The Rules - Engaging HVTs & OBL

[jmm99]

I'll not post in response to your latest post; nor will I post in response to any other post you make at SWC.

[jmm99]

Hello Toronto,

As to the tactical situation, I think the facts will keep changing for the simple fact that the media's sources are X steps removed from the original sources, the Seal operators. Of course, we are unlikely to see their after-action reports themselves; but, a week or two from now, may find us with firmer facts - or with a huge media circus as to what the facts "are" (with parsing of the word "are" ).

Comments about tactics should be reserved to them "that's been there, done that" - e.g, Bill Moore and Polarbear1605 just in this immediate thread; but there is a Bn or so here at SWC that have dealt with residential buildings in one way or the other.

As to the legal situation, let's take the Express story as a hypothetical (leaving out the wife, which needlessly complicates the story; and leaving open the possibility that the final double tap came from two operators, not a material fact anyway):

[1]... the first Seal team came under small-arms fire from a guest house as they entered the compound. The commandos returned fire, killing Bin Laden’s courier Ahmed al-Kuwaiti and the courier’s wife, who died in the crossfire.

[2] The Seals were never fired on again. As they entered the main residence, they saw a man standing in the dark with one hand behind his back. Fearing he was hiding a weapon, they shot and killed the lone man, who turned out to be unarmed. However, as they moved through the house, they noticed several stashes of weapons. The team then climbed a staircase, where they ran into one of Bin Laden’s sons rushing down. They killed the son, who was also unarmed.

[3] On the third floor, the Seals threw open the door to Bin Laden’s bedroom. ... the ... commando turned his gun on Bin Laden, standing in what appeared to be pyjamas, and fired two quick shots, one to the chest and one to the head.

Legally, this is about the same situation that I set as a hypothetical one week ago in another thread here, Basic hypothetical and (to include Astan or Pstan), A follow-up. Various comments to those posts also apply here.

Going through the three parts of the legal situation:

1. "...came under small-arms fire". Not material under broad rules[*], though it provides two reasons to shoot. The wife's death introduces the issue of "collateral damage" (a term I dislike, but that is what is used). That gets into another set of rules.

2. "The Seals were never fired on again" - not material to a declared hostile force situation, though I suppose one might say that male + nearby arms = a hostile threat. The key factual issue in a declared hostile force situation is positive ID (PID). The AQ guys don't wear uniforms and are among civilians trying to look like civilians. Which is one factor as to why more civilians have been killed since WWII than combatants.

3. OBL is a PID and can be killed unless he manages to surrender before he is shot. No requirement exists that an attacker make surrender offers.

The foregoing is a simplistic explanation. Life is more complex even under "broad rules" of war. More "restrictive rules" make life even more complex for the attacker.

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[*] Working Definitions

I use "rules" generically, including Laws of War (LoW; aka Laws of Armed Conflict, International Humanitarian Law; including various conventions and some state practices), Rules of Engagement (ROEs, includes Standing Rules of Engagement, SROEs, developed by US JCS), Rules for Use of Force (RUFs; including SRUFs), Rules for Escalation of Force (EOF).

I am using "broad rules" as shorthand for US Wartime rules (Hague + 1949 Geneva + US additions), where kill is allowed if either set of facts exist:

1. The target presents a hostile act or hostile threat and is killed in the defense of self or others; OR

2. The target is positively ID'd as a member of an armed force declared to be hostile - whether the target is then armed or otherwise hostile is not material;

and, where, the burden of making non-combatants and civilians safe is placed on the defenders of the targeted location, not on the attackers.

The rights of the attacker are limited by more "restrictive rules", as in the 2009 San Remo ROE Handbook, which I have to discuss at some point; along with some points asserted by Ms O'Connell in her more formal 2010 article.

For example, the burden of protecting non-combatants and civilians in a building could be cast on the attacker; the declared hostile force rule could be removed; and the target would have to directly participate in hostilities.

In short, under "restrictive rules", the Seal going into the OBL residence might have fewer rights in his favor than I do under Michigan law if I am confronted by a home invader.

