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Ken Anderson on Whether IHL Requires an Invitation to Surrender in the Context of an Attack Against a Lawful Target

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Wednesday, May 4, 2011 at 4:15 PM

Ken Anderson (Lawfare’s intrepid book review editor, among many other titles) has been kind enough to permit me to post this passage from an email exchange we had earlier today.  It makes a point that I think is very important and very under-appreciated:

I think there is a move being made by various people like the Special Rapp to use this as an opportunity to try and re-define the law of attack by inserting into it an obligation to invite surrender that is not part of the law of war.  The administration should not take the easy way out and say, okay whatever makes you happy so long as you get to yes on killing Bin Laden.  The administration does not actually believe this as a matter of law, I personally doubt it behaved this way in fact in this case, it hasn’t behaved this way in other targeted killings (no air attack can meet this standard, after all), and it won’t in the future.  Sliding into this move as a way of avoiding apparently unnecessary debates now simply kicks the can down the road and will end in legal tears for someone.  It is far better for the administration to assert its actual legal position on this now, in the strongest factual case it could possibly come up with. 

Moreover – and I am pretty sure no one has made note of this yet – if one does endorse even implicitly a “invite surrender” view, the administration will actually have both more incentives to strike from the air with drones – and more criticism.  It removes the “he said-she said” over whether the person was invited or attempted surrender, while ratcheting up the legal debate over whether there is an obligation to use human teams in order to invite surrender on the ground.  The administration would be undermining how its operational law officers understand the fundamental nature of attack, whether in conventional operations or special ops, by not pushing back hard on this view and rejecting it outright. 

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