New technologies and war legislation: a progress?

[M-A Lagrange]

What expertise does a court have in determining the acuity of smart (or dumb) bombs ? Even a court consisting of JMM99 military dilettantes (dabblers) would be sadly deficient in that area of expertise.

Basically, I do not know much more than you on smart and dumb bombs. But I know that ICRC legal advisers and organizations working on IHL have a sound weaponry knowledge and will be able to identify which ammunition (up to the serial nb) have been used when, where. (I have met several representatives of such organizations, even US senators or deputy representatives.) They probably would be able to identify which generations of bombs have been used in Libya, Irak, Astan and Pakistan and be able to trace the accuracy evolution.
My point was that I do expect them to be able to come with a statement similar as the one on the use of phosphorus. It is not banned but regulated. The best (For non combatants) being a regulation based on environments in which such bombs are used: in civilian environment (cities, villages…) you can “legally” use A,B,C; in non civilian environment (battle field, open war zone, including cities if considered as a war zone…) you can legally use Z,W,X.

Is there a (more or less) complete report of the incident in English that could be linked here ? I agree that it could be a case study.

Unfortunately, on the Kunduz airstick I have no better information at the moment. But I do think this is the perfect case study for anyone in the field (and is probably already being used in military academies, or they should).
But will keep looking.

Since when do VNSAs follow the "Laws of Wars" - other than those drafted to favor them ?

Since when war is a game in which the rules are in favor of the weakest?
Out of jokes, I think that legislating drones use by VNSA is a necessecity as this will happen. Tamul Tigers had an airforce, Hezbollah has a missile force… Basically, rules that apply to state actors do apply to VNSA. Even if they do not want to!!! And that’s why there is the ICC in the Hague: cause what ever you do, if you don’t play by the rules someone will come to get you.

[M-A Lagrange]

I could not find the Kunduz NATO report but I found interresting articles from credible German newpapers (Der Spiegel and Das Bilt) which disclose part of that report.

From the Spiegel:

The pilots, who felt that the Germans' instructions were odd, remained skeptical and suggested obtaining the approval of the higher-ranked US Combined Air Operations Center in Qatar on the Persian Gulf, so that both sides would be in the clear.
Red Baron's response was unambiguous. He told the pilots that he had the "approval" of Klein, who happened to be sitting next to him, for the strike to proceed, but that the bombs should only hit the sandbar and not the area along the riverbank.
There are strict rules of engagement within NATO, and the pilots were under the impression that a number of these rules were about to be violated. Once again, they repeated their request to be allowed to fly at low altitude over the river as a deterrent. The response from the German base was clear: "Negative. ... I want you to strike directly."
At 1:46 a.m., the American pilots asked the Germans one more time whether the people on the ground truly constituted an "imminent threat." Under the NATO rules of engagement, only an imminent threat justified an attack. Absent such a threat, the pilots would have been required to leave the area. But Klein was apparently intent on having the airstrike go forward, and his forward air controller, acting on Klein's orders, replied: "Yes, those pax (people) are an imminent threat." He said that the insurgents were trying to tap the gasoline from the trucks, and when they had finished, they would "regroup and we have intelligence information about current operations" and they would probably be "attacking Camp Kunduz."
It was apparently a white lie. The investigation report soberly concludes that there was no "specific information" or "hard intelligence" to indicate the Taliban "were either preparing or had a plan for attacking" the German forces that night. Based on everything the Bundeswehr and the Americans now know, the Taliban originally planned to take the trucks to a nearby village and, when the tankers became stuck on the sandbar, they decided to strip the vehicles instead. The report concludes that it was an "act of opportunity."

http://www.spiegel.de/international/...2468-2,00.html

German KSK Special Forces involved in deadly bombing
It has now come to light that the elite Kommando Spezialkräfte (KSK) unit played a role in the attack on September 4 which killed 142 people including civilians.
BILD can reveal how the KSK intervened in the strike on two fuel tanker trucks in an overnight covert operation.
At least five officers and NCOs advised Colonel Georg Klein, commander of the German military forces in the Kunduz region.
All five belonged to a secret unit codenamed Task Force 47, or TF47, which had Colonel Klein as its presumptive head.
TF47 comprises approximately half of the KSK soldiers, whose goal is to hunt for Taliban leaders and terrorists. The unit has its own command centre with advanced equipment at the German camp in Kunduz.
The first tip arrived from an Afghan informant on the evening of September 3. The Taliban had reportedly hijacked two gasoline tanker trucks which had then become stuck on a sandbank six kilometres from the German camp.
TF 47 soldiers requested help from an American B1B bomber. In the 90 minutes it took the plane to locate the tanker trucks, Colonel Klein was called to the TF47 command post.
During the night Colonel Klein took over as acting commander of TF47. An internal review by the Bundeswehr said that according to NATO rules, Klein would be allowed to order an attack only in this role.
A TF47 officer spoke approximately seven times by phone throughout the night with the Afghan informant who identified four of the Taliban leaders who were with the tankers, as well as other details.

