The killing of bin Laden and the law of war, Part II

In my last post I said that the killing of bin Laden was an act of lawful self-defense, because we could legitimately pursue and attack bin Laden wherever we found him.

I still think that's correct, but the argument I made there, that killing bin Laden was lawful self-defense even though it took place outside any pre-existing conflict zone, only holds if indeed bin Laden was an enemy combatant, and if the attack on him did not violate the rules governing how such attacks are carried out. In this post, I'll ask what might seem an absurd question even to raise: was bin Laden an enemy combatant?

Let's begin here: the idea that we could attack bin Laden anywhere rests on the assumption that he remained a combatant under the law of war. Enemy generals can always be attacked -- but not if they've retired because of their injuries and now reside in assisted living facilities. Criminals can be arrested for their crimes -- but I believe what we undertood in Abbottabad was military attack, not law enforcement, and if bin Laden counted as a retiree, he wasn't subject to military attack.

I've seen it suggested by a scholar quoted in Der Spiegel 10 days ago that indeed it was not clear that bin Laden still played enough of a role as a military commander to qualify as a combatant subject to attack. Now, after the fact, the sheer quantity of information we seized from his compound, and the reports that he had contemplated attacks on US railroads as recently as 2010, suggest that he was still in the business. Nevertheless it seems quite possible that at the time of the attack he was not much engaged in whatever plans were then being hatched. He may have been "in the business," but not very directly; a Los Angeles Times report after the attack says that bin Laden "no longer ran day-to-day operations of the terrorist network he had founded. But he continued to secretly send strategic guidance to affiliate groups scattered around the globe, officials said." Moreover, it seems certain that we weren't certain of his role -- after all, President Obama has said we were not even sure that bin Laden was in the compound rather than, say, a "wealthy ... prince from Dubai."

But the argument that this uncertainty meant we could not lawfully attack bin Laden seems wrong to me on two grounds. First, we had no reason to believe he had "retired." What had happened to him was that he had been constrained -- by us. Fleeing the danger of attack, he went into hiding, and from hiding he perhaps could not take an active role in shaping new attacks. But if that meant we couldn't attack him, in effect the law of war would give a free pass to those who are so harried by their enemies that they lose effectiveness. Since the point of war is to take away the enemy's effectiveness, it would be perverse to say that success in doing so immunizes the enemy from attack. Of course, if the enemy surrenders then they absolutely are entitled to immunity -- but hiding out is not the same as surrender. (What if what happened was not that bin Laden was harried into ineffectiveness, but that Al Qaeda -- perhaps as a result of our initial attacks -- evolved into a network of loosely connected terrorists rather than a military force with a definable location? I'd view that change, also cited in Der Spiegel, in a similar way: an enemy shouldn't be able to choose for tactical reasons to edge away from an armed conflict once it's begun, and thereby escape a military response to its actions.)

Second, the idea that our uncertainty about bin Laden's level of activity barred us from attacking him seems to add a special and unreasonable barrier to attacking terrorists. To see why requires looking at the the question of whether terrorists are ever "combatants" subject to military targeting.

There is an important policy question about whether it is wiser to treat the struggle against terrorism as law enforcement or war. There is also a parallel legal question. Terrorists are arguably civilians -- civilian criminals, to be sure, but subject as criminals only to law enforcement actions rather than military attack. Even civilians are in some circumstances subject to military targeting, but those circumstances are limited: it's widely felt that military targeting of civilians is unlawful "unless and for such time as they take a direct part in hostilities," to quote Article 51(3) of Additional Protocol I of the Geneva Conventions. (The US has not ratified this treaty, though we evidently view much of it as binding anyway, on the ground that it has acquired the status of international customary law.) It follows that once these civilian fighters are back home and resume civilian life, they once again are subject only to law enforcement, not military action.

These rules in effect protect amateurs who get involved in combat. But -- to briefly restate a longstanding argument -- if they also protected professionals, who could assume the guise of civilians in between battles, and shed it only at times and places of their own choosing, then the rules would give those professionals an advantage over lawful combatants. To protect terrorist professionals from military targeting in between engagements seems especially perverse since the moments of combat that terrorists choose to engage in are likely to be unlawful uses of force in themselves (among other reasons, because terrorists frequently are deliberately targeting civilians -- a forbidden step in war, much as civilians inevitably suffer from the collateral effects of attacks on legitimate military targets).

Exactly who should count as deeply enough involved in military effort to be legally a combatant rather than a civilian is a complex matter. But the US has insisted that Al Qaeda terrorists are indeed combatants, not just when they strike but all the time. And the idea that members of irregular forces can lose their civilian status has drawn support from interpretive guidance adopted in 2009 by the International Committee of the Red Cross.

The ICRC guidance reasons (perhaps controversially) that civilians who are engaged in a "continuous combat function" are to be viewed as combatants all the time -- and therefore are subject to attack at all times as well (as soldiers in a regular army at war are). I would say that bin Laden, in creating and leading a worldwide terrorist network, had taken on a continuous combat function.

But once a civilian has taken on a continuous combat function -- and thus become legally a combatant rather than a civilian -- can he (or she) thereafter enjoy immunity from military attack unless the attacker has solid evidence that he hasn't given up his continuous combat function? It seems to me that a rule like that would restore the exact problem the "continuous combat function" idea was meant to address. By virtue of the requirement of continuous proof of continuous combat function, these fighters would in effect regain the protections of civilian status whenever there was doubt -- on the other side -- about their role. Since the other side is extremely unlikely to have up-to-date intelligence on its individual adversaries -- and of course it will be in the civilian-combatants' interest to keep their status as obscure as possible -- these covert fighters will have a significant, and undeserved, protection from military targeting.

It might be argued that if bin Laden was simply assumed to be a combatant, without current evidence, the result would be to defeat a crucial goal of international humanitarian law -- the effort to hold war within limits. That is a crucial goal. But it's not easy to see attacking Osama bin Laden, of all people, as really presenting this risk. In my opinion, he was, and we legitimately believed he remained, a combatant, subject to military targeting -- even though it might well be that he'd never fired a weapon in anger at least since he moved to his compound in Abbottabad, five years ago or more.