There are final adjudicators that all have agreed on.
Some countries just broke their word about respect towards them and lost their honour this way.
The repercussions are sometimes more, sometimes less subtle.
There are final adjudicators that all have agreed on.
Some countries just broke their word about respect towards them and lost their honour this way.
The repercussions are sometimes more, sometimes less subtle.
The Policy Debate underlying the US Rules
Ken Anderson covers a number of sources in the on-going policy debate underlying US use of drones, at Opinio Juris, Tactically Precise, Strategically Incontinent ? (by Kenneth Anderson, 25 Sep 2011).
The principal sources cited are the following:
Wash. Post, The price of becoming addicted to drones (by David Ignatius, 21 Sep 2011).
Report of the Special Rapporteur (Philip Alston) on extrajudicial, summary or arbitrary executions - Addendum: Study on targeted killings (28 May 2010).
Remarks of John O. Brennan, at the Harvard Law School (16 Sep 2011) [John Brennan, WH counterterrorism adviser, argued that U.S. legal authority to use force against al-Qaeda wasn’t “restricted solely to ‘hot’ battlefields like Afghanistan” but could be expanded to other theaters “without doing a separate self-defense analysis each time.”]
Three Quick Comments on David Ignatius’ Critique of Drones in Today’s Washington Post (by Kenneth Anderson, 22 Sep 2011) - making it clear that we have experienced and are experiencing something of a "counterterrorism" vice "counterinsurgency" dichotomy:
Wash. Post - Editorial Board Opinion: It takes more than drones (24 Sep 2011), "CT" + "COIN":Second, the primary theorists of blowback in the Afghanistan war are theorists of counterinsurgency, and the specific application of the blowback thesis is that even if the counterterrorism drone policy works on its own CT terms, it undermines the counterinsurgency war because it damages the ability to win over populations. The extent to which the campaign actually has those effects can be debated. That has to include that asking populations if they’re resentful is not a purely neutral measurement of social science; it tends to signal to them that they get advantages out of being resentful. An awful lot of blowback has to do with the expectations of the population. Telling the local population (as the US did, for example, early on in the Iraq war) that if our war has not made them happy, then it is our fault, is very much a mechanism for foolishly raising the bar of expectations. But David Kilcullen and Andrew Exum, in their writings, for example, are talking about counterinsurgency, and counterterrorism’s effects on that. The Obama administration’s whole effort, however, is to get out of counterinsurgency, and quite rightly is worried far less about blowback arising from a switch in strategy to transnational CI.
Ignatius keeps talking, in column after column, about our “addiction” to drones. Why, instead, doesn’t he talk (as the Obama administration implicitly does) about our “addiction” to counterinsurgency, and see drones as the “cure” for that? It’s not as if counterinsurgency warfare in Afghanistan doesn’t have plenty of downsides and its own forms of blowback and bad unanticipated consequences, as the Obama administration and, for that matter, most of the American people, see it. Downsides starting with no end in sight and no clear avenue to a victory that allows an exit. The Obama administration sees counterterrorism as a realistic and, to date, functioning strategy against our actual long term adversary, and an exit for our addiction to the cul-de-sac of counterinsurgency, and why isn’t it right about that?
Targeted Killing and Drone Warfare: How We Came to Debate Whether There is a ‘Legal Geography of War’ (Kenneth Anderson, 27 Apr 2011):In our view the legal situation is straightforward. It’s been clear for more than a decade that al-Qaeda is a transnational organization that seeks to wage war against the United States from multiple foreign bases; especially in areas where national sovereignty has broken down, a U.S. military response is justified. It would be helpful if Congress would clarify this by passing legislation that renews the authorization of military force and stipulates that it can be used against al-Shabab and other al-Qaeda branches.
