The Rules - Engaging HVTs & OBL

[jmm99]

The San Remo ROE Handbook (2009) was a multi-national effort to create a set of rules for discussion purposes without transgressing the classification issues if actual ROEs were employed. The Handbook is therefor generalized, but is a useful framework for discussion.

McNeal uses a number of resources from the al-Aulaqi case, which included considerable revelation of previously classified portions of the targeting process (among several of the "state secrets" discussed). The following are USG public filings (unclassified):

Gov't Memo Opp to Preliminary Injunction and MTD_09-25-10.pdf

Gov't MTD - Ex 1 - Clapper Decl_09-25-10.pdf

Gov't MTD - Ex 2 - State Secrets Policy Memo_09-25-10.pdf

Gov't MTD- Ex 3 - Leiter Testimony_09-25-10.pdf

Gov't MTD- Ex 4 - Gates Decl_09-25-10.pdf

Gov't MTD - Ex 5 - Panetta Decl_09-25-10.pdf

Declaration of Jonathan Manes_10-08-2010.pdf

Govt's Reply re MTD_10-18-10.pdf

The Jonathan Manes Declaration (52 pages) seems the most useful, as a framework for discussion, in regard to the targeting process.

Regards

Mike

[jmm99]

Govt's Reply re MTD_10-18-10.pdf

Gov't MTD- Ex 3 - Leiter Testimony_09-25-10.pdf

Some issues earlier today with the CCR document center.

Regards

Mike

[jmm99]

I've cited Ashley Deeks, Pakistan's Sovereignty and the Killing of Osama Bin Laden (May 5, 2011), in my post in this thread, Another ASIL "Insight" - validating the OBL DA. For the most part, I felt she was on the right track (though not as definite as she might have been).

So also, my reaction to her expanded presentation in "Unwilling or Unable": Toward an Normative Framework for Extra-Territorial Self-Defense (Ashley Deeks, Columbia Law School; Virginia Journal of International Law, Vol. 52, 2012):

Abstract:

Non-state actors, including terrorist groups, regularly launch attacks against states, often from external bases. When a victim state seeks to respond with force to those attacks, it must decide whether to use force on the territory of another state with which it may not be in conflict. International law traditionally requires the victim state to assess whether the territorial state is “unwilling or unable” to suppress the threat itself. Only if the territorial state is unwilling or unable to do so may the victim state lawfully use force. Yet there has been virtually no discussion, either by states or scholars, of what that test requires. The test's lack of content undercuts its legitimacy and suggests that it is not currently imposing effective limits on the use of force by states at a time when trans-national armed violence is pervasive.

This Article provides the first sustained descriptive and normative analysis of the test. Descriptively, it explains how the “unwilling or unable” test arises in international law as part of a state's inquiry into whether it is necessary to use force in response to an armed attack. It identifies the test's deep roots in neutrality law, while simultaneously illustrating the lack of guidance about what inquiries a victim state must undertake when assessing whether another state is “unwilling or unable” to address a particular threat. Normatively, the Article plumbs two centuries of state practice to propose a core set of substantive and procedural factors that should inform the “unwilling or unable” inquiry. It then applies those factors to a real-world example – Colombia's use of force in Ecuador in 2008 against the Revolutionary Armed Forces of Colombia – to explore how the use of these factors would affect the involved states' decision-making and the evaluation by other states of the action's legality. The Article argues that the use of these factors would improve the quality of state decision-making surrounding the use of force in important substantive and procedural ways.

Ms Deeks appends several dozen examples of state action taken sans consent in "unwilling or unable" situations. I've attached a .pdf snip of the list. Many of these situations will be familiar to folks here who have studied them from military or political standpoints. Her focus (as an exemplar) is on FARC, Colombia and Equador.

The devil is always in the details. One such detail is the question of which balancing test should be used to justify state action. While Ms Deeks does not like a simple "efforts" test, she also rejects a "certainty" test (p.30 pdf):

This balance has proven notoriously difficult to achieve since the Charter‘s enactment, but striking the wrong balance may have seriously destabilizing results. Consider an "unwilling or unable" test that systematically over-protects the victim state‘s equities. Such a test might require the victim state to undertake only a superficial inquiry about the territorial state‘s willingness or ability to suppress the threat itself, or might set high expectations for the territorial state‘s capacity to address the threat, such that it would be easy for the victim state to conclude that the territorial state was unable to do so and to choose to use force itself.[67]

67. While victim states generally would be happy with a test that over-protects their equities, those states must be conscious that any test they use may be used against them in the future. Thus, even though Turkey might instinctively prefer a test that over-protects victim states (because it envisions itself most often in the situation of a victim state), it must consider how Iran might seek to apply the test if it believed that Kurdish rebels in Turkey were planning an attack against Iran. Thus, those states that expect most often to be in the position of victim states should place themselves behind a Rawlsian veil of ignorance in determining the characteristics of the test that they are willing to accept. Likewise, those states that expect that non-state actors might try to use their territory as a safe haven nevertheless should envision what test they would desire if they found themselves in the position of a victim state.

