So, you're a climate scientist. You're tired of the lies and misinformation about climate change peddled by know-nothing pundits on the radical right. (We're looking at you, George Will.) What do you do? You rap about it, of course. Well done, Aussies. More info at The Guardian here....
Here I was, thinking that targeted killing raised complex and contestable legal issues that required painstaking analysis. Fortunately, Somin sets me straight at Volokh Conspiracy by pointing out that, as a simple matter of logic, there is no legal difference between killing Admiral Yamamoto during World War II and killing a terrorist anywhere in the world today: But most of the...
Because the "Untold Stories" symposium that Gerry Simpson and I organized was such a success, we are organizing another one. Here is the call for papers: THE EICHMANN TRIAL AT 50 A two-day international symposium to discuss one of the most important trials of the 20th Century Melbourne Law School 14-15 October 2011 Presented by The Asia Pacific Centre for Military Law, Melbourne Law School,...
The Gottingen Journal of International Law has just made available online its new special issue that focuses on the relationship between resources and conflicts. This issuse is the result of a symposium which was held this past October. The sixteen papers are organized around the four panel themes: (a) resources before, during, and after conflicts; (b) actors of armed conflicts and international...
I hope readers have been following the backlash against CUNY's Board of Trustees for its cowardly decision not to award Tony Kushner an honorary degree from John Jay college because one trustee -- with no notice, and giving Kushner no opportunity to respond -- lied about his political beliefs and accused him of being "anti-Israel." Here is a bit of...
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.
Following up on my previous post, Obama has announced that he will not release photos of Usama bin Laden's body: It is important to make sure that very graphic photos of somebody who was shot in the head are not floating around as an incitement to additional violence or as a propaganda tool," said the president. "We don't trot...
His name? John Ashcroft. Yep, that John Ashcroft: The consortium in charge of restructuring the world’s most infamous private-security firm just added a new chief in charge of keeping the company on the straight and narrow. Yes, John Ashcroft, the former U.S. attorney general, is now an “independent director” of Xe Services, formerly known as Blackwater. Ashcroft will...
Mary Ellen O'Connell has written a more detailed analysis of the international law involved in the bin Laden killing responding to some of the comments on her Opinio Juris post. Here's a taste: The use of lethal force is governed by two types of international law: the law of peace and the law of armed conflict. In peace, international law supports...
[Major John C. Dehn is an Assistant Professor in the Department of Law, US Military Academy, West Point, NY. He currently teaches International Law and Constitutional and Military Law. He is writing in his personal capacity and his views do not necessarily represent the views of the Department of Defense, the US Army, or the US Military Academy. The analysis...
A number of students and colleagues have asked me if I believe that Usama bin Laden's killing was legal. I'm swamped with teaching and writing responsibilities, so my ability to blog is limited. But I thought I'd at least put my thoughts on record, skeletal though they may be. And I want to reply to what I think are two...
[Mary Ellen O’Connell is the Robert and Marion Short Chair in Law and Research Professor of International Dispute Resolution—Kroc Institute. She is a Vice President at the American Society of International Law and the author of author of The Choice of Law Against Terrorism, 4 J. NAT. SEC. L. & POL’Y 2010] In his speech announcing the death of Osama...
