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Koh and the Law of Surrender, Part Three…

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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.

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