are analysed with a view to determining why the international community’s response to the two conflicts has been so different and what these differences tell us about the current status and practice of the R2P doctrine. To that end, the article concludes with a series of propositions which summarize my answer to the latter question.

I have recently updated the article to take into consideration the tragic developments in Syria between February, at the time the article was completed, and October this year. In the light of that revision, the propositions contained in the original have been slightly amended. For the purpose of this interchange, therefore, I provide the most recent set as follows:

• Prior to approving a coercive Pillar 3 intervention, in the interests of national sovereignty and independence, the Security Council will need to be satisfied that every possible diplomatic solution to a crisis has been exhausted. Pillar 3 intervention will occur only as the last resort.

• Prior to approving a coercive Pillar 3 intervention, the Security Council is likely in future to insist that its objectives be made clear and that its mandate be spelt out with precision.

• It is highly unlikely that the Security Council will approve a Pillar 3 intervention if its explicit or implicit objective is regime change.

• Given that a Security Council mandate for a Pillar 3 intervention is likely to have as its principal objective the protection of civilians, it is probable that the Security Council will require that the position of an intervening force be one of strict neutrality as between the contending parties.

• Before approving a Pillar 3 intervention, the Security Council will need to be clearly satisfied first, that the intervention is likely to achieve its protective objective within the country concerned and, secondly, that it will not result in any wider regional destabilization.

• A Pillar 3 intervention should, in all aspects, conform to the dictates of international law and in particular international humanitarian law.

• Where a contemplated coercive intervention runs contrary to the core political or strategic interests of a member of the P-5, it highly unlikely to proceed. This is unless the crimes against humanity committed are so extensive and so grave that no reasoned member could resist the demand the crimes be fought. Even so, the failure of Russia and China to endorse even a very weak Security Council resolution against Syria in the face of clear evidence of the commission of mass atrocities has dispiritingly cast doubt even on that seemingly obvious proposition.

• However inadequate, engagement in Pillar 3 intervention that excludes action pursuant to Chapter VII of the UN Charter may still be preferable to provoking Security Council gridlock. This is because, as in Syria, the outcome of gridlock may be seen by antagonists to a conflict as an international licence for the commission of further crime.

• Alternatively, in response to mass atrocities, coalitions of the willing may decide to take action outside the legal framework of the UN Charter. Should this become common, R2P may wither to the great detriment of the international rule of law.

The full article may be accessed here.

Kevin and I have still never met in person, but we’ve already had our first twitter encounter last week on the legality of a U.S. military response to the attacks that killed the U.S. Ambassador in Libya (as well as three other Americans).  Although the news reports on the attacks are not exactly clear, some have suggested that there is no Al Qaeda link to the groups behind the Benghazi attacks.  This does suggest a new wrinkle to the legal analysis of any U.S. military response.

First, under domestic American constitutional law,

Julian beat me to Eric Posner’s new Slate article on the legality of drone strikes.  I don’t agree with everything in it, but I think it’s notable that Posner — echoing his sometime co-author Jack Goldsmith — rejects the idea that international law permits self-defense against a non-state actor whenever a state is “unable or unwilling” to prevent the NSA from using its territory as a base for attacks.  That rejection emerges clearly in the following passages:

The U.N. Charter permits countries to use military force abroad only with the approval of the U.N. Security Council, in self-defense, or with the permission of the country in which military force is to be used. The U.N. Security Council never authorized the drone war in Pakistan. Self-defense, traditionally defined to mean the use of force against an “imminent” armed attack by a nation-state, does not apply either, because no one thinks that Pakistan plans to invade the United States. That leaves consent as the only possible legal theory.

In other cases, including current drone operations in Pakistan, the United States has invoked a new idea of the “unable or unwilling” country, one that outside powers can invade because that country cannot prevent terrorists located on its territory from launching attacks across its borders.

The “coerced consent” doctrine, the “unable and unwilling” doctrine, and the exception for humanitarian intervention all whittle away at whatever part of the law on United Nations use of force blocks U.S. goals. If the United States ever decides to invade Iran in order to prevent it from acquiring nuclear weapons, expect a new doctrine to take shape, perhaps one that emphasizes the unique dangers of nuclear weapons and Iran’s declared hostility toward a nearby country.

