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Koh on the bin Laden raid

Koh on the bin Laden raid

State Department legal advisor Harold Koh has posted on the legality of the bin Laden raid. He quotes at length from a speech he gave last year and adds very little that’s new to the conversation. He does reinforce one important point: that sending in troops rather than conducting an airstrike was a way of ensuring that the operation minimized civilian casualties and was therefore a manifestation of the legal doctrines of proportionality and distinction between civilians and combatants:

[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.

But Koh says nothing about the most difficult question: Pakistan’s sovereignty and the compatibility of the raid with the U.N. Charter’s restrictions on the use of force. The administration is sticking to the justification that the U.S. is at war with al Qaeda and is clearly not interested in trying to delineate when that state of war permits nonconsensual operations on another country’s territory. This is not at all surprising. Doing so would require the administration to distinguish between countries competent to deal with terrorists on their soil and those less competent. The knottiest legal question about the OBL raid — and many other operations against suspected terrorists — therefore remains very much unanswered.