New technologies and war legislation: a progress?

[M-A Lagrange]

New weapon technologies under legal scrutiny
07-09-2011 News Release 11/184
Geneva (ICRC) – New weapon technologies in modern warfare, their humanitarian impact and their regulation under international humanitarian law will be the subject of a round table in San Remo, Italy, hosted by the International Institute of International Humanitarian Law and the International Committee of the Red Cross (ICRC) from 8 to 10 September.
"The world of new technologies is neither a virtual world nor science fiction. In armed conflict, the new technologies can cause death and damage that is all too real," said Jakob Kellenberger, the president of the ICRC. "It is important to discuss the issues raised by their development, to assess their humanitarian consequences and to ensure that they are not prematurely employed under conditions where respect for the law cannot be guaranteed."
Cyber technology, remote-controlled weapon systems and robotic weapon systems are some of the new weapon technologies which will be at the core of the debates. Is it possible to ensure that attacks through cyber space are controllable and not indiscriminate? What is the status of those who operate drones thousands of miles away from the battlefield? Could robots be capable of the level of discrimination required under international humanitarian law?
New technologies can lead to better protection for civilians and civilian infrastructure, for instance by making it possible to take greater precaution or to use greater precision in attack. But they also bear risks. Ultimately, their compliance with international humanitarian law will depend mostly on the concrete use that is made of them, for which the parties to conflicts and individuals deploying them are responsible.
There is little doubt that these new technologies, like new technologies before them, are changing the landscape of war. And just as air warfare had to comply with the existing framework of international humanitarian law when it was introduced in the 20th century, so too must the new technologies of the 21st century comply with fundamental rules governing the means and methods of warfare.
The text of the keynote address by the president of the ICRC will be available on our website on 9 September.

http://www.cicr.org/eng/resources/do...2011-09-07.htm

From the San Reno Round Table.


Are new technologies really changing the landscape of war or is it just new tools ?
ICRC states it will increase civilian protection and ease the application of humanitarian laws and GC. But how far new technologies will ease law application and legislative environment enforcement in war ?

[jmm99]

ban the fusil; and ban the .....

Based on past history, new technologies will generally (most but not all) be accepted based on their military utility.

I found this snip from the ICRC press release amusing:

And just as air warfare had to comply with the existing framework of international humanitarian law when it was introduced in the 20th century, so too must the new technologies of the 21st century comply with fundamental rules governing the means and methods of warfare.

in light of this 1899 Hague Convention (definitely not applied to 20th century airpower):

Declaration (IV,1), to Prohibit, for the Term of Five Years, the Launching of Projectiles and Explosives from Balloons, and Other Methods of Similar Nature. The Hague, 29 July 1899.

The US and UK were not state parties, but the other major participants in WWI were (State Parties).

The Sanremo conferences have generated several handbooks dealing with ROEs - e.g., The Sanremo Handbook on Rules of Engagemen (2009):

The Sanremo Handbook on Rules of Engagement is intended to continue in the same vein as previous well-known Sanremo publications such as the Sanremo Manual on International Law Applicable to Armed Conflicts at Sea, published in 1995 and the Sanremo Manual on the Law of Non-International Armed Conflict, published in 2006.

These publications are far from the "Bible"; but present compromises - thus, more of common denominator for the divergent views of the "Rule of Law" and "Laws of War" and their interactions. I.e., they might form a basis for a set of ROEs to be used by a multinational force.

The major deficiency in these and other pubications on international law is a focus on "The Law" - that is, a monolith; a brooding legal omnipresence in the sky. Ain't no such thing as "The Law" in International Law - except as to any given grouip of pundits (academic or otherwise), who present "The Law" as they see it.

Regards

Mike

PS: Is the place "San Remo" or "Sanremo" ? From its Wiki, apparently both, explained as so:

The official spelling of the city is Sanremo, a phonetic contraction of San Romolo (Saint Romolo), official saint and protector of the city. In the local dialect of Ligurian, it sounds like Sanrœmu. The spelling San Remo, as two words, was introduced in 1924 by the mayor and used in official documents during Fascism. This form of the name appears still on some road signs and, more rarely, in unofficial tourist information. It has been the most widely used form of the name in English at least since the 19th century.

[jmm99]

The 1899 "Balloon Bombing Ban" (adherence by a couple of dozen "State Parties") lapsed; but was "renewed" in 1907 by Hague Declaration (XIV) Prohibiting the Discharge of Projectiles and Explosives from Balloons (The Hague, 18 October 1907).

However, its text provided:

The undersigned, Plenipotentiaries of the Powers invited to the Second International Peace Conference at The Hague, duly authorized to that effect by their Governments, inspired by the sentiments which found expression in the Declaration of St. Petersburg of 29 November (11 December) 1868, land being desirous of renewing the declaration of The Hague of 29 July 1899, which has now expired,

Declare:

The Contracting Powers agree to prohibit, for a period extending to the close of the Third Peace Conference, the discharge of projectiles and explosives from balloons or by other new methods of a similar nature.

The present Declaration is only binding on the Contracting Powers in case of war between two or more of them.

It shall cease to be binding from the time when, in a war between the Contracting Powers, one of the belligerents is joined by a non-Contracting Power.

Adhered by some 20 State Parties (NOT including some major participants in WWI), it was a "dead letter".

For contemporary and later analysis, see "my hero", J.R. Spaight (Irish; Trinity College, Dublin):

Aircraft in war (1914)

Bombing Vindicated (1944)

Authoring a number of intermediate publications on airpower and the RAF, he also authored War rights on land (1911).

