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Koh and the Law of Surrender, Part Three…

[ 36 ] May 26, 2011 |

We did some debating here last week about how to interpret the law on surrender, how to interpret Harold Koh’s description of that law, and how to interpret Ken Anderson’s argument that Koh had it right. Add to that Marty Lederman’s similar argument here.

I’m willing to concede I’m missing something important, because I’m not trained in the nuances of the law and these various law profs are. But I’m trying to figure out what.

I’ve had a chance to review some relevant treaty text anda fantastic source on the law of targeting forwarded to me by Ken, and I stand by my initial sense that Koh overstepped in suggesting that, given a genuine surrender is offered and the offer received, that troops need only accept that surrender if they feel they can do so “safely.”

However after reading Ken’s source, Ian Henderson’s The Law of Contemporary Targeting, I also interpreting Ken’s remarks on the validity of Koh’s statement differently. That is, it doesn’t seem to me that Ken is agreeing with Koh at all on this point: he’s ignoring this point entirely. Where he agrees with Koh has to do with the lack of a rule requiring troops to offer a surrender – something about which Ken had written, correctly as far as I know, in response to claims to the contrary after bin Laden was killed. In fact in his follow-up to Anderson’s comment at Volokh Conspiracy, Ken is clearly talking only about the feasibility of inviting a surrender, and we have no disagreement there:

Henderson reinforces the basic proposition that surrender in actual combat is way more difficult than it, and that there is no obligation to pause attack operations until, as Koh says, reflecting long-standing US (and other leading militaries) operational law doctrine, a genuine intention to surrender has been clearly communicated. The qualifiers that Koh uses — “genuine,” “clear,” etc., are all taken from long-standing US legal doctrine for operations of all kinds.

And this would also be consistent with the fact that Henderon also doesn’t in any way address the question of a feasibility condition for accepting a genuine surrender assuming it is offered.

Regarding the former question, which we’ve been discussing, Ken’s source in fact concurs with treaty law and with my understanding of it – and not with Koh’s statement. Stated plainly on p. 83:

It is unlawful to attack a combatant when that person is hors de combat. A person is hors de combat if the person:

a) is in the power of an adverse Party;
b) clearly expresses an intention to surrender; or
c) has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defense.

Now, Ian Henderson goes on to qualify a and c somewhat, addressing points of relevance to our discussion of bin Laden. Particularly, you’re not “in the power of an adverse Party” if you’re simply surrounded by them – you must be in their custody; and being “incapable of defense” doesn’t mean you can’t be shot if you’ve been disarmed but have no surrendered: “surrender is not inferred for the mere fact of defencelessness.” (p. 85).

But on my question of whether there is any qualification to b – whether there are circumstances such as “infeasibiliy” or “inability to accept safely” under which it might be lawful to kill a person who has clearly signaled an intent to surrender, Henderson doesn’t have much further to say on the matter, other than reiterating the iron-clad rule a number of times, for example:

If the defending party surrenders, the combatants become hors de combat and, therefore, are protected from attack. (p. 88)

Of interest to those who are following the law on targeted killings is actually the remainder of the piece, in which Henderson appears to reject the emerging notion that terror masterminds might be understood as combatants rather than as civilians who periodically take a direct part in hostilities. On this point, Henderson would seem to argue (I believe Ken disagrees strenuously) that unless bin Laden were at that moment directly participating in hostilities (he was apparently not) he would have been immune from attack as a civilian. I mention this because I have been assuming for the sake of argument above that the valid framework is one of combatants v. combatants, but I don’t want to imply that that matter is settled- only that even within that framework, it’s important to get the rules straight.

Comments (36)

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  1. R. Johnston says:

    The most generous reading of Koh is that he abused the English language and meant to say that what matters when determining whether an attack on a combatant is legal is not whether an offer of surrender is actually or objectively genuine but whether the subjective beliefs of the forces to whom surrender is offered about the genuineness of the offer are reasonable.

