29.08.12 |

Of the 1500+ posts I’ve written for Opinio Juris over the past seven years, none angered my fellow progressives more than the post in which I claimed that the killing of Usama bin Laden was perfectly legal under international law. Here is what I wrote:

To begin with, I think the applicable legal regime is international humanitarian law (IHL), not international human-rights law (IHRL) — a conclusion that can be reached in a number of different ways. The best rationale is that UBL was a member of an organized armed group (“original” al Qaeda) taking part in the armed conflict in Afghanistan. In the alternative, I think we can say (although it is a closer call) that the hostilities in Pakistan rise to the level of armed conflict and that UBL was a member of an organized armed group (original al Qaeda or al Qaeda Pakistan, if the two are distinct entities) taking part in that conflict. Either way, UBL was legitimately targetable with lethal force at any time, subject only to the principles of distinction and proportionality. And nothing I’ve seen indicates that the attack on UBL’s compound violated either of those principles.

I based the conclusion that bin Laden’s death was legal under IHL on Nicholas Schmidle’s account of the bin Laden operation in The New Yorker. He described bin Laden’s final moments as follows:

The Americans hurried toward the bedroom door. The first SEAL pushed it open. Two of bin Laden’s wives had placed themselves in front of him. Amal al-Fatah, bin Laden’s fifth wife, was screaming in Arabic. She motioned as if she were going to charge; the SEAL lowered his sights and shot her once, in the calf. Fearing that one or both women were wearing suicide jackets, he stepped forward, wrapped them in a bear hug, and drove them aside. He would almost certainly have been killed had they blown themselves up, but by blanketing them he would have absorbed some of the blast and potentially saved the two SEAL s behind him. In the end, neither woman was wearing an explosive vest. A second SEAL stepped into the room and trained the infrared laser of his M4 on bin Laden’s chest. The Al Qaeda chief, who was wearing a tan shalwar kameez and a prayer cap on his head, froze; he was unarmed. “There was never any question of detaining or capturing him—it wasn’t a split-second decision. No one wanted detainees,” the special-operations officer told me. (The Administration maintains that had bin Laden immediately surrendered he could have been taken alive.) Nine years, seven months, and twenty days after September 11th, an American was a trigger pull from ending bin Laden’s life. The first round, a 5.56-mm. bullet, struck bin Laden in the chest. As he fell backward, the SEAL fired a second round into his head, just above his left eye. On his radio, he reported, “For God and country—Geronimo, Geronimo, Geronimo.” After a pause, he added, “Geronimo E.K.I.A.”—“enemy killed in action.”

As recounted by Schmidle, the SEALs’ actions were consistent with IHL. A member of an organized armed group engaged in a non-international armed conflict (like a government soldier involved in an international armed conflict) can be targeted with lethal force at any time, subject to the exception stated in Art. 41(1) of the First Additional Protocol: “A person who is recognized or who, in the circumstances, should be recognized to be hors de combat shall not be made the object of attack.” A combatant is hors de combat in three situations: (1) “he is in the power of an adverse Party” (ie., captured); (2) “he clearly expresses an intention to surrender”; or (3) “he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself.” In Schmidle’s account, bin Laden was not in the power of the U.S. when he was killed; he was not wounded or sick; and — most relevantly — he had not clearly expressed an intention to surrender. That intention requires an affirmative action, such as waving a white flag, raising arms, or verbalizing a desire to give up. (Examples mentioned in the U.S. Soldiers Manual.) It is thus perfectly lawful to kill a combatant who is unarmed and making no attempt to resist capture; indeed, the drafters of the First Additional Protocol specifically rejected an earlier draft of Art. 41 that would have deemed an unarmed or defenseless combatant hors de combat.

The author of the new book “No Easy Day,” however, provides a very different account of bin Laden’s death — one that has to be taken seriously, because the author is one of the two SEALs who fired the fatal shots. Here is the Huffington Post’s summary of the author’s account (emphasis mine):

As the SEALS ascended a narrow staircase, the team’s point man saw a man poke his head from a doorway, wrote a SEAL using the pseudonym Mark Owen (whose real identity has since been revealed by Fox News) in “No Easy Day,” a copy of which was obtained at a bookstore by The Huffington Post. “We were less than five steps from getting to the top when I heard suppressed shots. BOP. BOP,” writes Owen. “I couldn’t tell from my position if the rounds hit the target or not. The man disappeared into the dark room.” Team members took their time entering the room, where they saw the women wailing over Bin Laden, who wore a white sleeveless T-shirt, loose tan pants and a tan tunic, according to the book. Despite numerous reports that bin Laden had a weapon and resisted when Navy SEALs entered the room, he was unarmed, writes Owen. He had been fatally wounded before they had entered the room. “Blood and brains spilled out of the side of his skull” and he was still twitching and convulsing, Owen writes. While bin Laden was in his death throes, Owen writes that he and another SEAL “trained our lasers on his chest and fired several rounds. The bullets tore into him, slamming his body into the floor until he was motionless.” Then the SEALS repeatedly examined his face to make sure he was truly bin Laden. They interrogated a young girl and one of the women who had been wailing over Bin Laden’s body, who verified that it was the terror leader.

By the author’s own admission, bin Laden was wounded but not yet dead when he and his fellow SEAL “fired several rounds” into his chest. He and his fellow SEAL thus intentionally killed bin Laden while he was “otherwise incapacitated by wounds” and hors de combat. That was a war crime — the war crime of wilful killing.

I imagine some readers will respond by pointing out that bin Laden was already fatally wounded when the SEALs shot him. There are two problems with that response. To begin with, the author is not a doctor; bin Laden might not have actually been fatally wounded. More importantly, though, it makes no difference if he was dying — he was still alive when the author and his fellow SEAL shot him, and that is all the war crime of wilful killing requires. That is not a controversial idea; no domestic criminal-law system would consider shooting a person dying of a fatal heart attack to be anything but murder. If your actions deprive someone of even one second of life, you are both the factual and legal cause of their death.

There is no chance, of course, that the two SEALs will ever be prosecuted for killing bin Laden. But that doesn’t mean, assuming the author’s account is accurate, that what they did was legal. It wasn’t — it was a war crime, pure and simple.