The Red Cross press release does not know its early 20th century history - and is ignorant of the Laws of War as understood by Spaight and others.

Regards

Mike

[M-A Lagrange]

For those valuable historical perspectives.

The Red Cross press release does not know its early 20th century history - and is ignorant of the Laws of War as understood by Spaight and others.

Just to replace the Red Cross (The ICRC in fact) in its perspectives. ICRC recognises The Hague treaty but uses only the GC (1949 and after) as a discussion base in its debats. With time I have learned to pass over this quite frustrating aspect of the ICRC (As some others on their historical role during several conflicts).
So please excuse them for not being as highly educated as you.

Personnaly I found that press release interresting as it recognises the advantages of new technologies for the civilian protection enforcement. It is an unexpected out come of the Lybia campaign after more than a decade of critics of air ops and intelligent ammunitions. For the very first time since long ICRC recognises that new weapons can be a "progress" and does not call for a ban.

What is the status of those who operate drones thousands of miles away from the battlefield? Could robots be capable of the level of discrimination required under international humanitarian law?

I find this question quite important. If it applies immediatly mainly to soldiers from formal armies (US, UK, Israel, Fr...), it also will soon (or is already) apply to non state armies. Hezbolla developed an "improvised" observation drone and the Libyan rebels developed improvised combat robots (based on US model).
It is clear that if on one end the search for the lower casualties among your troops is an immediat benefit of the new technologies, the responsability of those operating such weapons has to be explore.
Similar question was raised with the A bomb and the status of the ones who would push the button. And responsabilities according to the principle of chain of command and human responsability has been preserved.

I believe that is where the debat can be interresting and valuable. Especially in the field to help those who will have to make the desision. In addition of the SOP, TOE, ROE, what are the parameters that will make a decision legally sound (even with collateral victimes, unfortunately) or abusive?

[jmm99]

Hey Marc,

What goes into a ROE is illustrated quite simply:



The devil, of course, is in the details - each major circle may involve hundreds of considerations - some conflicting with others.

Let's look at the "Law" circle, using as examples three 2011 articles on targeted killing by drones and direct actions:

Ashley S. Deeks, Pakistan's Sovereignty and the Killing of Osama Bin Laden.

Mary Ellen O’Connell, Unlawful Killing with Combat Drones - A Case Study of Pakistan, 2004-2009.

Robert Chesney, Who May Be Killed ? Anwar Al-Awlaki as a Case Study in the International Legal Regulation of Lethal Force.

Each of these articles presents a different take in answering the question: What is "The Law" ?

Who decides on Choice of Law ? My take: that is a political question best decided in a constitutional democracy by the branch(es) of government assigned powers over armed conflicts.

That, of course, is not the only answer on the table. Mary Ellen O’Connell, The Choice of Law Against Terrorism (2010), in reality assigns that function to the I Law community (primarily academics; herself and some others):

On 9/11, the United States made a radical change in its choice of law against terrorism. After a century of pursuing terrorists using criminal law and police methods, the United States invoked the law of armed conflict and military means. This article has presented evidence that the change was and is not supported by international law. In November 2008, this author and colleagues David Graham and Phillipe Sands drew up a set of principles to guide the Obama administration toward reforms of post-9/11 U.S. laws and policies. Our aim was to improve U.S. compliance with the world‘s law against terrorism. The first principle was to stop relying on war as the legal and policy basis for confronting terrorists:

The phrase "Global War on Terrorism" should no longer be used in the sense of an on-going war or armed conflict being waged against terrorism. Nor should it serve as either the legal or security policy basis for the range of counter- and anti-terrorism measures taken by the Administration in addressing the very real and present challenges faced by the United States and other nations in addressing terrorism. [115]

115. Washburn Consensus on Post-9/11 Principles are reproduced in, Mary Ellen O‘Connell, The Way Forward: Post 9/11 Principles, JURIST (Nov. 25, 2008), available at http://jurist.law.pitt.edu/forumy/20...principles.php.

Peacetime criminal law, not the law of armed conflict is the right choice against sporadic acts of terrorist violence. The example of the United States adhering closely to its legal obligations in this vital area can only help create a world of greater respect for the rule of law.

As expressed in so many other posts, I disagree with Ms. O'Connell. The "Laws of War" and "Rule of Law" both have a role, but cannot be conflated. Some situations are handled better by LoW and others by RoL. The choice of which course to follow in a given situation is a political question, especially in a constitutional democracy.

That being said, I expect that the Red Cross will in the end adopt something closer to Ms O'Connell's position. That result is likely therefore to be contrary to the policies followed by two Executives and several Congresses since 9 Sep 2001 (and, as affirmed by the US appellate courts to date - AUMF, etc.).

Regards

Mike

[M-A Lagrange]

Mike,

I agree with you on what to expect from ICRC. Personally I am probably closer to them than you may are. I do tend to believe that the RoL and LoW/IHL application can/should be independent from politic.

What I expect from ICRC is more a discussion and an opinion that could be used for jurice prudence concerning the responsibilities in the decision making at operational level.

The perfect example being the German drone attack on fuel trucks in Afghanistan. (This is just mentioned as a case study, not as an opinion on what happened).
I hope this will lead to the reaffirmation of the need direct visual contact to the target and most probably a statement on the need to evaluate immediate situation and possible unexpected increase of collateral victims. A position, I think, which would/can be quite balance between IHL pundist and operation freaks.
The other big questions being the use of drones by non state actors or terrorist groups and the use of smart bombs.
From the last one, I hope that we can expect a judicial decision (or draft) of what generation of smart bomb can be declared as “legal” and what generation is not acute enough to be labeled in a different category than normal non-smart bombs. (But may be I do expect too much from such event ).
The real grey area, I believe, will come with the responsibilities in chain of command in case of non direct visual confirmation and target military value. But that’s a common disagreement point between war necessity and international humanitarian laws.

