Tag: OBL

Making me Mlad: Why you can’t compare the Mladic and Osama bin Laden raids

Charli has been writing about international justice, arguing against ‘myths’ – and comparing the efforts to bring Mladic to justice as opposed to the rush to shoot Osama bin Laden in the face. Others, such as John Feffner at Foriegn Policy in Focus have made similar arguments.

I agree and disagree with some of the points being made. However I am concerned that that many of these arguments seem to completely ignore or fail to appreciate the different context of the Mladic and OBL raids. I just don’t think we can pretend these are at all similar situations – even looking beyond “status” issues, (who was/is a combatant/civilian etc). Rather, I think the core issue here is time and context.

For lack of a better term, bin Laden was caught and killed “during” the War on Terror, a period of active hostilities between the US and al-Qaeda. Mladic was captured over a decade and half after the Dayton Accords. The situation in the Balkans is far from perfect, but it’s certainly calmer. People have been able to get on with their lives as they rebuilding their homes, villages – even if scars can never perfectly heal.
The ICTY was established in 1993 (- a great way for the West/UN/European countries to look like they were doing something about the ethnic slaughter when they really weren’t). Mladic was indicted in July 1995 and surely was eligible to be captured and extradited from that point on.


There’s no question that it’s been a painful and horrible wait, but I wonder if it is also one that has allowed cooler heads to prevail? There have been protests in Serbia, of course. But they have not been on a truly significant scale. Mladic has been caught, charged, extradited (despite appeals) in under a week. Would this have actually been possible in 1995? Possible without tearing apart a freshly signed peace treaty? Aggravating a tense situation? And an angry population?

I’m not saying that international justice does not work – but I do not think 1) it always needs to take the form of an international court 2) that it should be done immediately.

Although it’s been nearly a decade since 9/11, the fact that the War on Terror has been ongoing makes the OBL situation different. bin Laden was a leader of a terrorist group actively planning attacks against the United States and other targets. Mladic, clearly a jerk of international proportions, was guilty of crimes but had returned to civilian life – and so have many others. The Hague will not become the centre of terrorist attacks or even protests. I’m not sure the same could have been said for OBL. Does this mean a trial for both was impossible? No. Does this mean the circumstances were very, very different? Yes.

The bottom line – you can’t make a fair comparison between Mladic and bin Laden when it comes to international justice.

The other reason this consideration is important is that the UN has released a report saying that both sides have conducted war crimes in Libya. Is it the best idea to indict individuals now? Or wait until the conflict is over, the country has a chance to catch its breath and then begin to take a good hard look at what has happened on its territory? Time may or may not tell.

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Five Myths About International Criminal Trials

On the basis of what empirical studies I could find about the effectiveness of international tribunals versus execution of mass-murderers, I debunk the following in my latest Current Intelligence essay, responding to effects-based claims on both sides of the debate about whether Osama bin Laden should have been tried instead of summarily executed:

MYTH #1: OBL Could Never Have Received a Fair Trial.
MYTH #2: OBL Would Simply Have Used the Court as A Way to Promote Jihadism.
MYTH #3: A Trial Would Have Become a Focal Point For Further Attacks.
MYTH #4: A Trial Would Have Helped Deter Future Acts of Jihadist Terror and Build a Culture of Human Rights.

And lowest but most:

MYTH #5: The Question is Whether Trials Work.

In the final analysis, whether summary executions of terrorist leaders are preferable to trials is not a question of pragmatics. It is a normative issue. It is about whether an easy, illegal option with few benefits and certain drawbacks is preferable to a harder, legal option with equally uncertain outcomes. It is ultimately about whether or not the leaders of civilised nations believe they themselves are above the rule of law.

Read the whole thing here.

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Harold Koh at Opinio Juris: “Killing OBL was Legal.”

Like Robert Haddick, though for different reasons, I was glad to see a State Department spokesperson publicly issue the legal justification for the manner in which the OBL raid was carried out.* Also as a blogger, I was delighted to see the explanation take the form of a much-trumpeted guest post at Opinio Juris.

Slightly disappointed, however, at the content of the post, posted earlier today.

To begin with, Harold Koh focuses solely on jus in bello concerns, although important legal questions were about whether it was legal to conduct the raid on Pakistani soil. I can imagine a number of ways you could argue that case, any of which would have been fascinating from a norm development perspective, so I’m disappointed the State Department is so opaque on this.

Koh also spends over half the post simply pasting in his comments on drone warfare last year – interesting since drones weren’t even used for this operation. It makes some sense, however, given that the real issue with drones isn’t the drones – it’s targeted killings.

The most interesting part of the argument, however, and what we should watch for commentary on in the next few days, is Koh’s comments on the law of surrender – addressing the conditions under which bin Laden would have been captured instead of killed. Here is what he writes:

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 [my emphasis]. But where that is not the case, those laws authorize use of lethal force against an enemy belligerent, under the circumstances presented here.

Now, I do not understand the law of surrender perfectly, and when I went to look it up I had a hard time identifying the appropriate clauses, though I’ll update this post as soon as I hear back from people trained in the nuances of Hague and Geneva law. (Help, Stephanie?) But in my non-lawyer’s understanding the requirement to accept surrender if it is requested is not contingent on any contextual understanding of whether in the judgment of belligerents the circumstances render it ‘feasible’.**

Milbloggers who have commented on the bin Laden raid echo this understanding – here for example is Ghosthawk:

Look, in war, if someone is attempting to surrender, you have a legal and moral obligation to accept that surrender.

Ken Anderson, on the other hand, who is actually a lawyer, tells us at Volokh Conspiracy that Koh’s articulation is entirely consistent with both treaty law and the UCMJ:

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.

Unfortunately Ken doesn’t point us to the specific provisions in his post, so that we can interpret them for ourselves. I hope to get you more on this as my own understanding improves, and I can’t wait to use this as a case study in Rules of War next year.

The open thread on Koh’s remarks is here.

*(More on the latest details of the raid here. Kavetching about the coverage of raid details here.)

**To be absolutely clear, I am not claiming that bin Laden tried to surrender, or that Seals were required to offer him that option if he didn’t ask for it. I’m saying that hypothetically if he had asked for it, I am unfamiliar with conditions under which it would have been legal for troops to then kill him anyway due to it being “infeasible” to accept his surrender.

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