The harder question is whether the administration’s increasing reliance on drones is weakening what should be a much broader strategy. While militants can and should be picked off by targeted strikes in Yemen and Somalia, neither country will cease to be a source of terrorism until it can be stabilized under a responsible government. The United States has been trying to encourage a political settlement in Yemen that would end months of near-anarchy, and has been helping to fund and train Somalia’s transitional government and security forces. But the efforts have been underfunded and underambitious.
Efficiency in Bello and ad Bellum: Targeted Killing Through Drone Warfare (Kenneth Anderson, 23 Sep 2011):Abstract:
This brief policy essay examines the evolution of the argument around the proposition that there is a “legal geography of war.” By that term is meant whether the law of war applies only within certain geographically defined areas. It does so in the context of the war on terror and counterterrorism, and specifically in the debates over targeted killing and armed drone warfare.
The essay is a non-technical policy essay that is part of an online volume on current national security issues published by the Hoover Institution Task Force on National Security and Law. The essay's purpose is not to offer a formal legal argument on the proposition of a “legal geography of war,” but instead to reflect more discursively on how the communities of international law, policy, diplomatic, laws of war, military, intelligence, nongovernmental organizations, and international advocacy have debated this since 9/11. It argues that the Bush administration’s assertion of a global war on terror and its claims of the legal incidents of war on a worldwide basis caused a backlash among its critics, toward geographical constraints on war as formal legal criteria. This was a shift away from the traditional legal standard that war takes place, and the law of war governs, where(ever) there is “conduct of hostilities.”
Drones and targeted killing, insofar as they are asserted within the law of war, particularly strain the legal framework. However, as the Obama administration has moved away from the global war on terror as a means to widen the application of the law of war beyond the conduct of hostilities, legal views appear to be converging once again on the traditional “conduct of hostilities” standard. The essay concludes with a brief, speculative post-script on the meaning of the deployment of armed drones to the Libyan conflict, and how that deployment seems peculiarly to have shifted the perceived acceptability of drone warfare in a way that was not quite so evident when the issue was not humanitarian war in Libya, but the US’s wars of national security in Afghanistan and Pakistan.
RegardsAbstract:
A peculiar feature of the targeted killing using drone technology debate is that it appears to set up a tension between the two traditional categories of the law and ethics of war, jus in bello and jus ad bellum. The more targeted killing technologies allow more precise targeting and reducing collateral casualties and harm (jus in bello), and that moreover at less personal risk to the drone user’s forces, perhaps the less inhibition that party has in resorting to force (jus ad bellum).
Mike
Some interim snacks before the meat
We had our 50th (Class of 1961) Hancock High School Reunion this weekend. Chowed down with (ret) 2 Navy O's and 1 SNCO (Mel came up from NC to see us - as he correctly said "the last time I saw you was at the Naval Reserve Center in 1961" - the NRC allowed us the Center for our graduation party; and thereby kept kiddy drunks off the roads). So, a good time with them and 50+ others.
Interestingly enough, the four of us had no discussion re: current military situations.
Now, in looking at the Awlaki mission, we do in fact have a lot of legal opinions, which range from close to the "normative" to vary adverse to the "normative". I'm going to take this on gradually - over the next week or so.
Here's a bold-face - "Killing Awlaki was illegal, immoral and dangerous" - CNN Link - by one of my personal favs, Mary Ellen O'Connell, who is generally in my "opposition":
Yes, she is an "Irish Colleen"; but:
which allows this Mick:She earned her B.A. in History, with highest honors, from Northwestern University in 1980. She was awarded a Marshall Scholarship for study in Britain. She received an MSc. in International Relations from the London School of Economics in 1981, and an LL.B., with first class honors, from Cambridge University in 1982. She earned her J.D. from Columbia University in 1985, where she was a Stone Scholar and book review editor for the Columbia Journal of Transnational Law. After graduation, she practiced with Covington & Burling in Washington, D.C. [JMM: a very good DC law firm; but not S & C.]
to slug it out virtually - as barristers do.
That being said, check out her articles at the site above; and do a Google for her many pdfs. Or, search SWC for her name vice jmm99 (I often cite to her as one of the "opposition").
