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Thread: The Rules - Engaging HVTs & OBL

  1. #101
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    Mike,

    My comment on improving the process only pertains to the rare case when we target a U.S. citizen, I'm not advocating change for targeting non-U.S. citizens.

  2. #102
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    Default I can't see any material difference,

    so far as killing is concerned, between a non-US citizen combatant AQ member; and a US citizen combatant AQ member who has expatriated himself. Both are members of a defined hostile armed force on foreign soil; and, given PID, can be killed anytime, anyplace without offer of surrender or any other notice.

    If that US citizen combatant AQ member returns to the US as part of an invading armed force, the same rule should apply - given PID, he can be killed anytime, anyplace without offer of surrender or any other notice.

    What if that US citizen never leaves the US, but becomes a combatant member of an AQ group within the US. Let us posit that that group executes a mini-Mombai successfully (proving they are a combat group); and now are peacefully (to all appearances) back in their homes. I'd say the same rule - given PID, those members can be killed anytime, anyplace without offer of surrender or any other notice. The USG might not do that for policy reasons; but consider the number of US citizens the USG killed on US soil because they were enemy combatants in our Civil War.

    In all of these situations, we have to be engaged in an armed conflict with the TVNSA group (AQ in my three examples); and the US citizen has to be a combatant in that conflict - but so do non-citizens. I can't see why US citizens should be preferred over non-citizens in any of the three cases.

    Regards

    Mike

  3. #103
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    I think the difference is that I'm not sure he legally expatrioted himself, anymore than retired LTC Hackworth did. However, that is a minor issue compared to having a few mid level bureaucrats basically handing out a death sentence on an American citizen in secret. If Americans are conducting illegal activities in a foreign country and their security forces kill them then it may be legal within their system, but if we kill them without due process that may well be a slippery slope.

    In the case of Awlaki I have already stated I agree with the action. The logic of doing so is undeniable in my book, but "if" this does open the door to wider targeting of Americans without due process then it is of concern. There are a lot of young Americans and Europeans that think they want to terrorists, and even travel to the Middle East, South Asia, Somalia for training and get disillusioned when they get there and leave without ever committing a crime worthy of death. Yet, if Americans are in a particular camp with the "possible intent" of conducting a terrorist attack on the homeland should we take them out? It is obviously a very dangerous threat, but it is still a potential threat. What if we're just concerned they're training other terrorists on how to survive in the U.S.?

    On Awlaki we agree, but this business can get very complicated.

  4. #104
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    Default I set out a simple factual test - case 1

    of a "US citizen [1] combatant AQ member [2] who has expatriated himself". That uses the simple factual test for Expatriation:

    An expatriate (in abbreviated form, expat) is a person temporarily or permanently residing in a country and culture other than that of the person's upbringing or legal residence. The word comes from the Latin terms ex ("out of") and patria ("country, fatherland").
    thereby avoiding the legal quagmires of Renunciation of citizenship and Denaturalization.

    Hackworth (who had a number of policy viewpoints the same or similar to mine) was an expat to AUS for a decade. He was not a combatant in an armed force at war with the US. That is the essential test so far as I am concerned, which allows me to go on and include case 2 (an invasion force with a US citizen) and case 3 (a home-grown Mombai group).

    Regards

    Mike

    PS: This is far-removed from anything I'm talking about:

    Yet, if Americans are in a particular camp with the "possible intent" of conducting a terrorist attack on the homeland should we take them out? It is obviously a very dangerous threat, but it is still a potential threat.
    A "very dangerous threat" based on "possible intent" ??? What an odd intelligence matrix. "Possible" is less than "probable" and even less than "plausible". "Intent" cannot be objectively determined without overt acts. I see no "very dangerous threat". Who in the present administration is propounding killing misguided youngsters ?

    Now, if that particular misguided youngster happens to be in an AQ training camp with the rest of the AQ recruits - and we take out the camp - so be it; but that is not an individual targeted killing. If the guy leaves the camp as a "graduate", how do we know that he suddenly becomes "disallusioned" - unless he tells us ?
    Last edited by jmm99; 10-11-2011 at 03:54 PM.

  5. #105
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    Default Here's a "Pair of Aces" for you ....

    both critical of the Obama Administration for different reasons - and poles apart:

    John Yoo, The Administration’s Strange Reasoning on al-Awlaki (9 Oct 2011)

    Andy Worthington, Death from Afar: The Unaccountable Killing of Anwar al-Awlaqi (4 Oct 2011).

    I have to say for Andy that he does not ignore legal holdings that are against his position:

    Technically, al-Awlaqi’s inclusion on a target list maintained by the U.S. military’s shadowy Joint Special Operations Command (JSOC), and the April 2010 decision to add him to “a list of suspected terrorists the CIA is authorized to kill,” which “required special approval from the White House” (as the Washington Post described it), is legal. This is because, in December last year, Judge John D. Bates of the district court in Washington, D.C., dismissed a lawsuit contesting President Obama’s “targeted killing” policy, which was submitted on behalf of al-Awlaqi’s father.

    Judge Bates ruled that “the plaintiff did not have legal standing to challenge the targeting of his son,” and also concluded, alarmingly, “that there are circumstances in which the Executive’s unilateral decision to kill a U.S. citizen overseas is ‘constitutionally committed to the political branches’and judicially unreviewable.”
    but that does not prevent him from hitting at the consequences as he views them (which BTW is OK):

    This was unacceptable to the ACLU and the Center for Constitutional Rights, acting on behalf of al-Awlaqi’s father. They asked three particular questions that I found important:

    Outside of the context of armed conflict, should it not be the case that the government can only carry out the “targeted killing” of an American citizen “as a last resort to address an imminent threat to life or physical safety”?

    Why did the court not order the government to disclose the legal standard it uses to place U.S. citizens on government kill lists?

    How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the United States decides to target a U.S. citizen overseas for death?
    These questions were unanswered, and they remain unanswered now, prompting John Bellinger to recommend that the Obama administration “should provide more information about the strict limits it applies to targeting and about who has been targeted.”
    The ACLU and CCR could have asked those questions (and raised more) by appealing Judge Bates' Awlaki ruling - which they didn't do. Why they didn't appeal has puzzled me.

    To me, the multi-million TSA searches and the multi-thousand ISP disclosure orders are going to have far greater long-term effects on the civil and political rights of US citizens, than whacking al-Awlaki (or not whacking him, for that matter). In those areas (as re: "enhanced interrogations" and "extraordinary renditions"), I stand more to Andy's side than to that of John Yoo. On the al-Awlaki issue, I do stand more to Yoo's side.

    Regards

    Mike

  6. #106
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    Posted by JMM,

    A "very dangerous threat" based on "possible intent" ??? What an odd intelligence matrix. "Possible" is less than "probable" and even less than "plausible". "Intent" cannot be objectively determined without overt acts. I see no "very dangerous threat".
    What an odd intelligence matrix? Isn't this the same matrix we used to justify invading Iraq? Wasn't there a book written not too many years ago called the "one percent doctrine"?

    Possible may or may not be less than probable in this case, unfortunately I can't think of a term that would identify a midpoint on the scale between possible and probable.

    If intent must be proven objectively, and it can't be proven objectively if overt acts are not observed that leaves two options I can think of off the top of my head. One, we monitor, wait, and then arrest if and when the overt act(s) are observed. That is obviously the appropriate approach legally, but if it overwhelms law enforcements capacity to do so and the risk of missing the overt act and allowing an attack to actually happen takes us to option two, which the FBI is frequently accused of using, which is leading the would be (could be) terrorist to demonstrate his intent by offering him/her a plot and then pass inert explosives to them. Once they take them we arrest them. A lot of lawyers call this entrapment.