[jmm99]

From MAL
From the last one, I hope that we can expect a judicial decision (or draft) of what generation of smart bomb can be declared as “legal” and what generation is not acute enough to be labeled in a different category than normal non-smart bombs.

What expertise does a court have in determining the acuity of smart (or dumb) bombs ? Even a court consisting of JMM99 military dilettantes (dabblers) would be sadly deficient in that area of expertise.

The Kunduz tanker incident and Col. Klein involved audio from a B1 bomber, audio and visuals from a pair of F-15s, audio from an Afghan informant - and perhaps drone visuals and/or ISAF boots on the ground visuals. The actual strike was by 500# bombs from one or both of the F-15s. All this from the Wiki, Kunduz airstrike - which ain't quite legal evidence.

Is there a (more or less) complete report of the incident in English that could be linked here ? I agree that it could be a case study.

Violent non-state actors (VNSAs) will use whatever weapons they can get their hands on (hmm .. surface to air missiles ?) - Battle of Algiers:

Journalist: M. Ben M'Hidi, don't you think it's a bit cowardly to use women's baskets and handbags to carry explosive devices that kill so many innocent people?

Ben M'Hidi: And doesn't it seem to you even more cowardly to drop napalm bombs on defenseless villages, so that there are a thousand times more innocent victims? Of course, if we had your airplanes it would be a lot easier for us. Give us your bombers, and you can have our baskets.

Since when do VNSAs follow the "Laws of Wars" - other than those drafted to favor them ?

Regards

Mike

[M-A Lagrange]

What expertise does a court have in determining the acuity of smart (or dumb) bombs ? Even a court consisting of JMM99 military dilettantes (dabblers) would be sadly deficient in that area of expertise.

Basically, I do not know much more than you on smart and dumb bombs. But I know that ICRC legal advisers and organizations working on IHL have a sound weaponry knowledge and will be able to identify which ammunition (up to the serial nb) have been used when, where. (I have met several representatives of such organizations, even US senators or deputy representatives.) They probably would be able to identify which generations of bombs have been used in Libya, Irak, Astan and Pakistan and be able to trace the accuracy evolution.
My point was that I do expect them to be able to come with a statement similar as the one on the use of phosphorus. It is not banned but regulated. The best (For non combatants) being a regulation based on environments in which such bombs are used: in civilian environment (cities, villages…) you can “legally” use A,B,C; in non civilian environment (battle field, open war zone, including cities if considered as a war zone…) you can legally use Z,W,X.

Is there a (more or less) complete report of the incident in English that could be linked here ? I agree that it could be a case study.

Unfortunately, on the Kunduz airstick I have no better information at the moment. But I do think this is the perfect case study for anyone in the field (and is probably already being used in military academies, or they should).
But will keep looking.

Since when do VNSAs follow the "Laws of Wars" - other than those drafted to favor them ?

Since when war is a game in which the rules are in favor of the weakest?
Out of jokes, I think that legislating drones use by VNSA is a necessecity as this will happen. Tamul Tigers had an airforce, Hezbollah has a missile force… Basically, rules that apply to state actors do apply to VNSA. Even if they do not want to!!! And that’s why there is the ICC in the Hague: cause what ever you do, if you don’t play by the rules someone will come to get you.

[M-A Lagrange]

I could not find the Kunduz NATO report but I found interresting articles from credible German newpapers (Der Spiegel and Das Bilt) which disclose part of that report.

From the Spiegel:

The pilots, who felt that the Germans' instructions were odd, remained skeptical and suggested obtaining the approval of the higher-ranked US Combined Air Operations Center in Qatar on the Persian Gulf, so that both sides would be in the clear.
Red Baron's response was unambiguous. He told the pilots that he had the "approval" of Klein, who happened to be sitting next to him, for the strike to proceed, but that the bombs should only hit the sandbar and not the area along the riverbank.
There are strict rules of engagement within NATO, and the pilots were under the impression that a number of these rules were about to be violated. Once again, they repeated their request to be allowed to fly at low altitude over the river as a deterrent. The response from the German base was clear: "Negative. ... I want you to strike directly."
At 1:46 a.m., the American pilots asked the Germans one more time whether the people on the ground truly constituted an "imminent threat." Under the NATO rules of engagement, only an imminent threat justified an attack. Absent such a threat, the pilots would have been required to leave the area. But Klein was apparently intent on having the airstrike go forward, and his forward air controller, acting on Klein's orders, replied: "Yes, those pax (people) are an imminent threat." He said that the insurgents were trying to tap the gasoline from the trucks, and when they had finished, they would "regroup and we have intelligence information about current operations" and they would probably be "attacking Camp Kunduz."
It was apparently a white lie. The investigation report soberly concludes that there was no "specific information" or "hard intelligence" to indicate the Taliban "were either preparing or had a plan for attacking" the German forces that night. Based on everything the Bundeswehr and the Americans now know, the Taliban originally planned to take the trucks to a nearby village and, when the tankers became stuck on the sandbar, they decided to strip the vehicles instead. The report concludes that it was an "act of opportunity."