I couldn’t agree more with Posner’s rejection of the “unwilling or unable” test.  I’ve been watching with equal parts bemusement and concern as that standard spreads in the United States — with little or no effort on the part of those who defend it, of course, to identify the (non-US) opinio juris and state practice that ostensibly support it.  The “unwilling or unable” test has even found its way into the Stanford/NYU report on drone strikes in Pakistan, which is otherwise so critical of US policy.  Here is one of its statements about the jus ad bellum:

Further, it must be shown that the host state is “unwilling or unable to take [the appropriate steps against the non-state group].” Pakistan has at times failed to act decisively against non-state groups, raising questions about its ability and willingness to take necessary steps.

The quoted language, not surprisingly, is from Ashley Deeks’ article on the “unwilling or unable” test — an article that, as I have pointed out before, not only fails to establish that the test has achieved customary status, but actually admits (in a footnote) that it has not done so:

I have found no cases in which states clearly assert that they follow the test out of a sense of legal obligation (i.e., the opinio juris aspect of custom), nor have I located cases in which states have rejected the test.    Even if one concludes that the rule does not rise to the level of custom, however, the rule makes frequent appearances in state practice and therefore is the appropriate starting point from which to determine how the norm should develop.

That footnote, of course, is never mentioned in articles and reports that uncritically adopt the “unwilling or unable” test — thereby further facilitating its spread.  I’d like to think that Posner’s rejection of the test may help stem the tide.  Unfortunately, as Posner himself explains, nothing — especially not international law — gets in the way of legal theories that enhance the US’s ability to use force abroad.

[Dr. Chantal Meloni works at the University of Milan and is a von Humboldt scholar in Berlin. She is the co-editor of Is there a Court for Gaza?, T.M.C. Asser 2012)]

The question that many scholars are dealing with in the past months, following the 3 April 2012 update by the Office of the Prosecutor (OTP), is whether the Palestine-ICC chapter should be regarded as closed. In this short analysis I intend to delineate why, in my opinion, the Palestine-ICC chapter is far from over.

The issue is of particular relevance in these very days for two reasons: as further explained below, over the next weeks both the UN General Assembly and the ICC Assembly of States Parties will have to deal (much depending on the choices of the Palestinian Authority) with the question of Palestine, which will ultimately have an impact on the possible opening of the investigation before the ICC.

The starting point is that the 3 April 2012 update/memorandum/statement (as it has been variously called) by the OTP on the situation in Palestine is in fact a decision. This means that the preliminary examination on the situation is closed, as are the preliminary examinations of the situations of Iraq and Venezuela, which are indeed listed on the same ICC web page under the link “decision not to proceed” (which, by the way, is not the appropriate expression, since the decision not to proceed only comes at the end of the investigation stage, thus these cases should correctly be defined “decisions not to investigate”).

According to internal OTP sources, the ambiguity contained in the “update”’s two pages and its deceptive title, was apparent to its authors. The final document – which was apparently issued in a rush notwithstanding 39 months of preliminary examination – was the result of diverging and irreconcilable positions inside the OTP, which allegedly led to the deletion of several arguments and the associated reasoning. I will refrain from criticizing again the poor content of these two pages, since other scholars have already well done it: see, among the others, the comments by Michael Kearney, and William Schabas.

Irrespective of its merits, pursuant to article 15(6) of the Rome Statute, relevant actors, such as inter alia the victims’ representatives, who delivered information to the OTP and communicated with the office during the preliminary examination, should have been notified of the decision. The OTP alleges to have done so, and that more than 300 notifications were sent out, but apparently organizations like the PCHR, which represents hundreds of Gaza victims and provided information and documentation to the OTP, have not received any notification.

