Friday, May 13, 2011

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

In my last two posts I've argued that it was lawful to mount a military attack on Osama bin Laden. But that doesn't mean that it was lawful to do simply anything to him. So here I want to ask if the particular attack we mounted was lawful. I have to say at once that here I'm on unfamiliar legal ground, so I'm trying to reason this out rather than to state conclusively what the law is. Here, at any rate, is what I think:

It’s a violation of international law to kill an enemy who has surrendered.

But it’s not a violation of international law to kill an enemy by a method that leaves him or her no opportunity to surrender – for instance, by sniper bullet or by aerial bombing.

Suppose, however, that you choose a method of attack that eventually brings you face to face with your intended target and makes it possible for you to offer him the chance to surrender. Do you have to actually make that offer in some overt way? The answer must be no – while you’re offering him the option of surrender, he could launch his own attack on you.

But is he entitled to a chance to surrender? That is, must the attacker pause long enough so that the targeted person actually can surrender – can say, “I surrender,” or can put his hands in the air? The answer, as I understand it, is that the attacker need not pause even for an instant if he has reason to fear for his own safety if he does so. The military attacker can err, and err strongly, on the side of protecting himself, and need not put himself at risk in order to give the person under attack a chance to surrender.

At the same time, it seems to me that if the attacker can offer the opportunity of surrender, and does not believe that doing so would put him in any danger, then he must do so. He cannot shoot someone who could not possibly have expressed his surrender before the bullet’s impact. That follows, I would think, from the law-of-war principle of proportionality – because this shooting is a killing that is not necessary to, hence isn't proportional to, any military objective. Capture, after all, is essentially as effective as killing as a way to remove the adversary from the war. (“Essentially” rather than “absolutely” because there’s always the possibility of escape – but if that possibility were considered to shift this calculus then it would be legal to shoot people after they had surrendered, and it isn’t.)

But isn’t it possible that the adversary, in captivity, will be even more of a cause célèbre than he would be in death? And couldn’t a warring state want to avoid the tremendous problems that its adversary may pose even within prison walls? The answer to both of these questions is surely “yes.” Moreover, Osama bin Laden’s case is the classic illustration: as a potential defendant, he would have been a nightmare for the US for years to come.

But much as it might have been in the United States' interest for bin Laden not to survive the attack, I don’t think this was something our soldiers were permitted to take into account when they entered the compound. Their job, if I understand the law in this context, was to execute a military mission, and once they were in that compound, on the ground, in purely immediate military terms a completely safe surrender would have been as much a success as a killing. And so I take it that if we had mounted a mission in which our SEALS forces were directed to kill him without giving him any opportunity to surrender, even if that opportunity could be given at no risk to themselves, then it would have been illegal. I say this without citation of authority, I admit, and hope to learn more – but I think this is what the logic of the situation suggests.

So in that case the question is whether we did deny bin Laden an opportunity to surrender, and if we did, whether that was justified by potential danger to our forces. As to the question of whether we denied him an opportunity to surrender, a Los Angeles Times report from May 3, 2011 comments that:

CIA Director Leon E. Panetta said in an interview on PBS television Tuesday [May 3, 2011] that he did not believe Bin Laden had a chance to speak before he was shot in the face and killed.

“To be frank, I don’t think he had a lot of time to say anything,” Panetta said.

The impression this comment leaves is that indeed bin Laden did not have time to surrender – although that’s not quite obvious. Perhaps if bin Laden had immediately raised his arms or fallen to his knees, the soldiers wouldn’t have opened fire. But perhaps not. According to the same report, “a senior congressional aide brief on the rules of engagement [added]: ‘He would have had to have been naked for them to allow him to surrender.’”

Why? Again from this report, interviewing a special forces officer:

"If anyone feels in any way that there is a hostile threat in a case like this – it can be a movement, or a failure to follow commands – deadly force will be authorized. It’s a judgment call," the officer said. "And these assaulters are some of the finest, most highly trained in discriminate shooting. They train in hostage rescue."

Underneath bin Laden’s clothes there might have been a suicide vest, or some other weapon, and in any instant in which he did not obey commands, he might have used those hidden resources.

So when the SEALS assaulter or assaulters entered the room where bin Laden was apparently holed up along with one of his wives, they were authorized to shoot without any pause whatsoever if in any way he appeared to pose a hostile threat. Apparently, however, there was a pause. Again from the L.A. Times report, according to a White House spokesman, Jay Carney, “In the room with Bin Laden, a woman – Bin Laden’s wife – rushed the U.S. assaulter and was shot in the leg but not killed . . . . Bin Laden was then shot and killed. He was not armed.”

So there was time for a woman bin Laden's wife to charge the U.S. soldier, and time for him to shoot her, but in a way that seems deliberately designed not to kill her. Then the U.S. soldier shot bin Laden twice in the head, an action that seems deliberately designed to kill him.

Given that sequence of events, was there legal justification for the fatal shots? Or did we simply intend to kill him all along? I find it reassuring that (according to a N.Y. Times report on May 9, 2011) we had a team of "lawyers, interrogators, and translators" ready to meet on a Navy ship to undertake bin Laden’s interrogation if he was captured in this operation. To me that indicates that capture was a real possibility, that surrender would have been accepted and could somehow have been accomplished. And so I think that "the U.S. assaulter" did not enter bin Laden's room with the settled intent to kill him, but rather with the intent to kill him unless he demonstrably posed no danger and was surrendering.

I think that standard was lawful. Did the assaulter lawfully apply it? Even though the facts as we know them do not demonstrate that in fact bin Laden had to be killed, still in the heat of this moment I think it was legitimate for the U.S. attacker to see bin Laden as still a potential threat – and to distinguish that threat from the threat that his wife had posed a moment earlier – and to act on that. This is self-defense carried to its ultimate, fierce extreme, self-defense in which the burden of proof, and a heavy one, has been placed on the target of attack. It is worryingly close to a plan to kill. But war is fierce, and so I take this attack to be within the bounds of the law.

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