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    Council Member Boot's Avatar
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    Default Narco Warlord...

    Gangs, can they be classified as insurgents? I heard today that the President met with the JCS to discuss what is happening on our border with Mexico. Can this be classified as an insurgency into our country?
    I am not sure this belongs here in this area, Mods please move if it doesn't.


    Boot


    http://www.buzzle.com/articles/255100.html

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    Council Member William F. Owen's Avatar
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    Quote Originally Posted by Boot View Post
    Gangs, can they be classified as insurgents? I heard today that the President met with the JCS to discuss what is happening on our border with Mexico. Can this be classified as an insurgency into our country?
    I am not sure this belongs here in this area, Mods please move if it doesn't.
    They are an insurgency if:

    a.) They use armed force, to initiate and sustain their operations.

    b.) They use armed force to negate the rule of law, within a state, region or other legally defined entity.

    Basically, if a criminal starts targeting/attacking law enforcement, then they become a de-facto insurgency, since their actions have political aims.
    Infinity Journal "I don't care if this works in practice. I want to see it work in theory!"

    - The job of the British Army out here is to kill or capture Communist Terrorists in Malaya.
    - If we can double the ratio of kills per contact, we will soon put an end to the shooting in Malaya.
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    Default This is a good question ....

    from Boot
    Gangs, can they be classified as insurgents? I heard today that the President met with the JCS to discuss what is happening on our border with Mexico. Can this be classified as an insurgency into our country?

    I am not sure this belongs here in this area, Mods please move if it doesn't.
    As to the second part, the topic probably belongs here because it (and similar questions - as to "terrorists" or any non-State actor who uses armed force) cut across both military (appropriate ROEs) and civilian concerns (Laws of War and Rule of Law).

    As to the first set of questions, "gangs" are part of a larger definitional problem which afflicts any situation where a non-State actor employs armed force. What are the ROEs and the legal rules applicable to the situation ?

    My perception is that the legal framework is currently in chaos, with divergent views as to whether the Rule of Law (basically domestic criminal laws), the Laws of War (which themselves present a definitional problem in non-State actor situations), or both, should apply to these marginal situations. The same problem exists for ROEs, which are based not only on purely military considerations, but also on the legal rules (from the Laws of War) which are perceived to be applicable.

    For example, taking Wilf's definition (as to which JMM personally has no beef) as a starting point:

    They are an insurgency if:

    a.) They use armed force, to initiate and sustain their operations.

    b.) They use armed force to negate the rule of law, within a state, region or other legally defined entity.

    Basically, if a criminal starts targeting/attacking law enforcement, then they become a de-facto insurgency, since their actions have political aims.
    Since use of armed force is present, we have (at least potentially) a "war", or in more modern I Law terms, an "armed conflict". I say potentially because there is substantial divergence in defining when the "use of armed force" becomes an "armed conflict", when it begins and when it ends (as exemplified in the Eminent Jurists report).

    While that report deals with "terrorists", its tenor would certainly apply to criminal gangs who use armed force as Wilf describes it. In short, the Eminent Jurists would probably not see Wilf's definition as one allowing use of the Laws of War - and leave the ROEs to the Rule of Law (domestic criminal law, "international human rights law" and "international humanitarian law").

    However, trying to keep it simple, let us assume that we have Wilf's situation; that it is an "armed conflict" subject to the Laws of War; and that we have two simple fact situations:

    1. Nicki the Narco Warlord is shooting at and with intent to kill Mikko the Mighty (defender of the law). No doubt that Mikko can shoot back and kill Nicki - that is the same ROE regardless of whether this situation is measured under the Laws of War or the Rule of Law.

    2. Nicki and Mikko have their encounter, but both escape unscathed. The next day, Mikko takes a little hike into Nicki's turf and spots Nicki having breakfast on the patio of his multi-million dollar mansion. Mikko puts Nicki in the cross-hairs and the rest is history (for Nicki).

