The Rules - Engaging HVTs & OBL

[jmm99]

Marc:

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".

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.

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 :

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.

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:

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.

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.

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:

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.

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.

As to her conclusion quoted by you:

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 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).

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