http://www.spiegel.de/international/...2468-2,00.html

German KSK Special Forces involved in deadly bombing
It has now come to light that the elite Kommando Spezialkräfte (KSK) unit played a role in the attack on September 4 which killed 142 people including civilians.
BILD can reveal how the KSK intervened in the strike on two fuel tanker trucks in an overnight covert operation.
At least five officers and NCOs advised Colonel Georg Klein, commander of the German military forces in the Kunduz region.
All five belonged to a secret unit codenamed Task Force 47, or TF47, which had Colonel Klein as its presumptive head.
TF47 comprises approximately half of the KSK soldiers, whose goal is to hunt for Taliban leaders and terrorists. The unit has its own command centre with advanced equipment at the German camp in Kunduz.
The first tip arrived from an Afghan informant on the evening of September 3. The Taliban had reportedly hijacked two gasoline tanker trucks which had then become stuck on a sandbank six kilometres from the German camp.
TF 47 soldiers requested help from an American B1B bomber. In the 90 minutes it took the plane to locate the tanker trucks, Colonel Klein was called to the TF47 command post.
During the night Colonel Klein took over as acting commander of TF47. An internal review by the Bundeswehr said that according to NATO rules, Klein would be allowed to order an attack only in this role.
A TF47 officer spoke approximately seven times by phone throughout the night with the Afghan informant who identified four of the Taliban leaders who were with the tankers, as well as other details.

http://www.bild.de/news/bild-english...2584.bild.html

What is interesting in those articles, it high light the difficulty of having an acute information with indirect contact reports.

According to the first article, pilots state that they were first not convinced by the necessity of a kinetic action. Then they received confirmation of the presence of legitimate target on the ground.

According to the second article, that confirmation was given by a direct contact from a ground team (the TF47). Decision making officer had at least 7 contacts with TF47.
The question then is did he have other sources of information and did he have all information (evaluation of ground environment) at the time he took the decision. Quantitatively, 7 contacts could make it but qualitatively it remains a single source.
For his discharge, first information was given by an afghan informant. Due to the complexity of the environment, a confirmation from reliable source was certainly needed. And that is what TF47 did provide.
Now remaining question is how accurate was the assessment of civilian environment?
In addition to the high value of fuel tankers, if high value targets were present, this incident exposes the problematic of war necessity versus IHL.

On a legal aspect, it can at least be assumed that pilots are non responsible. They expressed in their testimony the fact they had doubts and they asked several times for confirmation. They were given information they believed credible and accurate which lifted their doubts. In a physical and technical impossibility to have direct first hand confirmation, they acted according to given orders.
If what is reported in the article happens to be true, there is now at least 2 level of responsibilities on the ground to be evaluated:
- The TF47 responsibilities: what was their real statement and assessment of the situation.
- Col K responsibilities in evaluating the information transmitted by TF47 and his requests of civil environment and collateral damages assessment.

[jmm99]

1. Who drafts and adopts the rules (whether one calls them Laws of War, Law of Armed Conflict or International Humanitarian Law) ?

2. Are those rules "found" (like nuggets of gold or a brooding omnipresence in the sky; e.g., is there a "The Law") or are they developed via a process similar to the ROE three ring construct ?

3. Should the rules be the same for everyone ? That is: as one example, the same for VSA (Violent State Actors) and VNSA (Violent Non-State Actors); as another example, the same for China, EU-NATO, Russia and US; and more generally, how well do "Western Rules" fit "non-Western Population Groups".

4. What is "military necessity" (e.g., as one definition, an act that tends to the successful conclusion of a military operation; which is far different from the doctrine of "legal necessity") ? Eddie III's Chevauchée and Sherman's March to the Sea are examples of "military necessity" in their times.

5. Are the "War Rules" to be superceded by the "Peace Rules" (e.g., in International Red Cross jargon does International Humanitarian Law yield to International Human Rights Law; or, in more simple JMM99 and Polarbear1605 prose, do the "Laws of War" yield to the "Rule of Law") ?

6. How well has IHL actually worked in protecting the "truly weakest" - the truly civilian populations in conflict areas ?

Just some points to keep in mind when considering the Kunduz tankers and COL Klein.

Regards

Mike

[M-A Lagrange]

As a reminder:

War and international humanitarian law
29-10-2010 Overview
International humanitarian law is part of the body of international law that governs relations between States. IHL aims to limit the effects of armed conflicts for humanitarian reasons. It aims to protect persons who are not or are no longer taking part in hostilities, the sick and wounded, prisoners and civilians, and to define the rights and obligations of the parties to a conflict in the conduct of hostilities.
Because it is law, IHL imposes obligations on those engaged in armed conflict. Not only must they respect the law, they have an obligation to ensure respect as well. It is not acceptable to turn a blind eye.
• Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare. It is prohibited to employ weapons or methods of warfare of a nature to cause unnecessary losses or excessive suffering.
• Parties to a conflict must at all times distinguish between the civilian population and combatants in order to spare civilian population and property. Adequate precautions shall be taken in this regard before launching an attack.
The International Committee of the Red Cross is regarded as the “guardian” of the Geneva Conventions and the various other treaties that constitute international humanitarian law. It cannot, however, act as either policeman or judge. These functions belong to governments, the parties to international treaties, who are required to prevent and put an end to violation of IHL. They have also an obligation to punish those responsible of what are known as “grave breaches” of IHL or war crimes.

http://www.icrc.org/eng/war-and-law/...ar-and-law.htm

As I said in a previous post, I am not judging the person and I am looking at what can come out from that case study. The ICRC already issued a strictly confidential report (According to their standards, this means: to be not shared except with NATO and Germany). stating that in that particular case Col K actions were illegal according to them. I do not have that report and I am not here to judge him. What I would like to look at in that particular case study are the grey areas and what can be seen as a legitimate, responsible and legal response to a threat and what is a use of unnecessary force, disproportionate use of violence and in fine an illegal act of war. This was my point about the pilots: they acted according information they had, they questioned the necessity and proportionality of their actions and acted after being conviced they were doing the "right" thing.