On the other hand, consider a test that systematically over-protects the territorial state‘s equities – for instance, by only allowing the victim state to deem the territorial state "unwilling" when the victim state proves to a high level of certainty that the territorial state assisted the non-state actor that undertook the armed attack. Victim states simply will ignore a test that under-protects their equities when national security is at stake.

One wonders what Ms Deeks thinks of combat ROEs which are based on a "certainty" test.

In fact, she does not argue what the standard of proof should be; although, she does suggest a "clear and convincing evidence" test (note 73):

73. Several scholars have written about the level of certainty that states must establish before using force. See, e.g., Lobel, supra note 71, at 539 ("The changing nature of warfare in the latter half of the twentieth century highlights the international community‘s need to develop rules and mechanisms to address the factual assertions upon which a nation employs armed force."); Waxman, supra note 60, at 58. The proper standard of proof that a victim state should be able to meet before taking action in a territorial state is an important and difficult question, because the facts underlying an "unwilling or unable" determination often will be contested. It may be that a standard akin to "clear and convincing evidence" will strike the best balance between the equities of the victim and territorial states. It may also be that the standard should shift depending on the level of threat that the victim state reasonably believes that it faces. Although the issue is worthy of further consideration, this article does not address in detail the standard of proof that a victim state must meet. However, it makes a baseline assumption that the victim state must act in good faith. See infra text accompanying notes 135-136.

Her suggestion that the standard of proof could shift based on the degree of threat has some merit.

This is a timely article as the Administration is expected soon to trot out AG Holder to justify the al-Aulaki strikes. I expect Ms Deeks could make a better presentation of the US position.

Regards

Mike

The examples in the attached snip start with the US in Spanish Florida (1817-1818; Seminoles) and end with Turkey in Irak (2010; PKK).

[davidbfpo]

From the Kings of War blogsite an article I missed, the full title being 'Raffaello Pantucci on targeted killings: what are the alternatives?':http://kingsofwar.org.uk/2011/01/raf...#comment-14072

[jmm99]

Initially, I failed to check the date (3 Jan 2011). Pantucci suggests (after running through some options which didn't and wouldn't fly in the US):

Maybe the solution is much simpler: the conflict needs to be recast as a ‘war’. People die in wars, usually for a rationale that a majority of the population accepts, or which it needs to be persuaded of. NATO went to Afghanistan in the wake of 9/11 to get those who carried out that heinous act, in a move that most supported (in the West at least). Let us refocus the rhetoric and language on this fact and that the drone war is an extension of this conflict. This is not to advocate the conflict’s indefinite continuance, but let us phrase the debate about strikes within that context and continue the discussion along these lines. This framework would also force a serious public conversation on the war in Afghanistan, rather than a debate about a tactic. It would furthermore provide a better context for understanding the path that the West is now on: slowly withdrawing troops from Afghanistan while continuing with drone strikes against set targets.

Of course, we've now had two administrations (one conservative Republican; one liberal Democratic) that have cast "targeted killings" in terms of warfare - technically, a confluence of Title 10 (Defense) & Title 50 (National Security).

The Federal courts have made it clear that they will not substitute themselves for either the President or Congress with respect to direct actions (al-Aulaki) or "indirect actions" (Libya). The direct actions themselves have established our (US) capability to execute kill or capture missions in most areas of the World.

Generally, 2011 was a bad year for opponents of targeted killing.

Regards

Mike

[jmm99]

Opponents of targeted killing in particular and proponents of very restrictive ROEs in general were no doubt heartened by Prosecutor vs. Ante Gotovina, Ivan Čermak, and Mladen Markač (Summary; Record Part 1; Record Part 2) (ICTY, 15 Apr 2011).

Briefly, this international criminal case involved, among a number of other issues, alleged improper arty targeting in 1995 in the context of what was held to be an armed conflict of international character between Serbia and Croatia. However, the generality of the opinion lends it to application in any targeting situation, whether involving direct or indirect fires; as well as applying criminal liability to superiors not directly involved in controlling the fires.