http://www.bild.de/news/bild-english...2584.bild.html

What is interesting in those articles, it high light the difficulty of having an acute information with indirect contact reports.

According to the first article, pilots state that they were first not convinced by the necessity of a kinetic action. Then they received confirmation of the presence of legitimate target on the ground.

According to the second article, that confirmation was given by a direct contact from a ground team (the TF47). Decision making officer had at least 7 contacts with TF47.
The question then is did he have other sources of information and did he have all information (evaluation of ground environment) at the time he took the decision. Quantitatively, 7 contacts could make it but qualitatively it remains a single source.
For his discharge, first information was given by an afghan informant. Due to the complexity of the environment, a confirmation from reliable source was certainly needed. And that is what TF47 did provide.
Now remaining question is how accurate was the assessment of civilian environment?
In addition to the high value of fuel tankers, if high value targets were present, this incident exposes the problematic of war necessity versus IHL.

On a legal aspect, it can at least be assumed that pilots are non responsible. They expressed in their testimony the fact they had doubts and they asked several times for confirmation. They were given information they believed credible and accurate which lifted their doubts. In a physical and technical impossibility to have direct first hand confirmation, they acted according to given orders.
If what is reported in the article happens to be true, there is now at least 2 level of responsibilities on the ground to be evaluated:
- The TF47 responsibilities: what was their real statement and assessment of the situation.
- Col K responsibilities in evaluating the information transmitted by TF47 and his requests of civil environment and collateral damages assessment.

[jmm99]

1. Who drafts and adopts the rules (whether one calls them Laws of War, Law of Armed Conflict or International Humanitarian Law) ?

2. Are those rules "found" (like nuggets of gold or a brooding omnipresence in the sky; e.g., is there a "The Law") or are they developed via a process similar to the ROE three ring construct ?

3. Should the rules be the same for everyone ? That is: as one example, the same for VSA (Violent State Actors) and VNSA (Violent Non-State Actors); as another example, the same for China, EU-NATO, Russia and US; and more generally, how well do "Western Rules" fit "non-Western Population Groups".

4. What is "military necessity" (e.g., as one definition, an act that tends to the successful conclusion of a military operation; which is far different from the doctrine of "legal necessity") ? Eddie III's Chevauchée and Sherman's March to the Sea are examples of "military necessity" in their times.

5. Are the "War Rules" to be superceded by the "Peace Rules" (e.g., in International Red Cross jargon does International Humanitarian Law yield to International Human Rights Law; or, in more simple JMM99 and Polarbear1605 prose, do the "Laws of War" yield to the "Rule of Law") ?

6. How well has IHL actually worked in protecting the "truly weakest" - the truly civilian populations in conflict areas ?

Just some points to keep in mind when considering the Kunduz tankers and COL Klein.

Regards

Mike

[M-A Lagrange]

As a reminder:

War and international humanitarian law
29-10-2010 Overview
International humanitarian law is part of the body of international law that governs relations between States. IHL aims to limit the effects of armed conflicts for humanitarian reasons. It aims to protect persons who are not or are no longer taking part in hostilities, the sick and wounded, prisoners and civilians, and to define the rights and obligations of the parties to a conflict in the conduct of hostilities.
Because it is law, IHL imposes obligations on those engaged in armed conflict. Not only must they respect the law, they have an obligation to ensure respect as well. It is not acceptable to turn a blind eye.
• Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare. It is prohibited to employ weapons or methods of warfare of a nature to cause unnecessary losses or excessive suffering.
• Parties to a conflict must at all times distinguish between the civilian population and combatants in order to spare civilian population and property. Adequate precautions shall be taken in this regard before launching an attack.
The International Committee of the Red Cross is regarded as the “guardian” of the Geneva Conventions and the various other treaties that constitute international humanitarian law. It cannot, however, act as either policeman or judge. These functions belong to governments, the parties to international treaties, who are required to prevent and put an end to violation of IHL. They have also an obligation to punish those responsible of what are known as “grave breaches” of IHL or war crimes.

