Here is a link to a post by State Dept. Legal Advisor Harold Koh regarding the international law justification for the operation that killed Osama Bin Laden.   The post has an open thread to take comments, here.  My initial reaction is that the post raises more questions than it answers because it is very general and essentially parrots Mr. Koh’s prior justification for targeted Al Qaeda killings.  H/t PA

7 Responses to “Koh Addresses Lawfulness of Bin Laden Raid”

  1. Cloudesley Shovell says:

    What questions, in your opinion, are raised? Bin Laden wanted a war; he got it.

  2. Stewie says:

    Seems to me there are two completely separate issues.

    1. the sovereignty violation of Pakistan, which has some merit on its face

    2. the ability to target OBL under the laws of armed conflict and CA 3 which seems to me to have no merit (against it) at all.

    Folks keep wanting to treat OBL like a state leader aka President/Prime Minister, instead of a combatant for a terrorist group who has very little protections under current international law.

    It boggles my mind when folks say well if we can take him out legally that means they can take out President Obama legally right?

    Are you kidding me? I’m pretty darn liberal, but that’s just crazy talk.

  3. Some Army Guy says:

    Is there anything in international law that compels a state not to “violate” the sovereignty of another state if combatants are in that state?

    A state is responsible for preserving and defending its own sovereignty. The UN Charter prohibits armed attacks on a state. But what in international law prevents a state from “violating” the sovereignty of another state; or, to put it differently, permits a combatant from seeking refuge in another sovereign?

  4. soonergrunt says:

    The UN Charter prohibits armed attacks on a state.
    OK. Here’s what I’d like to know–how is Pakistan’s harboring of OBL anything but assisting in (if not direct involvement) in his war against the US, and wouldn’t that make them a combatant?
    Also, it’s my understanding from my lower level Poly Sci courses (and possibly wrong) that if Pakistan can’t exercise sovereignty over significant parts of their territory, as we hear all the time, that they really don’t have a viable claim to it. As for his exact location, right next to their military academy, and surrounded by retired generals–there’s no way on God’s green earth that he was there for five years and somebody with authority and responsibility didn’t know.
    As for OBL himself, the fact that he wasn’t carrying a weapon is (or should be) utterly irrelevant. If we’d dropped half a dozen 2000-lb JDAMs on his compound, we wouldn’t even be having this discussion, and he’d be just as dead.

  5. publius says:

    International lawyers are making two types of criticism of the UBL raid. They get blurred a bit, but they are distinct: 1) the US cannot be at war with al Qaeda or any other non nation-state organization. The body of law which could potentially legitimize a UBL type of raid– international humanitarian law (IHL)– only kicks in when two nation-states are at war or when a civil war is raging within a country. al Qaeda is neither a nation-state, nor party to a civil war within the United States. So IHL is inapplicale and international human rights law controls. International human rights law is, essentially, law enforcement with relatively robust due process requirements for an accused, no matter who he is or what he’s accused of. So, no war betw/ nation-states, no IHL potentially allowing for the targeted killing of a declared enemy. Hence, the US acted illegally by failing to provide UBL proper due process before killing him; 2) assuming that IHL controls (which as just mentioned, a lot of people dispute), US forces did not give bin Laden a legitimate opportunity to surrender before killing him and/or US forces were not legitimately acting in self-defense when they killed him, b/c under the circumstances he posed no threat. Therefore, US forces acted illegally by not complying w/ established rules of engagement in accordance w/ IHL principles.

    For what it’s worth, I think the first line of criticism is more compelling. It is certainly more consistent logically, even if it is- to use a notorious adjective- quaint, and ultimately highlights the deficiencies of IHL in the 21st century. The second line of criticism ignores the legitimacy of targeting “declared hostile forces”, and limits ROEs to positive identification plus hostile act and/or hostile intent.

    As for a potential violation of Pakistani sovereignty, it is up to Pakistan to assert the violation, and seek redress for it. It has done neither. Arguably, the UN could on its own initiative and authority find that the US violated Pakistani sovereignty and use that as the basis to brand the US an international outlaw, but for a host of reasons that’s likely to happen. From an international law perspective, the danger of the US raid into Pakistan is the precedent it sets– one member state getting away with unilateral violation of another member state’s sovereignty. But if Pakistan never acknowledges or asserts a violation of its sovereignty, for legal purposes, it never happened.

  6. publius says:

    Should be: “…that’s not likely to happen” in the last paragraph above.

  7. Mike "No Man" Navarre says:

    Good high level summary Publius. there are other issues floating around out there, such as if IHL applied war UBL was still directly participating in hostilities (which in itself has several other embedded questions)? But, your summary does a nice job capturing the main current debate.