Emory Law assembled a group of IHL (International Humanitarian Law, aka Law of Armed Conflicts, Laws of War) experts, who were:

John Altenburg, Jr.
Greenberg Traurig LLP
Major General (ret), US Army JAGC
Former Deputy Judge Advocate General of the Army

Laurie Blank
Director, International Humanitarian Law Clinic
Emory University School of Law

Geoffrey Corn
Professor of Law
South Texas College of Law
Lt. Colonel (ret), US Army JAGC

William Fenrick
Former Senior Advisor on Law of War Matters,
Legal Advisory Section
Office of the Prosecutor, ICTY
Commander (ret), Canadian Armed Forces

Donald Guter
Rear Admiral (ret), US Navy JAGC
Former Judge Advocate General of the Navy

Walter Huffman
Major General (ret), US Army JAGC
Former Judge Advocate General of the Army

Gary Solis
Colonel (ret), US Marine Corps
Former Director, Law of War Department, US Military Academy, West Point

Marc Warren
Colonel (ret), US Army JAGC

Richard Whitaker
Colonel (ret), US Army JAGC
* Participating in personal capacity only and not representing any specific or general position of the United States Special Operations Command

Jamie A. Williamson
IHL and International Criminal Law Practitioner, in personal capacity

Colonel Larry Youngner
US Air Force JAGC
Staff Judge Advocate
Air Force Special Operations Command
* Opinions expressed in this presentation may not reflect United States Air Force regulations or policy. The Air Force does not officially endorse and is not responsible for the accuracy or liability of the information.

Here at SWC, the general rule is that opinions are valued by their content with no required proof of expertise. The real legal world is different - and credentials do count. Let's say that this panel goes well beyond the minimum requirements to practice.

The Emory report, Military Operations, Battlefield Reality and the Judgment’s Impact on Effective Implementation and Enforcement of International Humanitarian Law (2012), should foreclose any realistic chances for the Gotovina decision to become US targeting law (however, never discount the persistence of legalistic JAs). But, that decision will still be held to bind many of our military partners, even though the Emory panel skewers its flaws.

BLUF - The decision's impact on you (pp.15-16 pdf):

C. Institutional Concerns: The Effect on the Military

The U.S. and other advanced western militaries have a carefully developed and demonstrably sound system for the provision of legal advice before and during military operations. Military commanders and military lawyers both have important roles to play in this system, roles that depend on respect for each other and the respect of the troops for both the commander and the lawyer and their respective contributions to lawful and effective military operations. There was unanimous agreement among the expert participants at the November 4, 2011 meeting that the Gotovina judgment and the application of the law therein has the dangerous potential to undermine this delicate relationship.

First, as the discussion in Section II above shows, the legal framework the judgment creates does not make sense and cannot be implemented effectively at the operational level. Consequently, military lawyers will face the unenviable task of providing legal advice based on legal paradigms and rules that do not make sense. When the advice of lawyers is nonsensical, the commander will simply disregard the advice and act based on his or her own moral code. In many cases, the commander’s own moral parameters may well be an excellent guide for the conduct of military operations, but in others, it may not. And the disregard for the lawyer’s advice leads to inconsistency across multiple units and, more problematic, a disregard for the law itself. In essence, as more than one expert noted, IHL will only be relevant to nations that do not fight wars, a perverse result that cannot be in line with the ICTY’s own goals and mandate.

On a more institutional level, the experts agreed that the judgment may well have the effect of “silencing” the military lawyer. The legal adviser is the communicator of the law to the commander, and often a voice of reason and reflection in the targeting process. If the law is comprised of absolute rules detached from the pragmatic and inevitable variables of operations, rather than being based on the key principles and concepts central to IHL, then the commander has no reason to turn to the legal adviser for the simple fact that a rule that can never be complied with becomes effectively irrelevant. By undermining the law, the judgment thus undermines the legal advisor, which has a significant effect on the entire culture and institution of the military. Alternatively, the judgment can have an opposite, but equally troubling, consequence by eliminating all opportunities for the commander to exercise discretion and flexibility in the face of changing operational realities. With "no error" standards, every decision becomes a technical legal one, effectively removing all decision-making from the commander’s sphere and leaving it in the hands of the lawyer. Again, the experts expressed grave concern at the potential for such a result because it thoroughly emasculates the commander and turns every decision in combat from a strategic and legal decision into a political decision.

IV. Conclusion

At first glance, a judgment of the ICTY regarding the application of IHL to complex targeting operations involving two warring parties targeting military objectives in populated areas is a welcome development. With the progressive development and effective implementation of IHL in mind, careful consideration of the legal principles, obligations and standards could make a major contribution to IHL and to future military operations. Unfortunately, the Gotovina judgment as it stands goes in the very opposite direction. The military and operational law experts gathered at the November 4, 2011 roundtable discussion came together with the goals - shared with the ICTY -of promoting the development of IHL, ensuring the lawful conduct of military operations, and protecting civilians from the ravages of war. Because of the great potential for this decision to become a persuasive authority in the law of targeting, the experts believe it is important to highlight the legal flaws in the judgment and, even more important, the longer-term detrimental effects that the faulty application of the law will likely cause. Preserving the ability of military forces to conduct lawful military operations and protect civilians accordingly is essential.

