This is a good question ....
Quote:
from Boot
Gangs, can they be classified as insurgents? I heard today that the President met with the JCS to discuss what is happening on our border with Mexico. Can this be classified as an insurgency into our country?
I am not sure this belongs here in this area, Mods please move if it doesn't.
As to the second part, the topic probably belongs here because it (and similar questions - as to "terrorists" or any non-State actor who uses armed force) cut across both military (appropriate ROEs) and civilian concerns (Laws of War and Rule of Law).
As to the first set of questions, "gangs" are part of a larger definitional problem which afflicts any situation where a non-State actor employs armed force. What are the ROEs and the legal rules applicable to the situation ?
My perception is that the legal framework is currently in chaos, with divergent views as to whether the Rule of Law (basically domestic criminal laws), the Laws of War (which themselves present a definitional problem in non-State actor situations), or both, should apply to these marginal situations. The same problem exists for ROEs, which are based not only on purely military considerations, but also on the legal rules (from the Laws of War) which are perceived to be applicable.
For example, taking Wilf's definition (as to which JMM personally has no beef) as a starting point:
Quote:
They are an insurgency if:
a.) They use armed force, to initiate and sustain their operations.
b.) They use armed force to negate the rule of law, within a state, region or other legally defined entity.
Basically, if a criminal starts targeting/attacking law enforcement, then they become a de-facto insurgency, since their actions have political aims.
Since use of armed force is present, we have (at least potentially) a "war", or in more modern I Law terms, an "armed conflict". I say potentially because there is substantial divergence in defining when the "use of armed force" becomes an "armed conflict", when it begins and when it ends (as exemplified in the Eminent Jurists report).
While that report deals with "terrorists", its tenor would certainly apply to criminal gangs who use armed force as Wilf describes it. In short, the Eminent Jurists would probably not see Wilf's definition as one allowing use of the Laws of War - and leave the ROEs to the Rule of Law (domestic criminal law, "international human rights law" and "international humanitarian law").
However, trying to keep it simple, let us assume that we have Wilf's situation; that it is an "armed conflict" subject to the Laws of War; and that we have two simple fact situations:
1. Nicki the Narco Warlord is shooting at and with intent to kill Mikko the Mighty (defender of the law). No doubt that Mikko can shoot back and kill Nicki - that is the same ROE regardless of whether this situation is measured under the Laws of War or the Rule of Law.
2. Nicki and Mikko have their encounter, but both escape unscathed. The next day, Mikko takes a little hike into Nicki's turf and spots Nicki having breakfast on the patio of his multi-million dollar mansion. Mikko puts Nicki in the cross-hairs and the rest is history (for Nicki).
Now, as I understand the traditional Laws of War, Mikko is entirely within his rights as a combatant to take out Nicki, a combatant in their "armed conflict". Mikko has combatant immunity, even though Nicki is then unarmed and not an immediate threat to Mikko.
However, if you would present situation #2 to the Eminent Jurists, I expect you would get a different answer - probably several different answers.
There may be an interesting law review article (forthcoming in the Nov 2009 Virginia Law Review), "Counterinsurgency, the War on Terror, and the Laws of War", which is abstracted at the SWJ Blog, here:
Quote:
Since the wars in Afghanistan and Iraq, military strategists, historians, soldiers, and policymakers have made counterinsurgency's principles and paradoxes second nature, and they now expect that counterinsurgency operations will be the likely wars of the future. Yet despite counterinsurgency's ubiquity in military and policy circles, legal scholars have almost completely ignored it. This Article evaluates the laws of war in light of modern counterinsurgency strategy. It shows that the laws of war are premised on a kill-capture strategic foundation that does not apply in counterinsurgency, which follows a win-the-population strategy. The result is that the laws of war are disconnected from military realities in multiple areas - from the use of non-lethal weapons to occupation law. It also argues that the war on terror legal debate has been myopic and misplaced. The shift from a kill-capture to win-the-population strategy not only expands the set of topics legal scholars interested in contemporary conflict must address but also requires incorporating the strategic foundations of counterinsurgency when considering familiar topics in the war on terror legal debates.
I'm not suggesting that this article will be the Holy Grail - if it parallels the Eminent Jurists report, it will not be (IMO). I do agree that the interface between the Laws of War and Rule of Law in the twilight zone of "insurgency" have to be clarified. My concern is that the result will not be clear - at least to the people in the field who have to apply them. Is Mikko the Mighty a war hero or a war criminal ?
JMM stated no position as to Iraq ROEs, ...
or current ROEs in effect anywhere else. Here is my conditional premise:
Quote:
... as I understand the traditional Laws of War ....
