The Rules - Engaging HVTs & OBL

[jmm99]

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:

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.]

which allows this Mick:



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 ?):

CIA Assassinates Two US Citizens in Yemen

US Officials Work to Posthumously Promote Anwar Awlaki

Legality of Assassinating Americans Considered

Anwar Awlaki Never Actually a Member of al-Qaeda

Secret Justice Dept. Memo Sanctioned Killing of Awlaki

Now, you all have the side of the coin which (mostly) differs from my side.

Later....

Regards

Mike

[Bill Moore]

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.

[slapout9]

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.

Exactly, it is legal to under exigent circumstance rules IMO.

[jmm99]

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:

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.

So, I agree with Hayden.

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

[jmm99]

Bill:

I happen to agree with you on this one (surprise ):

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.

Michael Lewis, Drones and the Boundaries of the Battlefield (Sep 2011) (18 pages), reaches much the same conclusion:

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.

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.

Some of the assertions made in the name of "IHL" are quite amazing. E.g., Lewis cites this (p.8):

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).

She actually did say something akin to that in the 2010 article cited by Lewis:

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).

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."

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):

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.

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.

Regards

Mike

[jmm99]

Rajib Karim's emails with Al-Awlaki were disclosed in Karim's UK criminal case:

:: January 25, 2010 From al-Awlaki to Karim: ''... depending on what your role is and the amount of information you can get your hands on, you might be able to provide us with critical and urgent information and may be able to play a crucial role for the ummah...

''I was pleased when your brother conveyed from you salaams to myself and was excited by hearing your profession. I pray that Allah may grant us a breakthrough through you. As a starter, can you please answer these questions in as much elaboration as possible: can you please specify your role in the airline industry, how much access do you have to airports, what information do you have on the limitations and cracks in present airport security systems, what procedures would travellers from the newly listed countries have to go through, what procedures would a person on a watch list have to go through?''

:: January 29, 2010 From Karim to the ''prof'', alleged to be al-Awlaki: ''It has been three years that I have been living here away from the company of good brothers and spending a good part of my day working with the kuffar. I was also keeping a low profile by hiding my real religious viewpoints, trimming my beard and not getting too involved in the local Muslim community or any Islamic activities. But leading a life like that was really killing me inside, that's why I desperately wanted to make hijrah as I was not seeing any opportunities to do anything in this land...

''I have knowledge about the key people in BA starting from the top management and the key people in BA IT department. I also have knowledge about key IT hardware locations, which if targeted can bring huge disruption to flights and cause BA a major financial loss ... but this would be at the risk of exposing myself as I will have to do that with my own login ID...

''I personally know two brothers, one who works in baggage handling at Heathrow and another who works in airport security. Both are good practising brothers and sympathise towards the cause of the mujahideen and do not slander them. They are of the type who would help with money and moral support but I am not sure if they are at the stage to sacrifice with their lives.''

:: February 13, 2010 From al-Awlaki to Karim: ''Our highest priority is the US. Anything there, even if on a smaller scale compared to what we may do in the UK, would be our choice. So the question is: with the people you have, is it possible to get a package or a person with a package on board a flight heading to the US? If that is not possible, then what ideas do you have that could be set up for the uk?''

:: February 15, 2010 From Karim to his brother, Tehzeeb: ''If it's not a good idea to visit you guys, then I intend to visit BD or USA. If I visit USA, I can check out what their security process is like.''

From Karim to al-Awlaki: ''I have started working on the bros I mentioned on the last letter without mentioning you directly. Alhamdulillah the bros responded better than I expected...

''Like you say, I also agree that US is a better target than UK, but I do not know much about US. I can work with the bros to find out the possibilities of shipping a package to a US-bound plane.''

HT to Thomas Joscelyn, Awlaki's emails to terror plotter show operational role (LWJ, March 2, 2011), who provides more background and discussion.

Draw your own conclusions as to whether Al-Awlaki was simply a cleric exercising his First Amendment rights.

Regards

Mike

[M-A Lagrange]

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?

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:

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.

The conclusion is, as usual, very consensual:

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.

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.
Personnaly, I tend to be against the "geographically unlimited battlefield".

[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

[Levi]

Personnaly, I tend to be against the "geographically unlimited battlefield".

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.

[Bill Moore]

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).

[Levi]

by their stubborn resistance have shown what the general arming of a nation and insurgent measures on a great scale can effect, in spite of weakness and porousness of individual parts

secondly, that the probability of final success does not in all cases diminish in the same measure as battles, capitals, and provinces are lost (which was formerly an incontrovertible principle with all diplomatists, and therefore made them always ready to enter at once into some bad temporary peace), but that a nation is often strongest in the heart of its country, if the enemy's offensive power has exhausted itself, and with what enormous force the defensive then springs over to the offensive.

Standing armies once resembled fleets, the land force the sea force in their relations to the remainder of the State, and from that the art of war on shore had in it something of naval tactics, which it has now quite lost.

I have always liked this guy. I always took the summation of what he was saying to mean "total war" as a war without mercy until it was won.

We must, therefore, decide to construe war as it is to be, and not from pure conception, but by allowing room for everything of a foreign nature which mixes up with it and fastens itself upon it—all the natural inertia and friction of its parts, the whole of the inconsistency, the vagueness and hesitation (or timidity) of the human mind.

So if THIS "war" means we have to target people who would not normally be considered combatants, because they are not on a large open space with a weapon pointed in some direction or other, thats what we do. Don't we have to?

[jmm99]

from Levi
So if THIS "war" means we have to target people who would not normally be considered combatants, because they are not on a large open space with a weapon pointed in some direction or other, thats what we do. Don't we have to?

Targeting situations are each unique - a small change in the facts can change a "shoot" to a "no shoot" (and vice versa). E.g., from a "young CPT" (based on one of his experiences several years ago), Iraqi bad guys run into a compound - obvious options: infantry assault, arty fire mission, airstrike. But, women and children are on the roof (yeh, the bad guys probably sent them up there). Decision: back off and basically follow a "law enforcement approach".

Without specific facts, I can't answer your question: "Don't we have to?"

Regards

Mike