Apart from these preliminary observations, some more substantial questions arise from the procedure which was adopted by the then Prosecutor – Luis Moreno Ocampo – to deal with the Palestine situation. These are more serious questions that go beyond the case at hand and touch upon the extent of the discretional powers of the Prosecutor and the judicial remedies provided before the ICC. Some of these questions are outlined below.
(more…)

Two posts today by ostensibly progressive bloggers claim that MEK has not been involved in a terrorist attack in years.  Joshua Keating at FP:

The idea that a group blamed for the killing of six Americans in the 1970s, as well as dozens of deadly terrorist bombings against Iranian targets afte,r that is “the largest peaceful, secular, pro-democratic Iranian dissident group” — as its advertising boasts — doesn’t pass the laugh test. But it’s also true that the group, despite its creepy cultlike behavior, hasn’t carried out a terrorist attack in years.

And Spencer Ackerman at Wired (the source, not coincidentally, of Keating’s claim):

For over a decade, the MEK carried out bombings and hijackings on regime targets inside and outside Iran, including an audacious April 1992 coordinated raid on 13 Iranian diplomatic facilities around the world. The State Department listed them as a Foreign Terrorist Organization in 1997. But it’s been years since the MEK attempted a terrorist attack.

Neither post is even remotely sympathetic to the MEK, which makes their failure to even mention allegations that the MEK has been killing Iranian nuclear scientists particularly baffling.  It’s not like those allegations come solely from Iran; they have been confirmed by US intelligence officials, as NBC reported earlier this year.  Perhaps Keating and Ackerman do not believe the US officials.  Or perhaps they believe them but do not consider killing Iranian nuclear scientists to be acts of terrorism.  (They are, as I’ve explained before.)  If so, they should tell us.

Pretending that the allegations do not exist is unacceptable.

Just in case you are not yet convinced that the Obama administration’s counterterrorism policies are actually worse than the Bush administration’s:

The officials said U.S. Secretary of State Hillary Clinton had made the decision to remove MEK from the list, and that it was expected to be formally announced in coming days.

The State Department said that Clinton sent a classified communication to Congress on Friday regarding the future status of the MEK, part of the formal notification process that would accompany removal from the terrorism list.

[snip]

The U.S. decision comes after years of intense lobbying by the MEK, which had seen many of its members stranded in Iraq even as the group fell out of Baghdad’s favour after Saddam’s downfall.

The group marshalled the support of dozens of members of Congress as well as notable political, government and media figures.

[snip]

The group, also known as the People’s Mujahideen Organization of Iran, calls for the overthrow of Iran’s clerical leaders and fought alongside Saddam’s forces in the Iran-Iraq war in the 1980s. It also led a guerrilla campaign against the U.S.-backed Shah of Iran during the 1970s, including attacks on American targets.

Critics of the group have accused it of maintaining cult-like discipline and demanding absolute loyalty to its Paris-based top leadership.

The United States added the MEK to its list of foreign terrorist organizations in 1997. But the group has since said it renounced violence and mounted a vigorous legal and public relations campaign to have the designation dropped.

Public figures who have endorsed the MEK’s campaign included former CIA directors R. James Woolsey and Porter Goss, former Homeland Security Secretary Tom Ridge, former FBI Director Louis Freeh, and Mitchell Reiss, a former State Department official who is a top foreign policy adviser to Republican presidential candidate Mitt Romney.

Prominent Democratic Party figures who have supported the MEK have included former Pennsylvania and Vermont Governors Ed Rendell and Howard Dean. People familiar with its activities said that the MEK had paid generous fees to some of the notables who made speeches in support of its de-listing.

The MEK might have said it has renounced violence, but just this year the U.S. government claimed that the group was working with Israel to assassinate Iranian nuclear scientists.  I guess, as Glenn Greenwald has so often pointed out, the use of violence to spread terror among civilians in order to influence a government qualifies as terrorism only when the U.S. likes the government in question.  Terrorizing civilians in order to overthrow a government that the U.S. doesn’t like is simply good old-fashioned diplomacy.

