Analysis

Winnipeg Free Press - PRINT EDITION

Osama had 10 years to surrender

By: Jeb Rubinfeld

Posted: 05/18/2011 1:00 AM | Comments: 0

(CP)

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 UN's Office of the High Commissioner for Human Rights has called for an investigation. According to a UN 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 honourably, complying with the laws of war, have earned it. And second, because we want the enemy to treat our soldiers the same way.

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 little 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 from now on.

Moreover, al-Qaida terrorists have made it unspeakably clear how they treat their prisoners, whether captured soldiers, who they have killed, or journalists such as Daniel Pearl, who al-Qaida leader Khalid Shaikh Mohammed reportedly claimed to have decapitated with his own "blessed right hand." Nothing could be more wrong-headed 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 pretence 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 admiral in an airplane in Second World War.

As far back as Grotius in the 17th century, the great international law jurists have declared that enemy leaders may be targeted in wartime. But if bin Laden's compound could simply have been attacked from the air, human rights lawyers should be praising, not condemning, the United States for sending in boots rather than bombs, which saved enemy and non-combatant lives at considerable risk to American soldiers. It is pure foolishness to suggest that by going in on the ground, the U.S. turned its soldiers into policemen required to give bin Laden "due process," place him "under arrest" and read him his Miranda rights.

There are many in the international human rights community who still refuse to accept that bin Laden or an al-Qaida training camp could be a valid military target at all. They think bin Laden was a mere criminal, so that the correct U.S. course of action was to ask Pakistan to extradite him. They say that 9/11 was a crime, not an act of war. But of course it was both, entitling the U.S. to respond either militarily or by arrest and prosecution.

International lawyers today see the law of war as "humanitarian law." That's what they call it. They see the waving of a white flag as the exercise of a human right. This is moral and legal confusion. Surrender isn't a human right. It's a privilege of lawful combat. Terrorists don't lose all legal protections -- for example, they can't be sadistically tortured, even if they torture their prisoners -- but they forfeit the special rights earned by lawful combatants, including the right to stop the shooting by raising one's hands in purported surrender.

Most of the laws of war depend on a modicum of reciprocity: We give our enemy's soldiers certain rights in the hope that they will do the same for ours. Men who make war on innocent civilians and behead their prisoners live by a different law. They should expect to die by it as well.

Jeb Rubinfeld is a professor of law at Yale Law School and a former U.S. representative to the Council of Europe.

Republished from the Winnipeg Free Press print edition May 18, 2011 A10

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