    Where you don't see a dangerous threat, I see a very serious "potential" threat. An American citizen who doesn't fit the preconceived profile of what a terrorist looks like, acts like, and can move freely in American streets is a person that has a much higher probability of defeating our security measures.

    Now, if that particular misguided youngster happens to be in an AQ training camp with the rest of the AQ recruits - and we take out the camp - so be it; but that is not an individual targeted killing. If the guy leaves the camp as a "graduate", how do we know that he suddenly becomes "disallusioned" - unless he tells us ?
    There are lots of ways to find out, but one way is he calls his parents and tells them he wants to come home, and then his parents call the State Department or the FBI and ask for help.

    Hackworth (who had a number of policy viewpoints the same or similar to mine) was an expat to AUS for a decade. He was not a combatant in an armed force at war with the US. That is the essential test so far as I am concerned, which allows me to go on and include case 2 (an invasion force with a US citizen) and case 3 (a home-grown Mombai group).
    IMO Hackworth was a great American who told the truth to an audience that wasn't comfortable with the truth. In turn they set loose the dogs of reputation killers to attack the person, because they couldn't challenge his arguments.

    However, my point about bringing up Hackworth is what makes a person an expat legally? If I decide to reside in Mexico for a year am I legally an expat and no longer enjoy my rights as a U.S. citizen?

  7. #107
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    Default We can rest easy - the NYT has spoken

    The NYT Editorial on al-Awlaki has finally been published, Justifying the Killing of an American (Published: October 11, 2011). As compared to the in-depth coverage we've seen over the last week, the editorial is comparatively weak tea.

    Its BLUF is:

    Mr. Awlaki was not entitled to full protections — an open-court trial in absentia would have been time-wasting and impractical — but as an American, he was entitled to some. The memo said Mr. Awlaki should be captured if feasible — an important principle, even though the government did not believe it could safely put commandos in Yemen to capture him.

    Due process means more than a military risk analysis. It requires unambiguous and public guidelines for how the United States will follow federal and international law in approving targeted killings, particularly of Americans. And it means taking the decision beyond the executive echo chamber. We have argued that judicial review is required, perhaps a closed-door court similar to the Foreign Intelligence Surveillance Court, before anyone, especially a citizen, is placed on an assassination list.

    The Obama administration seems to know that antiterrorist operations do not escape the rule of law. Its case would be far stronger if it would say so, out loud.
    This quote allows me to segue into one of the concerns raised by Worthington and several of the items in Bill Moore's last post. But, later; I've a noon appointment.

    Regards

    Mike

  8. #108
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    Default Mixing Rules

    The question posed by Worthington, the ACLU and CCR:

    Outside of the context of armed conflict, should it not be the case that the government can only carry out the “targeted killing” of an American citizen “as a last resort to address an imminent threat to life or physical safety”?
    My BLUF: Outside of the context of armed conflict, “targeted killing” should not apply at all. Nor, should any of the other "Wartime" rules based on status. By moving those wartime rules into our justice system, we run the risk of polluting that system. I'm glad Michael Hayden made that point in his debate - and took a shot at AG Holder in the process (this post):

    We had the attorney general talking to the American Congress about legislation that would make Miranda more malleable so that we could interrogate these kinds of people longer in our law enforcement approach.

    I don't want to make Miranda more malleable. Miranda defends me. Defends you. Defends your rights. And we're forced to contort the law enforcement approach when we attempt to make it answer and deal with questions it was never designed to deal with. This is one of those questions. Don't take that other tool, "We are a nation of war [sic ! at war]" off the table.
    Now, the first quote from Worthington, the ACLU and CCR (“as a last resort to address an imminent threat to life or physical safety”) may be speaking to a "Tennessee v Garner" situation (a fleeing felon, esp. from a lawful arrest, known dangerous from his prior conduct); but that is really a "Peacetime" rule based on conduct.

    In the context of an armed conflict (jus in bello), the term "as a last resort to address an imminent threat to life or physical safety” introduces a constraint that is not required and is dangerous to the life and limb of soldiers and to those they are trying to protect.

    Of course, politicians and the NYT love to have their cake and eat it too. So, we get the NYT concluding that Mr. Awlaki ought to have had "due process" and "rule of law" protections; but, mind you, not all of them because some of them would "time-wasting and impractical". So, let's pick from the "Rule of Law" here and the "Laws of War" there.

    Since none of the resultant mishmash is justiable anyway (Bates et al are correct on that), legal opinions are really immaterial and the only material factor is the outcome of the political struggle. I'm game for that.

    The issues surrounding "targeted killing" (unless one wants to do it in a "Peacetime" environment - I don't) are somewhat different from human intelligence operations. In a "Peacetime" environment, many human intelligence operations are illegal under the domestic laws of the targeted country.

    So far as international law is concerned, "state practice" has been a wink and a nod, including to some extent covert "intelligence" actions that have been military in their primary nature.

    Again, say the politicos, "we will have our cake and eat it too" - esp. if one has had a couple of early successes (e.g., Iran and Guatemala; but then the Bay of Pigs).

    Even if FISA is justified in a wiretap situation (handled by other courts every day in different contexts), that does not justify a "FISA-type court" (whatever that really means) to oversee "targeted killings".

    Regards

    Mike
    Last edited by jmm99; 10-12-2011 at 07:52 PM.

  9. #109
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    Default Bill Moore:

    Taking Bill's points in reverse order:

    Expatriation

    IMO Hackworth was a great American who told the truth to an audience that wasn't comfortable with the truth. In turn they set loose the dogs of reputation killers to attack the person, because they couldn't challenge his arguments.

    However, my point about bringing up Hackworth is what makes a person an expat legally? If I decide to reside in Mexico for a year am I legally an expat and no longer enjoy my rights as a U.S. citizen?
    The answers are given in the hyperlinks in my post, I set out a simple factual test - case 1

    of a "US citizen [1] combatant AQ member [2] who has expatriated himself". That uses the simple factual test for Expatriation:

    An expatriate (in abbreviated form, expat) is a person temporarily or permanently residing in a country and culture other than that of the person's upbringing or legal residence. The word comes from the Latin terms ex ("out of") and patria ("country, fatherland").
    thereby avoiding the legal quagmires of Renunciation of citizenship and Denaturalization.
    Expatriation (no matter how long) does not = Renunciation of citizenship or Denaturalization

    BTW: Hackworth's smartest "Peacetime" move (or luckiest) was hiring Joe Califano, who was too busy to handle the "case" and passed Hackworth down to a young lawyer in Califano's firm - Brendan Sullivan, who was far from a "potted plant" even then. Luck of the draw.

    --------------------------------------------
    Misguided Youngsters

    There are lots of ways to find out, but one way is he calls his parents and tells them he wants to come home, and then his parents call the State Department or the FBI and ask for help.
    That's certainly one way. In any case, even under Wartime rules, the agency involved should (for sound intelligence reasons) bring the youngster in from the cold; and welcome him to a series of interviews in the best traditions of Hanns Joachim Scharff. Foregoing criminal prosecutions might well be part of the arrangement. And, rules aside, is the youngster (or oldster, as in at least one Gitmo case) really done with AQ ? - a difficult question to find answers even for a "Scharff" gator.