    An unarmed person may offer a genuine surrender, but if it can’t readily be determined that the person is unarmed then the genuineness of the surrender might reasonably be doubted. The point is not that it’s infeasible to accept a surrender determined to be genuine and so the surrender can be rejected; the point is that it’s infeasible to determine whether or not the surrender is genuine in the first place.

    If Koh meant something other than this then I have to conclude that he’s a vastly overrated legal mind.

  2. [...] Seventy years ago this evening, engineers on Bismarck were frantically trying to repair her damaged rudder, as she turned away from France and toward a Royal Navy task force.  They would fail, and it became apparent to everyone as the night went on that Bismarck would not return to port.  I have some thoughts on the obvious* parallels between the hunt for Bismarck and the hunt for Osama bin Laden at WPR. Long story short, there are at least some theoretical productive comparisons to be made with regards to the law of surrender… [...]

  3. rea says:

    Feasibility has to enter into it–the law doesn’t require the impossible. Here’s (yet another) example–U-boat torpedoes freighter a thousand miles from shore. Crew evacuates to lifeboats. They have no radio and little water. They are arguably hors de combat, and so not a legitimate object of attack–they can’t be machine gunned.

    But what if they signal surrender? As prisoners of war, they would be entitled to decent treatment–you can’t deliberately leave POWs in a small boat a thousand miles from shore with little water. It is not, however, feasible for the U-boat to take prisoners on board–not enough room; no place to keep prisoners. Can the U-boat abandon them to their fate?

    • hirst says:

      But abandoning them to their fate isn’t the same as attacking them. The law as quoted above says you can’t attack a person who has clearly expressed an intention to surrender. So the U-Boat crew would be forbidden from further attacking the occupants of the lifeboats, but that doesn’t mean they’d be required to affirmatively aid them.

    • Koh’s statement was:

      But where that is not the case, those laws authorize use of lethal force against an enemy belligerent, under the circumstances presented here.

      “Abandoning them to their fate” is not the use of lethal force. Koh appears to be saying you can machine gun them.

      • rea says:

        The difference between shooting them and abandoning them in lifeboats unlikely to reach shore is perhaps more theretical than real.

        • Joe says:

          Why exactly?

          They might survive quite some time in a lifeboat and there’s always a chance, however small, a rescue boat might arrive. Even days more of life is something. Under law, you can’t even shoot a guy falling out a window. Mere seconds. Here you have days.

          Again, the issue here is not theoretical. It is shooting to kill OBL even if he surrenders because it is not “feasible” to do so. It warrants discussion and I don’t know why you dismiss it as not worthy of comment.

          • Again, the issue here is not theoretical. It is shooting to kill OBL even if he surrenders because it is not “feasible” to do so.

            Uh, actually, that is theoretical.

          • mudplanet says:

            In time of war, or at least during WWII, warships were expressly forbidden from stopping immediately to rescue survivors of sinking ships – any ships. Primarily because where there are sinking ships there are enemy submarines. A good illustration of this principle can be found in Monsarrat’s “The Cruel Sea,” in which the captain not only doesn’t rescue the merchant seaman in the ocean but sacrifices them to his attack. The British has just witnessed the sinking on the Hood with 1400 men (3 survivors) and, I think, could be forgiven their impulse to stamp on the rattlesnake before it bit them again.

            Bil Laden’s death was simple extra-judicial execution.

        • That you can use the word “perhaps” demonstrates pretty definitively that the difference is, indeed, real.

          Also, your pragmatic observation doesn’t change the law.

        • If you were floating in a lifeboat, and someone with a machine gun might or might not start shooting at you, I doubt you would have any difficultly understanding the significance of that decision.

      • Anderson says:

        That is not true at all.

        Koh: under circumstances where it is feasible for the opposing force to accept that offer of surrender. But where that is not the case, those laws authorize use of lethal force against an enemy belligerent, under the circumstances presented here.

        The U-boat can refrain from using force and simply depart without making the enemy its POWs.

        Alternatively, they could be paroled on the spot (great comfort that, but we are being legalistic).

