The Rules - Engaging HVTs & OBL

[Bill Moore]

Posted by Fuchs,

The U.S. signed and ratified the Charter of the United Nations which forbids going just anywhere and killing people because that's an aggression.

What's more; the U.S. signed and ratified the North Atlantic Treaty which expressly requires its members to follow the principles of the United Nations.


Veto right or not - the idea that the U.S. could legitimately kill people in foreign countries (instead of going the diplomatic route and asking UN to sanction that safe haven) is incompatible with too much to list here.

Seriously, it's a disrespectful and very arrogant idea. Don't be surprised if even formal allies turn sometime against you if you disrespect treaty obligations like this.

Really? Our allies are going to turn against us because we killed a terrorist? I suspect most of our allies will be cheering this action, while some of their left leaning constituents will of course chant their normal anti-U.S. rhetoric. You have to wonder if the left leaning Europeans have lost all perspective on reality, if they don't believe in the right of self defense.

Would you want the Russian air force to bomb a motel in Kansas because an exile Chechen leader sleeps there?

This road isn't even running parallel to reality in alternate universe. How the heck can you compare a jet bombing a "hotel" in Kanas to kill a Chechen leader to surgically killing three terrorists who are actively targeting the U.S.? As others have pointed out, we have had a cooperative relationship with Yemen for a few years as we do with many other nations to fight a "common" enemy. As for other options, I somehow doubt the Yemenis had the ability to call the local police to quickly run out and arrest him before he disappeared again.

There is no doubt what the reaction would be if one of Awlaki's larger inspired terrorist attacks against the U.S. was successful and the American people found out the Government failed to protect them when they had the option to do so. I suspect you would have opposed the missile strikes in Sudan and Afghanistan to kill UBL after the East African Embassy bombings? Neither country were designated war zones at the time. Actually in some regards I would support you on this one, it was disproportinate and it was executed because at that time we were too risk adverse to take a more decisive and surgical option.

Getting to your point, the Cubans have killed American Cubans that were targeting Cuba. Under Clinton they shot down a plane that American Cubans were dropping propaganda from, and their have been other events over the years where other nations have killed people in the U.S..; however, this really doesn't matter, it is apples and rocks, Yemen didn't oppose this. his isn't a conventional war, the rules you are hanging your hat on do not blindly apply. A nation always reserves the right for self defense. This attack was an act of self defense.

The other argument I hear is that Awlaki didn't take up arms against the U.S., so he wasn't a lawful target. O.K., I can see the merit in that argument; however, then wouldn't the same standard have to be applied against Usama Bin Laden? He didn't take up arms against the U.S., he just directed the attacks that killed thousands.

I don't think anyone made this decision lightly, and it definitely wasn't made without a substantial legal review.

[Bill Moore]

Enemies adapt over time in a number of ways if they're not rapidly and decisively defeated, so there is no doubt in my mind they will employ UAVs in the future. There is already a wide and growing market for UAVs that any individual can purchase and with a little creativity hand some field expedient weapon off of it. They don't have to overly capable to conduct strikes on dumb targets. The psychological impact of a UAV rigged with a small IED (even if it wasn't successful) would be much more significant than its physical impact.

I don't think UAVs are unconventional weapons, they're simply weapons that can applied conventionally or unconventionally (much like a rifle or mortar). The atom bomb was originally considered an unconventional weapon, it had little to do with our original concept of conventional war. Our constant attempts to put war in a particular bin usually doesn't work to well. Most conflicts are hybrid, another term we wouldn't need if we accepted that all wars were hybrid to varying degrees. However, based on our insistance that we define the character of war so we can apply the appropriate answer in doctrine solution, hybrid war is a useful term to shatter the myopic approach to war.

Some links of interest:

http://www.strategypage.com/qnd/indi.../20050919.aspx

http://www.armscontrol.ru/uav/mirsad1.htm

Like any technology it can be used for a wide range of purposes. Cars and trucks serve as transportation assets that are critical to our economy and life style, but they can also be adapted as a means to deliver a large IED to a target.

http://www.uav-applications.org/

I remember years ago we were worried about terrorists using the internet, and now as predicted it is an everyday event. Terrorists will eventually employ UAVs to support/enable their operations, and most likely they'll be crude attacks, but crude attacks can still have the desired psychological impact.

[jmm99]

can still have the desired psychological impact ..."

As in using hijacked airliners as cruise missiles because you don't have cruise missiles.

What was the clear war crime (jus in bello) in using the hijacked airliner to strike the Pentagon ? Can you spell Barbara Olson ?

