Dear Dr. Kidder,
In your Ethics Newsline commentary entitled "’Wanted Dead or Alive’: America’s Debate on Assassination" (12/24/01), you claimed that killing Osama bin Laden if discovered "gravely wounded, weaponless and alone, and pleading for mercy . . . could be justified under the rules of engagement." I believe that you are mistaken about that. Although assassination may well be justified in certain cases on moral and legal grounds, in the scenario as you described it, Osama bin Laden would probably be classified under international law as a surrendered soldier and prisoner of war, and thus subject to the following immunities:
The Hague Convention of 1907 states: "It is especially forbidden to kill or wound an enemy who, having laid down his arms, or having no longer means of defense, has surrendered at discretion."
The 1949 Geneva Convention Relative to the Treatment of Prisoners of War also prohibits the killing of surrendered soldiers.
The United States is a signatory to both of those conventions, and their rules are incorporated in the contemporary U.S. Army Field Manual 27-10, The Law of Land Warfare. Any U.S. soldier who violated those rules, or any commander who ordered violations of them, would be committing war crimes. A web version of the Army manual is at: http://nile.ed.umuc.edu/~nstanton/FM27-10.htm
The ethical rationale behind those rules is the just-war principle of non-combatant immunity. When a soldier surrenders, he/she deserves the same immunity from direct killing as civilian noncombatants, because he/she no longer poses a threat to the lives of their enemy combatants.
Rather than killing bin Laden in this case, I would recommend giving him humane medical treatment and putting him on trial for mass murder.
Incidentally, you may be interested in reading the attached article of mine entitled "Ethics and the Use of Force: Comparative Religious Perspectives."
Best regards,
Dr. David L. Perry
Director of Ethics Programs Markkula Center for Applied Ethics
Santa Clara University
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Rushworth Kidder to David Perry, in response to his email and his article on ethics and the use of force (see this week’s Research Report):
Dear David,
Many thanks for your most thoughtful commentary. I agree with all of your points, except for the unstated and definitional one that neither of us addressed: the nature of a combatant in a terrorist confrontation.
My recollection (and this would need checking) is that Hague and Geneva refer to uniformed forces, clearly identifiable as such, and not pretending to fly under civilian and noncombatant colors. Having agreed to wear the uniform, they forfeit certain advantages of stealth and invisibility: They are obvious, and can’t easily blend into the civilian population and evade detection. What they gain in return is the legal right to protection when captured or when they surrender.
One of the great moral debates of our age, then, is, “What is terrorism?” Is it low-intensity warfare, where combatants are guided by the rules of war? Terrorists certainly don’t think so: They actually prefer to target civilians rather than military forces, and happily use their own civilian populations as shields and even as hostages to prevent the enemy from attacking them. So ought they to be accorded the rights that uniformed soldiers have? In the not-so-distant past, spies in civilian clothes who were caught deceiving others were put to death — not treated, in other words, as soldiers.
So what is bin Laden? One could argue, of course, that his “uniform” consists of the long beard and robes typical of the Taliban — though that uniform is indistinguishable from that of many non-fighters around him. Or is he so well known as a “general” in the al Qaeda “army” that he should be given all the privileges of the Hague and Geneva? But given an apparent willingness to commit suicide — perhaps by booby-trapping his body as (in our hypothetical scenario) he lies there wounded — what is the prudent course for a U.S. soldier to take?
Now, I agree that there are some middle courses that could be found through this shoot-or-not-shoot dilemma — knocking him senseless, using a drugged dart, and so forth. But to get to these solutions, it’s often helpful to posit the two poles of the dilemma which you are trying to resolve — otherwise, you don’t know what the “middle course” is the middle of.
At bottom, once again, is the confusion surrounding our understanding of the nature of terrorism, and where it lies on (or at right angles to) the scale that runs from crime to warfare. I’m very grateful for your contributions to this debate: We need all the understanding we can get, lest our own combatants face tough ethical dilemmas without frameworks for resolution.
All the best,
Rushworth Kidder
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David Perry to Rushworth Kidder, in response:
Dear Rushworth,
Thank you very much for your thoughtful reply. I think you’re quite right that we haven’t yet clearly sorted out what counts as terrorism in distinction from war, and thus who counts as a combatant under international law. But I seem to recall that the Bush administration stated soon after the September 11 attacks that they amounted to a declaration of war against the United States, which made it possible for the U.S. to use military force in self-defense rather than having to get approval from the UN Security Council. So it seems to me that the administration is compelled by that logic to treat Al Qaeda and Taliban fighters like other combatants in war, with all of the international legal protections accorded to such folks if they surrender or are incapacitated by their wounds.
Also, although it doesn’t seem very fair, the fact that an enemy soldier kills our civilians or hides behind his own doesn’t cause him to forfeit his rights should he become our prisoner of war. International law requires us to treat him humanely after capture, even if he is a grotesque war criminal or mass murderer himself.
Cheers,
Dave
