Wednesday, May 04, 2011

Osama fought the law, and the law won -- with a little help from the SEALs

Regarding the legality of killing OBL in our midnight raid, I seem to be getting away with the following summation in an LGM thread:
(1) A “kill order” would be illegal if there was a practical alternative, such as capturing OBL. (I don’t mean “pragmatic” in the sense of do we want to try him etc., but “practical” in the sense of what the troops could reasonably do on the spot.)

(2) If OBL clearly surrendered when troops encountered him — hands in the air, say — and his capture was a practical alternative, then the troops had a duty to offer quarter.

(3) Troops have no duty to negotiate a surrender with someone who doesn’t immediately offer one, particularly in circumstances like this raid into Pakistan.

(4) Whether OBL was a civilian or not is not terribly important here. He’s a terrorist, hostis humani generis or however one spells that, and not entitled to avail himself of a soldier’s means when convenient, then hop back onto the civilian side when convenient. He was owed minimum protections under CA3, but no more.
And I agree with a VC commenter that, if international law or the laws of war hold that what we did was illegal, then that indicates a problem with the law.

The best objection is that we trespassed on Pakistani sovereignty, but that still isn't a strong objection. Either (1) Pakistan was harboring OBL, or (2) Pakistan is so dysfunctional that rogue army/ISI elements could harbor OBL, and warn him of any raid. In the former case, that's practically undeclared war on the U.S. In the latter, Pakistan is not a state whose rights we are bound to respect; it's a glorified Afghanistan, a failed state whose corpse hasn't begun to stink yet. Where normal legal processes don't obtain, other powers have the right to use military force. Obviously, had OBL been hiding in a London flat without the UK's knowledge, we wouldn't have sent in the SEALs -- we would've told the Brits and let them pick him up. That wasn't an option here.

Finally, Yglesias has a good point: if OBL really wanted to give the U.S. a problem, he should've walked into the U.S. embassy in Islamabad and turned himself in. Yow.


  1. Jumping to this thread :)

    I actually disagree with (1). I know Campos is all over that, but I think he's wrong.

    If we assume that paramilitary organizations are valid military targets, then the Law of Armed Conflict (as we call it) applies, as do the Geneva Conventions. So far as I know, there is no obligation under any of them to try and capture first. I've seen Campos use the term as "Kill no matter what happens" but I think he's trying to expand the meaning of that. If he surrendered, then there would be obligations to treat him as a prisoner. But so long as he is still an enemy combatant, there is no obligation to attempt or prefer capture.

    There seems to be a lot of debate over whether it would have come out better or worse for us if we'd captured and tried him, and I suppose that's fine. But as far as I'm concerned he was a valid military target, and the elimination of a commander of an enemy force is perfectly proper.

  2. It's my impression that "no quarter" orders are illegal. Paradoxically, we can drop a bomb on somebody, but we can't refuse to accept his surrender.

  3. It's perfectly valid for the first priority to be to kill enemy combatants. Once they surrender, they are no longer combatants and the rules change.

    The part I'm disagreeing with is the "would be illegal if there was a practical alternative". That implies that the first priority of any military operation would have to be capture, because capture will usually be practical. But that's not the case.

    So I think there's a difference between a "kill order" and "no quarter orders". Assuming you accept OBL as a military combatant, there's nothing wrong with "Go here, kill him" as an order in and of itself. If he surrenders, again, the rules change no matter what the orders are.

    I think a bit of the difference is baseline assumptions. Unless the order was "Kill him no matter what, even if he surrenders" (i.e. the no quarter order) there's no war crime inherent in the order. But my assumption is that that isn't what the order was. A simple "take him out" order is perfectly legal, until the conditions on the ground change via his surrender. At that point the personnel involved would be expected to treat him appropriately regardless of their orders.

  4. I think we agree; only a no-quarter order is illegal.

    Btw, the latest conspiracy theory I've heard is that we faked his death and took him to a black-ops prison.

  5. Huh. So we've got one that says we could have captured him but killed him, and another that says we captured him and faked his death.

    Have to admire the thoroughness, I suppose. They're certainly covering all the bases.

  6. Give it a day or two. There'll be 20 more conspiracy theories.