        I have no idea how you can twist Koh’s words into approving the machine-gunning of defenseless men in lifeboats.

        • The U-boat can refrain from using force and simply depart without making the enemy its POWs.

          Which would not be the acceptance of a surrender. Do you understand that simply departing is not the acceptance of a surrender?

          I have no idea how you can twist Koh’s words into approving the machine-gunning of defenseless men in lifeboats.

          I, on the other hand, was able to understand right away where your confusion lies.

        • I have no idea how you can twist Koh’s words into approving the machine-gunning of defenseless men in lifeboats.

          Seriously?

          1. Koh writes that when it is not feasible to accept a surrender, you may shoot people.

          2. A situation when it is not feasible to accept a surrender is described.

          3. I conclude that Koh is saying that, when it is not feasible to accept a surrender, you may shoot people.

          4. You have no idea how I could conlcude #3.

          OK.

    • Murc says:

      Rea, I’m curious as to your next rhetorical move. I know you must have one, I just am not sure what it is.

      To be more clear; you seem hell-bent, in previous threads on this topic and now in this one, to construct scenarios in which people admit that either it would be okay (or at least defensible) to attack people who either have, or are trying to, surrender.

      Assuming you succeed in getting people to admit this, where do you go from there? Do you argue for a kind of creeping maximalism where its okay to commit war crimes because sometimes war forces hard choices where bad shit happens? (I don’t THINK this is where you’re going, but its where a conservative douchebag with a hard-on for killing brown people would be leaning.)

      Or is this some kind of Socratic rope-a-dope where you think that getting someone like me to say ‘No, even it risks losing a battle or war, you shouldn’t do these things’ because you think that position is so transparently idiotic that voicing it will completely discredit us?

      I just have trouble seeing your next logical pathway.

      • rea says:

        “Rhetorical move” gives me waaaay too much credit.

        If you force me to try to explain the point I’m trying to make with these examples, it’s something like this. It’s very easy , thinking about the laws of war at an abstract level, to say things like, “you must accept a surrender regardless of whether it is feasible,” or “you must give an unarmed man an opportunity to surrender rather than shoot him out of hand.” I think looking at more concrete situations shows that the rules have to be a lot more complicated than that, and has to make allowances for practicalities, and for the fact that the people who fight wars are neither superheros nor saints.

        Ultimately, wars mean killing. Nations go to war when they judge their cause is worth killing people. Being semi-civilized, and wanting to encourage our enemies to act similarly semi-civilized we have a vague set of rules to discourage unnecessary killing and other cruelties. Necessarily, though, those rules always take second place to the practicalities of the situation, to the human limitations of combatants, and to military necessities.

        Wars just aren’t going to be humane. Better not to have them.

        • Joe says:

          As noted above by at least two people, “shoot him out of hand” doesn’t arise from your U-Boat situation. This whole thing was about shooting OBL, not leaving behind in a burning building because it wasn’t “feasible” to save him.

          • L2P says:

            I think you’re deliberately ignoring Rea’s point about OTHER duties owed to POW’s besides the obvious not-killing-them one.

            IMO, Rea makes an obvious point that most American lawyers (at least) would recognize – impossibility is a complete defense. We can split hairs over Koh’s “feasibility” v. impossibility, but that’s what he’s talking about. Given that this is a well-established common law principle, I’d think the burden is on the people arguing impossibility ISN’T a defense to explain why it isn’t.

            • rea says:

              And note, in the U-boat example (based loosely on some real WWII incidents), it might have been possible for the u-boat to cram the survivors on board, and limp back to port on short rations, terminating its mission. But of course, that turns the whole incident into something resembling an Allied victory, trading a freighter for disabling a u-boat. Wars aren’t fought that way–can’t be fought that way.

              • Joe says:

                Lol. Now you are adding more complications. We now have to determine, I guess, some sort of “reasonable feasibility” rule.

                The Confederate Army was starving by 1865, but someone (however open to question) was executed for war crimes for not providing for Union prisoners. The need to go on “short rations” is not a reason not to provide.

