The Rules - Engaging HVTs & OBL

[Polarbear1605]

and here on our own SWJ:
http://smallwarsjournal.com/blog/201...f-killing-bin/

...could not have said it better myself...except the article should have closed with "Inter arma silent leges: in time of war the law is silent" (law = rule of law of course)
IMO we are seeing how our politicians can get into trouble at the strategic level by mixing ROL and LOW. Can anyone give me an example of how our militray generals get into trouble at the strategic level mixing the two?

[jmm99]

a Marine named "Butch" ?

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):

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):

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

[jmm99]

er.., rather the mouse.

From HuffPost:

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

[Ray]

Mike,

While none (well, at least the majority of the world) would lament OBL being killed, but questions that are being raised in Pakistan and by co religionists in India, is that how far can the US writ (US President's authorisation) legally apply beyond its frontiers as per international law?

Pakistan harbours terrorists and of that there is no doubt. And Pakistan, as a rule, denies their existence. Therefore, maybe the manner in which the US sorted out OBL is the only answer.

Therefore, my query as to what is the legal position on this?

[jmm99]

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:

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:

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

[LawVol]

Well said, Mike. Sometimes the legal part can be quite simple. Nearly ten years of inability or unwillingness on the part of Pakistan to deal with AQ led to this result.

[jmm99]

Although directly aimed at "capture-detention" situations, this "e-book", The Emerging Law of Detention 2.0: The Guantánamo Habeas Cases as Lawmaking, also "informs" our HVT topic, as well as "kill or capture" missions in general. Pdf download of entire book.

Regards

Mike