    Now, as I understand the traditional Laws of War, Mikko is entirely within his rights as a combatant to take out Nicki, a combatant in their "armed conflict". Mikko has combatant immunity, even though Nicki is then unarmed and not an immediate threat to Mikko.

    However, if you would present situation #2 to the Eminent Jurists, I expect you would get a different answer - probably several different answers.

    There may be an interesting law review article (forthcoming in the Nov 2009 Virginia Law Review), "Counterinsurgency, the War on Terror, and the Laws of War", which is abstracted at the SWJ Blog, here:

    Since the wars in Afghanistan and Iraq, military strategists, historians, soldiers, and policymakers have made counterinsurgency's principles and paradoxes second nature, and they now expect that counterinsurgency operations will be the likely wars of the future. Yet despite counterinsurgency's ubiquity in military and policy circles, legal scholars have almost completely ignored it. This Article evaluates the laws of war in light of modern counterinsurgency strategy. It shows that the laws of war are premised on a kill-capture strategic foundation that does not apply in counterinsurgency, which follows a win-the-population strategy. The result is that the laws of war are disconnected from military realities in multiple areas - from the use of non-lethal weapons to occupation law. It also argues that the war on terror legal debate has been myopic and misplaced. The shift from a kill-capture to win-the-population strategy not only expands the set of topics legal scholars interested in contemporary conflict must address but also requires incorporating the strategic foundations of counterinsurgency when considering familiar topics in the war on terror legal debates.
    I'm not suggesting that this article will be the Holy Grail - if it parallels the Eminent Jurists report, it will not be (IMO). I do agree that the interface between the Laws of War and Rule of Law in the twilight zone of "insurgency" have to be clarified. My concern is that the result will not be clear - at least to the people in the field who have to apply them. Is Mikko the Mighty a war hero or a war criminal ?
    Last edited by jmm99; 03-09-2009 at 06:30 PM.

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    Council Member Danny's Avatar
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    Default Nicki, et. al.

    jim99,

    I believe that you're wrong about Nicki and Mikko. Based on the Iraq-specific ROE leaked to Wikileaks, the standing ROE available over the WWW, and the rules for the use of force (now closed down as a URL after I linked to it), Mikko can't simply take out Nicki. I believe that it should be allowed, but my understanding is that it isn't.

    The combatant must be armed and presenting a danger. That's why, when Andrew Lubin was reporting from Ramadi just a couple of years ago, the insurgents (who have learned to game the system) would fire from a location where arms had been pre-deployed, leave those weapons, run to another location where arms had been pre-deployed, and continue the process.

    As for gangs being insurgents, we should expect the continued militarization of the U.S. police regardless of definitions. But the very restrictive rules for police (i.e., Tennessee v. Garner) will still stand. Being in law enforcement will become increasingly difficult and fraught with peril both from the gangs and from our own legal system, especially on the border.

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    Default JMM stated no position as to Iraq ROEs, ...

    or current ROEs in effect anywhere else. Here is my conditional premise:

    ... as I understand the traditional Laws of War ....
    Our SROEs (by JCS) which I've seen (unclassified portion) - and posted about elsewhere - are based on "self-defense" principles from nation down to unit and individual. They are not what I would term the "traditional" Laws of War (e.g., as in the WWII context).

    You do make a good point (which is also mine) - ROEs follow the choices made as to whether the Laws of War apply at all; and if so which rules from the Laws of War will be selected.

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    Council Member Danny's Avatar
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    Default Point made ...

    And understood. I don't disagree with your characterization. But the standing ROE (from which the Iraq-specific ROE are patterned with minor exceptions such as designating specific sects enemy or not) from the CJCS don't follow what you are calling more "traditional" laws of war, and I have doubts that they ever will again.

    On the other hand, if security on the border region with Mexico continues to degrade, will the SCOTUS revise their position on Tennessee v. Garner, or will law inforcement simply ignore it thus making it a de facto dead and irrelevant ruling?

