The Navy's Respose to a given Scenario

[VernonChisholm]

This is my first time to this site, so sorry if I posted the question in the wrong place!

Given the recent episodes of pirate activities against passing ships in the North Africa region, I put the following situation forward to the forum---perhaps there are some naval offricers can answer this:---


A group of pirates have seized cotrol of a cruise ship carrying hundreds of passengers. It is known that they are armed with anti-aircraft missiles (this is known the hard way---an aproaching Search-And-Rescue helicopter was shot down when it got within lethal range), along with other heavy weapons. It is also known that the pirates have the components for a long-range nuclear missile system, and, if given sufficient time, they could assemble, arm, and launch this weapon at any surface or land target they choose.


Armed with all this information, what can the Navy legally do? I'm sure that, if a country has confidence in her military, I'm sure she can legally launch an operation to re-take the ship. But my BIG question is this---does any country have the legal right to treat that ship as hostile---to attack and destroy such a ship in a pre-emptive strike? Cound any country legally even issue a threat to do so?

[John T. Fishel]

that the Indian Navy attacked the cruise ship and sank her. In the explosion, all hands (and passengers) were lost. What is the international community through its institutions going to do about it? Take India to the ICJ? Only with India's consent. I'm sure the lawyers here might see things differently - but maybe not since international law has no enforcement mechanism other than states themselves.

BTW, you should introduce yourself.

Cheers

JohnT

[jmm99]

you let this mere fact ....


... since international law has no enforcement mechanism other than states themselves

blind you to the wonderful (in its old sense, "full of wonderment"), argumentive world of I Law punditry.

Hmm ... a bit of 24 in the hypothetical, perhaps.

In any event, introductions first; then maybe we think about it.

[John T. Fishel]

I really was thinking of you when I "penned" the final clause.:D

Cheers

JohnT

[jmm99]

I know (and knew) it - JTF pulls the lawyer's spaded tail. :eek:

Was reading some studies re: ESFID - good job. :) Think I've said that before, but maybe not.

Cheers for the evening

Mike

[VernonChisholm]

Perhaps I can introduce myself here....

I was in the USAF during the Reagan Years, and during my time in service I was stationed in Europe (Germany and Britain particularly) I went to few air shows while I was there---I particular remember the Paris Air Show, where they show not only military aircraft, but air-launched weapons as well. I remain a military enthusiast, and since then I studied military/international events. I am very much an enthusiast of military games, such as Steel Panthers, Harpoon ANW, and I find that even a lay-person can learn a lot about modern warfare from those simulation games, as well as reading Tom Clancy/Larry Bond novels.

But war-games only simulate the technical process; I often wonder about the legal ramafications of given military action. For example, the former Soviet Union shot down a Korean Airliner in 1983. Much condemnation was issued, but nothing was done. A more recent example, countries, such as North Korea, have conducted nuclear tests, and test-fired missiles, even to violating the air space of their neighbor-states. Again, nothing was done more than issue public denunciationss and talk of sanctions. And definitely, one can debate 9/11 and America's respose to that terrible day.

I often wonder if---fully assuming the offended country has the power and the WILL to retaliate---would they have the international law on their side. Another exeample: could the Japanese---or even South Korea---be deemed justified if they launch missiles to destroy the next batch of missile North Korea wish to test?

[VernonChisholm]

that the Indian Navy attacked the cruise ship and sank her. In the explosion, all hands (and passengers) were lost. What is the international community through its institutions going to do about it? Take India to the ICJ? Only with India's consent...international law has no enforcement mechanism other than states themselves....


Being a total novice to international law, I didn't know there was no way to truly enforce international rules. So, other than the US/UK/West stepping up and, in effect, VOLUNTEERING to "enforce the rules", there's practically nothing to stop North Korea from conducting "operational checks" on her weapon systems!

[jmm99]

addressing only the question asked:


fromVC
A group of pirates have seized cotrol of a cruise ship carrying hundreds of passengers. It is known that they are armed with anti-aircraft missiles (this is known the hard way---an aproaching Search-And-Rescue helicopter was shot down when it got within lethal range), along with other heavy weapons. It is also known that the pirates have the components for a long-range nuclear missile system, and, if given sufficient time, they could assemble, arm, and launch this weapon at any surface or land target they choose.