Don't assume that everyone (including JAs) know of this report.

cont. in part 2

[jmm99]

Getting down into the weeds (both quotes below are from pp.6-7 pdf, footnotes omitted) - and seeing what a group of judges can decide when they decide what is and is not a "correct military" standard - and thereby creating a "no errors" standard:

During the experts’ meeting, there was general consensus that the legal analysis in the Gotovina judgment risks undoing this legal framework for the role of intent in the crime of unlawful attacks against civilians. The judgment, as noted above, finds that all of the HV’s targets were lawful military objectives. It then concludes, however, that because a very small percentage (approximately 4.5%) of the artillery effects could not be attributed to a pre-established lawful object of attack, the overall operation constituted an unlawful attack on civilians.

In essence, the finding reflects a double failure. First, it rests primarily on an effects-based analysis that either ignores or disregards any investigation or evidence of the commander’s knowledge or intent at the time of the attack - information that is central to any valid IHL analysis. Second, the inference derived from these effects seems operationally irrational: instead of focusing on the 95.5% of valid effects to infer a legally compliant state of mind, the Chamber relied on the 4.5% (an attribution ratio that itself is questionable) of invalid effects to reach the opposite conclusion.

The experts recognize that the Trial Chamber ostensibly relied on the order to place Knin under artillery fire as direct evidence of the defendant’s state of mind. In doing so, however, the judgment places an overwhelming emphasis on post-attack effects, and draws an objectively irrational inference from those effects (the conclusion that a very small percentage of artillery effects resulting from over 900 rounds fired from maximum range cannot be directly linked to a pre-determined military objective indicates an unlawful intent). The experts were concerned that this methodology - judging targeting decisions based on unreasonable and incorrect standards - could become the accepted approach for assessing targeting decisions and operations.

Ultimately, it is impossible to ignore the import of this judgment: it encourages a determination of criminality based almost exclusively on effects, without any grasp of what the alleged perpetrator knew or intended at the time of the attack. Throughout the course of the expert group discussion, the participants emphasized the essential role of accountability in the effective implementation and enforcement of IHL. But the experts also stressed that accountability that rests on relaxed standards of mens rea - or de facto elimination of mens rea altogether - comes at too high a price. The Gotovina judgment essentially forces commanders to operate with a standard that accommodates no errors.

The "no errors" standard is doubly erroneous because it employs post-event findings of effects versus what the commander reasonably felt was more likely than not going to be the effects when he gave the order:

The legal standard in Additional Protocol I, the ICTY Statute, the ICC Statute and customary international law is that commanders are obligated to make reasonable decisions based on the information available at the time of the attack. The law does not judge commanders based on the outcome alone, nor does it require commanders to be right in all circumstances. Rather, the participants at the November 4, 2011 experts meeting agreed that any assessment of targeting must be based on the commander’s intent and whether the decision to launch the attack in question was objectively reasonable based on the information available at the time of decision, including the full range of operational execution variables that influence the actual effects of an attack.

More important, beyond the incorrect application of the law, the participants voiced a number of concerns regarding the imposition of a de facto strict liability standard for targeting determinations.

First, the judgment’s approach appears to lower the legal standard of culpability from the ICTY’s established standard of willful or reckless to a standard of reasonable but wrong after the fact, rendering reasonable action by a commander culpable based solely on hindsight and outcome-based interpretations. This approach transforms a reasonable judgment (which by definition is not reckless) into an unlawful judgment solely based on the fact that what was prospectively reasonable was not retrospectively perfect: a strict liability standard. In effect, the judgment conflates the criminal standard with the operational standard in IHL, leaving no room at all for commander discretion and the complexity of the modern battlefield and targeting decision-making. The correct standard in IHL is amorphous and subjective in many instances, but it also fairly represents operational realities. The judgment thus fails to recognize that a commander’s judgment may be reasonable but ultimately wrong - and not culpable.

Second, no commander will be able to meet the standard set forth in the Gotovina judgment, resulting in an oxymoronic result from the broader perspective of the fundamental goals of IHL. Forcing a commander to a “no error” standard is simply ineffective and even dangerous for future operations. Commanders will either refrain from engaging in military operations altogether out of an overabundance of caution in the face of an impossible standard, or will simply disregard the law entirely as no longer relevant to their purposes and mission. Under either scenario, innocent civilians are the ultimate victims - a result directly at cross-purposes with a central goal of IHL and of the ICTY.

Finally, the experts were equally concerned about the long-term disillusionment with international law that will be the likely result as the legal standards for international criminal accountability no longer have a rational relationship to the implementation of IHL in military operations, a topic addressed in greater detail in section III.A below.

Thus, the Emory report exposes a major fallacy in Gotovina: that commanders proceed at their own risk unless they are truly infallible - as measured ex post facto.

cont. in part 3