http://www.icrc.org/eng/war-and-law/...ar-and-law.htm

As I said in a previous post, I am not judging the person and I am looking at what can come out from that case study. The ICRC already issued a strictly confidential report (According to their standards, this means: to be not shared except with NATO and Germany). stating that in that particular case Col K actions were illegal according to them. I do not have that report and I am not here to judge him. What I would like to look at in that particular case study are the grey areas and what can be seen as a legitimate, responsible and legal response to a threat and what is a use of unnecessary force, disproportionate use of violence and in fine an illegal act of war. This was my point about the pilots: they acted according information they had, they questioned the necessity and proportionality of their actions and acted after being conviced they were doing the "right" thing.

1. Who drafts and adopts the rules (whether one calls them Laws of War, Law of Armed Conflict or International Humanitarian Law) ?

2. Are those rules "found" (like nuggets of gold or a brooding omnipresence in the sky; e.g., is there a "The Law") or are they developed via a process similar to the ROE three ring construct ?

The IHL are based on GC and additional protocol and The Hague treaty and weapons treaties. They are endorsed by each countries through the signature of those conventions and treaties. In the case of US, US did not sign additional protocol 4. Just as the Law does not fall from the sky, they evolve. As you said in your first post: first they banned the crossbow...
Also, they are completed by additional conventions as the convention against torture which apply in both peace and war context.

3. Should the rules be the same for everyone ? That is: as one example, the same for VSA (Violent State Actors) and VNSA (Violent Non-State Actors); as another example, the same for China, EU-NATO, Russia and US; and more generally, how well do "Western Rules" fit "non-Western Population Groups".

Yes GC and IHL apply to every body. It is combatants’ responsibility to follow it and enforce it. Who ever he is, being western or non western. It is an "old" problematic we discussed earlier. My position being that it is not because an opponent for political reasons rejects them that it does not apply.

4. What is "military necessity" (e.g., as one definition, an act that tends to the successful conclusion of a military operation; which is far different from the doctrine of "legal necessity") ? Eddie III's Chevauchée and Sherman's March to the Sea are examples of "military necessity" in their times.

Military necessity is more difficult to define. I use the term in its very conservative understanding: the end justify the means and at war all means are good to reach the end. In opposition to the principle of retenue, proportionality and humanity (another terms that we can discuss for centuries I believe).

Are the "War Rules" to be superseded by the "Peace Rules" (e.g., in International Red Cross jargon does International Humanitarian Law yield to International Human Rights Law; or, in more simple JMM99 and Polarbear1605 prose, do the "Laws of War" yield to the "Rule of Law") ?

This is a tricky point as war is considered as an "abnormal" situation or “situation of exception” in which a Right of exception applies. Human Rights are different from Humanitarian Laws. But the Rule of Law, in the case of war: the laws that regulate conflict (IHL), applies and combatants have to enforce and apply them. Cf:Because it is law, IHL imposes obligations on those engaged in armed conflict. Not only must they respect the law, they have an obligation to ensure respect as well.
In practical terms, since you are a combatant: you have to follow GC, ROE, TOE... There comes the problematic of military necessity (archiving the end: victory or policy enforcement through violence) vs necessity/responsibility to preserve non combatants from the damages of war. Here the principle of proportionality applies as the principle of retenue.

How well has IHL actually worked in protecting the "truly weakest" - the truly civilian populations in conflict areas ?

Many more than we think: all the refugees and IDPs who receive humanitarian aid. Never enough: this does not prevent civilian death and it only aims at diminishing the effects of war on populations by protecting them, as much as possible, from the use of violence.

Hope this helps to define the legal environment.
Regards

M-A

[jmm99]

The reason the points are all questions is that each of them has at least two sides (to what should be a continuing debate in the future). The future is far from certain, but it should be interesting. As the song said: "...the times, they are a-changing."

If that change leads to multiple power centers (e.g., China, Russia, India, EU-NATO, Brazil, USA), with no global hegemony (as well as a host of "hollow" or non-existent area governments and VNSAs), an effective "international law" (except in limited areas where there might be general agreement) is even less likely than at present.