1. Who drafts and adopts the rules (whether one calls them Laws of War, Law of Armed Conflict or International Humanitarian Law) ?

2. Are those rules "found" (like nuggets of gold or a brooding omnipresence in the sky; e.g., is there a "The Law") or are they developed via a process similar to the ROE three ring construct ?

The IHL are based on GC and additional protocol and The Hague treaty and weapons treaties. They are endorsed by each countries through the signature of those conventions and treaties. In the case of US, US did not sign additional protocol 4. Just as the Law does not fall from the sky, they evolve. As you said in your first post: first they banned the crossbow...
Also, they are completed by additional conventions as the convention against torture which apply in both peace and war context.

3. Should the rules be the same for everyone ? That is: as one example, the same for VSA (Violent State Actors) and VNSA (Violent Non-State Actors); as another example, the same for China, EU-NATO, Russia and US; and more generally, how well do "Western Rules" fit "non-Western Population Groups".

Yes GC and IHL apply to every body. It is combatants’ responsibility to follow it and enforce it. Who ever he is, being western or non western. It is an "old" problematic we discussed earlier. My position being that it is not because an opponent for political reasons rejects them that it does not apply.

4. What is "military necessity" (e.g., as one definition, an act that tends to the successful conclusion of a military operation; which is far different from the doctrine of "legal necessity") ? Eddie III's Chevauchée and Sherman's March to the Sea are examples of "military necessity" in their times.

Military necessity is more difficult to define. I use the term in its very conservative understanding: the end justify the means and at war all means are good to reach the end. In opposition to the principle of retenue, proportionality and humanity (another terms that we can discuss for centuries I believe).

Are the "War Rules" to be superseded by the "Peace Rules" (e.g., in International Red Cross jargon does International Humanitarian Law yield to International Human Rights Law; or, in more simple JMM99 and Polarbear1605 prose, do the "Laws of War" yield to the "Rule of Law") ?

This is a tricky point as war is considered as an "abnormal" situation or “situation of exception” in which a Right of exception applies. Human Rights are different from Humanitarian Laws. But the Rule of Law, in the case of war: the laws that regulate conflict (IHL), applies and combatants have to enforce and apply them. Cf:Because it is law, IHL imposes obligations on those engaged in armed conflict. Not only must they respect the law, they have an obligation to ensure respect as well.
In practical terms, since you are a combatant: you have to follow GC, ROE, TOE... There comes the problematic of military necessity (archiving the end: victory or policy enforcement through violence) vs necessity/responsibility to preserve non combatants from the damages of war. Here the principle of proportionality applies as the principle of retenue.

How well has IHL actually worked in protecting the "truly weakest" - the truly civilian populations in conflict areas ?

Many more than we think: all the refugees and IDPs who receive humanitarian aid. Never enough: this does not prevent civilian death and it only aims at diminishing the effects of war on populations by protecting them, as much as possible, from the use of violence.

Hope this helps to define the legal environment.
Regards

M-A

[jmm99]

The reason the points are all questions is that each of them has at least two sides (to what should be a continuing debate in the future). The future is far from certain, but it should be interesting. As the song said: "...the times, they are a-changing."

If that change leads to multiple power centers (e.g., China, Russia, India, EU-NATO, Brazil, USA), with no global hegemony (as well as a host of "hollow" or non-existent area governments and VNSAs), an effective "international law" (except in limited areas where there might be general agreement) is even less likely than at present.

Since WWII, one action has been the US's shaping of some international laws; but an equal and opposite reaction has been other's shaping of other international laws (e.g., the 1977 Geneva APs) to disfavor the US. Today, a number of the 1977 "have nots" have become "haves". A fair comment (private) by a Red Cross person is that 1948 Geneva and its 1977 Protocols would likely not be adopted in the early 21st century.

Unfortunately, I've no crystal ball; but I would expect "international humanitarian law" to become more and more regional - depending on the law adopted by each major regional power. Or, if some group (say, UN) demands a true international law, it will be ignored when it conflicts with the major regional power's construct (e.g., China's "Unrestricted Warfare", if that is or becomes China's doctrine).

--------------------------
Not long before the Kunduz tanker incident, the Germans changed their ROEs (post, Change in German ROE before Sep 2009 incident); as to which COL Klein, also before the incident, said:

Part 2: 'We Will Strike Back with all Necessary Force'

However soldiers in Kunduz told a different tale. "We will strike back with all necessary force," said Colonel Georg Klein, 48, commander of the field camp.

Combat has become routine for German soldiers stationed in Kunduz. After returning to the camp, the men mentioned their "TICs," or "troops in contact" (military jargon for enemy contact) almost casually. For them, requesting American "Reaper" drones to fire at booby traps is just common practice now.

Anyway, clearly not all the soldiers are unnerved by the finer legal details of combat. On May 7, in view of a German convoy, a number of Afghan fighters jumped off their motorcycles and went into combat position. But before they could fire their rockets and assault rifles, the Bundeswehr troops opened fire on them, killing at least two.

"What happened afterwards gave the troops a sense of security," said Klein. Instead of launching an investigation, as would have been the case in the past, the public prosecutor's office in Potsdam, near Berlin, concluded that the soldiers had acted in self-defense. Klein and his men see this as setting a precedent. "Soldiers need courage in the field, what they certainly don't need is fear of a public prosecutor," noted one officer.

Despite what the ICRC may have concluded in its report, the Federal Prosecutor cleared COL Klein (post by Igel):

The Decision of the Federal Prosecutor (in german).