Regards

Mike

[An Outsider]

Thanks, Mike, for your ever-direct response. Sounds to me like it's a delicate legal question that will have to be addressed sooner rather than later if we are to have clear parameters for engaging HVTs in the future. I only hope that the view that you, I, and, as far as I can tell, most of SWJ hold on the legality of such a raid prevails under international scrutiny or I despair at the future of global counter-terrorism.

Regards,

Stefan

[Entropy]

Mike,

So does the AUMF trump the indictment? Or, since the indictment still exists can the President decide which "tool" to use based on his own judgment? In other words, was the decision to try to kill UBL or arrest UBL ultimately a policy decision and not a legal decision?

[jmm99]

re: this -

from Entropy
So does the AUMF trump the indictment? Or, since the indictment still exists can the President decide which "tool" to use based on his own judgment? In other words, was the decision to try to kill UBL or arrest UBL ultimately a policy decision and not a legal decision?

except for the "extra" CIA stuff - so, this chart still holds as the current USG position (expressly affirmed as to detention by the DC Circuit in many cases; implicitly, those decision affirm the kill option under the AUMF):

TVNSA Flow Chart 2011.jpg

The red boxes are a combo CIA-DoD effort (Title 50 + Title 10) - a kill result obviously goes no further.

If a capture, with CIA as lead, the agency now has to hand off detention to either DoJ (indictment) or DoD (detention only or military commission trial). As we have seen, these folks can be bounced back and forth between DoJ and DoD. Follow the blue arrows and lines.

Ah, what a Powerpoint Ranger I would have made

Good question. The simple answer is that everything is a Presidential policy decision, with some Congressional oversight.

I'll do the opposing view later.

Regards

Mike

[jmm99]

as presented by Mary Ellen O’Connell, Robert and Marion Short Professor of Law, Fighting Irish Law (2010; SSM Download) (26 pages).

All quotes below are from pp.4-6 (emphasis added by JMM):

It is true that under international law in an armed conflict, enemy fighters may be targeted and killed in situations not permitted in peace. Certain persons may also be detained without trial or tried before military commissions. Many important human rights protections may be relaxed or derogated from in the exigencies of armed conflict. This shift in the law occurs only upon the emergence of armed conflict. It is, therefore, critical to understand what an armed conflict is in international law to make an appropriate choice of law between the law that prevails in peace and the law that may be applied during an armed conflict. This choice between bodies of international legal rules is, in turn, governed by international law. It is not a matter of policy or discretion.

JMM: The first bolded sentence is unexceptionable, but totally depends on the allowable scope of armed conflict. The second bolded sentence is exceptionable - unless one exaults international law over the US Constitution.

Under international law the existence of an armed conflict is determined on the basis of certain objective criteria. Prior to the adoption of the United Nations Charter in 1945 a state could declare a legal state of war even without the firing of a single shot. That is no longer the case. Today, we assess facts on the ground to determine the legal state of armed conflict. There must be organized armed fighting of some intensity for armed conflict to exist. This is not an entirely objective standard. The level of intensity is open to subjective assessment. And situations of violence may wax and wane leading to gray areas when situations are not clearly armed conflict. Nevertheless, the restrictive rules on the right to resort to military force as well as the importance of respecting human rights indicate that in such cases, law-abiding states act in conformity with the law prevailing in peace.

JMM: Who is the all-powerful determining "we" ? Hey, I'm a Tonto.

This does not mean states are left defenseless against terrorism. Peacetime criminal law and law enforcement methods permit the use of lethal force and stringent punishment of terrorists. Moreover, as will be discussed below, law enforcement methods are far more successful in ending terrorists groups than military force. It must be emphasized, however, that most of the examples reviewed above are not unclear cases. Most occurred far from any armed conflict where peacetime law applied. Under peacetime law, a person suspected of terrorism has the right to a fair and speedy trial before a regular court. Law enforcement authorities may use lethal force but only when absolutely necessary, a standard that the current generation of drones can rarely meet.

JMM: The foregoing is not an assertion of law, but an assertion of the superiority of a specific strategy and tactics - and exclusion of other options.