Armed with all this information, what can the Navy legally do?

Let's make some simplifying factual assumptions: (1) the ship is a US registered ship on the High Seas; (2) the helicopter shot down was US. And, that all US assets are available to POTUS - just as all the assets stated are available to the "pirates" (who, from the facts, are best classed as transnational violent non-state actors).

The answer is not complex legally.

1. POTUS could rely on his inherent emergency powers to take all necessary military and civilian steps to address the problem; but, because nuks are involved, an emergency closed session of Congress (to generate an AUMF - Authorization to Use Military Force) would seem wiser. That would not take that long and, during that time, force planning and deployment would be ongoing. Then ...

2. The "pirates" (TVNSAs) are clearly a designated "hostile force" (because they shot down the helicopter, are holding hostages and have nuks), as to whom "kill or capture, any time, any place" becomes the ROE.

3. All military options are legally on the table, subject to principles of distinction and proportionality (since there are civilians on board), but more particularly to the practical issues of nuclear fallout. Presumably, this problem would fall into the hands of SOCOM's JSOC (http://www.socom.mil/), where we would reach a highly classified stage of what would be done - as opposed to what legally could be done.

[Boondoggle]

ahhhh proportionality, a favorite of military attorneys. I would assume that should anyone ever have a WMD in an immediate position to utilize it, at least under the U.S. interperation of that concept, there would not be a weapon in are arsonal not at our disposial. And luckily the hypo described is not techically feasible... unless the "cruise ship" they've seized is actually a nuclear sub.

Here's one that I've been kicking around for a few months, and may be closer to reality (much closer considering this weekend's news). Say NK has a missle in position to launch against the US. There is no scientific purpose to its launch, it is either the "real thing" or a highly provocative test. US intelligence shows in real time that the launch is set to begin in minutes and US assets are available to destroy the missle on the launchpad. Other assets have the ability to strike at the missle in flight.

Can we (A) strike the missle on the pad? (B) Strike it in flight before its target can be ascertained? (C) Does the answer change if there is strong, but not confirmed, intelligence that NK's nuclear program has developed a nuclear weapon that can be employed via this missle?

There is also the armistice that plays into this, but leaving that out for a minute, I think that could be an interesting, but extremely difficult position for the President, not withstanding NK's ability to ground Seoul into rubble if provoked.

And one more thing. To my layman friends I like to say that the Law of Land Warfare, or simliar legal topics, would be more adequately described as "international customs and courtesies" rather than "international law" given some of the issues JTF pointed out (though I'd think there would be many economic ways, or bank accounts, that could be vulnerable for India in such a circumstance through foreign courts). Calling it "winner's justice" is too base, but given the endless differences in morals, legal cultures and customs of competing nations, to say that there is a law in this area is fool's gold for those searching for it.

[Entropy]

Vernon,

First of all, welcome!

Secondly, I'm not a lawyer either, but nations have the inherent right to self defense and a nuclear-missile armed ship seems to me to be a clear case where preemptive action can be taken.

[wm]

Sometimes, perhaps more often than we are willing to admit, what is morally right/wrong is quite outside the scope of what is legal/illegal. I think being more concerned with what one ought to do from a moral perspective than what one is allowed to do from a legal perspective has a great deal of merit. The law is a human artifact; morality may not be so pedestrian in it origin or transient in its nature.

I concur with Boondoggle that the original case is rather unrealistic--having the means to bring abpoard and assemble a nuclear weapon/delivery system on the deck and then deliver a nuke from a cruise ship is rather like a plot from a James Bond movie. Maybe a particularly virulent biological agent in a cruise missile's warhead is better and Boondoggle's NK missile alternative is even more palatable. However, he destroys the case for a pre-emptive strike against the missile on the pad by noting that the ability exists to strike the missile while in flight.