Deutsche Welle: German prosecutors drop case against Kunduz airstrike colonel:

German state prosecutors on Monday said they had closed the case against Colonel Klein, the officer who ordered the controversial airstrike near Kunduz in September 2009.

According to the prosecution, neither Klein nor any of the other officers present before the attack were in a position to know that there were still civilians at the site at the time of the airstrikes.

"On the contrary, after a thorough assessment of the situation, they could assume that there were only insurgents present," the Karlsruhe-based prosecution said in a statement on Monday.

Colonel Klein had, therefore, not acted in violation of either the international or German criminal code, the prosecution said. Ordering the airstrike on two fuel trucks that had been hijacked by Taliban insurgents did not qualify as an illegal method of warfare.

It would be interesting to see what the ICRC report says.

Regards

Mike

[M-A Lagrange]

miss your point.

If that change leads to multiple power centers (e.g., China, Russia, India, EU-NATO, Brazil, USA), with no global hegemony (as well as a host of "hollow" or non-existent area governments and VNSAs), an effective "international law" (except in limited areas where there might be general agreement) is even less likely than at present.

Since WWII, one action has been the US's shaping of some international laws; but an equal and opposite reaction has been other's shaping of other international laws (e.g., the 1977 Geneva APs) to disfavor the US. Today, a number of the 1977 "have nots" have become "haves". A fair comment (private) by a Red Cross person is that 1948 Geneva and its 1977 Protocols would likely not be adopted in the early 21st century.

Unfortunately, I've no crystal ball; but I would expect "international humanitarian law" to become more and more regional - depending on the law adopted by each major regional power. Or, if some group (say, UN) demands a true international law, it will be ignored when it conflicts with the major regional power's construct (e.g., China's "Unrestricted Warfare", if that is or becomes China's doctrine).

Universality versus cultural: This is an odd argument used to disqualify any attempt to establish universality of principles that I do not buy. Respectable african intellectuals used it to discard Human Rights for africans...
But as demonstrated by Dr Kilcullen in Accidental Guerrilla, culture does impact and shape your combat environment.
Law, as Roma, is not build in a day and is based on past experience not on present feeling of necessity...
What is now seens as a constraint was a progress yesterday because it created in constraint for future conflict.

Anyway, clearly not all the soldiers are unnerved by the finer legal details of combat. On May 7, in view of a German convoy, a number of Afghan fighters jumped off their motorcycles and went into combat position. But before they could fire their rockets and assault rifles, the Bundeswehr troops opened fire on them, killing at least two.
"What happened afterwards gave the troops a sense of security," said Klein. Instead of launching an investigation, as would have been the case in the past, the public prosecutor's office in Potsdam, near Berlin, concluded that the soldiers had acted in self-defense. Klein and his men see this as setting a precedent. "Soldiers need courage in the field, what they certainly don't need is fear of a public prosecutor," noted one officer.

Security versus impunity. To have security you need to be deterrent and in combat environment to use force. As you use force, you develop a sense of security. The trap being impunity: the unjustified and abusive use of force. To regulate this there is law or fear of the law. This is addressed by the principles of proportionality and restrain (retenue?).
The fear factor of I feel insecure cannot really be taken in account in his evaluation. As by GC, only targets with a military value are recognized as “legally” military target. That was, in its time Gen Mc Chrystal dilemma.
The argument: soldiers cannot be in the fear of a prosecution anytime they act is an irrelevant argument. Soldiers, as any body legally allowed to use lethal force, have to be aware of his actions and cannot be driven by his sense of insecurity. Especially an officer who is not in direct contact with opponent or not engage in direct combat (those are 2 different environments).
The problem I have with the argument: after they will fear us and not come back is that you cannot prove it. You assume that by killing a large number of people you will build security for yourself. In a hostile environment, during a foreign occupation and you are the occupant, you also build sense of insecurity for the others and then encourage them to turn against you. But naturally you cannot allow yourself to be weak and then allow opponent to build his capacities because of your incapacity to be deterrent.

Despite what the ICRC may have concluded in its report, the Federal Prosecutor cleared COL Klein (post by Igel):

The Decision of the Federal Prosecutor (in german).

Deutsche Welle: German prosecutors drop case against Kunduz airstrike colonel:

I know and I am confortable with it.
But as you immediatly established: we are in a political grey area .

It would be interesting to see what the ICRC report says.

Yes but it's more difficult to have an ICRC report on wikileak than a diplomatic cable.

As said previously Drone and airstricks have generated a debate. Kunduz is interresting as it set a limit. There is defenitively a before and an after.
The interresting part of it is that after having a "against" position (ICRC estimates that Kunduz is an illegal act of war), it has been partially recognised as an more protecting tool. What did change in ICRC eyes?

[M-A Lagrange]

Two reports against the prosecutor decision on Kunduz:
http://www.amnesty.org/en/library/as...10152009en.pdf

http://www.adh-geneve.ch/RULAC/news/...Year-After.pdf

The first one, from Amnesty International, comes back on the process of decision making. In the end, it does not bring much part from pointing out that primary responsibility is that particular event ends on Col K.

The most interesting is the second one as it describes the various steps the enquiry took before ending on the desk of German federal prosecutor.

First, the initially competent Public Prosecutor in Potsdam referred the file to the Prosecutor in Dresden, because the suspected person, Colonel Klein, was stationed in this court district. The Public Prosecutor in Dresden then referred the case to the Federal Prosecutor in Karlsruhe, since war crimes had allegedly been committed and such a case the Federal Prosecutor has jurisdiction, not the Public Prosecutor in one of the German federal states.