Our SROEs (by JCS) which I've seen (unclassified portion) - and posted about elsewhere - are based on "self-defense" principles from nation down to unit and individual. They are not what I would term the "traditional" Laws of War (e.g., as in the WWII context).
You do make a good point (which is also mine) - ROEs follow the choices made as to whether the Laws of War apply at all; and if so which rules from the Laws of War will be selected.
So also do I have doubts about this ...
Quote:
from Danny
...I have doubts that they ever will again ...
which (IMO) is unfortunate. Just as to Wilf, war is war is war; to me, armed conflict is armed conflict is armed conflict in the legal sense. To cast the Laws of War and SROEs in terms of "self-defense" is (IMO) totally nuts - except insofar as a nation is concerned (UN Art. 51).
Once a nation is attacked in an armed conflict (thereby triggering Art. 51 rights), the traditional Laws of War should apply. That does not mean that you should kill everything in the woods, but enemy[*] combatants should be fair game until they surrender.
What SCOTUS will do with this developing problem will depend on what the Executive and Legislative branches do with it.
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[*] Defining "who the enemy is" is the key to any logical solution. In the case of non-State actors that is not easy - consider drafting an appropriate authorization to use armed force against Nicki and his "gang".
Looks like an armed conflict to me (100 KIA per week - e.g., MSNBC today). It also looks like a loosely networked "insurgency" - thus, the drafting and characterization problem.
Something along the lines of ...
ROEs and Laws of War - a Moveable Feast
Warfare has always had its ROEs - and its Laws of War, which generally followed the ROEs for the dominant powers that made the Laws of War. E.g., in Medieval Warfare, the officers (knights) certainly had their ROEs and their Laws of War - enforced by the heralds. Scarcely the GCs, but rules none the less.
As warfare has changed over the centuries, its ROEs have changed and also its Laws of War. For example, the Westphalian concepts were needed because the prior equilibrium of Medieval Warfare had been punctured. Every so often, significant military changes create situations where new rules have to be developed. The present seems to be one of those eras.
In an era of change, the neat little boxes of the past are insufficient - especially when divergent cultures become more apparent than they have in the past. I don't see any of this as very surprising since military cultures differ across the world - and the ROEs and Laws of War are an extension of the military cultures in which they are developed.
Any particular set of ROEs and Laws of War will be egoistic - that is, they will reflect what their particular military wants. As such, they differ - some greatly, some only a little. For example, we will hold KSM to our ROEs, Laws of War and Rule of Law. He holds himself (and us), as in his recent brief, to his ROEs, Laws of War and Rule of Law. We find him wanting; he finds us wanting.
I don't view either us or him as being hypocritical - although there is often enough self-rightiousness to allow everyone to share. But, I also do not view the obvious dichotomy as being relativistic. I am on one side in my choices; he is on the other side - and, yes, I will impose my choice on him if it is my power to do so.
So also with Nicki the Narco Warlord, who also has his ROEs, Laws of War and Rule of Law - perverted though they may be from our viewpoint. In order to defeat KSM or Nicki, we have to understand their concepts. In terms of Slap's article, we have to understand their system - which includes their ROEs, Laws of War and Rule of Law.
While that article uses vocabulary that I don't use (not being schooled therein), I do get the concepts. What seems to me most important is that the article takes an offensive approach to the problem, as exemplified by its conclusion (underlines added by JMM):
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Conclusion
Our work is not a panacea, but it should add multiple dimensions to a strategy that sometimes focuses too much on the product of the system and not enough on the system itself. To disrupt the importation of energy, shape the environment and attack the environment/organization boundary. To destroy through-put, have a process-oriented attack plan. To attack export, meet the product head-on before it has been fully deployed. To interfere with the cyclic pattern of activities, interfere with internal activities that are critical, well-connected, or consist of exponential feedback loops. Attack negative entropy by disrupting or destroying critical stores. Disrupt the feedback and coding process by engaging in counter-intelligence and influence operations designed to increase uncertainty and disrupt communication. Destroy homeostasis by attacking critical nodes and disrupting system congruity. While doing these things, keep in mind our newly formulated principles of war for countering VNSAs, as they should inform all actions whether directed at input, conversions, or output. Our inter-disciplinary application of open systems theory provides a powerful framework for diagnosing adversaries, shaping their development and structuring an effects-based strategy for coercion and conquering. It is a global approach to a global challenge.
My bottom line (as to a part of this) is that our ROEs, Laws of War and Rule of Law should be shaped to reflect an offensive strategy which is acceptable to us.