Tuesday, May 17, 2011

Yale law professor: bin Laden killing was legal

By Donald Sensing

Jed Rubenfeld, professor of law at Yale Law School and a former U.S. representative to the Council of Europe, in "U.S. justified in killing Osama Bin Laden:"

An "extrajudicial execution," that's what many in the international community are now calling the killing of Osama bin Laden. The U.N.'s Office of the High Commissioner for Human Rights has called for an investigation. According to a U.N. 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." ...
What Prof. Rubenfeld surely realizes, though he didn't write, is that the intention of the U.N.'s "investigation" is not actually to determine whether double tapping OBL met some legal criteria. It is to hamstring American might and hamper our efforts against Islamist terrorists. It is to put the United States into a box.

As Prof. Rubenfeld points out, there is no existing international treaty or Convention on warfare that says that an enemy combatant must be given a "meaningful prospect of surrender," or any opportunity at all. Says the professor,
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.
I remember very well an incident during 1991's Gulf War in which American media excoriated US forces who observed Iraqi tanks heading toward their position and destroyed them with anti-tank missiles. Why the media fury? Because in the breathless words of a reporter whose face I remember well but can't put a name to it, the tanks were moving toward the American position "with their turrets reversed," that is, pointing toward the tanks' rear. So, the reporter continued, "the tanks were surrendering!" She claimed as well that a reversed tank's turret was a recognized sign of surrender.

Which is just stuck on stupid. First, tanks cannot surrender at all, turrets reversed or not. Only soldiers can surrender. If the crews wanted to surrender, all they had to do was dismount their tanks, casts away arms and raise a white flag (an undershirt would do - so many Iraqis used white undershirts to surrender during that war that Saddam finally made it a capital offense in the army even to possess one). Second, because tanks cannot surrender, it does not matter where the main gun is pointing. You just shoot the tank.

There was a later incident involving Saudi troops who accepted the surrender of a small group of Iraqi soldiers, including a handful of Iraqi officers, who did raise a white ensign and proceed on foot toward Saudi soldiers. When the Saudis went out to meet them, the Iraqis raised weapons and shot the Saudis down. Other Saudis immediately gunned down the Iraqis, of course, but several Saudi men lost their lives. From that day on, that unit of Saudis took no prisoners - any Iraqi showing a white flag was shot. And that was both entirely reasonable and legal. Perfidy of surrender is explicitly forbidden in the international conventions, and once perfidy is done, it is justifiable to expect it will be practiced again.

As Prof. Rubenfeld explains, perfidy has been the hallmark of bin Laden's acolytes. They are,
... 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. ... 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.
The SEALs were never under any obligation to do anything to bin Laden except shoot him on sight. As Prof. Rubenfeld points out, "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."

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