Regards

Mike

[motorfirebox]

What concerns me about al-Awlaki's death isn't the result, it's the process. I'm not convinced by what little evidence that has been presented against al-Awlaki being a legitimate target. The world is better off without him in it. What bothers me, rather, is that Obama was able to say "this guy needs killing", and it happened--just about that simple. I'm concerned by that concentration of power, and I'm concerned by the lack of oversight. That we know this happened at all is, basically, a favor on the part of the administration--they didn't have to tell anyone it happened, or that it was going to happen.

At least, that's my understanding. I'd be much relieved if someone showed me where I'm wrong.

carl, yeah, I'm mainly focused on domestic issues. Militarily... having been, if not Harry Potter, then maybe Ron Weasley, there's a lot a military force can do to protect itself, but there are also some sharp limits that an enemy could exploit. Ultimately, I think the hardest part for us is going to be detecting and dealing with the drones themselves. If the enemy controls the drone by remote, we can detect him, but if the drone doesn't send any signal back (which has drawbacks, obviously--it means they'd be flying blind, or guided by direct spotting), I think it could be difficult to locate before it has time to strike. On the other hand, I don't have a good idea of what kind of munitions could be carried by a low-tech drone; I suspect that the final result of AQ/Taliban trying to use drone tactics against our military would be, at best, a somewhat more precise form of mortar fire.

Oh, regarding our competence--our military is very competent, in signals as in other disciplines, but it does have to be said that sometimes we fall a bit short of the mark!

[jmm99]

on this:

from mfb
At least, that's my understanding. I'd be much relieved if someone showed me where I'm wrong.

You're scarcely alone in your sentiments; but you'll have to work your own way through (1) your inferences as to what the facts are (realizing that many facts are and probably will remain classified); and (2) which policy (and law, which is determined by policy) should be applied.

I've seen the substance of these two statements dozens of times since Fri. AM:

(1) "I'm not convinced by what little evidence that has been presented against al-Awlaki being a legitimate target." and (2) "The world is better off without him in it."

How can one say it's better that Awlaki is dead, if that someone can't find enough evidence for him being a legal target ?

I'd suggest that if Awlaki were not a "legitimate target" (a doubt I don't share), the world is far from being better off without him in it. One who believes that Awlaki was not a "legitimate target" had best join Mary Ellen O'Connell in concluding that his killing was "illegal, immoral and dangerous". And, in that view, it might be a "war crime" - does one allow "gray areas" or not ?

Your point about "process":

What concerns me about al-Awlaki's death isn't the result, it's the process. ... What bothers me, rather, is that Obama was able to say "this guy needs killing", and it happened--just about that simple.

also is something you will have to work through. On this issue, you have a lot of company among the high flying political and legal pundits of the Beltway.

I've avoided this "process" coverage because it really takes one down into the legal weeds. Briefly, Ackerman and Greenwald (who are good at political polemics and button pushing) headlined "Awlaki Killed Without Due Process". That caused a number of liberal, moderate and conservative commentators, as well as the Obama Administration, to kneejerk react and assert there has been "due process".

The "due process" stuff starts here, On Due Process and Targeting Citizens (Sat. 1 Oct), extending into today, The Kill or Capture List, with a bunch of posts in between.

I'm not going to give a legal lecture on "due process". We have "procedural due process" - the process required in our criminal and civil justice system, as well as in administrative and legislative proceedings. We also have "substantive due process", first notably applied by Justice Taney in the Dred Scott case to hold the Missouri Compromise unconstitutional under the 5th Amendment Due Process Clause because the statute prohibited slave owners from transporting slaves north of the dividing line. "Substantive due process" has nothing to do with procedures or legal processes; and it has been abused by liberals, moderates and conservatives since Taney.

Now, we may be getting a third kind of "due process" (based on secret panels, secret rules and secret determinations) - that sort of "process" being totally unknown under the "Laws of War", "Law of Armed Conflict" and International Humanitarian Law" governing killing the enemy.

Under those "war" rules, "due process" does not exist in the killing process. The essential issue is whether the target has been positively identified (PID), more likely than not, as a member of a defined hostile armed force. That determination without appeal rights might be made by a 19-year old PFC.

My crystal ball suggests that we are about to see an endless string of punditry over the presence or absence of "due process". My crystal ball also suggests that USAians will probably come out about 2/3 approve the killing, 1/6 disapprove and 1/6 undecided; and that the punditry will not make a whale of a lot of difference to the mainstream voter in 2012.

So, mfb, good fortune in navigating the weeds should you decide to do so.

Regards

Mike

[motorfirebox]

I stated that poorly. I think al-Awlaki was a legitimate target. I've seen evidence presented that he was not, but I don't find that evidence convincing.

Thanks for the blog link. Regarding the weeds, this sums up my concerns pretty succinctly:

All that said, it is worth noting that no such regime today exists, so President Obama faced the problem of Anwar Al-Aulaqi with no extant framework for the sort of thing Spencer is suggesting. There is no forum to which to take the evidence, no forum in which to present it, no forum in which that evidence can be considered against any known legal standard; indeed, there isn’t any known legal standard. The one to which Spencer is objecting is one I made up.