Another personal fav - for Gitmo cases and "War Crimes" - is Andy Worthington:
He, like ME O'C, is pretty straight-up in his beliefs - even though generally opposite to my own. Neither of them have horns; nor, do I !
See also, from Antiwar.com as the source, to provide a "fair and balanced side of the coin" (WTF does that really mean ?):
Now, you all have the side of the coin which (mostly) differs from my side.
Later....
Regards
Mike
Last edited by jmm99; 10-02-2011 at 05:03 AM.
Mike,
This is a good news story all around, first we have two bad actors off the street, and I agree with the analysis that Awlaki was numero uno threat to the homeland, and Samir Khan was not an innocent by stander. Second, we civil libertarians jumping up to challenge the legality of this action, which in their own way is protecting Americans as much as the mission that killed Awlaki.
I personally felt the argument fell short when they argued that Yemen wasn't a battlefied, so therefore the mission was illegal. Whereever we kill terrorists is a battlefield, it isn't confined to a specific geographical region. It seems ludricous to believe that if a terrorist is conducting operations againstthe U.S. outside of a designated battlespace we can't kill him. Were these same arguments made when President Clinton launched missiles into Sudan and Afghanitan in the late 90s in an attempt to kill UBL?
The fact that both Awlake and Khan were U.S. citizens obviously complicates matters, and I don't think this decision was made lightly. It is impossible to deny that Awlaki was promoting the killing of Americans, to include using weapons of mass effect (crashing a jet liner). The Government has an obligation to protect its people, and it would seem that a case could be made that if they failed to act and Awlaki was successful again (as he was with MAJ Hasan), the relatives of those killed should have the right the suit the government for not acting.
I keep hearing the term assassination thrown around, and I recall being taught that we couldn't do assassinations. Assassinations were defined for this purpose as the planned killing of a political figure (like Castro). Killing an individual terrorist wouldn't seem to fall under that category to me, it is just a targeted killing. If we killed the President of Yemen, then that would be an assassination.
Good kill even if it was/is somewhat messy legally. President Bush stated shortly after 9/11 this would be a different kind of war, yet I still don't think most people understand what he meant when he said that. It is a global war, because the hostile network is global. It isn't a war confined to GPF fightiing in Afghanistan.
Exactly, it is legal to under exigent circumstance rules IMO.Originally Posted by Bill Moore
Good people, like O'Connell and Worthington ...
go astray when they demand a law enforcement approach against these violent non-state actors. These VNSAs are waging unconventional warfare against the US. They sometimes do that directly (as in 9/11), but often through local "franchises" or "non-franchised insurgencies" (your enemy is my enemy, etc).
Their practice does differ from the unconventional warfare doctrine of "FM31-21" in that they do not (at present) have conventional forces which the irregular forces support and with which they seek a juncture. Thus, because these VNSAs are not a state, are not regular forces, and do not occupy defined geographic spaces, some folks (e.g., O'Connell and Worthington) have a very difficult time considering these VNSAs as being involved in an armed conflict.
In fact, they may see associated groups (such as the Taliban, which has some aspects of a "state", has somewhat organized forces and does occupy defined spaces) as the essential parties to an "armed conflict". The conflict to them is then limited geographically to territory contested by the associated group. I think that is focusing too much on the horse, and not on the jockey (AQ); but, in any event, law enforcement methodology is demanded with respect to the jockey (AQ).
Now, law enforcement is part of a larger system - the criminal justice system. That system includes as integral parts not only law enforcement officers, but also prosecutors and defenders - and courts (with or without juries) as the ultimate decision-makers of what is "legal" or "illegal". In the US at the Federal level, Article III is the constitutional basis.
If an "armed conflict" exists, the criminal justice system does not generally play a role. E.g., Articles I and II provide the basis for Executive and Congressional power over armed conflicts; and generally the Article III bodies have recognized their lack of power in that area.