A couple of other notes…

The Obama Administration appears to have shifted its views on the nature of the September 11, 2012 attack on the U.S. consulate in Libya that resulted in the death of four Americans, including U.S. Ambassador Christopher Stevens.  Rather than blaming the attack on a “spontaneous” reaction to the offensive US film (which U.S. Ambassador to the U.N. Susan Rice seemed to argue on Sunday), the U.S. government is now calling this a “terrorist attack“.  Other news reports suggest the U.S. had intelligence warnings of an attack and the Libyan government is blaming Al Qaeda-affiliated groups.

If the U.S. government has credible intelligence that the attacks was carried out by Al Qaeda affiliated groups, President Obama can draw upon the September 11 Authorization for the Use of Military Force to respond to the attack with military force.

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

I had earlier suggested that the President could do so anyway, as a retaliation for an attack on American soil and on U.S. diplomats. Others have pointed out that such a response might be further bolstered under the international law of self defence (UN Charter Article 51).  Given the widespread attacks on U.S. missions and embassies throughout the Middle East, it is worth keeping this authority in mind.  But if that authority was insufficient, an Al Qaeda link should (if established) offer an additional source of legal authority for U.S. military force in Libya.

To be sure, it might be unwise to use military force in this case, since Libya is (sort of) an ally of the U.S. in this case.  But it is worth noting that there seems to be ample constitutional legal authority for U.S. military retaliation for the Libya attack.

A few weeks ago, I wrote a long post explaining the one way in which the absence of due process in a national prosecution could make a case admissible before the ICC.  The post drew a distinction between two different kinds of national prosecutions: (1) one that fails to satisfy international standards of due process; and (2) one that fails to satisfy national standards of due process.  I argued that the first kind of prosecution is never admissible before the ICC, because the failure to satisfy international due process makes the defendant easier to convict, which does not satisfy the “unwillingness” prong of Art. 17(2) of the Rome Statute.  But I pointed out that the second kind of prosecution could be admissible, because the government’s failure to comply with the state’s own legal requirements could lead the judiciary to suspend or terminate the prosecution — thereby making the defendant more difficult, not easier, to convict.

I offered that argument in the context of the OPCD’s report on Saif Gaddhafi, which catalogs numerous ways in which the new Libyan government’s treatment of Saif violates the state’s domestic criminal law.  In my view, that treatment renders Saif’s case admissible before the ICC, because it significantly increases the likelihood that a Libyan court will suspend or terminate Saif’s prosecution on due process grounds.  I received a number of critical comments on that claim, most of which argued that no Libyan court would ever have the temerity to enforce Libyan criminal procedure against the government if it meant “helping” Saif avoid conviction.  That may well be true — but consider what has happened in the prosecution of Buzeid Dorda, a senior intelligence official in the Gaddhafi government:

A Libyan judge suspended the trial of a senior Gaddafi-era intelligence official on Tuesday after his defense lawyer said the proceedings were unconstitutional.

Charges against Buzeid Dorda, arrested last September in Tripoli, include killing civilians, providing weapons to kill civilians, and conspiring to provoke civil war.

“The trial has been suspended until the Supreme Court looks at an appeal I raised that could deem the trial unconstitutional,” defense lawyer Dhao Al-Mansouri Awon said.

Pre-revolution laws governing emergency courts, called the People’s Court, were still in use despite being banned after the uprising which toppled Muammar Gaddafi last year, Awon said.

Under People’s Court laws, which the Gaddafi administration used to try opposition members and political prisoners, one or more people with no legal training could pass judgments without the need for a judge, jury or lawyers to be present in court.

“Even though the court itself was cancelled, the law governing it is still functioning and that would make the trials invalid,” Awon told Reuters.

Dorda had said in July he had been denied the right to meet privately with a lawyer and had been subjected to illegal interrogations during his 10 months in detention.

His trial, which began on June 5, has been adjourned several times for procedural reasons.

[snip]

On Sunday, Justice Minister Mohammed Al-Alagy told reporters that the trials of Gaddafi-era officials were “invalid” because the prosecutor general’s office was not following the necessary legal procedure and was also using People’s Court laws.

Under Libyan law, an Indictment Chamber reviews cases and then refers them to the appropriate court. But Alagy said prosecutors were bypassing this body and demanded they review their procedures and the legal rights of those held in custody.