                This is getting troubling. It is starting to sound like those people who don’t want to follow the laws of war because it might hinder our discretion. But, yes, the laws of war to some extent (and what this means is exactly what we are trying to determine) makes it harder to fight.

                The same thing is true domestically. Guards don’t get mistreat prisoners even if they know the only way to keep one or the other in line is some physical abuse. In reality, some cross the line, but it isn’t actually “legal” to do so.

            • Joe says:

              Yes, I’m “deliberating” trying to clarify a specific point since actively killing someone is also under common law different from inaction, particularly if the inaction is a result of it being not “feasible” to help someone.

      • rea says:

        Oh, and “conservative douchebag with a hard-on for killing brown people” is a bit much, even if indirectly attributed. Realistic acceptance of the horrors of war is an anti-war position. And how do you get “brown people” from u-boats?

  4. dave says:

    Just out of interest, I recall seeing some video a few years ago which noted in passing that [I think it was] USMC doctrine when ‘policing the battlefield’ to put a bullet into all enemy ‘dead’, just in case they weren’t [and might attack unexpectedly]. Since, if they were alive, this is clearly cold-blooded murder, did I imagine it, or have we got massive cognitive dissonance here?

    [N.B. I know from personal experience that UK doctrine is to kick the corpse in the nuts [or at least it was until booby traps became an issue]].

    • Shygetz says:

      It is not cold-blooded murder if the soldier has reason to believe that the enemy is feigning incapacitation, or is otherwise still an active combatant (for example, the booby-traps that you mention that were common in Vietnam). Asking soldiers to grant quarter in a conflict where the enemy feigns surrender or incapacitation as a tactic is naive.

      • dave says:

        Indeed, but accepting it as a doctrine involves shooting dead wounded, unconscious and incapacitated enemy combatants on a regular basis. Like I said, cognitive dissonance.

  5. Shygetz says:

    I’m sorry, but this seems either nonsensical or trivial, take your pick. Charli and others seem to be doing one of a few things; either strenuously claiming that it is incumbent upon combatants to accept surrenders when the acceptance is unfeasible, or that Koh when Koh said “feasible” he meant “convenient.” The former position is silly; no law can compel people to do what is impracticable. The latter position seems to be presumptuous and uncharitable. Which leaves us with the possible gripe that Koh was inartful in his statement by giving voice to something that goes without saying, and which belongs primarily to the realm of theory; namely, that we cannot expect soldiers to accept surrenders that they are not able to accept. Which is trivial.

    Unless there’s something I’m missing that indicates that, when Koh said “feasible” he meant “convenient” or some other term, then this seems to be an entirely uncharitable reading of the statement.

  6. Anonymous says:

    Looking back at your original post, I’m not sure how you get from Koh’s statement:

    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.

    to your paraphrase:

    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 [my emphasis] the circumstances render it ‘feasible’.

    And I think that might be part of the problem here. Like rea says above, the law does not require the impossible. But that doesn’t mean it defers to the judgment of the accused as to what is or isn’t impossible.

    I don’t know what it would mean to say that one is required to accept a surrender even when it is not feasible to do so. That’s just incoherent, assuming by ‘feasible’ we mean something in the neighborhood of ‘possible’ or ‘possible without mortal risk to self or others’.

    But I don’t think Koh or anyone else is saying that simply saying “yes, sure, he tried to surrender; but I didn’t think it was feasible to accept his surrender so I shot him” is in itself a defense. Whether or not the defense should prevail would depend on whether accepting surrender was or was not in fact feasible. And yes, in practice, this would be very difficult to determine, and probably would be determined not from the perspective of cool 20/20 hindsight but rather from the perspective of something like a “reasonable” person under the heat of the circumstances, and that would likely end up being a fairly deferential standard–maybe too deferential (cf. claims for excessive use of force under the 4th Amendment), but if so that would be a problem with the standard, not with the rule.

