Does Navy SEAL's New
Book Suggest Bin Laden Killing was a War Crime?
By Adam Serwer| Fri Aug. 31
The famously shifting Obama administration narrative of the special
forces raid that killed Al Qaeda leader Osama bin Laden left some
understandable doubts about how the operation actually went down. The key
question, from a legal perspective, is whether or not the administration had
ordered Bin Laden killed no matter the circumstances, and whether or not he had
tried to surrender or was otherwise "hors de combat" or "out of
the fight" as defined in the Geneva Conventions.
No Easy Day, the memoir by "Mark Owens" (later outed as Mark Bissonette), a former Navy SEAL who
participated in the raid, sheds light on both questions. According to Owen, Bin
Laden was unarmed when he was shot. Here's the description from the Associated Press:
Bissonnette says he
was directly behind a "point man" going up the stairs. "Less
than five steps" from top of the stairs, he heard "suppressed"
gunfire: "BOP. BOP." The point man had seen a "man peeking out
of the door" on the right side of the hallway[.]
Bissonnette writes
that bin Laden ducked back into his bedroom and the SEALs followed, only to
find the terrorist crumpled on the floor in a pool of blood with a hole visible
on the right side of his head and two women wailing over his body.
Bissonnette says the
point man pulled the two women out of the way and shoved them into a corner and
he and the other SEALs trained their guns' laser sites on bin Laden's
still-twitching body, shooting him several times until he lay motionless.
Kevin Jon Heller, a senior lecturer at Melbourne Law School
and a blogger for Opinio Juris, has quite a different take. Heller argues that
the shots fired at Bin Laden's body after he was already wounded make his
killing a war crime. "[Bissonette] and his fellow SEAL thus intentionally
killed bin Laden while he was 'otherwise incapacitated by wounds' and hors de
combat," Heller writes. "That was a war crime—the war crime of
wilful killing." Heller had previously defended the operation as legal.
Kenneth Anderson, a law professor at American University
Washington School of Law, disagrees. "Being wounded does not necessarily
render one hors de combat; hors de combat means they’re not actually posing a
threat to you," Anderson says, citing moments where wounded combatants
have used hidden guns or explosives to kill American servicemembers who thought
they were surrendering or incapacitated. "There have been far too many
incidents in the past, including in Afghanistan and Iraq...cases where American
soldiers get killed because they were mistaken about the other side, or parts
of the other side surrendering... There’s still no obligation to pause the
attack, you’re allowed to put your own safety first."
Author of “No Easy
Day” Admits to Committing a War Crime
by Kevin Jon Heller August 29th, 2012
I claimed that the
killing of Usama bin Laden was perfectly legal under international law.
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.
As recounted by
Schmidle, the SEALs’ actions were consistent with IHL.
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.
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):
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.
My Response to Ken
About Bin Laden’s Death (Updated)
by Kevin Jon Heller August
31st, 2012
A recent post at Mother
Jones mentions my view of UBL’s killing and
provides Ken’s brief thoughts on his death:
To be clear, though, I
am not claiming that being wounded necessarily makes a combatant hors
de combat. I chose my words carefully: UBL was hors de combat because
he was “otherwise incapacitated by wounds” — the language in Art. 41(2)(c) of
the First Additional Protocol.
Wounding is not enough; incapacitation is required.
Owens clearly states
that UBL was shot and fatally wounded by someone else;
after “[taking] their time entering the room,” Owens and his fellow SEAL found
UBL lying on the floor, “blood and brains” spilling out of his skull, being
attended to by his wives. Only at that point did they shoot him.
It is thus problematic to see UBL’s death as part of a continuous attack — or
to imply, as Ken does, that viewing UBL’s death as a war crime requires imposing
“an obligation to pause the attack” on Owens and his fellow SEAL. The
facts clearly indicate that their attack on UBL began when
they first discovered his prone, dying body.
(DO- why did author
italicize “some else”? They are one
team. How could it make a difference?)