[M-A Lagrange]

Well, I believe we are here in front of several discussions:
1) The combatant definition. A recurrent question in the military operations against VNSA. For that, I would definitively call to look at the GC definition and the modern interpretation of a combatant by the ICRC. The need to wear a uniform is not a necessity. What is the key point is the existence of a chain of command and the active participation, in planning or conducting, military operations.

2) Targeted assassinations. There is a threat about this particular subject with a high level contribution from Mike on the legal boundaries in US for targeted assassination. Personally I do not have any opinion on that particular case. But what worries me is the increase of use of targeted assassination as war end. In the Great Lakes, under US inspiration, Ugandanda, Rwanda, Burundi and DRC have agreed to increase their use of targeted assassination against armed opponents. This is not a god news for Africa and goes against the principle of force as a tool of law enforcement. This just gives good justification for crazy states to do what ever they want (If the US can do it, so can we).

3) The problematic of engaging drones in a foreign territory and outside battle field. This is deeply liked to Jus ad Bellum.

Jus Ad Bellum Law & Legal Definition: http://definitions.uslegal.com/j/jus-ad-bellum/
Jus ad bellum is a Latin phrase that means right to wage war. This indicates a criterion that is consulted before engaging in war. This phrase concerns whether a war is conducted justly or if whether the entering into war is justifiable. An international agreement limiting the justifiable reasons for a country to declare war against another is concerned with jus ad bellum. The principles central to jus ad bellum are right authority, right intention, reasonable hope, proportionality, and last resort.

(In basic english: the right to go at war)

In opposition/complement to the Jus in Bello

Jus in Bello Law & Legal Definition
Jus in bello is a Latin term which means “the law in waging war.” It is an aspect of the international law of war which addresses the practices forbidden to belligerents during a war. Jus in bello defines standards by which a country can conduct war and the actions during the war should be just and fair. It is a group of principles intended as guidelines for the just prosecution of war. Jus in bello includes two principles of discrimination and proportionality. Discrimination defines legitimate targets and proportionality defines how much force could be used.

(how you make/conduct war)

Two concept that were developed in accordance to Jus ad Rem, or droit des gens or Right of the people and are the core base of IHL as established by Grotius and then formalized through the Geneva Law (Geneva Conventions). Geneva Law being different from IHL as IHL includes also The Hague Law (Law of war) and disarmament and non proliferation conventions.

Jus Ad Rem Law & Legal Definition
Jus ad rem is a Latin term of the civil law, meaning "a right to a thing." It is a personal right to possession of property that usually arises from a contractual obligation (as a lease). Jus ad rem is a mere imperfect or inchoate right.
It is a right exercisable by one person over a particular article of property in virtue of a contract or obligation incurred by another person in respect to it and which is enforceable only against or through such other person. The right a man has in relation to a thing; it is not the right in the thing itself, but only against the person who has contracted to deliver it. Jus ad rem is descriptive of a right without possession. On the other hand jus in re is descriptive of a right accompanied by possession. It is thus distinguished from jus in re which is a complete and absolute dominion over a thing available against all persons.

But different from the Jus Gentium:

Jus Gentium Law & Legal Definition
Jus Gentium is the law of nations; international law; universal institution. It is a Roman concept. Jus Gentium can be defined as a system of legal discipline or legal order, consisting of certain legal doctrines and precepts that serve to govern and manage relationship between nations. The Romans used the term in a very wide sense. The law of nations governing the conflict between the laws of different nations is known as jus gentium privatum, or private international law. The law of nations which regulates those matters which nations have with each other is known as jus gentium publicum, or public international law.

Jus Gentium, is the base of the actual custom and practices regulating international relations between States.

I believe a short reminder of all those definitions and concept will ease the debates here.
To say it in latin () we are discussing here some how the impact of drones on Jus Gentium in accordance (or not) to USA jus ad bellum and other States Jus contra Bellum (the right to defend them selves).
But all of this does impact individuals Jus ad Rem, wether they are combattants or not, friends or foes.

[jmm99]

whacking the weeds

Generally, Marc and I are within the same policy (and legal) framework with respect to the "juices". That doesn't mean we agree; but we can have a conversation.

The term "jus" is best translated as "right" - a "law" may not be "right". E.g., Zhivago says, in chiding the minor Party functionary who relies on a Party edict, "That gives you the Power, not the Right."

The various "juices" (all JMM views) are in quote boxes solely for separation purposes.

Jus Gentium - This Latin phrase has been stretched into "international law"; but its origins lie in the Roman gens - first "clan"; and later into "a people, tribe, nation". We can blame the lawyer Cicero for coining the term gens humana ("human race").