Some have argued for sets of rules that would extend the law enforcement methodology beyond its normal scope - so as to allow targeted killing under limited circumstances. Personally I think that would be a disaster; and I would much prefer to see a clear line drawn between law enforcement ("Rule of Law") and armed conflict ("Laws of War").
Mike Hayden said it well a few weeks ago, in a debate I reported here, Resolved: It's Time to End the War on Terror - from the transcript, p.11:
So, I agree with Hayden.Michael Hayden:
Let me give you -- thank you. Let me give you a slightly different description of that event. A heavily armed agent of the United States government was in a room with an unarmed man who was under indictment in the United States judicial system and was offering no significant resistance to the heavily armed agent of the United States government, and that heavily armed agent of the United States government killed him.
If you do not think we are at war, there are some very troubling definitions that you might want to attach to that act. That's the kind of authority we have perfectly lawful -- and no way am I suggesting anyone acted inappropriately. We acted perfectly lawfully because we are a nation at war and generally recognized as such.
You don't want to take those tools off the table while there are terrorists out there.
20:03:01
If you let this tool go, you will be less safe. Okay. If you look at the scope of our constitutional system, the law enforcement approach is designed, if you look at the constitution, the Bill of Rights and the American statutory law, the law enforcement approach is designed to make the government weak because we don't want the government arbitrarily taking away your liberties.
On the other hand, if you look at those sections of the Constitution that deal with armed conflict, they're designed to make the government strong so that it can protect you. You don't want to take that tool off the table. And quite perversely, if you take that tool off the table, you may actually threaten your own civil liberties.
Bear with me. There's a tight connection here. If the options of a nation at war are taken away from your tool kit, you must then rely on the options offered by law enforcement.
20:03:59
If you recall the events in -- on Christmas day a year or two ago, Detroit, Umar Farouk Abdulmutallab, the "Underwear Bomber" -- and he was Mirandized after about 50 minutes of interrogation, and I think everyone recognized that was probably a mistake. We should have interrogated him further.
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.
How effective would a law enforcement approach be against our own unconventional warriors if they were waging unconventional warfare against another state ? Posit that our conventional forces cannot be involved (so there is a rough equivalence to AQ's situation).
More later - maybe tonite.
Regards
Mike
Bill:
I happen to agree with you on this one (surprise):
Michael Lewis, Drones and the Boundaries of the Battlefield (Sep 2011) (18 pages), reaches much the same conclusion:from Bill Moore
I personally felt the argument fell short when they argued that Yemen wasn't a battlefied, so therefore the mission was illegal. Whereever we kill terrorists is a battlefield, it isn't confined to a specific geographical region. It seems ludricous to believe that if a terrorist is conducting operations against the U.S. outside of a designated battlespace we can't kill him.
The bottom line is that the "Laws of War" (IHL to the law profs) follow the participants, who do not fit into the neat little boxes set up for the regular forces of Westphalian states engaged in conventional warfare.Conclusion
The Air Missile Manual makes it clear that drones are legitimate weapons platforms whose use is effectively governed by current IHL applicable to aerial bombardment. Like other forms of aircraft they may be lawfully used to target enemy forces, whether specifically identifiable individuals or armed formations, if they comply with IHL’s requirements of proportionality, necessity and distinction.
Because drones are only able to operate effectively in permissive environments, the most significant legal challenges facing their development and employment have been based upon where they may be employed. Attempts to apply the strict geographical restrictions that govern the scope of IHL in internal non-international armed conflicts to all non-international armed conflicts, including transnational armed conflicts, threaten to significantly limit the usefulness of drones.
When IHL’s core principles are considered, it becomes clear that the application of strict geographical limitations on IHL’s scope in the context of transnational armed conflicts cannot be defended. The determination of whether the Tadic threshold for an armed conflict is met on the territory of a non-party to the conflict should have no bearing on whether IHL may be applied to the parties to the conflict. In other words, the fact that there is no local violence occurring in Yemen or Somalia should not be used to provide a sanctuary for non-state actors that are involved in an armed conflict with another state.
