Here's the text of the resolution passed in the House this afternoon on Libya, as introduced by Speaker Boehner. It's not insignificant, as an institutional pronouncement, even though it's non-binding. It amounts to a kind of soft law. The resolution provides that "the President shall not deploy, establish, or maintain the presence of units and members of the United...
In Serbia, not surprisingly: Ratko Mladic, the Bosnian Serb general accused of overseeing the worst massacre in Europe since the end of World War II, has been arrested, Serbian authorities said Thursday. Mladic is Europe's most wanted war crimes suspect for his alleged role in the 1995 slaughter of 8,000 Bosnian Muslim men and boys in the enclave of Srebrenica,...
This according to the New York Times: The charges — brought by prosecutors Mr. Mubarak had appointed — included hints that former subordinates might testify against him, as onetime allies and government insiders turn on one another. A Cairo criminal court is expected to set a trial date within days, and the Egyptian people could soon see the leader...
In his post below, Harold Koh continually refers to the existence of an "armed conflict" between the U.S. and al Qaeda. Koh does not specify what kind of armed conflict the U.S. believes exists, but he references Common Article 3 in the detention section of the ASIL speech that he quotes, indicating that the U.S. believes it is in a...
[Harold Hongju Koh is the Legal Adviser, U.S. Department of State.] I write in response to those who have raised questions regarding the lawfulness of the recent United States operation against Al Qaeda leader Osama bin Laden. United States officials have recounted the facts of that well-publicized incident, most recently in the interview of President Obama on CBS News 60 Minutes...
As discussions over the legality of the May 1 killing of Osama Bin Laden by U.S. forces heated up and international law and law of war experts provided a range of potential arguments for and against the lawfulness of U.S. action, we thought it would help public discussion to present the official U.S. position on the legal dimensions of the...
Mark Kersten has a useful post today at his excellent Justice in Conflict blog about what will happen once the OTP announces the results of its investigation of the Libya situation. Check it out!...
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...
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...