My BLUF: What this stretching tends to loose sight of is that the "jus" must consist of a common framework with reciprocity - everyone in the "gens" accepts and applies the same rules and understands them in substantially the same way.

Jus ad Rem & Jus in Rem - A "right to a thing" and a "right in a thing" - in common law property, we have "title-ownership" vs "possession".

My BLUF: In the present context, Jus ad Rem = state sovereignty over territory; Jus in Rem = actual occupation over territory. The distinction between the two has implications in 1949 Common Article 2 analysis, and in Neutrality Law (which has aspects of both Jus ad Bellum and Jus in Bello).

Jus ad Bellum and Jus in Bello - A "right to [go to] war" and a "right in bello". One finds some very variant theories in those two zoos.

My BLUF: The "right to go to war" (why you went to "war"; engaged in an "armed conflict") must be kept separate from the "right in war" (how you conducts the "armed conflict" once you are in it). That is also the ICRC position. E.g., One may have a perfect right to go to war, but conducts the war (warfare) in such a way as to commit war crime after war crime. OTOH, one may have no right to go to war, but conduct warfare in total compliance with all "jus in bello" rules.

The ICRC and I do differ on what the specific rules and language "are, should be" in both Jus ad Bellum and Jus in Bello. However, we are still within a common framework, but not all accept the separation between Jus ad Bellum and Jus in Bello.

Some contend, for example, that, if one's Jus ad Bellum is tainted (not "right"), that someone becomes an outlaw; and all of its acts committed in the armed conflict are tainted (not "right") - so, "wanted, dead or alive". Others contend that if one's Jus ad Bellum is "crystal" (say, a clear self-defense case, esp. in an existential case), all of its acts in warfare (no matter how extreme) are justified by the initial case for self-defense.

BTW: If a "war, armed conflict" does not exist re: the particular situation, then neither party can rely on "war, armed conflict" rules. That is the primary assertion that Mary Ellen O'Connell relies on in many of the current situations for her findings of "illegal, immoral and dangerous".

So much for the "juices" - I'm working up the page to the first two paragraphs of MAL's post.

-------------------------------
"1. The combatant definition" There is a common framework in this:

A recurrent question in the military operations against VNSA. For that, I would definitively call to look at the GC definition and the modern interpretation of a combatant by the ICRC. The need to wear a uniform is not a necessity. What is the key point is the existence of a chain of command and the active participation, in planning or conducting, military operations.

but the devil is in the details. Obviously, the issue with Awlaki and anyone who is "part" of AQ (let's leave the Taliban on the shelf for the present) is whether that person can be defined as a "legitimate target" or not - and what "gray area" (if any) one allows for discretion.

The "modern interpretation of a combatant by the ICRC" (if, MAL, you speak of the ICRC docs re: "direct participation") is not something I can agree with. I also do not agree with the 1977 AP I and AP II as written; and many interpretations (by the ICRC and others) of "Customary International Humanitarian Law". In essence, they say trust us in our presentations - I don't trust and I must verify thrice.

-----------------------------
"2. Targeted assassinations."

MAL: Your use of the word "assassinations" may or may not be intentional.

Do you mean assassiner - "to assassinate, to murder" - which contains within itself the conclusion that the act is criminal.

OR

Are you satisfied with the neutral tuer - "to kill - as in "tue' par les Iroquois" (an epitaph placed after the death dates of more than a few Colonial Marines, killed in an irregular warfare where both sides killed with a kind of feral deadliness).

The term "assassiner" was reserved for George Washington in the admission he signed when he surrendered Fort Necessity to Louis Coulon - see link, Jacob Blosser, Getting Away with Murder: The Tragic Story of George Washington at Jumonville Glen (2001) (pdf). And the controversy over targeted killings has continued since.

Please clarify if your beliefs (I won't argue with them) require assassiner, or if tuer is presently satisfactory.

As to the practical, experiential reasons - the real problems confronting you in trying to clean up knucklehead-occupied cesspools:

But what worries me is the increase of use of targeted assassination as war end. In the Great Lakes, under US inspiration [JMM: texts ?], Uganda, Rwanda, Burundi and DRC have agreed [JMM: texts ?] to increase their use of targeted assassination against armed opponents. This is not a god news for Africa and goes against the principle of force as a tool of law enforcement. This just gives good justification for crazy states to do what ever they want (If the US can do it, so can we).

I'd suggest that whatever the precise facts, present rules (if enforced) would help in ending the problems. I won't even attempt to defend Mr Obama's-Ms Clinton's African policies. I do believe that further tightening the screws on the militaries of many Westphalian states (who generally do behave) will not do any good at making the knuckleheads of the world behave.

Regards

Mike