The assessment of facts to determine if peacetime law or the law of armed conflict is the right choice involves the same analysis used in resolving other choice of law questions. Lawyers and judges constantly make choice of law decisions. Choice of law is part of the consideration of every legal matter. In most cases the choice is probably obvious and requires no particular effort.

JMM: This is basically a formalistic approach to the application of doctrinal law to set facts - no fog or friction in that approach - which is Lima Bravo Sierra.

A good many issues do require careful consideration, however, and for those we have choice of law rules. Choice of law rules steer us toward the proper law for any particular matter, whether local, national, regional, or international law. If the matter implicates an international boundary, international choice of law rules will guide the choice.

JMM: I've omitted the brief discussion on choice of law between an Indiana seller and French buyer. That example is simply immaterial to the present case. Choice of laws or conflict of laws is and always has been an arena involving both international laws and domestic laws - envoi et renvoi are not that unusual. The ever-present issue to the practitioner (JMM) is which court gets its teeth into the case. Often more than one court gets into the act - and they, acting on supposedly the same choice of law rules, arrive at conflicting results.

In the terrorism-related cases discussed above, international law also determines the choice of law. In these cases, international choice of law rules sends us, generally, to the domestic criminal law of the United States, Pakistan, Yemen, and other states. It does not send us to the law of armed conflict.

JMM: I'm hard pressed to find much of the "terrorism-related cases discussed above". I think the word "above" should be "below" (pages after p.6) where the author does cite many cases prosecuting "terrorists" under domestic criminal laws - which do not exclude other options.

A key source to the author is:

14 See INTERNATIONAL LAW ASSOCIATION, DRAFT FINAL REPORT OF THE USE OF FORCE COMMITTEE, THE MEANING OF ARMED CONFLICT IN INTERNATIONAL LAW 8 (June 2010), available at www.ila-hq.org [hereinafter INTERNATIONAL LAW ASSOCIATION, DRAFT FINAL REPORT].

Pdf LINK; also this, The International Law of Drones, By Mary Ellen O’Connell (with lots of ILA links).

Hey, Entropy, an opportunity -

Jumping to p.14, where I Law (as determined by ILACUF) replaces CvC, Jomini and everyone else we study:

According to a study by the International Law Association‘s Committee on the Use of Force, international law defines armed conflict as always having at least two minimum characteristics: 1.) the presence of organized armed groups that are 2.) engaged in intense inter-group fighting.[63] The fighting or hostilities of an armed conflict occurs within limited zones, referred to as combat zones, theaters of operation, or similar terms. It is only in such zones that killing enemy combatants or those taking a direct part in hostilities is permissible.[64]

Because armed conflict requires a certain intensity of fighting, the isolated terrorist attack, regardless of how serious the consequences, is not an armed conflict.[65]

63 INTERNATIONAL LAW ASSOCIATION, DRAFT FINAL REPORT, supra note 14.

64 The combat zone is a critical concept to the lawful waging of armed conflict. Today, the right to resort to armed force (jus ad bellum) is triggered by an armed attack or Security Council authorization in response to a threat to the peace, breach of the peace or act of aggression. The lawful response to those provocations must be calibrated to be necessary and proportionate in the circumstances. This means the old claim that a state may attack the opponent‘s forces anywhere they are found is no longer supportable. A parallel principle is found in the jus in bello. Combatants may not kill the enemy wherever they find him, but only when reasonably necessary. This means a combatant may kill another person fighting against him in a combat zone, but someone away from the combat, who may be captured, may not be killed. For a more full discussion of these points and the law supporting them, see Mary Ellen O‘Connell, Combatants and the Combat Zone, 43 U. RICH. L. REV. 845 (2009); Christopher Greenwood, Scope of Application of Humanitarian Law, in THE HANDBOOK OF INTERNATIONAL HUMANITARIAN LAW 45, 61-2 (Dieter Fleck ed., 2d ed. 2008); JUDITH GARDAM, NECESSITY, PROPORTIONALITY AND THE USE OF FORCE BY STATES (2004); see also infra p. ___.

