Another ASIL "Insight" - validating the OBL DA
Pakistan's Sovereignty and the Killing of Osama Bin Laden, By Ashley S. Deeks, May 5, 2011.
This article tends to a Fiddler on the Roof methodology - on one hand, on the other hand; on one hand, on the other hand ... I have long since reached the point where there is no other hand; although, I suppose there is still that "but" in my "Never Again, but ..."
Here is Ms Deeks BLUF:
Quote:
Conclusion
The facts and politics in this case make it unlikely that Pakistan’s defense of its sovereignty will find significant international support. Nevertheless, it would be useful as a matter of international law for states to agree that the “unwilling or unable” test is the correct test for situations such as the U.S. raid against Bin Laden in Pakistan and to provide additional content to that test. Doing so potentially could serve international law’s interests by minimizing legal disagreements at times when political and factual disagreements are running high.
JMM: Frankly, I think these are political questions to be settled in one way or the other by the two states. State action could range from a diplomatic protest to a declaration of war. Here, Pstan elected to protest (from article):
Quote:
In the wake of the successful U.S. military operation, the Pakistan Government objected to the “unauthorized unilateral action” by the United States and cautioned that the event “shall not serve as a future precedent for any state.”[1] Former President Musharraf complained that the operation violated Pakistan’s sovereignty.[2]
[1] Jane Perlez & David Rohde,
Pakistan Pushes Back Against U.S. Criticism on Bin Laden, N.Y. Times, May 3, 2011.
[2] See, e.g., John Bacon,
Musharraf: U.S. Violated Pakistan’s Sovereignty, USA Today, May 3, 2011,
Pstan's remedy under I Law was elected and made by it.
I don't see that process (state to state "interaction") as malign. However, those who would like to see a "World Court" take jurisdiction, are inclined to follow along with the 1986 ICJ Nic Farce (cited in the article):
Quote:
[7] Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, ¶ 194 (June 27) (“The Parties also agree in holding that whether the response to the attack is lawful depends on observance of the criteria of the necessity and the proportionality of the measures taken in self-defence.”); Yoram Dinstein, War, Aggression and Self-Defense 207-12 (3d ed. 2001); Christine D. Gray, International Law and the Use of Force 148 (3d ed. 2008) (“As part of the basic core of self-defense all states agree that self-defence must be necessary and proportionate.”).
In reality, recourse to any existing (or proposed) judicial system, for determination of what are really political-military questions, will fail because the process is too slow and cumbersome. That is one reason why I do not want us (US) to become involved in an international Bleak House.
Regards
Mike
How could one argue with ....
a Marine named "Butch" ? :D
I read it and also thought it was a good article covering the basics that a rifleman should know (I'd skip the Latin "jus in bello" - right in war):
Quote:
The law pertaining to the conduct of hostilities (jus in bello), which has developed since antiquity and includes certain provisions of the modern Geneva and Hague conventions, permits the sanctioned killing of an opponent in an armed conflict, regardless of whether he is armed at the moment he is engaged. So long as the opponent meets the minimum criteria to be regarded as a combatant (even an unlawful combatant), he may be engaged with deadly force, even if he is separated from his weapon. He may be killed while sleeping, eating, taking a shower, cleaning his weapon, meditating, or standing on his head. It is his status as an enemy combatant, not his activity at the moment of engagement, which is dispositive.
So, good job, Butch :)
--------------------------
As to the question (mostly outside of my ballpark):
Quote:
Can anyone give me an example of how our military generals get into trouble at the strategic level mixing the two?
The Phoenix program (and SVN Pacification in general) opened itself up to criticism, as one factor, by treating VCI cadres as "civilians" (RoL) - unless they were themselves armed or accompanied by armed troops (LoW). Thus, if those VCI "civilians" were killed in the course of an operation, a "war crimes" charge was already halfway home. Of course, Phoenix (a mix of "Title 10" and "Title 50") was not a purely military program - so it is not a prime example in answer to your question.
Regards
Mike
Killing or capturing the rat ....
er.., rather the mouse.