(the team only began
after Bin Laden had his brains spilling out of his skull --, Kevin argues,
falls within “otherwise incapacitated by wounds.”)
Finally, and most
importantly, we need to recognize the implication of the “danger” argument made
by Ken and a number of commenters on my previous post: if a combatant who is in
his death throes with his brains spilling out of his head does not qualify as
“incapacitated by wounds,” Art. 41(2)(c) is a complete nullity, because by that
standard no wounded combatant could ever be considered incapacitated.
If UBL’s wounds were not
incapacitating, what wounds could be?
Nor is it an adequate
response to say that the key is whether the wounded combatant had been captured
prior to his killing (and thus presumably neutralized); that response also
renders Art. 41(2)(c) a nullity, because Art. 41(2)(a) already deems a
combatant “in the power of an adverse Party” to be hors de combat.
Here is my question
for Ken or for anyone else who believes UBL’s killing was consistent with IHL:
can you please identify a situation in which a wounded but non-captured
combatant cannot be lawfully killed?
NOTE 1: Ken’s
response, like many of the comments, appears to assume that fear or suspicion
that a wounded soldier might continue to engage in combat justifies killing
him. That assumption is incorrect. As the ICRC’s authoritative commentary on
the First Additional Protocol makes clear, the wounded soldier loses his
presumptive hors de combat status only if he engages in
some kind of positive act that indicates he intends to continue fighting
(emphasis mine):
The wounded and sick
in the sense of Article 8 (Terminology), sub-paragraph (a), of the Protocol,
are those persons who need medical care as a result of a trauma, disease or
other physical or mental disorder or disability, and who refrain from
any act of hostility.… On the other hand, there is no obligation to
abstain from attacking a wounded or sick person who is preparing to fire, or
who is actually firing, regardless of the severity of his wounds or sickness.
In other words, a
soldier cannot simply assume — even based on past experience with different
wounded combatants — that a seemingly incapacitated combatant will continue to
fight if given the chance. That is an important limitation in the context
of UBL’s death; nothing in Owens’ account indicates that they believed UBL was capable of
harming them — much less that he actually tried to harm them.
NOTE 2: Don’t forget
that the First Additional Protocol was adopted in the immediate aftermath of
the Vietnam War. The Viet Cong relied heavily on nearly every perfidious
tactic imaginable, yet the drafters of AP I still adopted Art. 41(2)(c).
So it impossible to argue that al-Qaeda’s tactics somehow render the
“incapacitated by wounds” provision obsolete.
Ben,
As for your first
comment, my point is that the critical question is whether the SEALs had
time to determine that UBL had been incapacitated by the wounds inflicted
by whomever shot him. Had the SEAL who shot UBL continued to fire at
him even as he fell to the ground with his brains spilling out, I would
accept that he would not have had time to recognize that his earlier shots had
rendered UBL hors de combat.
But that is not the
situation here.
The two SEALS saw UBL
shot (or at least shot at), “took their time entering the room,” saw UBL
on the ground with his brains spilling out and in his death throes, and then
killed him. That is not a continuous attack,
and I think it is very difficult to argue that the SEALS did not have time to
recognize that UBL had been rendered hors de combat by his
wounds (And that assumes, of course, that the SEALs honestly believed
that he was not hors de combat when they fired at him, which
is anything but clear from Owens’ account.)
9.01.2012 at 2:37 pm EST Kenneth Anderson
Quick note from Ken –
I realize you can’t tell from the article, but I hadn’t actually read Kevin’s
piece and didn’t know it was up when I gave the reporter a quick reaction.
Not reacting to Kevin here – I’ve been away from blogging for some family
reasons – plan to be back in a week – and haven’t read either Kevin’s post or
the Mother Jones piece. Adam Serwer mentioned Kevin’s blogging in our
conversation, and I thought he was referring to Kevin’s post from when UBL was
killed. I’m going to keep my promise to my wife and stay away from this
until I am genuinely back, though. Ken