The answer for how the boundaries of the battlefield and the scope of IHL’s application can be properly determined is found in neutrality law. This is historically how geographical limitations have been imposed upon IHL’s scope in international armed conflicts. It was applied in the aftermath of the 9/11 attacks, with at least tacit international approval, to the situation involving the United States, al Qaeda and Afghanistan. Its application is checked by the consent of the sovereign states involved, making an escalating spiral of violence less, rather than more, likely. And perhaps most importantly, neutrality law’s application to transnational armed conflicts does not lead to the anomalous results that are produced when strict geographical limitations are applied to transnational armed conflicts in which IHL is read to favor its otherwise most disfavored groups.
Some of the assertions made in the name of "IHL" are quite amazing. E.g., Lewis cites this (p.8):
She actually did say something akin to that in the 2010 article cited by Lewis:Similarly, Mary Ellen O’Connell has claimed that the shooting down of Admiral Yamamoto’s plane over Bougainville by U.S. fighter aircraft during World War II would today be considered illegal because it occurred ―far from [the] battlefield.[40]
40. O‟Connell, The Choice of Law Against Terrorism, 4 Journal of Nat‟l Security Law & Policy 343, 361 (2010).
Not to degrade Justice Stevens' role as a Pearl Harbor traffic analyst (who saw the Yamamoto "shot down" message after the fact, see Bill Barnhart, John Paul Stevens and the U.S. Navy at War); but why try to present him as "one of the participants in that attack."Dean Koh mentioned a case from World War II in which the U.S. set out to kill a named individual far from actual hostilities when it attacked the plane carrying Japanese General Yamamoto, a reputed planner of the Pearl Harbor attack.[93]
93. Koh, The Obama Administration and International Law, supra note 41.
There are several problems with this interpretation. First, Dean Koh did not refer to remote participation. Moreover, many persons killed and detained have had no connection with Afghanistan. Even respecting those who did, the Yamamoto case was not uncontroversial at the time;[94] today it would be in conflict with the basic treaties that form today‘s law on the use of force, namely the 1945 United Nations Charter and the 1949 Geneva Conventions. These treaties provide little or no right to use military force against individuals far from battlefields.
94. Diane Amann relates that at least one of the participants in that attack, U.S. Supreme Court Justice John Paul Stevens, today has doubts as to whether it was lawful. See Diane Marie Amann, John Paul Stevens, Human Rights Judge, 74 FORDHAM L. REV. 1569, 1582-83 (2006).
Talk about indirect "stolen valor"; factually inaccurate argumentation as to WWII; and with respect to the 1945 United Nations Charter and the 1949 Geneva Conventions, an off the wall legal analysis....
And, a material misrepresentation (whether innocent or intentional ?) of Stevens' position. We have that as stated by Thomas Lee to Jeffrey Toobin, After Stevens (2010):
The need to fact check every assertion by the "IHL Intelligensia" makes for a very time-consuming process - especially when they make those assertions with apparent complete certainty.In April, 1943, a coded message came across Stevens’s desk—“one eagle and two sparrows, or something like that,” he said. Stevens knew the transmission meant that an operation based on intelligence from his station had been a success. American aviators had tracked and shot down the airplane of Admiral Isoroku Yamamoto, who was the architect of the Japanese attack on Pearl Harbor and the leader of Axis forces in Midway.
Stevens was a twenty-three-year-old lieutenant, and the mission, essentially a targeted assassination, troubled him. “Even at the time, it seemed to me kind of strange that you had a mission that was intended to kill a particular individual,” he told me. “And it was an individual who was a friend of some of the Navy officers.” (Before the war, Yamamoto had trained with the U.S. Navy and studied at Harvard.)
