Charli Carpenter wasn't impressed with State Department Legal Adviser Harold Koh's defense of the legality of the raid that killed Osama bin Laden:
I still see a disconnect here. I think Koh is spot on until he gets to the clause “under circumstances where it is feasible” because he has already communicated the contingent assumption that a genuine surrender occurs and US troops know it occurred, so the “feasible conditions” criteria he is describing seem to imply that even at that point US troops have discretion. Upon my reading of the Geneva Conventions this is false.
Carpenter adds, "Failing to accept an unconditional surrender from an unarmed enemy ranks right up there with assassination and the use of chemical weapons. No ifs, ands or buts about it." I initially didn't see Koh's statement as moving the goalposts, but I wonder how much of this has to do with the presumption that al-Qaeda leaders will be wearing suicide vests. You could easily see how "feasibility of surrender" could creep into surrenders by al-Qaeda fighters or leaders being unacceptable unless they're completely naked, making it almost impossible for them to do so. An obvious and compelling response would be that service members shouldn't have to give up their lives to trickery, but that doesn't change the law. But as Carpenter notes, Koh's formulation seems to justify the killing of combatants even under circumstances in which surrender is known to be genuine.