Moral arguments justifying a pre-emption usually require that three conditions be satisified--


known intent to harm "the good guys" by the target of the pre-emptive strike,
active preparations to do harm by the target of the pre-emptive strike, and
urgency in terms of time to act (the "good guys" can't wait too long or really bad things will happen to them).

Trying applying these conditions as well as the proportionality and distinction concerns.

[Boondoggle]

to my hypo that I should have put in there. There is little doubt that a strike on the missile before it launched would have near 100% probability of success. I think recently retired LtGen Obering was asked recently described our ability to shoot down a NK missle in flight as a bit more hedged (can't find where I read that) although I do find articles where Admiral Keating in March stated it was a "high probability" as to a specific missile launch he was asked about at that time. But if you know you can take it out on the pad, but you're only pretty to very sure you can take it out in the air, does that change the calculus?

[wm]

to my hypo that I should have put in there. There is little doubt that a strike on the missile before it launched would have near 100% probability of success. I think recently retired LtGen Obering was asked recently described our ability to shoot down a NK missle in flight as a bit more hedged (can't find where I read that) although I do find articles where Admiral Keating in March stated it was a "high probability" as to a specific missile launch he was asked about at that time. But if you know you can take it out on the pad, but you're only pretty to very sure you can take it out in the air, does that change the calculus?

Several issues, mostly tied to proportionality and distinction come to mind. Is the attack at the launch point likely to initiate a nuke blast? If so, how many civilian deaths as a result? Same issue for in-flight by the way. Everything else being equal, it's probably "right" to do the sure-thing pre-emption versus the only probable interdiction. But I have trouble asserting the "all things being equal" clause.

One item always concerns me, and it has to do with taking risks. Those of us wearing uniforms have the moral duty to take more risks to minimize the risks to those folks not wearing uniforms (and that includes the non-combatants on both sides). That's the trade off we take for being allowed to kill other combatants. One needs to consider whether the pre-emption creates more risk for non-combatants while reducing risk to combatants. Once upon a time, air defense pilots understood that they might have to sacrifice themselves by crashing into an enemy bomber--a last resort tactic of course, but that's a risk they were supposed to be prepared to take. Don't know if that value still is understood and also don't know whether a modern interceptor aircraft can crash into an IC/IRBM. But, if the latter is a feasible COA, it may morally supersede a pre-emption on enemy terrritory (if the Patriot/equivalent un-manned defense fails).

[VernonChisholm]

addressing only the question asked:



Let's make some simplifying factual assumptions: (1) the ship is a US registered ship on the High Seas; (2) the helicopter shot down was US. And, that all US assets are available to POTUS - just as all the assets stated are available to the "pirates" (who, from the facts, are best classed as transnational violent non-state actors).

The answer is not complex legally.

1. POTUS could rely on his inherent emergency powers to take all necessary military and civilian steps to address the problem; but, because nuks are involved, an emergency closed session of Congress (to generate an AUMF - Authorization to Use Military Force) would seem wiser. That would not take that long and, during that time, force planning and deployment would be ongoing. Then ...

2. The "pirates" (TVNSAs) are clearly a designated "hostile force" (because they shot down the helicopter, are holding hostages and have nuks), as to whom "kill or capture, any time, any place" becomes the ROE.

3. All military options are legally on the table, subject to principles of distinction and proportionality (since there are civilians on board), but more particularly to the practical issues of nuclear fallout. Presumably, this problem would fall into the hands of SOCOM's JSOC (http://www.socom.mil/), where we would reach a highly classified stage of what would be done - as opposed to what legally could be done.


Thanks, jmm99---I appreciate your reply!:)

I appreciate all the input to my scenario!

:):):)


PS: ONE MORE QUESTION........

A warning shot---a shot across the bow, or shot above the ship...could that be allowed to prevent this hypothetical ship from trying to escape? If the ship is ALREADY in international waters, but can STILL POSE the above-described threat...can action still be taken?

Suppose the threat happens to be an CIVILIAN AIRCRAFT, flying where it should not be flying (ie over restricted airspace) could a warnig shot be fired prior to actually shooting down the plane?