State Department’s Harold Koh on OBL Raid

Yesterday I mentioned that Harold Koh, Legal Adviser to the Department of State, and the government’ most senior international and foreign relations law lawyer, would be posting a comment on the legality of the OBL raid at Opinio Juris.  That post is up; it is a short statement that primarily draws upon Legal Adviser Koh’s 2010 speech, but adds a new short discussion of surrender.  If you want to comment, I’ll leave this thread open.

Added:  Here is my quick comment on Koh’s statement:

The US government has been criticized in some quarters for failure to explain its legal position on the OBL raid. Over at Opinio Juris, State Department Legal Adviser Harold Koh offers a short statement on the operation. It is an important statement, even though short, because the position of Legal Adviser to the DOS is the most senior legal counselor in the US government on international and foreign relations law. Add to that Harold Koh’s stature in the international law and human rights law communities, and this is an important statement.

Koh’s statement quotes at length from an address he gave to the American Society of International Law in March 2010; that speech included a section on targeted killing and drones. Even though I have been vocal in calling for the State Department to speak out on the law, I also think that the 2010 speech covered the jus in bello issues, with one exception.  That issue, the issue that the 2010 speech did not address, is surrender. The reason the 2010 speech did not address it is that if one is using a drone or air attack, surrender is not very often an issue. Whereas it might be with a human team on the ground.

Thus, a line of criticism of the OBL raid has been a factual claim that the US forces failed to accept surrender in fact, and in any case would have killed him no matter what he did. The Legal Adviser’s statement directly addresses this question as a matter of legal standards. The important language on surrender is this:

Finally, consistent with the laws of armed conflict and U.S. military doctrine, the U.S. forces were prepared to capture bin Laden if he had surrendered in a way that they could safely accept. The laws of armed conflict require acceptance of a genuine offer of surrender that is clearly communicated by the surrendering party and received by the opposing force, under circumstances where it is feasible for the opposing force to accept that offer of surrender. But where that is not the case, those laws authorize use of lethal force against an enemy belligerent, under the circumstances presented here.

This statement is important and useful.  This is the international law standard in the laws of war for surrender, and it is the standard applied in operational law by US JAG in operations in Afghanistan on a regular basis – in conventional operations as well as special operations. I had some fears that, in order to present what was apparently a marvelously clean operation in terms of targeting and collateral damage in its most favorable light, the administration might be tempted to raise the bar on the law of surrender.  It is an act in the law of war that is much more fraught and difficult in many circumstances than it might appear. But the Legal Adviser has stated the law as it is, and as it is operationally applied by US forces on a regular basis. I welcome the Legal Adviser’s statement, and, with the additional statement on surrender, believe that it covers the major jus in bello legal issues in the Bin Laden raid.

The statement does not directly address jus ad bellum issues – the question of whether the use of force was lawful, particularly in crossing the border into Pakistan to carry out the raid. The administration has asserted, in keeping with longstanding US views of international law, that sovereignty is not a bar, other things equal, where a state is unwilling or unable to deal with terrorists in its territory. In addition, this being a defense of the OBL operation, it did not address questions of targeted killing in general – apart from the general considerations given in the 2010 address – but offered only a defense in this particular case.

Given that purpose, the most important part of the statement was a reiteration of the US understanding – built deep into its operational law of armed conflict down to the tactical level – of the law of surrender.