This is the fifth time that Dorda’s trial has been suspended on the ground that prosecutors failed to comply with Libyan criminal procedure.  If Dorda was wanted by the ICC, I think the Pre-Trial Chamber would be well within its rights to hold, in light of the prosecutors’ actions, either that “[t]here has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice” or that the proceedings “are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.”  And if that is true, it seems clear that the Pre-Trial Chamber would also be within its rights to reject Libya’s admissibility challenge involving Saif on similar grounds –  prosecutors have far more systematically ignored Libyan criminal procedure in his case than in Dorda’s.

The Pre-Trial Chamber is set to hear argument on Libya’s admissibility challenge on October 8.  We will see what happens.

Here it comes: President Obama is exercising his Commander-in-Chief powers, a la Durand v. Hollins:

The U.S. responded to the assault by dispatching two Navy destroyers, dozens of Marines, federal investigators and intelligence assets to Libya to protect Americans and hunt the suspected religious extremists who carried out the attack late Tuesday. U.S. officials described the attack that killed Ambassador Christopher Stevens as complex and possibly premeditated.

The assault, along with a protest at the American embassy in Cairo, created a crisis atmosphere in Washington just as the presidential campaign is hitting its stretch run and fueled a harsh exchange between President Barack Obama and Republican Mitt Romney.

Mr. Obama said the U.S. will work with the Libyan government to bring attackers to justice, but he and other officials didn’t rule out a unilateral U.S. strike. “Make no mistake, justice will be done,” the president said.

Emphasis added.

Without knowing the facts on the ground, it is hard to say whether it would be appropriate or legal for the U.S. military to launch a unilateral military strike.  But President Obama seems to ready to launch such an attack.

[I posted this originally at the same time as Duncan, so it is a bit repetitive, but I'll leave its content basically as is].

Sad and startling news:  U.S. Ambassador to Libya Christopher Stevens was killed yesterday in a rocket attack on the U.S. Consulate in Benghazi.  This is an addition to another violent attack on the U.S. Embassy in Cairo.

Violent attacks on diplomatic compounds and officials, needless to say, are not only terrible but also plainly illegal under international customary and treaty law.  From the Vienna Convention on Diplomatic Relations:

Article 22
1. The premises of the mission shall be inviolable. The agents
of the receiving State may not enter them, except with the consent of
the head of the mission.
2. The receiving State is under a special duty to take all
appropriate steps to protect the premises of the mission against any
intrusion or damage and to prevent any disturbance of the peace of the
mission or impairment of its dignity.

Article 29
The person of a diplomatic agent shall be inviolable. He shall not
be liable to any form of arrest or detention. The receiving State shall
treat him with due respect and shall take all appropriate steps to
prevent any attack on his person, freedom or dignity.

Plainly, both Egypt and Libya have massively failed to live up to their duties on these and other relevant provisions.  The question is: what legal responses could the U.S. take?

Under U.S. constitutional law, the President has long been understood to possess the authority to respond to attacks on U.S. citizens and government missions with the use of military force.  He can do this without first seeking the consent of Congress.  See Durand v. Hollins, 8 F. Cas. 111 (CCSDNY 1860).  In that case, a bottle was thrown at a U.S. diplomat in Nicaragua, and the court endorsed the legality of a “calculated retaliation after the fact” arguing that the nature of the response to such an attack rested with the discretion of the President.  (The U.S. Navy bombarded the town in retaliation).

Of course, the legality under international law today  of such a “calculated retaliation” is less clear.  Indeed, my guess is that the typical response would be for the U.S. to demand punishment of the perpetrators, reparations to the U.S. and perhaps to the families of those injured, and an assurance of non-repetition.  Failing such a response by Libya and/or Egypt, the U.S. could in theory try to bring the parties to the ICJ (but that didn’t accomplish a whole lot back in 1979 against Iran).  And of course it could threaten to retaliate against the Egyptian and Libyan governments.  It seems the best case for military force would be if the U.S. believed it was necessary to protect the safety of U.S. citizens and diplomats.