Ultimately, Stevens concluded that the operation, which was approved by President Roosevelt, was justified, but the moral complexity of such a killing, even in wartime, stayed with him. “It is a little different than your statistics about so many thousands of highway deaths—that doesn’t mean all that much,” he said. “But if somebody you know is killed, you have an entirely different reaction.” The morality of military action became a lifelong preoccupation.
Regards
Mike
Well, in case of Yemen, the situation is a little in the grey area (As for Somalia).
The thing is that actions taken in Northern Yemen are conducted in an environment that is not controlled by central government and where the Yemeni government is conducting military actions. (In Somalia, there is no legal government out of 3 blocks in Mogadishu...)
As the area is already a battlefield (or can be assimilated to) for the Yemeni government, it can be argued that as there is already a battlefield, a military action conducted by an ally in that area against a shared legitimate target is legitimate if not legal.
Where it becomes fuzzy is when you conduct such operations in a country where there are no battlefield at all. For example a drone attack on a drug lord in Mexico. (And yes, Slap, there are no battlefield in Mexico, under legal definition, even if there is a "war against drug")
An interesting article from 2008, published by ICRC summaries quite well the question: can just at bellum override just in bello
http://www.icrc.org/eng/assets/files...872-moussa.pdf
I found the reflection on the problematic of intervention against VNSA quite interesting and well presented:
The conclusion is, as usual, very consensual:no amount of legal argument will persuade a combatant to respect the rules when he himself has been deprived of their protection …This psychological impossibility is the consequence of a fundamental contradiction in terms of formal logic …It is impossible to demand that an adversary respect the laws and customs of war while at the same time declaring that every one of its acts will be treated as a war crime because of the mere fact that the act was carried out in the context of a war of aggression.
It is less targetted on the issue than Mike but I hope this also helps to understand where the legal reflection comes from, on the IHL side.Determining the existence of a ‘just’ or legal jus ad bellum cause is essentially a political and hence subjective exercise. Throughout its history, the UN Security Council has largely avoided making a determination of aggression, leaving the matter, essentially, to the discretionary determination of states. Allowing such a determination to colour, in any way, the application of jus in bello undermines the rule of law in an area of international law that requires strict restraining principles. The matter is even more controversial in the case of conflict between a state and non-state actors, in which both parties tend to subordinate international humanitarian law to jus ad bellum.
Personnaly, I tend to be against the "geographically unlimited battlefield".
Last edited by M-A Lagrange; 10-03-2011 at 06:06 AM.
Some agreements & disagreements
Marc:
My BLUF: Just because Country A is already a "battlefield" (whether because an "armed conflict" exists between State A and State B, State A and Group A, Group A and Group B, or some or all of them), that fact does not by itself justify State X using armed force within Country A against Group X.from MAL
As the area is already a battlefield (or can be assimilated to) for the Yemeni government, it can be argued that as there is already a battlefield, a military action conducted by an ally in that area against a shared legitimate target is legitimate if not legal.
....
Personnaly, I tend to be against the "geographically unlimited battlefield".
However, if State X is present in Country A as a co-belligerent; a military occupier; or perhaps a peace enforcer or a state/nation builder, justification may well exist for State X's use of armed force within Country A. Let's posit that none of those situations exist - which seems to me to be the case for the US vice both Yemen and Somalia.
Proceeding further than this requires at least temporarily bypassing ("assuming arguendo" as the law profs might say) the question of whether a State X can engage in an "armed conflict" with a Group X - except in the limited context of that conflict being solely internal to Country X (as the Commentary to 1949 Common Article 3 suggests).
If that treshhold issue is temporarily bypassed, then a host of Jus ad Bellum questions can be presented. In general, then one must ask and answer whether the rules (jus ad bellum) are the same for an "armed conflict" between State X and State Y vice between State X and Group XY (a Transnational Violent Non-State Actor, TVNSA, present in State X and elsewhere).
