State Department legal adviser defends lawfulness of Bin Laden killing

[JURIST] US State Department [official website] Legal Adviser Harold Koh on Thursday defended the killing [JURIST report] of Osama Bin Laden [JURIST news archives] saying it was "consistent with the laws of armed conflict and US military doctrine" in a brief statement [text] published on OpinioJuris.org. Koh referenced a speech he made [JURIST report] in March 2010 defending the use of predator drones to kill US targets where he argued that al Qaeda is an imminent threat to the US, giving the US authority to defend itself using lethal force, which means targeting high-level al Qaeda leaders. Koh explained that the Obama administration is dedicated to the principles of distinction, meaning limiting attacks to military objectives, and proportionality, meaning limiting the death of civilians and damage to civilian property. In his recent statement, Koh said that materials collected during the Bin Laden raid confirm suspicions that Bin Laden remained an imminent threat to the US and its citizens and that his failure to submit to an appropriate surrender authorized the troops use of lethal force:

[T]he manner in which the U.S. operation was conducted—taking great pains both to distinguish between legitimate military objectives and civilians and to avoid excessive incidental injury to the latter—followed the principles of distinction and proportionality described above, and was designed specifically to preserve those principles, even if it meant putting U.S. forces in harm's way. 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.
Former US Supreme Court Justice John Paul Stevens also recently commented on the killing of Bin Laden during remarks at Northwestern University, saying the killing was legally justified [CNN report] and that he was proud of the US Navy SEALs who carried out the mission.

Earlier this month, US Attorney General Eric Holder [official website] said the killing of Bin Laden was lawful and justified. Testifying before the US Senate Judiciary Committee [official website], Holder said that the shooting of Bin Laden was "consistent with our values," and that the soldiers who killed him "conducted themselves totally appropriately." Some do not agree. Curtis Doebbler, professor of law at Webster University and Geneva School of Diplomacy and International Relations, both in Geneva, Switzerland, argues the killing violated international law [JURIST op-ed] because it was a targeted killing carried out within Pakistan without the country's permission and because it was an "extrajudicial executions that violate the right to life."

 

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