I doubt that there are any plans to use military force here, but I do think it is worth considering whether and how such a response would be appropriate and legal.

Having followed the terrorism litigation against Iran for years, I was fascinated to read of the recent legislation—Section 502 of the Iran Threat Reduction and Syria Human Rights–that creates a legislative fix for victims of one particular group of terrorist victims but not thousands of others.

The law in question grants plaintiffs/judgment creditors in one and only one case—Peterson v. Iran—the right to attach Iranian assets held in the United States, notwithstanding any other provision of law, including sovereignty immunity laws and laws recognizing the separate corporate identities of Iranian government entities.

As reported by Basil Katz of Reuters here, the case involves a $2.65 billion damage award obtained by the victims of Beirut Marine Corps barracks in 1983. The U.S. Treasury discovered $1.75 billion in a Citibank account that was deposited by Clearstream, an entity that holds Iranian funds in Luxembourg potentially subject to attachment.

There are several interesting wrinkles to this case.

First, it certainly is not clear that the $1.75 billion held at Citibank are Iranian assets held in the United States. Clearstream is arguing precisely that. The statute gets around this problem by broadly defining what constitutes an Iranian asset held in the United States. According to the statute, such an asset is one that is:

“(A) held in the United States for a foreign securities intermediary doing business in the United States, (B) a blocked asset [defined as those involving Peterson v. Iran] … and (C) equal in value to a financial asset of Iran, including an asset of the central bank or monetary authority of the Government of Iran or any agency or instrumentality of that Government, that such foreign securities intermediary or a related intermediary holds abroad.”

In other words, if a third party financial institution holds Iranian assets abroad, and also holds the equivalent amount in the United States, that money is a financial asset subject to attachment by the Peterson claimants.

Second, the statute supersedes “any other provision of law, including any provision of law relating to sovereign immunity, and preempting any inconsistent provision of State law.” Thus, the normal rules under the FSIA regarding immunity from jurisdiction or enforcement simply do not apply to the Peterson claims against Iran. The same goes for the Algiers Accords, which obligate the United States to transfer all Iranian assets held in the United States.

Nor do the normal rules apply with respect to the separate corporate identities of Iranian government entities. Clearstream’s financial assets held in Luxembourg belong to Bank Markazi (a.k.a. the Central Bank of Iran). But the statute defines “Iran” as “the Government of Iran, including the central bank or monetary authority of that Government and any agency or instrumentality of that Government.”

Third, the statute appears to privilege one group of victims to the exclusion of others. As most of our readers know, U.S. courts have awarded billions of dollars in judgments to thousands of victims of Iranian terrorism. Of all the acts of Iranian terrorism—the bus bombings in Jerusalem and suicide bombings at shopping malls in Tel Aviv, the targeted assassinations of Iranian dissidents in Paris, the victims of the Khobar Towers bombings in Saudi Arabia—why does this one group of victims deserve special statutory protection while the other victims do not?

The pragmatic answer, of course, is that counsel for the Peterson family was able to secure a legislative fix that other victims could not. That hardly appears satisfactory given the stakes involved. Frankly, there is something unseemly about a statute that so clearly privileges one set of terrorist victims at the expense of others.

The Reuters report suggests that there is an agreement between the Peterson victims and the other victims to share any judgments recovered, but it provides no details. Such a contractual solution is somewhat encouraging, but I seriously doubt that the other terrorist victims/judgment creditors will stand on an equal footing as the Peterson family based on this agreement. They, after all, have no leverage other than moral suasion.

Section 502 does state that a court must determine that “no other person possesses a constitutionally protected interest in the assets described in subsection (b) under the Fifth Amendment to the Constitution of the United States.” It’s not clear whether this refers to the Takings Clause—which seems likely—or to other clauses, such as the Due Process Clause prohibiting deprivations of life, liberty or property without due process of law. Regardless, I fail to see how the other victims of Iranian terrorism could fall within that exception.

Who knows where all this is headed. Litigation of this $1.75 billion dollar question is pending in New York. I will keep you posted.

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.