    -----------------------------------------------------
    Matrices and Stuff

    What an odd intelligence matrix? Isn't this the same matrix we used to justify invading Iraq? Wasn't there a book written not too many years ago called the "one percent doctrine"?
    Don't include me among that "we" if that is exemplified by the public DCI 2002 report on Iraq's Weapons of Mass Destruction. That report's bold face contained far more lawyerly weasel words than even I could tolerate.

    I did support getting rid of Saddam because of his past conduct up through 2002; and to get rid of the UN Embargo. My support for nation-building was non-existent, and I said in Dec 2003 that we should be gone. I also thought the "one percent doctrine" as expressed by Suskind was nuts. I've written all that here at SWC; but have not checked my exact wording.

    Possible may or may not be less than probable in this case, unfortunately I can't think of a term that would identify a midpoint on the scale between possible and probable.
    As to "probable" - more likely than not, viewing all the evidence as a whole.

    As to "possible", what is probable is also possible; but what is possible is not necessarily probable. A "one in a trillionth percent" is "possible".

    As to "plausible", some good material evidence; but viewing all the evidence as a whole, it is not more likely than not. What is probable is also plausible; but what is plausible is not necessarily probable. What is plausible is also possible; but what is possible is not necessarily plausible.

    The term "possible intent" covers too much waterfront - (1) because "possible" covers too much range; and (2) "intent" (like "belief") is also a difficult term to qualify, much less quantify.

    This is not some tricky legal test (and it sure isn't philosophy). It's simply how I look at facts - thereby realizing that a gray area (for individual determination) exists in practice.

    If intent must be proven objectively, and it can't be proven objectively if overt acts are not observed that leaves two options I can think of off the top of my head. One, we monitor, wait, and then arrest if and when the overt act(s) are observed. That is obviously the appropriate approach legally, but if it overwhelms law enforcements capacity to do so and the risk of missing the overt act and allowing an attack to actually happen takes us to option two, which the FBI is frequently accused of using, which is leading the would be (could be) terrorist to demonstrate his intent by offering him/her a plot and then pass inert explosives to them. Once they take them we arrest them. A lot of lawyers call this entrapment.
    An overt criminal act (even under "Peacetime" rules; the two examples given above) can include speech - e.g., falsely yelling "fire" in a crowded theater; or an email outlining the criminal plan. Entrapment is a lousy defense (it does not usually succeed), even where the other half of the conspiracy is totally fabricated to fit what the conspirator wants.

    These same "Peacetime" tools are not excluded from my "Wartime" tool kit; but once one starts down the "Peacetime" road - say, by fabricating via CI-1 a link to a TVNSA group (even if that group is real), I can't see how one can justify moving to "Wartime" rules and shooting the guy. The reason, BTW, has nothing to do with entrapment; but with the fact that the guy is not a real combatant in the real TVNSA group. And, you don't get that status even if the guy is a member of Quds - ain't no AUMF vice Iran or Quds (last I looked)

    Where you don't see a dangerous threat, I see a very serious "potential" threat.
    Remember my objection was and is to an intelligence matrix finding a "very dangerous threat" based on "possible intent". No way, under either "Peacetime" or "Wartime" rules. The same for it being a "very serious potential threat" based on "possible intent" - the substance is still the same.

    An American citizen who doesn't fit the preconceived profile of what a terrorist looks like, acts like, and can move freely in American streets is a person that has a much higher probability of defeating our security measures.
    All very true. That person is perfectly clandestine. He or she will not be on anyone's "hit list" of enemy combatants (not a status-based target under "Wartime" rules); nor will he or she be on anyone's investigation list (not a conduct-based person of interest under "Peacetime" rules). That person's beliefs and intentions will most likely be Mom and Apple Pie. So, unless our security services get lucky, that person will go on to successfully complete his or her mission.

    Regards

    Mike

  10. #110
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    Default A Titles 10-50 Primer

    The conflation of Title 10 (DoD) and Title 50 (CIA, but more generally "National Security") in direct actions is part and parcel of this thread; but that conflation - or convergence, as Bobby Chesney puts the question - applies in other areas as well.

    Robert Chesney, Military-Intelligence Convergence and the Law of the Title 10/Title 50 Debate (2011) (76 pages; free download):

    Abstract:

    One of the most striking features of the post-9/11 era has been the convergence of military and intelligence operations. Nothing illustrates the trend better than the CIA‟s emergence as a veritable combatant command in the conflict with al Qaeda, though it manifests as well through the expansion of clandestine special forces activities, joint CIA-special forces operations, and cyber activities that defy conventional categorization. All of which obviously is important from a policy perspective. Less obviously, it also has significant legal implications.

    I do not refer to questions such as who lawfully may be targeted or what computer network operations amount to “armed attack,” though those are of course important matters. Rather, I am concerned here with America‟s domestic legal architecture for military and intelligence operations. That architecture is a half-baked affair consisting of a somewhat haphazard blend of decision-making rules, congressional notification requirements, and standing authorizations and constraints relevant to particular agencies. Convergence has a disruptive impact on key elements in that framework, especially those that rely on categorical distinctions that convergence confounds (like the notion of crisp delineations among collection, covert action, and military activity).

    My first aim in this article is to map that impact as thoroughly as can be done through the public record, drawing attention to and disaggregating issues that have bedeviled government lawyers behind closed doors for some time. My second aim is normative, as I suggest a modest set of changes to the existing legal framework meant to improve democratic accountability and compliance with the rule of law in such operations, while preserving the benefits convergence generates.
    This article will answer many of the questions which readers here at SWC have asked about Titles 10 & 50 operations.

    Regards

    Mike

  11. #111
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    Default Kill or Capture - the McNeal View

    In 2007, Gregory S. McNeal twisted some tails (but not mine ) with his Snatch-and-Grab Ops: Justifying Extraterritorial Abduction:

    Abstract:

    The United States government is actively engaged in a search for individuals believed to have killed American citizens and destroyed American property. As most of these individuals live openly in foreign states hostile to the United States, achieving extradition often proves impossible. Despite repeated diplomatic efforts to secure the transfer of these terrorists to America, many continue to operate in foreign states under the protection of the host country's continued denial of the terrorist's presence within their borders.

    The problem of bringing these individuals to justice is further complicated by the fact that the United States is rarely able to pinpoint their precise location. Terrorists typically reside in host countries where it is nearly impossible to find them amongst the citizens. Thus, the broad question is what tools are available to the U.S. government if it was to actually find a terrorist's location? Considering the inherent difficulty in finding that individual again, and the strong likelihood that leaving the individual to his own devices will yield further attacks on the United States, what ought the U.S. President do to preserve the peace and safety of American citizens? Specifically, are the options of the U.S. military restricted by international law trends?

    This Article addresses these questions by specifically discussing whether a terror suspect who was forcibly abducted may be prosecuted by the United States despite possible territorial violations under the doctrine of male captus, bene detentus. The Article directly addresses whether territorial sovereignty can trump an effort to capture a terrorist who is planning future attacks. ...
    especially given his conclusion:

    IV. CONCLUSION

    In the post-September 11th world of counter-terrorism, the United States has chosen to proactively combat the evil of terrorism that brought about the September 11th attacks. In the event that an enemy combatant argues for a lack of jurisdiction based on an extraterritorial abduction, the government can argue that the abduction was justified so long as there was no abuse or torture involved. The U.S. government should first argue under universal jurisdiction, where subject matter jurisdiction is worldwide in response to terrorism. Then, to the international community, the United States should argue efficient breach in support of a violation of territorial sovereignty. This argument would bring the international community’s focus to promoting the extradition or prosecution of war criminals and terrorists, rather than a criticism of minor territorial violations.