Since WWII, one action has been the US's shaping of some international laws; but an equal and opposite reaction has been other's shaping of other international laws (e.g., the 1977 Geneva APs) to disfavor the US. Today, a number of the 1977 "have nots" have become "haves". A fair comment (private) by a Red Cross person is that 1948 Geneva and its 1977 Protocols would likely not be adopted in the early 21st century.

Unfortunately, I've no crystal ball; but I would expect "international humanitarian law" to become more and more regional - depending on the law adopted by each major regional power. Or, if some group (say, UN) demands a true international law, it will be ignored when it conflicts with the major regional power's construct (e.g., China's "Unrestricted Warfare", if that is or becomes China's doctrine).

--------------------------
Not long before the Kunduz tanker incident, the Germans changed their ROEs (post, Change in German ROE before Sep 2009 incident); as to which COL Klein, also before the incident, said:

Part 2: 'We Will Strike Back with all Necessary Force'

However soldiers in Kunduz told a different tale. "We will strike back with all necessary force," said Colonel Georg Klein, 48, commander of the field camp.

Combat has become routine for German soldiers stationed in Kunduz. After returning to the camp, the men mentioned their "TICs," or "troops in contact" (military jargon for enemy contact) almost casually. For them, requesting American "Reaper" drones to fire at booby traps is just common practice now.

Anyway, clearly not all the soldiers are unnerved by the finer legal details of combat. On May 7, in view of a German convoy, a number of Afghan fighters jumped off their motorcycles and went into combat position. But before they could fire their rockets and assault rifles, the Bundeswehr troops opened fire on them, killing at least two.

"What happened afterwards gave the troops a sense of security," said Klein. Instead of launching an investigation, as would have been the case in the past, the public prosecutor's office in Potsdam, near Berlin, concluded that the soldiers had acted in self-defense. Klein and his men see this as setting a precedent. "Soldiers need courage in the field, what they certainly don't need is fear of a public prosecutor," noted one officer.

Despite what the ICRC may have concluded in its report, the Federal Prosecutor cleared COL Klein (post by Igel):

The Decision of the Federal Prosecutor (in german).

Deutsche Welle: German prosecutors drop case against Kunduz airstrike colonel:

German state prosecutors on Monday said they had closed the case against Colonel Klein, the officer who ordered the controversial airstrike near Kunduz in September 2009.

According to the prosecution, neither Klein nor any of the other officers present before the attack were in a position to know that there were still civilians at the site at the time of the airstrikes.

"On the contrary, after a thorough assessment of the situation, they could assume that there were only insurgents present," the Karlsruhe-based prosecution said in a statement on Monday.

Colonel Klein had, therefore, not acted in violation of either the international or German criminal code, the prosecution said. Ordering the airstrike on two fuel trucks that had been hijacked by Taliban insurgents did not qualify as an illegal method of warfare.

It would be interesting to see what the ICRC report says.

Regards

Mike

[M-A Lagrange]

miss your point.

If that change leads to multiple power centers (e.g., China, Russia, India, EU-NATO, Brazil, USA), with no global hegemony (as well as a host of "hollow" or non-existent area governments and VNSAs), an effective "international law" (except in limited areas where there might be general agreement) is even less likely than at present.

Since WWII, one action has been the US's shaping of some international laws; but an equal and opposite reaction has been other's shaping of other international laws (e.g., the 1977 Geneva APs) to disfavor the US. Today, a number of the 1977 "have nots" have become "haves". A fair comment (private) by a Red Cross person is that 1948 Geneva and its 1977 Protocols would likely not be adopted in the early 21st century.

Unfortunately, I've no crystal ball; but I would expect "international humanitarian law" to become more and more regional - depending on the law adopted by each major regional power. Or, if some group (say, UN) demands a true international law, it will be ignored when it conflicts with the major regional power's construct (e.g., China's "Unrestricted Warfare", if that is or becomes China's doctrine).

Universality versus cultural: This is an odd argument used to disqualify any attempt to establish universality of principles that I do not buy. Respectable african intellectuals used it to discard Human Rights for africans...
But as demonstrated by Dr Kilcullen in Accidental Guerrilla, culture does impact and shape your combat environment.
Law, as Roma, is not build in a day and is based on past experience not on present feeling of necessity...
What is now seens as a constraint was a progress yesterday because it created in constraint for future conflict.