My BLUF: No; the rules (jus ad bellum) are quite different - although they are often mixed together in what becomes a fruit salad mess. State X can follow Group XY to the extent Group XY is engaged in transnational unconventional warfare against State X in various countries (say, State A) - subject to the traditional I Law rights of State A to assert its own sovereignty rights (from diplomatic protest to waging war against State X). I really can't see any Jus ad Bellum rights that could be asserted directly by Group XY or its members, unless it avails itself of the option under 1949 Common Article 2 to accept and to apply the 1949 GCs - certainly AQ has not done that.
OK, we now have State X in Country A (either in accord with or contrary to whatever Jus ad Bellum rules we've come up with or agreed to disagree about). Where to now ? The answer is not to continue haggling about the Jus ad Bellum, but to turn to Jus in Bello. Here is the distinction from the basic ICRC explanation, IHL and other legal regimes - jus ad bellum and jus in bello (29-10-2010) - see I do read their publications
The ICRC's history on the two terms is a 1997 article, Robert Kolb, Origin of the twin terms jus ad bellum / jus in bello (31-10-1997, International Review of the Red Cross, No. 320), snips from start and finish:Overview
...
The clear distinction between jus in bello and jus ad bellum is comparatively recent. The terms did not become common in debates and writings about the law of war until a decade after World War II. The concepts they cover certainly did feature in legal debate before then, but without the clear distinction the adoption of the terms has brought about.
The purpose of international humanitarian law is to limit the suffering caused by war by protecting and assisting its victims as far as possible. The law therefore addresses the reality of a conflict without considering the reasons for or legality of resorting to force. It regulates only those aspects of the conflict which are of humanitarian concern. It is what is known as jus in bello (law in war). Its provisions apply to the warring parties irrespective of the reasons for the conflict and whether or not the cause upheld by either party is just.
...
In the case of international armed conflict, it is often hard to determine which State is guilty of violating the United Nations Charter. The application of humanitarian law does not involve the denunciation of guilty parties as that would be bound to arouse controversy and paralyse implementation of the law, since each adversary would claim to be a victim of aggression. Moreover, IHL is intended to protect war victims and their fundamental rights, no matter to which party they belong. That is why jus in bello must remain independent of jus ad bellum or jus contra bellum.
Obviously, I have no problem with drawing a line between Jus ad Bellum and Jus in Bello. So, on that bright line separation, the ICRC and I are on the same side.The august solemnity of Latin confers on the terms jus ad bellum and jus in bello [1] the misleading appearance of being centuries old. In fact, these expressions were only coined at the time of the League of Nations and were rarely used in doctrine or practice until after the Second World War, in the late 1940s to be precise. This article seeks to chart their emergence.
1. Jus ad bellum refers to the conditions under which one may resort to war or to force in general; jus in bello governs the conduct of belligerents during a war, and in a broader sense comprises the rights and obligations of neutral parties as well.
...
Interestingly enough, neither term can be found in the texts produced by other major publicists during the interwar years, nor, according to our investigations, were they used in the courses on war and peace given at the The Hague Academy of International Law or in any other courses. The breakthrough occurred only after the Second World War, when Paul Guggenheim, another disciple of the School of Vienna, drew the terminological distinction in one of the first major international law treatises of the postwar era [60]. A number of monographs subsequently took up the terms [61], which soon gained widespread acceptance and were launched on their exceptionally successful career. In a thesis written under Guggenheim’s supervision and published in 1956, Kotzsch gave them pride of place, treating them in the manner to which we have grown accustomed and which we now take for granted. [62]
60. P. Guggenheim, Lehrbuch des Völkerrechts, Vol. II, Basel, 1949, p. 778.
61. See for example F. Grob, The relativity of war and peace, New Haven, 1949, pp. 161 and 183-185.
62. The concept of war in contemporary history and international law, Geneva, 1956, pp. 84 ff.
This should bring us to discussion of Jasmine Moussa's 2008 article, Can jus ad bellum override jus in bello? Reaffirming the separation of the two bodies of law. But, I've been trying to get the pdf to view or download for the last two years without success (using different computers, Windows and Adobe versions) - I get 288 KB and it freezes - "file damaged, cannot be repaired").