    A defendant does not have a right to personally object to a territorial violation, because such a violation is only committed against the sovereign state. If such an objection is permitted, however, the extraterritorial abduction is still permissible under the doctrine of male captus, bene detentus under customary international law, codified international rules, U.S. jurisprudence, and foreign state decisions.

    It will greatly benefit the international community to codify exactly what will warrant extraterritorial abductions and specifically how such actions may be used. Given the likelihood that the United States and other countries such as Israel will increase their use of extraterritorial kidnapping, the international community should act proactively to address the issue. Until the international community does codify the specific circumstances under which extraterritorial kidnapping is permissible, the United States is justified in exercising extraterritorial abductions under universal jurisdiction, passive personality, and finally, efficient breach.
    This year McNeal has turned from the capture situation with first a critique of US critics who lack empirical evidence, Are Targeted Killings Unlawful? A Case Study in Empirical Claims Without Empirical Evidence (2011 draft; to be in TARGETED KILLINGS LAW AND MORALITY IN AN ASYMMETRICAL WORLD, Claire Finkelstein, Jens David Ohlin and Andrew Altman, eds., Oxford University Press, 2012):

    Abstract:

    Critics of the U.S. policy of targeted killing by unmanned aerial vehicles (UAVs or drones) generally lack credible information to justify their critiques. In fact, in many circumstances their claims are easily refuted, calling into question the reliability of their criticism.

    This chapter highlights some of the most striking examples of inaccurate claims raised by critics of the U.S. policy of drone based targeted killing. Specifically, this chapter offers a much needed corrective to clarify the public record or offer empirical nuance where targeted killing critics offer only unsubstantiated and conclusory statements of fact and law.

    Section I of this chapter discusses the decision protocol used by the U.S. military before launching a drone strike, a process that goes to extraordinary lengths to minimize civilian casualties. Although this decision protocol was once secret, recent litigation in federal court has resulted in the release of extensive information regarding U.S. targeting protocols. An analysis of this information indicates that the U.S. military engages in an unparalleled and rigorous procedure to minimize, if not eliminate entirely, civilian casualties. Although independent empirical evidence regarding civilian casualties is hard to come by, it is certainly the case that statistics proffered by some critics cannot be empirically verified; their skepticism of U.S. government statements is not backed up by anything more substantial than generic suspicion.

    Section II of this chapter then addresses the critics' unsubstantiated claims about the legal, diplomatic and strategic results of drone strikes. Although the counter observations raised in this chapter do not, by themselves, demonstrate that targeted killings are morally or legally justified, they do however suggest that some of the moral or legal objections to targeted killings are based on empirical claims that are either dubious, impossible to verify, or just plain false.
    (Abstract only online). This will twist a number of tails.

    As does his empirical study of the kill situation as it works under Title 10 rules, The U.S. Practice of Collateral Damage Estimation and Mitigation (2011):

    Abstract:

    ...

    In recent years, an entire body of academic literature and policy commentary has been based on an incomplete understanding of how the U.S. conducts military operations. The literature is incomplete because U.S. practices are shrouded in secrecy and largely inaccessible. As a result commentators have lacked a descriptive foundation to analyze and critique U.S. operations. Their writings have focused on easily describable issues such as whether a target was a lawful military objective, and then typically shift attention to the question of proportionality balancing and collateral damage.

    These commentators skip an important aspect of actual practice - the scientifically grounded mitigation steps followed by U.S. armed forces. Those mitigation steps are designed to ensure a less than 10% probability of collateral damage resulting from any pre-planned operation. This paper’s description differs from the general and incomplete approach currently found in scholarship and more accurately describes the reality of modern operations. In those operations U.S. armed forces follow rigorous steps prior to engaging in any proportionality balancing.

    This paper is intentionally descriptive and explanatory; it makes a contribution to theory by providing a qualitative empirical account that explains for the first time in scholarly literature the process of collateral damage estimation and mitigation as practiced by the U.S. military. While this paper will be especially useful for those seeking to understand how collateral damage is estimated in targeted killing operations, the paper’s relevance is not limited to the context of targeted killings.

    Key Findings: In pre-planned operations the U.S. military follows a rigorous collateral damage estimation process based on a progressively refined analysis of intelligence, weapon effects, and other information. When followed, this process dramatically reduces the amount of collateral damage in U.S. military operations, and also ensures high levels of political accountability. However, due to the realities of combat operations, the process cannot always be followed;

    - The U.S. military’s collateral damage estimation process is intended to ensure that there will be a less than 10 percent probability of serious or lethal wounds to non-combatants;

    - Less than 1% of pre-planned operations which followed the collateral damage estimation process resulted in collateral damage;

    - When collateral damage has occurred, 70% of the time it was due to failed “positive identification” of a target. 22% of the time it was attributable to weapons malfunction, and a mere 8% of the time it was attributable to proportionality balancing - e.g. a conscious decision that anticipated military advantage outweighed collateral damage;

    - According to public statements made by U.S. government officials the President of the United States or the Secretary of Defense must approve any pre-planned ISAF strike where 1 civilian casualty or greater is expected.
    This last article also touches on Title 50-Title 10 operations - for which less empirical evidence exists.

    Regards

    Mike

  12. #112
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    Default Some Evaluation Resources

    The San Remo ROE Handbook (2009) was a multi-national effort to create a set of rules for discussion purposes without transgressing the classification issues if actual ROEs were employed. The Handbook is therefor generalized, but is a useful framework for discussion.

    McNeal uses a number of resources from the al-Aulaqi case, which included considerable revelation of previously classified portions of the targeting process (among several of the "state secrets" discussed). The following are USG public filings (unclassified):

    Gov't Memo Opp to Preliminary Injunction and MTD_09-25-10.pdf

    Gov't MTD - Ex 1 - Clapper Decl_09-25-10.pdf

    Gov't MTD - Ex 2 - State Secrets Policy Memo_09-25-10.pdf

    Gov't MTD- Ex 3 - Leiter Testimony_09-25-10.pdf

    Gov't MTD- Ex 4 - Gates Decl_09-25-10.pdf

    Gov't MTD - Ex 5 - Panetta Decl_09-25-10.pdf

    Declaration of Jonathan Manes_10-08-2010.pdf

    Govt's Reply re MTD_10-18-10.pdf

    The Jonathan Manes Declaration (52 pages) seems the most useful, as a framework for discussion, in regard to the targeting process.

    Regards

    Mike

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    Default Corrected links for

    Govt's Reply re MTD_10-18-10.pdf

    Gov't MTD- Ex 3 - Leiter Testimony_09-25-10.pdf

    Some issues earlier today with the CCR document center.

    Regards

    Mike

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    Default Ashley Deeks on "Unwilling or Unable"

    I've cited Ashley Deeks, Pakistan's Sovereignty and the Killing of Osama Bin Laden (May 5, 2011), in my post in this thread, Another ASIL "Insight" - validating the OBL DA. For the most part, I felt she was on the right track (though not as definite as she might have been).

    So also, my reaction to her expanded presentation in "Unwilling or Unable": Toward an Normative Framework for Extra-Territorial Self-Defense (Ashley Deeks, Columbia Law School; Virginia Journal of International Law, Vol. 52, 2012):

    Abstract:

    Non-state actors, including terrorist groups, regularly launch attacks against states, often from external bases. When a victim state seeks to respond with force to those attacks, it must decide whether to use force on the territory of another state with which it may not be in conflict. International law traditionally requires the victim state to assess whether the territorial state is “unwilling or unable” to suppress the threat itself. Only if the territorial state is unwilling or unable to do so may the victim state lawfully use force. Yet there has been virtually no discussion, either by states or scholars, of what that test requires. The test's lack of content undercuts its legitimacy and suggests that it is not currently imposing effective limits on the use of force by states at a time when trans-national armed violence is pervasive.

