Harold Koh: Killing OBL Was Legal Because We Said Drone Warfare Was Legal Last Year, Though We Didn’t Use Drones… Oh, and You Only Have to Accept Surrender When You
Feel Like It Judge It “Feasible.”
Like Robert Haddick, though for different reasons, I was glad to see a State Department spokesperson publicly issue the legal justification for the manner in which the OBL raid was carried out.* Also as a blogger, I was delighted to see the explanation take the form of a much-trumpeted guest post at Opinio Juris.
Slightly disappointed, however, at the content of the post, posted earlier today.
To begin with, Harold Koh focuses solely on jus in bello concerns, although important legal questions were about whether it was legal to conduct the raid on Pakistani soil. I can imagine a number of ways you could argue that case, any of which would have been fascinating from a norm development perspective, so I’m disappointed the State Department is so opaque on this.
Koh also spends over half the post simply pasting in his comments on drone warfare last year – interesting since drones weren’t even used for this operation. It makes some sense, however, given that the real issue with drones isn’t the drones – it’s targeted killings.
The most interesting part of the argument, however, and what we should watch for commentary on in the next few days, is Koh’s comments on the law of surrender – addressing the conditions under which bin Laden would have been captured instead of killed. Here is what he writes:
Consistent with the laws of armed conflict and U.S. military doctrine, the U.S. forces were prepared to capture bin Laden if he had surrendered in a way that they could safely accept. The laws of armed conflict require acceptance of a genuine offer of surrender that is clearly communicated by the surrendering party and received by the opposing force, under circumstances where it is feasible for the opposing force to accept that offer of surrender [my emphasis]. But where that is not the case, those laws authorize use of lethal force against an enemy belligerent, under the circumstances presented here.
Now, I do not understand the law of surrender perfectly, and when I went to look it up I had a hard time identifying the appropriate clauses, though I’ll update this post as soon as I hear back from people trained in the nuances of Hague and Geneva law. (Help, anyone?) But in my non-lawyer’s understanding the requirement to accept surrender if it is requested is not contingent on any contextual understanding of whether in the judgment of belligerents the circumstances render it ‘feasible’.**
Milbloggers who have commented on the bin Laden raid echo this understanding – here for example is Ghosthawk:
Look, in war, if someone is attempting to surrender, you have a legal and moral obligation to accept that surrender.
Ken Anderson, on the other hand, who is actually a lawyer, tells us at Volokh Conspiracy that Koh’s articulation is entirely consistent with both treaty law and the UCMJ:
This is the international law standard in the laws of war for surrender, and it is the standard applied in operational law by US JAG in operations in Afghanistan on a regular basis — in conventional operations as well as special operations. I had some fears that, in order to present what was apparently a marvelously clean operation in terms of targeting and collateral damage in its most favorable light, the administration might be tempted to raise the bar on the law of surrender. It is an act in the law of war that is much more fraught and difficult in many circumstances than it might appear. But the Legal Adviser has stated the law as it is, and as it is operationally applied by US forces on a regular basis.
Unfortunately Ken doesn’t point us to the specific provisions in his post, so that we can interpret them for ourselves. I hope to get you more on this as my own understanding improves, and I can’t wait to use this as a case study in Rules of War next year.
The open thread on Koh’s remarks is here.
**To be absolutely clear, I am not claiming that bin Laden tried to surrender, or that Seals were required to offer him that option if he didn’t ask for it. I’m saying that hypothetically if he had asked for it, I am unfamiliar with conditions under which it would have been legal for troops to then kill him anyway due to it being “infeasible” to accept his surrender.
[cross-posted at Duck of Minerva]