    (And yes, before anyone asks for citations, I am more or less “making this up”–there just isn’t a whole lot of case law on this kind of thing, for obvious reasons, and simply looking to the text of international agreements (especially ones to which the U.S. is not a party) only gets you so far. But on a quick read of these posts and the comment threads it does look like people are attacking something of a straw man.)

  7. Only addressing a final point, above, about bin Laden being a civilian: From this civilian’s perspective, the notion is simply preposterous philosophically. To step back from the trees and attempt to see the forest:

    The laws of war do not make special allowances for noncombatants to kill thousands, so why would they allow–and why would any international court attempt to enforce–a doctrine that would essentially enshrine ‘terrorist’ as a special, protected class?

    War is at best a sloppy business, so the protective laws thereof only make sense in terms of shielding those whose vulnerability to hostilities is, for want of a better word, unfair. In the case of a world-renowned, loudly self-proclaimed leader of major military (nearly sinking the Cole) and terrorist operations, the notion of illegality in targeting him, or of a protected status for civilians living with a target loudly proclaimed as such by the US (“dead or alive!”), seems merely legalistic in the most abstract sense: even if the legalistic argument can be made, the notion of “protecting” bin Laden is so antithetical to war aims as to be irrelevant to actual war.

    And for those who bring up, say Eichmann’s kidnaping and trial: hostilities were over, and Eichmann’s army has surrendered. No such scenario with bin Laden.

  8. Pithlord says:

    Combatants are required to put on uniforms and identify themselves. That does not mean that if you don’t put on a uniform, you are not a combatant. You are a combatant violating a law of war.

    Every legal duty involves a necessity defence, so I can’t see what is in the least bit controversial about Koh’s “feasible” caveat. He was definitely not saying it applied in OBL’s case, or that feasability is a subjective judgment.

  9. Socraticsilence says:

    Actually, this brings up something which while unrelated I have been wondering about for a while vis a vis terrorism and the Geneva Conventions: are terrorists essentially non-uniformed combatants? And if so doesn’t this essentially strip them of many of the Geneva protections they would otherwise be accorded?

    • Jeremy says:

      I suppose it depends on what you mean by “terrorist”. I’d call someone who blows up a bus or train full of civilians a criminal (as happened in Spain in 2001). I wouldn’t call anyone fighting on a battlefield a terrorist.

      Remember, one man’s terrorist is another man’s freedom fighter. And is he a non-uniformed combatant if he or his organization can’t afford a uniform?

      • I’d call someone who blows up a bus or train full of civilians a criminal

        Combatant and criminal are not mutually-exclusive categories.

        Remember, one man’s terrorist is another man’s freedom fighter.

        This is a statement about the moral standing of certain irregular combatants, but it doesn’t really have anything to do with the question of international law. International law imposes the same rules on “good guys” and “bad guys.”

        And is he a non-uniformed combatant if he or his organization can’t afford a uniform?

        George Washington once ordered the soldiers of the Continental Army to stick “a sprig of green” in their hat bands, to serve as the insignia necessary to identify them as combatants in an army, so it wouldn’t be criminal for them to take up arms.

        • dave says:

          Wikipedia [so probably for shit, but here goes]:

          After World War II, during the Hostages Trial (or, officially, ‘The United States of America vs. Wilhelm List, et al.), the seventh of the Nuremberg Trials, the tribunal found that, on the question of partisans, according to the then-current laws of war (the Hague Convention No. IV from 1907), the partisan fighters in southeast Europe could not be considered lawful belligerents under Article 1 of said convention.[6] In relation to Wilhelm List, the tribunal stated:

          We are obliged to hold that such guerrillas were francs tireurs who, upon capture, could be subjected to the death penalty. Consequently, no criminal responsibility attaches to the defendant List because of the execution of captured partisans…[6]

          The Geneva Conventions established new protocols, namely, according to Article 4 of the Third Geneva Convention of 1949, francs-tireurs are entitled to prisoner-of-war status provided that they are commanded by a person responsible for his subordinates, have a fixed distinctive sign recognizable at a distance, carry arms openly, and conduct their operations in accordance with the laws and customs of war.

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