    This Article provides the first sustained descriptive and normative analysis of the test. Descriptively, it explains how the “unwilling or unable” test arises in international law as part of a state's inquiry into whether it is necessary to use force in response to an armed attack. It identifies the test's deep roots in neutrality law, while simultaneously illustrating the lack of guidance about what inquiries a victim state must undertake when assessing whether another state is “unwilling or unable” to address a particular threat. Normatively, the Article plumbs two centuries of state practice to propose a core set of substantive and procedural factors that should inform the “unwilling or unable” inquiry. It then applies those factors to a real-world example – Colombia's use of force in Ecuador in 2008 against the Revolutionary Armed Forces of Colombia – to explore how the use of these factors would affect the involved states' decision-making and the evaluation by other states of the action's legality. The Article argues that the use of these factors would improve the quality of state decision-making surrounding the use of force in important substantive and procedural ways.
    Ms Deeks appends several dozen examples of state action taken sans consent in "unwilling or unable" situations. I've attached a .pdf snip of the list. Many of these situations will be familiar to folks here who have studied them from military or political standpoints. Her focus (as an exemplar) is on FARC, Colombia and Equador.

    The devil is always in the details. One such detail is the question of which balancing test should be used to justify state action. While Ms Deeks does not like a simple "efforts" test, she also rejects a "certainty" test (p.30 pdf):

    This balance has proven notoriously difficult to achieve since the Charter‘s enactment, but striking the wrong balance may have seriously destabilizing results. Consider an "unwilling or unable" test that systematically over-protects the victim state‘s equities. Such a test might require the victim state to undertake only a superficial inquiry about the territorial state‘s willingness or ability to suppress the threat itself, or might set high expectations for the territorial state‘s capacity to address the threat, such that it would be easy for the victim state to conclude that the territorial state was unable to do so and to choose to use force itself.[67]

    67. While victim states generally would be happy with a test that over-protects their equities, those states must be conscious that any test they use may be used against them in the future. Thus, even though Turkey might instinctively prefer a test that over-protects victim states (because it envisions itself most often in the situation of a victim state), it must consider how Iran might seek to apply the test if it believed that Kurdish rebels in Turkey were planning an attack against Iran. Thus, those states that expect most often to be in the position of victim states should place themselves behind a Rawlsian veil of ignorance in determining the characteristics of the test that they are willing to accept. Likewise, those states that expect that non-state actors might try to use their territory as a safe haven nevertheless should envision what test they would desire if they found themselves in the position of a victim state.
    On the other hand, consider a test that systematically over-protects the territorial state‘s equities – for instance, by only allowing the victim state to deem the territorial state "unwilling" when the victim state proves to a high level of certainty that the territorial state assisted the non-state actor that undertook the armed attack. Victim states simply will ignore a test that under-protects their equities when national security is at stake.
    One wonders what Ms Deeks thinks of combat ROEs which are based on a "certainty" test.

    In fact, she does not argue what the standard of proof should be; although, she does suggest a "clear and convincing evidence" test (note 73):

    73. Several scholars have written about the level of certainty that states must establish before using force. See, e.g., Lobel, supra note 71, at 539 ("The changing nature of warfare in the latter half of the twentieth century highlights the international community‘s need to develop rules and mechanisms to address the factual assertions upon which a nation employs armed force."); Waxman, supra note 60, at 58. The proper standard of proof that a victim state should be able to meet before taking action in a territorial state is an important and difficult question, because the facts underlying an "unwilling or unable" determination often will be contested. It may be that a standard akin to "clear and convincing evidence" will strike the best balance between the equities of the victim and territorial states. It may also be that the standard should shift depending on the level of threat that the victim state reasonably believes that it faces. Although the issue is worthy of further consideration, this article does not address in detail the standard of proof that a victim state must meet. However, it makes a baseline assumption that the victim state must act in good faith. See infra text accompanying notes 135-136.
    Her suggestion that the standard of proof could shift based on the degree of threat has some merit.

    This is a timely article as the Administration is expected soon to trot out AG Holder to justify the al-Aulaki strikes. I expect Ms Deeks could make a better presentation of the US position.

    Regards

    Mike

    The examples in the attached snip start with the US in Spanish Florida (1817-1818; Seminoles) and end with Turkey in Irak (2010; PKK).
    Attached Files Attached Files
    Last edited by jmm99; 01-24-2012 at 05:32 AM.

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    Default Targeted killings: what are the alternatives?

    From the Kings of War blogsite an article I missed, the full title being 'Raffaello Pantucci on targeted killings: what are the alternatives?':http://kingsofwar.org.uk/2011/01/raf...#comment-14072
    davidbfpo

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    Default What a Difference a Year Makes

    Initially, I failed to check the date (3 Jan 2011). Pantucci suggests (after running through some options which didn't and wouldn't fly in the US):

    Maybe the solution is much simpler: the conflict needs to be recast as a ‘war’. People die in wars, usually for a rationale that a majority of the population accepts, or which it needs to be persuaded of. NATO went to Afghanistan in the wake of 9/11 to get those who carried out that heinous act, in a move that most supported (in the West at least). Let us refocus the rhetoric and language on this fact and that the drone war is an extension of this conflict. This is not to advocate the conflict’s indefinite continuance, but let us phrase the debate about strikes within that context and continue the discussion along these lines. This framework would also force a serious public conversation on the war in Afghanistan, rather than a debate about a tactic. It would furthermore provide a better context for understanding the path that the West is now on: slowly withdrawing troops from Afghanistan while continuing with drone strikes against set targets.
    Of course, we've now had two administrations (one conservative Republican; one liberal Democratic) that have cast "targeted killings" in terms of warfare - technically, a confluence of Title 10 (Defense) & Title 50 (National Security).

    The Federal courts have made it clear that they will not substitute themselves for either the President or Congress with respect to direct actions (al-Aulaki) or "indirect actions" (Libya). The direct actions themselves have established our (US) capability to execute kill or capture missions in most areas of the World.

    Generally, 2011 was a bad year for opponents of targeted killing.

    Regards

    Mike

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    Default Gotovina - part 1

    Opponents of targeted killing in particular and proponents of very restrictive ROEs in general were no doubt heartened by Prosecutor vs. Ante Gotovina, Ivan Čermak, and Mladen Markač (Summary; Record Part 1; Record Part 2) (ICTY, 15 Apr 2011).

    Briefly, this international criminal case involved, among a number of other issues, alleged improper arty targeting in 1995 in the context of what was held to be an armed conflict of international character between Serbia and Croatia. However, the generality of the opinion lends it to application in any targeting situation, whether involving direct or indirect fires; as well as applying criminal liability to superiors not directly involved in controlling the fires.