    Stay tuned. And regardless of whether you classify it as an insurgency, U.S. Sheriffs in border counties are testifying that they are using RPGs in bars and other places as the fight crosses into the U.S. and continues on our streets.

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    Default So also do I have doubts about this ...

    from Danny
    ...I have doubts that they ever will again ...
    which (IMO) is unfortunate. Just as to Wilf, war is war is war; to me, armed conflict is armed conflict is armed conflict in the legal sense. To cast the Laws of War and SROEs in terms of "self-defense" is (IMO) totally nuts - except insofar as a nation is concerned (UN Art. 51).

    Once a nation is attacked in an armed conflict (thereby triggering Art. 51 rights), the traditional Laws of War should apply. That does not mean that you should kill everything in the woods, but enemy[*] combatants should be fair game until they surrender.

    What SCOTUS will do with this developing problem will depend on what the Executive and Legislative branches do with it.

    --------------
    [*] Defining "who the enemy is" is the key to any logical solution. In the case of non-State actors that is not easy - consider drafting an appropriate authorization to use armed force against Nicki and his "gang".

    Looks like an armed conflict to me (100 KIA per week - e.g., MSNBC today). It also looks like a loosely networked "insurgency" - thus, the drafting and characterization problem.
    Last edited by jmm99; 03-09-2009 at 08:19 PM.

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    Council Member slapout9's Avatar
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    I don't think it matters much if they are insurgents or not. Because first they are criminals or the more modern term VSNA (Violent Non State Actors).

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    Default I like this term ....

    from Slap
    ... VNSA (Violent Non State Actors).
    which covers a lot of ground; and, as I am now viewing it, is much the same as a non-State actor that uses armed force.

    Working as a Devil's Advocate against myself, an important question is how to define an armed conflict in which a non-State actor (VNSA) engages - as opposed to a VNSA who engages in criminal acts.[*]

    Like the definitions for "terrorists", I doubt that any general definition can be tailored that will fit all cases.

    In the US, my recourse would be to the constitutional process of a resolution to use armed force against a defined enemy (e.g., a VNSA), approved by both the Legislative and Executive branches. In short, a case by case determination. [**] Once that determination is made, the situation would be an armed conflict generally ruled by the Laws of War.

    In the absence of such a determination, the Rule of Law (law enforcement rules) would be the default, even where a VNSA is involved.

    BTW: my postings in this thread are an opinion piece - what the law should be, not necessarily what it (or the actual practice) is.

    ------------------------
    [*] Viewing members of a VNSA as "enemy combatants" (ruled by the Laws of War) should not preclude their prosecution under the Rule of Law (domestic criminal law), unless they satisfy the requirements for combatant immunity - most will not meet those requirements.

    [**] "case by case" here meaning situation by situation; not meaning judicial cases. SCOTUS has made it clear that it will not intervene where the other two branches have acted in this political area. The exceptions have been where domestic constitutional issues prevail - e.g., the habeas cases and the Steel Seizure case.
    Last edited by jmm99; 03-11-2009 at 12:50 AM.

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    Council Member slapout9's Avatar
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    Quote Originally Posted by jmm99 View Post
    Like the definitions for "terrorists", I doubt that any general definition can be tailored that will fit all cases.

    In the US, my recourse would be to the constitutional process of a resolution to use armed force against a defined enemy (e.g., a VNSA), approved by both the Legislative and Executive branches. In short, a case by case determination. [**] Once that determination is made, the situation would be an armed conflict generally ruled by the Laws of War.

    In the absence of such a determination, the Rule of Law (law enforcement rules) would be the default, even where a VNSA is involved.

    jmm,you got it man! It allows room for an emergency declaration of some type,but if that never happens default to plain old murder,mayhem and destruction of property criminal codes.

    PS it is based on good old systems thinking

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    Default If this is positive ...

    from Slap
    ... good old systems thinking ...
    I'll accept the "honor".