From HuffPost:
Quote:
SHODDY RAT REMOVAL IN DIRKSEN CAFETERIA: WHERE'S THE HOPE AND CHANGE?
Amanda Terkel was on the Hill today for, you know, reporting and stuff. While there, she witnessed just what has become of pest control in the NOBAMA administration. Amanda writes in: "There was a mouse in the Dirksen dining room today! We noticed it running around by our table and very quickly picked our handbags off the ground. One guy wasn't paying attention and the mouse nearly ran right over his feet, until everyone started to making yelping noises. I was about to take a picture of it (for Twitter) until a guy came over, stomped on it, killed it and then scooped it up and took it away. Everyone was so grossed out."
Capitol officials say the mouse was given a burial in a toilet in accordance with its religious custom, however there is no documentation of it. Also, there is a rumor that Glenn Greenwald is finalizing a scathing rebuke of the operation, maintaining that the mouse should have been captured.
And so it goes in Wonderland.
Cheers
Mike
Obligations of the "Neutral Nation"
The legal positions (definitely plural) are described in Pakistan's Sovereignty and the Killing of Osama Bin Laden, by Ashley S. Deeks, referenced in my post #21 above.
My own analysis starts with a first proposition that India, Pstan, Astan and the US are all 1949 Geneva states; have not accepted 1977 AP I and AP II in toto; and accept the Hague regulations. My second proposition is that a 1949 Geneva nation may engage in an armed conflict with a non-state actor (a "Power" in the conflict, which has an option to accept and apply 1949 Geneva under Common Article 2 and generally will come under Common Article 3).
The third proposition is that the Hague regulations impose duties on a neutral state, Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land. The Hague, 18 October 1907:
Quote:
Art. 2. Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral Power.
Art. 3. Belligerents are likewise forbidden to:
(a) Erect on the territory of a neutral Power a wireless telegraphy station or other apparatus forthe purpose of communicating with belligerent forces on land or sea
(b) Use any installation of this kind established by them before the war on the territory of a neutral Power for purely military purposes, and which has not been opened for the service of public messages.
Art. 4. Corps of combatants cannot be formed nor recruiting agencies opened on the territory of a neutral Power to assist the belligerents.
Art. 5. A neutral Power must not allow any of the acts referred to in Articles 2 to 4 to occur on its territory.
From that obligation of the neutral Power, follows the conclusion found in our FM 27-10, The Law of Land Warfare:
Quote:
520. Effect of Failure to Prevent Violation of Neutrality by Belligerent Troops
Should the neutral State be unable, or fail for any reason, to prevent violations of its neutrality by the troops of one belligerent entering or passing through its territory, the other belligerent may be justified in attacking the enemy forces on this territory.
Of course, simply because you have a hunting license does not mean you should kill everything in the forest.
The real question is not legality, but the likely response - diplomatic protest vice nuclear warhead.
Regards
Mike
This Week at War: Send in the Lawyers?
The question at the head of Bob Haddick's SWJ column today.
Damned straight ! Fire mission !:
http://council.smallwarsjournal.com/...0&d=1274888764
I'll fire the touchhole to blast forth the Lima Bravo Sierra - or, as pictured, the Lima Foxtrot Sierra. :D
Seriously, I question any suggestion that AG Holder and LA Koh should embark on a lengthy defense of the legal justification for the OBL mission and result. Both of them, before they moved from the private sector to the Obama administration, were dead set against primary reliance on using the Laws of War against "terrs". At some point, they will get wobbly knees.
Ken Anderson, Should John Brennan or Eric Holder Simply Have Quoted Harold Koh?, and UN Special Rapporteurs Demand Information to Justify OBL Killing, and What Holder Should Have Said and Koh Should Say (long version); and John Bellinger, Bin Laden Killing: the Legal Basis (very short version) do a vastly better job because they are writing what they have written before.
Bob asks another question: "The SEALs did their job. Will the lawyers now do theirs?" The jobs are not remotely comparable. That being said, the small legal contingent at SWC is trying. Is our readership getting it ? I can't tell without feedback.
Regards
Mike