Obviously, I agree with the title as stated by Ms Moussa. Now, as to her abstract:
I have no complaints; except to note that "self-defense" and "defense of others" pop up as valididating factors in "jus in bello" - independent of those same terms used in the "jus ad bellum" context.The theoretical separation of "jus ad bellum" and "jus in bello" provides important protection during armed conflict. It guarantees that "jus in bello" will apply regardless of the cause of a conflict. However, this distinction has been challenged by the view that in some cases, a situation of self-defence may be so extreme, and the threat to the survival of the State so great, that violations of "jus in bello" may be warranted. The situation is compounded by the confusion of the principles of necessity and proportionality under "jus ad bellum" and "jus in bello" in both academic writing as well as the jurisprudence of international courts. The dangers of blurring the distinction will be elucidated by examining how "jus ad bellum" considerations have affected the application of "jus in bello" in armed conflicts between States and non-State actors.
As to her conclusion quoted by you:
I also agree; but would again have to add that "jus in bello" (our ROEs being the essential end product) also involve political and military exercises - and present "gray areas" (there are always areas where discretion has to exercised).Determining the existence of a ‘just’ or legal jus ad bellum cause is essentially a political and hence subjective exercise. Throughout its history, the UN Security Council has largely avoided making a determination of aggression, leaving the matter, essentially, to the discretionary determination of states. Allowing such a determination to colour, in any way, the application of jus in bello undermines the rule of law in an area of international law that requires strict restraining principles. The matter is even more controversial in the case of conflict between a state and non-state actors, in which both parties tend to subordinate international humanitarian law to jus ad bellum.
I can't comment on your other snips from Moussa since I don't have the article.
I don't think the terms "geographically unlimited battlefield" or "geographically limited battlefield" add anything useful to the analysis of TVNSAs who wage unconventional warfare (via irregular forces) on a transnational basis. One must look at their strategy and follow the participants.
Regards
Mike
Last edited by jmm99; 10-03-2011 at 07:32 PM.
Unless this thread is over with, could I ask you why you are against that? I think perhaps "battlefield" is a poor choice of language. Maybe "geographically unlimited area of special operations" would be better. I don't want someone to be able to stick out their tongue at me from across the street. I also don't want the US to be involved in every tribal/religious/ethnic dispute across the globe. But that's not my decision. If we ARE going to stick out our chins, lets at least allow ourselves to throw a punch. If that makes any sense.
Sorry, I forgot the original question was "proof". If enough or even the "right" members of the intelligence community (or whoever has the job of discovering actionable intelligence? right term?) say that so and so is a terrorist or is in cahoots with terrorists, and have seized documents or tapes or vid or whatever, then thats "proof". I know that there are probably plenty of examples of intelligence failure or manipulation, I can think of a few in my lifetime. But I feel we either try to be as sure as possible, and then go target them, or we are never sure and consequently do nothing.
Last edited by Levi; 10-04-2011 at 03:14 AM.
M-A Lagrange,
In much simplier terms since I'm not a lawyer, I am not arguing for battle space with no boundaries, but the boundaries are defined by where the is at. If a particular geographical area (state, tribal area) said they wanted to remain neutral and any combatants that entered their territory were now former combatants (they wouldn't be allowed to wage war physically, psychologically, financially, etc.) while in their territory, then it would be a safehave as long as they lived up to their end of the bargin. Something along the lines of Switzerland during WWII. However, if an person or group is waging war against us, it really doesn't matter what their locale is. There is no safehaven for active fighters period (or there shouldn't be).
We bombed Romania during WWII because they provided supplies to Germany, we bombed a number of targets in Japan and Germany long before they were battlefields, so where would you draw the line?
It sounds like you suggesting we fight a Clausewitzian view of war, where war is restricted to the warring militaries and victory is decided on a defined battlefield, but that approach doesn't work now (and I doubt it ever did).
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