    Emory Law assembled a group of IHL (International Humanitarian Law, aka Law of Armed Conflicts, Laws of War) experts, who were:

    John Altenburg, Jr.
    Greenberg Traurig LLP
    Major General (ret), US Army JAGC
    Former Deputy Judge Advocate General of the Army

    Laurie Blank
    Director, International Humanitarian Law Clinic
    Emory University School of Law

    Geoffrey Corn
    Professor of Law
    South Texas College of Law
    Lt. Colonel (ret), US Army JAGC

    William Fenrick
    Former Senior Advisor on Law of War Matters,
    Legal Advisory Section
    Office of the Prosecutor, ICTY
    Commander (ret), Canadian Armed Forces

    Donald Guter
    Rear Admiral (ret), US Navy JAGC
    Former Judge Advocate General of the Navy

    Walter Huffman
    Major General (ret), US Army JAGC
    Former Judge Advocate General of the Army

    Gary Solis
    Colonel (ret), US Marine Corps
    Former Director, Law of War Department, US Military Academy, West Point

    Marc Warren
    Colonel (ret), US Army JAGC

    Richard Whitaker
    Colonel (ret), US Army JAGC
    * Participating in personal capacity only and not representing any specific or general position of the United States Special Operations Command

    Jamie A. Williamson
    IHL and International Criminal Law Practitioner, in personal capacity

    Colonel Larry Youngner
    US Air Force JAGC
    Staff Judge Advocate
    Air Force Special Operations Command
    * Opinions expressed in this presentation may not reflect United States Air Force regulations or policy. The Air Force does not officially endorse and is not responsible for the accuracy or liability of the information.
    Here at SWC, the general rule is that opinions are valued by their content with no required proof of expertise. The real legal world is different - and credentials do count. Let's say that this panel goes well beyond the minimum requirements to practice.

    The Emory report, Military Operations, Battlefield Reality and the Judgment’s Impact on Effective Implementation and Enforcement of International Humanitarian Law (2012), should foreclose any realistic chances for the Gotovina decision to become US targeting law (however, never discount the persistence of legalistic JAs). But, that decision will still be held to bind many of our military partners, even though the Emory panel skewers its flaws.

    BLUF - The decision's impact on you (pp.15-16 pdf):

    C. Institutional Concerns: The Effect on the Military

    The U.S. and other advanced western militaries have a carefully developed and demonstrably sound system for the provision of legal advice before and during military operations. Military commanders and military lawyers both have important roles to play in this system, roles that depend on respect for each other and the respect of the troops for both the commander and the lawyer and their respective contributions to lawful and effective military operations. There was unanimous agreement among the expert participants at the November 4, 2011 meeting that the Gotovina judgment and the application of the law therein has the dangerous potential to undermine this delicate relationship.

    First, as the discussion in Section II above shows, the legal framework the judgment creates does not make sense and cannot be implemented effectively at the operational level. Consequently, military lawyers will face the unenviable task of providing legal advice based on legal paradigms and rules that do not make sense. When the advice of lawyers is nonsensical, the commander will simply disregard the advice and act based on his or her own moral code. In many cases, the commander’s own moral parameters may well be an excellent guide for the conduct of military operations, but in others, it may not. And the disregard for the lawyer’s advice leads to inconsistency across multiple units and, more problematic, a disregard for the law itself. In essence, as more than one expert noted, IHL will only be relevant to nations that do not fight wars, a perverse result that cannot be in line with the ICTY’s own goals and mandate.

    On a more institutional level, the experts agreed that the judgment may well have the effect of “silencing” the military lawyer. The legal adviser is the communicator of the law to the commander, and often a voice of reason and reflection in the targeting process. If the law is comprised of absolute rules detached from the pragmatic and inevitable variables of operations, rather than being based on the key principles and concepts central to IHL, then the commander has no reason to turn to the legal adviser for the simple fact that a rule that can never be complied with becomes effectively irrelevant. By undermining the law, the judgment thus undermines the legal advisor, which has a significant effect on the entire culture and institution of the military. Alternatively, the judgment can have an opposite, but equally troubling, consequence by eliminating all opportunities for the commander to exercise discretion and flexibility in the face of changing operational realities. With "no error" standards, every decision becomes a technical legal one, effectively removing all decision-making from the commander’s sphere and leaving it in the hands of the lawyer. Again, the experts expressed grave concern at the potential for such a result because it thoroughly emasculates the commander and turns every decision in combat from a strategic and legal decision into a political decision.

    IV. Conclusion

    At first glance, a judgment of the ICTY regarding the application of IHL to complex targeting operations involving two warring parties targeting military objectives in populated areas is a welcome development. With the progressive development and effective implementation of IHL in mind, careful consideration of the legal principles, obligations and standards could make a major contribution to IHL and to future military operations. Unfortunately, the Gotovina judgment as it stands goes in the very opposite direction. The military and operational law experts gathered at the November 4, 2011 roundtable discussion came together with the goals - shared with the ICTY -of promoting the development of IHL, ensuring the lawful conduct of military operations, and protecting civilians from the ravages of war. Because of the great potential for this decision to become a persuasive authority in the law of targeting, the experts believe it is important to highlight the legal flaws in the judgment and, even more important, the longer-term detrimental effects that the faulty application of the law will likely cause. Preserving the ability of military forces to conduct lawful military operations and protect civilians accordingly is essential.
    Don't assume that everyone (including JAs) know of this report.

    cont. in part 2

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    Default Gotovina - part 2

    Getting down into the weeds (both quotes below are from pp.6-7 pdf, footnotes omitted) - and seeing what a group of judges can decide when they decide what is and is not a "correct military" standard - and thereby creating a "no errors" standard:

    During the experts’ meeting, there was general consensus that the legal analysis in the Gotovina judgment risks undoing this legal framework for the role of intent in the crime of unlawful attacks against civilians. The judgment, as noted above, finds that all of the HV’s targets were lawful military objectives. It then concludes, however, that because a very small percentage (approximately 4.5%) of the artillery effects could not be attributed to a pre-established lawful object of attack, the overall operation constituted an unlawful attack on civilians.

    In essence, the finding reflects a double failure. First, it rests primarily on an effects-based analysis that either ignores or disregards any investigation or evidence of the commander’s knowledge or intent at the time of the attack - information that is central to any valid IHL analysis. Second, the inference derived from these effects seems operationally irrational: instead of focusing on the 95.5% of valid effects to infer a legally compliant state of mind, the Chamber relied on the 4.5% (an attribution ratio that itself is questionable) of invalid effects to reach the opposite conclusion.

    The experts recognize that the Trial Chamber ostensibly relied on the order to place Knin under artillery fire as direct evidence of the defendant’s state of mind. In doing so, however, the judgment places an overwhelming emphasis on post-attack effects, and draws an objectively irrational inference from those effects (the conclusion that a very small percentage of artillery effects resulting from over 900 rounds fired from maximum range cannot be directly linked to a pre-determined military objective indicates an unlawful intent). The experts were concerned that this methodology - judging targeting decisions based on unreasonable and incorrect standards - could become the accepted approach for assessing targeting decisions and operations.

    Ultimately, it is impossible to ignore the import of this judgment: it encourages a determination of criminality based almost exclusively on effects, without any grasp of what the alleged perpetrator knew or intended at the time of the attack. Throughout the course of the expert group discussion, the participants emphasized the essential role of accountability in the effective implementation and enforcement of IHL. But the experts also stressed that accountability that rests on relaxed standards of mens rea - or de facto elimination of mens rea altogether - comes at too high a price. The Gotovina judgment essentially forces commanders to operate with a standard that accommodates no errors.
    The "no errors" standard is doubly erroneous because it employs post-event findings of effects versus what the commander reasonably felt was more likely than not going to be the effects when he gave the order:

    The legal standard in Additional Protocol I, the ICTY Statute, the ICC Statute and customary international law is that commanders are obligated to make reasonable decisions based on the information available at the time of the attack. The law does not judge commanders based on the outcome alone, nor does it require commanders to be right in all circumstances. Rather, the participants at the November 4, 2011 experts meeting agreed that any assessment of targeting must be based on the commander’s intent and whether the decision to launch the attack in question was objectively reasonable based on the information available at the time of decision, including the full range of operational execution variables that influence the actual effects of an attack.