Anyway, clearly not all the soldiers are unnerved by the finer legal details of combat. On May 7, in view of a German convoy, a number of Afghan fighters jumped off their motorcycles and went into combat position. But before they could fire their rockets and assault rifles, the Bundeswehr troops opened fire on them, killing at least two.
"What happened afterwards gave the troops a sense of security," said Klein. Instead of launching an investigation, as would have been the case in the past, the public prosecutor's office in Potsdam, near Berlin, concluded that the soldiers had acted in self-defense. Klein and his men see this as setting a precedent. "Soldiers need courage in the field, what they certainly don't need is fear of a public prosecutor," noted one officer.

Security versus impunity. To have security you need to be deterrent and in combat environment to use force. As you use force, you develop a sense of security. The trap being impunity: the unjustified and abusive use of force. To regulate this there is law or fear of the law. This is addressed by the principles of proportionality and restrain (retenue?).
The fear factor of I feel insecure cannot really be taken in account in his evaluation. As by GC, only targets with a military value are recognized as “legally” military target. That was, in its time Gen Mc Chrystal dilemma.
The argument: soldiers cannot be in the fear of a prosecution anytime they act is an irrelevant argument. Soldiers, as any body legally allowed to use lethal force, have to be aware of his actions and cannot be driven by his sense of insecurity. Especially an officer who is not in direct contact with opponent or not engage in direct combat (those are 2 different environments).
The problem I have with the argument: after they will fear us and not come back is that you cannot prove it. You assume that by killing a large number of people you will build security for yourself. In a hostile environment, during a foreign occupation and you are the occupant, you also build sense of insecurity for the others and then encourage them to turn against you. But naturally you cannot allow yourself to be weak and then allow opponent to build his capacities because of your incapacity to be deterrent.

Despite what the ICRC may have concluded in its report, the Federal Prosecutor cleared COL Klein (post by Igel):

The Decision of the Federal Prosecutor (in german).

Deutsche Welle: German prosecutors drop case against Kunduz airstrike colonel:

I know and I am confortable with it.
But as you immediatly established: we are in a political grey area .

It would be interesting to see what the ICRC report says.

Yes but it's more difficult to have an ICRC report on wikileak than a diplomatic cable.

As said previously Drone and airstricks have generated a debate. Kunduz is interresting as it set a limit. There is defenitively a before and an after.
The interresting part of it is that after having a "against" position (ICRC estimates that Kunduz is an illegal act of war), it has been partially recognised as an more protecting tool. What did change in ICRC eyes?

[M-A Lagrange]

Two reports against the prosecutor decision on Kunduz:
http://www.amnesty.org/en/library/as...10152009en.pdf

http://www.adh-geneve.ch/RULAC/news/...Year-After.pdf

The first one, from Amnesty International, comes back on the process of decision making. In the end, it does not bring much part from pointing out that primary responsibility is that particular event ends on Col K.

The most interesting is the second one as it describes the various steps the enquiry took before ending on the desk of German federal prosecutor.

First, the initially competent Public Prosecutor in Potsdam referred the file to the Prosecutor in Dresden, because the suspected person, Colonel Klein, was stationed in this court district. The Public Prosecutor in Dresden then referred the case to the Federal Prosecutor in Karlsruhe, since war crimes had allegedly been committed and such a case the Federal Prosecutor has jurisdiction, not the Public Prosecutor in one of the German federal states.

Secondly, unfortunately, there are, according to that report, several breaches in the legal process of ending the case:

The lawyers in this case, who had announced their representation to the Federal Prosecutor, never received a formal notice of the termination of the investigations. Without this notice, no appeal and judicial review of the Federal Prosecutor’s decision is possible. Furthermore, the lawyers were denied access to the files and they were not allowed to file their own statement before the decision to terminate the investigations was made. They only were informed about the termination of investigations through the press release.

This does not change much of the problematic I was trying to bring here: how new technologies did increase civilians’ protection and how IHL may shape the use of new technologies.
What I found particularly interesting is the fact that in the process, various actors did question the use of force based on the principles of imminent threat, proportionality and impact on non military actors. Which shows that the first degree of increase of civilian protection is the men and women serving in the modern armies.

In Libya, one of the response to restrictions self imposed by NATO to the use of air strickes was the use of civilan populated areas as shield by the Kadafi forces. This forces the NATO coalition to use drone and, in fine, search for micro areas air suppremacy as country size air suppremacy was quickly established but ground forces managed to partly counter it.

It would be interesting to compare the ROE issued before Kunduz incident and ROE used in Libya to be able to actually assess the changes observed on the ground.