Secondly, unfortunately, there are, according to that report, several breaches in the legal process of ending the case:

The lawyers in this case, who had announced their representation to the Federal Prosecutor, never received a formal notice of the termination of the investigations. Without this notice, no appeal and judicial review of the Federal Prosecutor’s decision is possible. Furthermore, the lawyers were denied access to the files and they were not allowed to file their own statement before the decision to terminate the investigations was made. They only were informed about the termination of investigations through the press release.

This does not change much of the problematic I was trying to bring here: how new technologies did increase civilians’ protection and how IHL may shape the use of new technologies.
What I found particularly interesting is the fact that in the process, various actors did question the use of force based on the principles of imminent threat, proportionality and impact on non military actors. Which shows that the first degree of increase of civilian protection is the men and women serving in the modern armies.

In Libya, one of the response to restrictions self imposed by NATO to the use of air strickes was the use of civilan populated areas as shield by the Kadafi forces. This forces the NATO coalition to use drone and, in fine, search for micro areas air suppremacy as country size air suppremacy was quickly established but ground forces managed to partly counter it.

It would be interesting to compare the ROE issued before Kunduz incident and ROE used in Libya to be able to actually assess the changes observed on the ground.

[jmm99]

As exemplified by what you term "universality" and "impunity" - as well as by the COL Klein case itself, we have not established a common framework for this discussion.

The huge gap between the US process and the German process (starting with our "Basic Law" vs their's - but going well beyond that) limits the precedential value of decisions made in one system to virtually a null when asserted in the other system. That legal gulf generally exists between the US and other EU members as well. I see no evidence that gap is getting smaller.

In trying to view the German process in US terms, I simply cannot visualize the Prosecuting Attorney for Marquette County conducting an investigation - and possibly charging with war crimes - the commanding officer of our local combat engineer Bn (HQ in that county) for an airstrike he called in Astan.

Saying that does not mean that I'm terminating this discussion. I'm more than willing to listen; but I'm not going to continuously interject comments re: how the US is different and the reasons why. As to what is or is not correct in German law is outside of my expertise. What I want to make clear is that my silence on any given point should not be considered to be implicit agreement.

The ECCHR (a private group allied with the US-based Center for Constitutional Rights - Michael Ratner, past Pres. of the National Lawyers Guild, is Chairman of ECCHR and President of CCR), in its report you linked, cites C. von der Groeben - Criminal Responsibility of German Soldiers in Afghanistan: The Case of Colonel Klein, German Law Journal 2010, p. 469 - 492. This article is not favorable to COL Klein's case, but is well-written (it might be totally offbase in German law). I did manage to stumble upon it when I looked at the Klein case last year.

Regards

Mike

PS: I'd be curious if the US pilots were in fact operating under exactly the same ROEs as the Germans; particularly as to interpretation and commander's guidance (of what should have been the same "universal" ISAF ROEs). The "pilots' ROEs" seem to have been a bit more restrictive than COL Klein's (my impression, esp. from the German Law Journal article).

[davidbfpo]

I've read this thread a few times and readily admit this is a field where my knowledge is lacking. Caveat aside now.

There were two 'new' weapons in recent memory that attracted political and eventually public attention: land mines and cluster bombs.

The end result was for land mines the Ottawa Treaty in 1997, for details:http://en.wikipedia.org/wiki/Ottawa_Treaty and for cluster bombs a Convention on Cluster Munitions, in 2008, for details:http://en.wikipedia.org/wiki/Convent...ster_Munitions

For parochial reasons I always associate Diana, Princess of Wales, with the land line campaign. Without such interventions by a public figure I doubt there will be any political consensus for international action; interventions that follow the use of 'new' weapons and public exposure.

[M-A Lagrange]

ROBOT WARS: LEGAL AND ETHICAL DILEMMAS OF USING UNMANNED ROBOTIC SYSTEMS IN 21ST CENTURY WARFARE AND BEYOND
http://www.dtic.mil/cgi-bin/GetTRDoc...f&AD=ADA502401

Much of this innovative autonomous mission planning described above relies heavily on the required speed and memory capacity in which a system’s computer can process the real time data that is occurring throughout a robot’s environment.

P62

Higher levels of unmanned system autonomy will allow an unmanned combat aerial system to locate and launch weapons at specific targets that are selected in advance.

P64

It opens an important field of questions as in such view the interaction with human decision is reduced to minimal. The diagram on page 17 clearly shows that nowadays primary legal responsibility in the use of Drones is still based on human decision. As the previous posts have shown, the legality of an order to use force, especially the problematic of proportionality, is still extremely difficult to establish and can be establish on at posteriori.
(See the excellent article from German Law Journal. Thanks to Mike).

And
How Just Could a Robot War Be?
http://www.peterasaro.org/writing/as...obot%20war.pdf

The relevance of the civilian-combatant distinction to robotic soldiers is that if
they are to be autonomous in choosing their targets, they will have to be able to reliably
distinguish enemy combatants from civilians. It seems that this capability will remain
the most difficult theoretical and practical problem facing the development of such
robots. While there are technologies for picking out humans based on computer vision,
motion and heat patterns, it is extremely difficult to identify particular people, or even
types of people, much less to categorize them reliably into groups such as “friend” or
“foe,” the boundaries of which are often poorly defined and heavily value-laden.

This question is interesting as the first reference establish a course of technology development ending up with the use of “smart weapons” which have the capacity to engage opportunity targets and/or predefined targets without human interaction but only based on computer programming.