    More important, beyond the incorrect application of the law, the participants voiced a number of concerns regarding the imposition of a de facto strict liability standard for targeting determinations.

    First, the judgment’s approach appears to lower the legal standard of culpability from the ICTY’s established standard of willful or reckless to a standard of reasonable but wrong after the fact, rendering reasonable action by a commander culpable based solely on hindsight and outcome-based interpretations. This approach transforms a reasonable judgment (which by definition is not reckless) into an unlawful judgment solely based on the fact that what was prospectively reasonable was not retrospectively perfect: a strict liability standard. In effect, the judgment conflates the criminal standard with the operational standard in IHL, leaving no room at all for commander discretion and the complexity of the modern battlefield and targeting decision-making. The correct standard in IHL is amorphous and subjective in many instances, but it also fairly represents operational realities. The judgment thus fails to recognize that a commander’s judgment may be reasonable but ultimately wrong - and not culpable.

    Second, no commander will be able to meet the standard set forth in the Gotovina judgment, resulting in an oxymoronic result from the broader perspective of the fundamental goals of IHL. Forcing a commander to a “no error” standard is simply ineffective and even dangerous for future operations. Commanders will either refrain from engaging in military operations altogether out of an overabundance of caution in the face of an impossible standard, or will simply disregard the law entirely as no longer relevant to their purposes and mission. Under either scenario, innocent civilians are the ultimate victims - a result directly at cross-purposes with a central goal of IHL and of the ICTY.

    Finally, the experts were equally concerned about the long-term disillusionment with international law that will be the likely result as the legal standards for international criminal accountability no longer have a rational relationship to the implementation of IHL in military operations, a topic addressed in greater detail in section III.A below.
    Thus, the Emory report exposes a major fallacy in Gotovina: that commanders proceed at their own risk unless they are truly infallible - as measured ex post facto.

    cont. in part 3

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    Default Gotovina - part 3

    The report also considers the defective judicial measurement of proportionality (all quotes below from pp. 9-10 pdf, footnotes omitted). The first consideration was the value of the target (an HVT):

    In the specific instance of Operation Storm, the participants at the expert roundtable discussed extensively how a proportionality analysis would be conducted in such a situation. The first step is, naturally, to assess the lawfulness of the target - as the Trial Chamber did in finding that President Martic’s residence was a lawful target. But the analysis does not end there. It is essential then to examine the value of the target in the context of the entire operation (and not merely as an individual object of attack) - in this case, Martic was the supreme military commander of the SVK during a deliberate attack against improved enemy defensive positions protecting their most vital strategic asset: their capital city. The experts agreed that almost any military commander would consider disrupting the ability of such a commander to influence the command, control, and communication of his forces during the decisive phase of an attack to be one of the highest priority targets. In the context of Operation Storm, Martic was perhaps the most valuable target in the city of Knin.
    However, a simplistic designation as an HVT should not end the inquiry - since even HVTs can be scaled with respect to "military advantage" as compared to "civilian presence":

    The experts also emphasized that a legitimate application of the proportionality rule requires an understanding of why a target is valuable - for example, does it make the attacking party stronger, the defending party weaker, and so on. Targets are not attacked merely because they are susceptible; they are attacked to produce defined effects related to the overall tactical and operational end state. Disrupting Martic’s ability to influence the battle, whether by targeting him directly, severing his command and control capabilities, or fixing him in place and isolated from his operational command post, for example, therefore offered a tremendously significant military advantage, particularly from the perspective of the commander at the time of the attack. Intelligence showing that Martic was in the building at the designated time would be relevant as well to the determination of the value of the building as a military objective. The Trial Chamber does not address these considerations at all, offering only the cursory statement that Martic’s residence was a lawful objective with no examination of the value or the military advantage at the time of the attack.
    So, "military advantage" is one facet; "civilian presence" is the other:

    On the alternate side of the proportionality assessment, the experts emphasized the need for equally careful consideration of the risk to civilians and the likely numbers of civilian casualties. Just as military advantage requires a thorough understanding and analysis of the nature and value of the target at the time of the attack, so the analysis of likely civilian casualties demands that a commander gather information regarding civilians who live and work in the area, and those who are likely to be present at the time of the attack.

    Again, this assessment is heavily dependent on intelligence to enable the commander to get a picture of the situation on the ground around the target at the time of the attack so as to make the best decision possible. Simply noting that the designated lawful target is located in a civilian area is generally insufficient, but that appears to be the extent of the Trial Chamber’s analysis. Such a cursory approach ignores questions of whether civilians were actually still present in the city of Knin, whether they were likely to be present in the area around the target at the time of the attack, where they were at the time of attack, whether they were susceptible to the methods and means of attack, and how many civilians might be present and within the blast radius of the artillery attack, just to note a few critical aspects of information necessary for a comprehensive proportionality analysis.
    Again, the Court looked at "proportionality" in hindsight:

    The experts raised concerns about the nature of the Trial Chamber’s application of the principle of proportionality in the instant case of the attack on Martic’s residence. In particular, although the Trial Chamber correctly referenced proportionality in analyzing the lawfulness of the attack on Martic’s residence, it cited no relevant information from the Prosecution on which to base its conclusion of illegality. As a result, the judgment seems to apply a wholly retrospective approach to proportionality and failed to accord proper weight to the information about the commander’s intent or analysis at the time of the attack.

    A second shortcoming, linking directly back to the importance of the target’s value, is that the judgment does not appear to consider the operational impact of attacking a target as significantly valuable as Martic. Many of the experts in fact expressed incredulity that such a low number of artillery rounds fired for harassing and/or disrupting effect at a time when civilians were unlikely to be out in public could be considered unlawful. The methodology – to the extent there is one – in the judgment does not represent the requisite marriage of intelligence and battle operating effects that is at the heart of the proportionality assessment at the time of the attack.
    The Court's incomplete and ex post facto anaysis is likely to have negative impacts on military operations:

    Beyond these immediate shortcomings, however, the experts shared a number of broader concerns about the impact of this case if the existing proportionality approach were to stand going forward.

    First, some suggested that the failure to delineate and assign value to the military advantage to be gained from the target in question will undermine IHL’s goal of reducing death and suffering in war generally. Commanders who have no guidance or unhelpful guidance regarding how to assess lawfulness and proportionality in targeted leadership strikes may well simply adopt the tactic of large-scale attacks on enlisted personnel on the assumption that such attacks engage no complicated and amorphous proportionality judgments. Whereas carefully targeted strikes can have substantial efficacy in reducing the enemy’s ability and will to fight while causing only minimal casualties, the alternative would lead to extensive casualties and prolonged conflicts, a result neither international tribunals nor military leaders find palatable.

    Second, to highlight two of the central themes of the expert discussion, the Trial Chamber’s approach does not provide either clarity or predictability for commanders planning and executing future military operations. A commander who is to be judged based on post-attack effects has no way to know, at the time of the attack, how to determine the parameters of lawful conduct. Here, it is important to emphasize that proportionality is more than just a principle; it is a methodology for assessing lawfulness in advance through careful consideration of both the value of the military advantage and the likelihood of civilian casualties.

    By failing to either enunciate or apply any methodology in its proportionality analysis – by disregarding the numerous factors and variables that bear on a commander’s decision-making process – the Trial Chamber provides no guidance to future commanders on the lawful implementation of IHL in targeting. For many of the experts at the Nov. 4, 2011 meeting, this failure of methodology does a great disservice both to commanders of future military operations who seek to adhere to IHL and also to the law itself by undermining efforts to fulfill its goals and obligations.
    The Emory report strikes me as a very important document - which is not going to be liked by some of the IHL community.