65 A significant armed attack may trigger the right to resort to armed force but an armed attack is not an armed conflict unless it is launched by an organized armed group and is responded to with the use of significant military force by another organized armed group. Thus the 9/11 attacks were found to be significant enough to trigger a right to respond under Article 51 of the UN Charter (see UN Security Council Resolution 1368) but an armed conflict did not follow until the United States and United Kingdom responded with significant military force in Afghanistan. Afghanistan was determined by the U.S. and U.K. to have been responsible for the 9/11 attacks, thus giving rise to the right to use force against it. For a detailed discussion of state practice and International Court of Justice decisions relevant to this law, see Mary Ellen O‘Connell, Preserving the Peace: The Continuing Ban on War Between States, 38 CAL. W. INT‘L L.J. 41 (2007) and Mary Ellen O‘Connell, Lawful Self-Defense to Terrorism, 63 U. PITT. L. REV. 889, 889-904 (2002).

Comment on the above from a military standpoint.

Regards

Mike

[jmm99]

here continuing to resource the O'Connell arguments in opposition to my conclusions (and the current USG position) ...

Combatants and the Combat Zone, Mary Ellen O'Connell, Notre Dame Law School, January 23, 2009

Abstract:

Following the attacks of 9/11, President George W. Bush declared that the United States was in a "global war on terrorism". His administration claimed the wartime privileges to kill without warning and detain without trial anyone suspected of association with terrorist organizations anywhere in the world. These claims were made in the face of contrary international law. Under international law, a war or armed conflict is characterized by organized armed groups engaged in intense, armed hostilities. To meet these criteria, such groups are associated with territory. In addition to the concept of armed conflict, the concept of conflict zone is important. Killing combatants or detaining them without trial may be permissible when done in a zone of actual armed hostilities. Outside such a zone, however, authorities must attempt to arrest a suspect and only target to kill those who pose an immediate lethal threat and refuse to surrender.

Preserving the Peace: The Continuing Ban on War between States, Mary Ellen O'Connell, Notre Dame Law School, July 22, 2008

Abstract:

The history of international law is, in large part, about the development of restraints on states' right to resort to force in dealing with external conflicts. Today, states may use force only in self-defense to an armed attack or with Security Council authorization. Even in these cases, states may use force only as a last resort, and then only if doing so will not disproportionately harm civilians, their property, or the natural environment. These rules restricting force are found in treaties (especially the United Nations Charter), customary international law, and the general principles of international law. In other words, the three primary sources of international law yield important rules restricting the use of force. The rules on use of force, like all international law rules, are binding on states for the same reason the law of any jurisdiction binds - because it is accepted as law by the community.

The following remarks on the rules regulating the use of force are divided into three parts. Part I provides a brief history and overview of the current rules on the use of force. Part II applies these rules to assertions that the United States could lawfully attack Iran today. Part III then discusses why these rules are binding as law and answers arguments to the contrary. These remarks will, therefore, touch on the past, present, and future of the law on the use of force to preserve the peace between states.

The Myth of Preemptive Self-Defense, Mary Ellen O’Connell, Professor of Law, The Moritz College of Law and Associate of the Mershon Center for International Security and Public Policy, The Ohio State University, August 2002 (emphasis added):

Conclusion

The international law of self-defense supports the American use of force in Afghanistan. After the devastating attacks of September 11, the United States had the right to defend itself against continuing terrorist attacks mounted from Afghan territory. The United States has no right, however, to invade another state because of speculative concerns about that state's possible future actions. The current international order does not support a special status for the United States or a singular right to exempt itself from the law. To maintain a legal order that restrains other states and to uphold the rule of law, the United States should continue its conservative commitment to limits on the unilateral use of force, and reject a reckless doctrine of preemptive self-defense.

In this almost decade-old article, some commonality does exist (the first two sentences) - but I would present a different editorial slant (vs the rest of her conclusion).

But not here, since that would get into my beliefs summarized as "Never Again, but..."; and require regression back into the later 1970s and what I believed ought to have been done then. What would have happened is pure speculation and that regression will not be made.

Regards

Mike