It was an exciting day yesterday at Opinio Juris, as State Department Legal Adviser, Harold Koh, in a blog post, laid out the U.S. Government’s official legal justification for killing bin Laden.
Was it really that exciting though? Koh reiterated the rationale he gave in a speech last year to justify targeted killing. Then he argued that the bin Laden killing was justified because it was executed in accordance with those principles. Or as Chris Rogers, a human rights lawyer with the Open Society Foundations, stated in the comments section, “So Koh’s response is essentially to cut and paste his ASIL speech? There are important legal questions that continue to be unanswered, which Koh’s response has done nothing to clarify.”
Koh’s international legal argument is that the United States is engaged in armed conflict with al Qaeda, bin Laden was the leader of the enemy force, he posed an imminent threat, and the operation was conducted in accordance with the principles of distinction and proportionality. But he doesn’t delve into the specific complexities that have dogged the law blogs for the past couple weeks. On the Pakistani sovereignty issue, he does say:
Of course, whether a particular individual will be targeted in a particular location will depend upon considerations specific to each case, including those related to the imminence of the threat, the sovereignty of the other states involved, and the willingness and ability of those states to suppress the threat the target poses.
But he doesn’t say specifically how the U.S. considered Pakistan’s sovereignty. Is the argument that there was no violation of Pakistan’s sovereignty because there was a secret U.S.-Pakistani deal that allowed for such a raid? Is the argument that there is no sovereignty issue because Pakistan consented to the raid after the fact, even though it didn’t know about it beforehand (as some have argued)? Or is it that Pakistan was unwilling or unable to deal with the threat itself? If so, how was this determined? And what, in general, is the standard for how this should be determined?
He also didn’t address the geography issue I wrote about earlier in the week. He asserts that the United States is in an armed conflict with al Qaeda. But are there geographical constraints to this armed conflict? Or can the U.S. target senior al Qaeda leaders no matter where they are (and as long as the operations adhere to the principles of distinction and proportionality)?
I recommend the Opinio Juris comments thread on the post, as well as Kenneth Anderson’s post at The Volokh Conspiracy, which address these, and other still unanswered questions.
