A Good Op-ed on the Killing of Osama

Jed Rubenfeld,  a professor of law at Yale Law School and a former U.S. representative to the Council of Europe, has written a very good Op-Ed about the legality of killing Osama Bin Laden. His approach is worth noting, for being strongly based on common sense:


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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 view that  a result where killing Osama isn't legal, would make international law seem ridiculously academic, is one I agree with. If we can't kill Osama Bin Laden, who can we kill?

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 honorably, 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.

Read the whole article, which is well worth a read.