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His killing was lawful

Under any sane construction of the laws of war, his killing was lawful regardless of whether he 'raised his hands in surrender' or whether U.S. troops weren't to give him the chance.

May 16, 2011|Jed Rubenfeld | Jed Rubenfeld is a professor of law at Yale Law School and a former U.S. representative to the Council of Europe

First came the street celebrations; then the changing accounts of what happened; then the second-guessing -- domestic and foreign.

An "extrajudicial execution," that's what many in the international community are now calling the killing of Osama bin Laden. The U.N.'s Office of the High Commissioner for Human Rights has called for an investigation. According to a U.N. special rapporteur, if the U.S. commandos were under shoot-to-kill orders and did so without offering Bin Laden a "meaningful prospect of surrender," his killing could have been a "cold-blooded execution." In that case, the soldiers who shot him, together with President Obama and any other U.S. commanders who issued the kill orders, would in principle be guilty of murder and should be prosecuted as war criminals.

These claims are absurd. Under any sane construction of the laws of war, the killing of Bin Laden was lawful regardless of whether he "raised his hands in surrender" or whether the American soldiers were under orders to shoot without giving him a chance to surrender. By suggesting otherwise, human rights lawyers only make international law look out of step with basic morality and common sense.

The opportunity to surrender is a cherished, civilized and valuable part of warfare. But accepting an enemy's white flag in the heat of battle is a life-endangering proposition: The flag could be a ruse; a bomb could be hidden; the captors could end up dead. We give enemy soldiers the benefit of this dangerous doubt for two reasons. First, because soldiers who have fought honorably, complying with the laws of war, have earned it. And second, because we want the enemy to treat our soldiers the same way.

For The Record
Los Angeles Times Wednesday, May 18, 2011 Home Edition Main News Part A Page 13 Opinion Desk 1 inches; 34 words Type of Material: Correction
Osama bin Laden: A May 16 Op-Ed article regarding the legality of killing Osama bin Laden referred to the U.S. killing of a Japanese general during World War II. It was a Japanese admiral.

Neither reason applies, however, to enemies who flagrantly violate the laws of war, targeting civilians for death, hiding bombs behind burkas, using children as shields or -- yes -- faking a Red Cross, upraised hands or other symbolic white flags to perpetrate lethal attacks. A white flag makes a statement. It says, I'm giving up; I'm unarmed and pose no threat; I respect the laws of war under which this flag must never be used as a ruse, and I am not using it as a ruse to attack you. Even if we imagine Bin Laden actually waving a white sock on a stick in Abbottabad, there would have been no reason for our soldiers to credit these statements. No soldier had a duty to take the slightest risk to his own life because Osama bin Laden promised to be good.

Moreover, Al Qaeda terrorists have made it unspeakably clear how they treat their prisoners, whether captured soldiers, whom they have killed, or journalists such as Daniel Pearl, whom Al Qaeda leader Khalid Shaikh Mohammed reportedly claimed to have decapitated with his own "blessed right hand." Nothing could be more wrongheaded than the notion that, if we don't give terrorists an opportunity to surrender, they might stop being nice to the Americans they capture.

The official U.S. position is that if our commandos had been completely assured of their safety, the U.S. would have accepted Bin Laden's surrender. But there is a hint of unreality or pretense here. Realistically, there was no way for Bin Laden to credibly ensure anyone's safety. That's why the raid on his compound was almost certainly a mission to kill, or at any rate almost certain to end in his death.

But that doesn't make his killing an extrajudicial execution. As the 1995 U.S. Naval Handbook states, "the law of armed conflict does not precisely define [how] surrender ... may be accomplished in practical terms." Terrorists do and should face much greater obstacles -- in the heat of battle, sometimes insuperable obstacles -- when attempting to credibly surrender. Certainly the rule that a soldier can halt all gunfire in the heat of battle merely by communicating an "intention" to surrender doesn't apply to a self-declared flouter of the laws of war who has repeatedly endorsed the use of human bombs and could easily have explosives strapped to his back. If Bin Laden wanted to surrender, he could and should have done it sometime in the last decade. He could not do it by raising his hands during an attack on his compound.

In countless military bombings, the targets have no opportunity to surrender. Britain and the U.S. targeted Saddam Hussein in his palace in numerous 2003 bombings; Americans shot down and killed a Japanese general in an airplane in World War II. As far back as Grotius in the 17th century, the great international law jurists have declared that enemy leaders may be targeted in wartime.

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