    And, no; the Emory report does not contain the terms "postive identification, PID, reasonable certainty" - so dearly loved by the "CENTCOM" ROEs. As we know, those rules require enemy to be PID'd to a "reasonable certainty"; or concomitantly, "civilian presence" to be excluded to a "reasonable certainty". Supposedly, those ROEs - and the criminal penalties (murder, manslaughter, dereliction) if they aren't followed - are based on the Geneva Conventions.

    The Emory report shows why that construct turns the GCs on their head (from p.3, n.5 pdf):

    The Commentary to Additional Protocol I is clear that, by adding “the words ‘in the knowledge’ to the common constitutive elements set out in the opening sentence[, attacks on civilians are therefore] only a grave breach if the person committing the act knew with certainty that the described results would ensue, and this would not cover recklessness.” CLAUDE PILLOUD, YVES SANDOZ, CHRISTOPHE SWINARSKI, BRUNO ZIMMERMAN, COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949 996 (1987). Similarly, the Commentary to Article 51 of Additional Protocol I emphasizes that “in relation to criminal law the Protocol requires intent and, moreover, with regard to indiscriminate attacks, the element of prior knowledge of the predictable result.” Id. at 617.
    A number of writers and prosecutors transit too easily from "civilians killed" to "civilians targeted".

    Regards

    Mike

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    Default Gotovina Appeal - Experts' Amicus Brief - part 1

    Many of the experts who drafted the Emory report joined in drafting and signing an amicus brief in the pending Gotovina appeal, Application and Proposed Amicus Curiae Brief Concerning the 15 April 2011 Trial Chamber Judgment and Requesting That the Appeals Chamber Reconsider the Findings of Unlawful Artillery Attacks during Operation Storm (English, 46 Pages; 12 Jan 2012):

    Laurie R. Blank
    Bill Boothby
    Geoffrey S. Corn
    William J. Fenrick
    Professor C H B Garraway CBE
    Dean Donald J. Guter
    Walter B. Huffman
    Eric Talbot Jensen
    Mark E. Newcomb
    Thomas J. Romig
    Raymond C. Ruppert
    Gary Solis
    The prosecution objected to the brief, Prosecution Response to “Application and proposed amicus curiae brief” filed on 13 January 2012 (English, 29 Pages). The defendant-appellant Gotovina supported it, Ante Gotovina’s Response to “Application and proposed Amicus Curiae Brief” filed on 13 January 2012 [PUBLIC REDACTED VERSION] (English, 8 Pages).

    The Appeals panel will later decide whether the amicus brief will be accepted. If the brief is rejected, the Appeals panel will be rejecting not only the "American" position, but the same position accepted by these non-USAian experts:

    Bill Boothby

    Bill Boothby retired in July 2011 as Deputy Director of Legal Services (RAF) in the 1 star rank of Air Commodore, having served for thirty years as a member of the Royal Air Force Legal Branch in Germany, Cyprus, Hong Kong, Croatia and UK. In 2009, he took a doctorate in International Law at the University of Frankfurt (Oder) in Germany, publishing his doctoral thesis on Weapons and the Law of Armed Conflict through OUP the same year. A member of
    the Editorial Board of the UK Manual on the Law of Armed Conflict, the Harvard University convened Group of Experts that produced the HPCR Manual of the Law of Air and Missile Warfare, the ICRC / TMC Asser Inst Group of Experts that considered “direct participation in hostilities” and the CCD / COE Group of Experts currently working to produce the Tallinn Manual on the Law of Cyber Warfare, he is currently finalizing The Law of Targeting, scheduled for publication by OUP in September 2012. He presents widely on international law issues and teaches at the University of London, Royal Holloway College.
    William J. Fenrick

    Mr. Fenrick was a Senior Legal Adviser in the Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia from 1994 until the end of 2004. He was the head of the Legal Advisory Section and the Senior Adviser on Law of War Matters. At the ICTY, he provided international law advice to the Prosecutor and argued at the trial and appeal levels, particularly on matters related to conflict classification, command responsibility, and crimes committed in combat. He was also the main author of the Report to the Prosecutor on the 1999 NATO Bombing Campaign against Yugoslavia. Immediately prior to coming to the ICTY, he was a member of the SCR 780 Commission of Experts investigating war crimes allegations in the former Yugoslavia and, as such, he was responsible for legal matters and for on-site investigations. He was a member of the Canadian Forces from 1962-70 and from 1972-94. He was a military lawyer in the Canadian Forces from 1974 to 1994, specializing in law of the sea, law of war and operational law matters. At various times, he was the Director of International Law, Director of Legal Training, and Director of Operational Law. He was a major participant
    in the process which produced the San Remo Manual on the Law of Naval Warfare and he also participated in the process which resulted in the development by the ICRC of its guidance on Direct Participation in Hostilities. He has published widely on law of war matters, particularly on matters related to naval warfare and to prosecution of war criminals. He is a graduate of the
    Royal Military College of Canada (BA (Hons Hist) 1966), Carleton University (MA (CDN Studies) 1968), Dalhousie University (LLB 1973), and George Washington University (LLM 1983). At present he is living in Halifax, Canada, where he co-taught a course in International Criminal Law (2005-9) and taught International Humanitarian Law (2006-11) at the Schulich School of Law at Dalhousie University.
    Professor C H B Garraway CBE

    Professor Garraway served for thirty years as a legal officer in the United Kingdom Army Legal Services, initially as a criminal prosecutor but later as an adviser in the law of armed conflict and operational law. He represented the Ministry of Defence at numerous international conferences and was part of the UK delegations to the First Review Conference for the 1981 Conventional
    Weapons Convention, the negotiations on the establishment of an International Criminal Court, and the Diplomatic Conference that led to the 1999 Second Protocol to the 1954 Hague Convention on Cultural Property. He was also the senior Army lawyer deployed to the Gulf during the 1990/91 Gulf Conflict. Whilst still serving, he taught international humanitarian law at King’s College, London as well as acting as Course Director on the military courses run by the International Institute of Humanitarian Law, San Remo, Italy. On retirement, he spent three months in Baghdad working for the Foreign Office on transitional justice issues and six months as a Senior Research Fellow at the British Institute of International and Comparative Law before taking up the Stockton Chair in International Law at the United States Naval War College, Newport, Rhode Island in August 2004 for the year 2004/5. Professor Garraway was a Visiting Professor at King’s College London from 2002 to 2008, teaching the Law of Armed Conflict, and is currently an Associate Fellow at Chatham House and a Fellow at the Human Rights Centre, University of Essex. In December 2006, he was elected to the International Humanitarian Fact Finding Commission under Article 90 of Additional Protocol I to the Geneva Conventions of 1949. He worked for the British Red Cross from 2007 to 2011 and now works as an independent consultant. He was appointed CBE in 2002. He has worked on a number of expert groups including the ICRC projects on “Direct Participation in Hostilities” and “Occupation” as well as the Harvard Program on Humanitarian Policy and Conflict Research project on air and missile warfare. He is currently the General Editor of the United Kingdom Manual on the Law of Armed Conflict and carries out a number of consultancies for Government and international organizations, including the Commonwealth Secretariat. In 2011, he chaired the Commonwealth Working Group that updated the Commonwealth Model Law on the International Criminal Court.
    One would think it hard for the Appeals panel to refuse the brief completely. Of course, it could accept the brief - and then ignore it on the merits.

    cont. in part 2

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