"Huh?" is a technical legal term,
which means "I object to that statement - and, moreover, I strenuously object to that statement." The Great White Bear auditioned for Jessep's character in A Few Good Men, but Jack Nicholson won out. :D
That being said, I strenuously agree with this statement:
Quote:
from GWB
The resolution is in the necessary approach to the issue. Insurgencies are fought (or should be fought) using the Laws of War. Crime is fought using the Rules of Law. They are very different and get folks in a lot of trouble when you try and mix them with buzz words like "Criminal Insurgencies". It is either a crime or an insurgency. When you mix the approach there is a set of baggage that develops that works against what your trying to do at the strategic and tactical level.
and, moreover, that mixture creates confusion (and some bad prosecutions) at the operational law level to boot.
That being said, a criminal organization can become enough of a threat to the political institutions and stability of a state that the government would be justified in enacting its constitutional equivalent of an AUMF (Authorization to Use Miliatary Force). Since the criminal organization is not a state, the "AUMF" would kick in the Laws of War that apply to irregular forces, including Common Article 3 of the 1949 GCs.
That legal analysis is based on the US Laws of War as interpreted by the DC Circuit, based on the SCOTUS plurality, in the Gitmo detainee cases. The EU (for example) would have a different take - e.g., "terrorism" and "terrorists" must be dealt with under the Rules of Law. Which way to go is really a policy question; and depends for its resolution on the specific circumstances then current in the country having the particular problem.
Regards
Mike
This Bob's World argument ...
Quote:
from BW
I would just add that neither the requirement nor the authorization to employ "military force" against some party should automatically elevate the legal status of some situation to "war."
has lost in the court where it counts (DC Circuit), which has followed the SCOTUS plurality in Boumedienne.
I've no problem with the power of the Legislative and Executive branches to join in an authorization to use military force against a designated violent non-state actor - and neither does the DC Circuit. That is the constitutional role of those branches - and it is a political question.
That being said, just because you have a hunting license does not mean that you have to kill everything in the forest. But, it is not up to the courts and lawyers to pontificate on the limits of wisdom and discretion granted the military under a constitutional AUMF.
Armed conflict under the Laws of War (Laws of Armed Conflict; International Humanitarian Law - to use all the terms) comes in many sizes and shapes. You, Bob, are taking the extreme existential case as the only permissible "war"; and thereby, seeking to limit the Laws of War to that.
In that, you are dead wrong. Of course, you can assert your beliefs until the cows come home or stray away; but that doesn't make them a winner.
Regards
Mike
Not so, and I'm also addressing policy implications
In truth, "every situation where we want the authorities to employ military force" can be, by definition of "military force", designated an "armed conflict" (formerly known as "war"). Not every "military operation" involves "military force"; and so, some military operations cannot involve an "armed conflict".
The major disconnects in our policies have come from a refusal to state openly what is going on in fact - the employment of military force - and, therefore, a situation of "armed conflict". Your arguments throughout this entire area are based on your own derivations from what you consider general principles. Sorry, but all of this is not science; it's art and general principles are at best a fuzzy outline, which must yield to the specifics of the given case.
The question of what "strategic risk" should be taken is up to the policy makers at that level. It sure as hell should not be up to some operational lawyer, no matter how brilliant or not.
Regards
Mike