This opens the question of the chain of legal responsibilities in such case: if there are no more human interaction to make the decision of using force: who is legally responsible and how to make sure that IHL is respected.
This also echoes the question on proportionality opened in the German Law Journal.

[M-A Lagrange]

As exemplified by what you term "universality" and "impunity" - as well as by the COL Klein case itself, we have not established a common framework for this discussion.

Impunity as by http://definitions.uslegal.com/i/impunity/

Impunity refers to the exemption from punishment or loss attaching to an act.
The U.S. has proposed bilateral agreements seeking to ensure the non-surrender of U.S .nationals and contractors to the International Criminal Court. These agreements are alternately referred to as so-called "Article 98" agreements, bilateral immunity agreements, impunity agreements or bilateral non-surrender agreements.
These agreements sought by the U.S. provide that neither party to the agreement would transfer the other’s current or former government officials, military and other personnel (regardless of whether or not they are nationals of the state concerned) or nationals to the jurisdiction of the ICC. They have been proposed in various forms, some seeking bilateral promises of impunity and others seeking unilateral impunity.

The use I made for impunity in my previous post is the one as per its “common” legal understanding: Exemption or freedom from punishment, harm, or loss.

By impunity, I was talking about a behaviour of an individual lead by the sense he has the right to use force because he feels almighty due to his position or because he missinterprete or abuse the freedom of using force he has been given.
The problematic of non surrender of US citizens to the ICC was not really in my mind as it does not mean that US citizen or contractors will be free from prosecution and punishment or loss but just not being surrendered to the ICC. They still will have to face US law.

Finaly a very complete article from ICRC on “the right to live” during armed conflicts:
http://www.icrc.org/eng/assets/files...swald-beck.pdf

[jmm99]

in current international humanitarian law and in current international human rights law by your own links to the ICC and ICRC (and their positions) vice the US and its position. See United States and the International Criminal Court - Article 98 Agreements - which is not the best researched or written article for reasons stated in Talk:United States and the International Criminal Court. That being said, some states have accepted the US position (definitely "non-universal" with respect to the ICC and ICRC), and other states have rejected it.

As you state:

By impunity, I was talking about a behaviour of an individual lead by the sense he has the right to use force because he feels almighty due to his position or because he missinterprete or abuse the freedom of using force he has been given.

The problematic of non surrender of US citizens to the ICC was not really in my mind as it does not mean that US citizen or contractors will be free from prosecution and punishment or loss but just not being surrendered to the ICC. They still will have to face US law.

A US Army COL (in a "COL Klein" situation) would face an Army Regulation (AR) 15-6 investigation; possibly leading to an Article 32 investigation and eventual UCMJ court-martial. All of that is "non-universal".

Now, Louise Doswald-Beck (not a new link to me), and our Notre Dame's Mary Ellen O'Connell, are proponents of "universality" in both IHL and IHRL. Both research and write well. It is not that this side of the discussion is stupid, or that the other side of the discussion is stupid. Everyone who seriously reads and writes about these topics knows the legal sources and arguments of the other side.

The real differences arise from policy choices - basic premises. Princess Diana was certainly not an I Law scholar, but she certainly had tremendous clout on policy (a different take than mine, I have to add).

As you may or may not be aware, the Obama administration is having an internal debate (largely between State and Defense via their lawyers) on the present topic - not a major media event, but reported in the following links:

NYT - At White House, Weighing Limits of Terror Fight (by Charlie Savage, 15 Sep 2011):

...
The Defense Department’s general counsel, Jeh C. Johnson, has argued that the United States could significantly widen its targeting, officials said. His view, they explained, is that if a group has aligned itself with Al Qaeda against Americans, the United States can take aim at any of its combatants, especially in a country that is unable or unwilling to suppress them.

The State Department’s top lawyer, Harold H. Koh, has agreed that the armed conflict with Al Qaeda is not limited to the battlefield theater of Afghanistan and adjoining parts of Pakistan. But, officials say, he has also contended that international law imposes additional constraints on the use of force elsewhere. To kill people elsewhere, he has said, the United States must be able to justify the act as necessary for its self-defense — meaning it should focus only on individuals plotting to attack the United States. ...

Lawfare - Thoughts on the Latest Round of Johnson v. Koh (by Jack Goldsmith, 16 Sep 2011).

Lawfare - One More Thought on Charlie Savage’s Story (by Benjamin Wittes, 17 Sep 2011).

Lawfare - Gabor Rona’s Response to My Post on Johnson v. Koh, with a Note on Ideological Opposition to Working with Congress (by Jack Goldsmith, 18 Sep 2011).

Gabor Rona is the International Legal Director of Human Rights First (formerly on the ICRC staff) - his piece on Was killing Osama bin Laden legal? is fairly typical of a "universalist" viewpoint (e.g., in his response to a left-side critique, he found possible justification for the killing in opinions by "the ICTY, ICTR, Inter-American Court and the ICRC").

If we strip all of this "high powered legalese" down to basics, I believe that two principles are key factors:

1. The essence of legal rules rests in human experience, not logic or divination.

2. Legal rules (like military force) are instruments of policy.

These principles take us back to the three-ring diagram whose intersection leads to ROEs.

Regards

Mike

[M-A Lagrange]

Mike,

I believe we agree on most of the issues.

One point I found interresting in the question of legal responsibilities in robotic in war and the use of new technologies is that we always end up to the primal and final responsibility of a human being in the decision of using force.

The "fear" some ICRC and other observers have, which may look science fiction but is in fact very actual, is the search to remove or limit the human interraction through cybernetic automatisation of target identification.
In fine, the question asked is up to what point is it possible to limit the need of human on the battle field to preserve the legality and legitimacy of the use of force.