    Is "systems thinking" something like "critical path analysis" (did some of that 45 years ago). Serious question - I'm something of a dummy on systems, networks, etc.[*]

    [*] except for the network of late winter snow systems that are bearing down on us from the West.

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    Council Member slapout9's Avatar
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    jmm, Lawyers are pretty good at systems thinking many threads have this theme so I want stray from the thread but just do a search and you will find some great discussions on it.

    PS you may be familiar with a RICO chart (Racketeer,Influence and Corrupt Organization chart). That has a lot of Network analysis in it. Gotta go there was a terrible shooting on South Alabama just a short time ago and I have to go see what is up. Later Slap

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    Council Member Boot's Avatar
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    Quote Originally Posted by slapout9 View Post
    I don't think it matters much if they are insurgents or not. Because first they are criminals or the more modern term VSNA (Violent Non State Actors).
    VSNA, I was thinking more along those lines wrt narco warlords; I have to wonder on what basis would the military get involved in this case.


    Boot

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    Default Something along the lines of ...

    Columbus NM, 9 Mar 1916.

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    Council Member slapout9's Avatar
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    Quote Originally Posted by Boot View Post
    VSNA, I was thinking more along those lines wrt narco warlords; I have to wonder on what basis would the military get involved in this case.


    Boot
    They already are. The JCS just returned from Mexico with a pledge of more support. Mostly technical,training and money.

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    Council Member slapout9's Avatar
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    jmm99 and all, here is a short backround paper on what I am talking about. I think there is a link to the whole paper at the bottom. This is a an adaption of the 5 rings analysis developed by Colonel Warden. Has some graphics in it on another way to Map the System.

    http://www.ccc.nps.navy.mil/si/2004/...ebeerMar04.asp

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    Posted my JMM99
    My perception is that the legal framework is currently in chaos, with divergent views as to whether the Rule of Law (basically domestic criminal laws), the Laws of War (which themselves present a definitional problem in non-State actor situations), or both, should apply to these marginal situations. The same problem exists for ROEs, which are based not only on purely military considerations, but also on the legal rules (from the Laws of War) which are perceived to be applicable.
    I found this post interesting, especially the comment about "these marginal situations". It reinforces my view that the western view of war and conflict is myopic to the extreme, and any so called deviation from our paradigm of war simply throws us into a state of chaos. Unfortunately for us, the problems we define as being on the margin include the majority of security threats we are faced with.

    When we analyze conventional warfare to determine how it differs from the much discussed irregular warfare, we will find conventional warfare is probably derived from the tern convention, which means an agreement between parties, or simply put an agreement on how civilized countries would wage war. Our lawyers would determine what was legal and illegal, which would be very important to the loser who may be held accountable for war crimes. We have a convention, and we have a force that is primarily equipped, organized and trained to fight the type of war we all agreed to fight. Of course a problem is presented when an actor (state or non-state) doesn't follow the convention and conducts conflict/warfare in a manner we consider unconventional or irregular. The reality is most of the world's conflict resides in the so called unconventioal/irregular realm.

    I enjoy Robert Asprey's approach to this hypocracy in his book "War on the Shadows" where he defines terror as "extreme fear" and "an object of dread" He adds that only can terror be employed as a weapon, but any weapon can become a weapon of terror: terror is the weapon, a weapon is terror, and non one agency monopolizes it. To define (and condemn) terror from a particular social, economic, political and emotional plane is to display a self-righteous attitude (lawyers please take a bow) that, totally unrealistic, is doomed to be disappointed by harsh facts.

    Admittedly I digressed a little from the topic of whether a gang can be considered an insurgency, so to bring it back into the fold I go back to my argument that an insurgency is not restricted to an organized movement attempting to overthrow a government, but also includes an organization that attempts to displace the State in select areas of the State (versus overthrowing the entire State). In that case if a gang is attempting to displace the State in a particular neighborhood (a police no go area unless they have three cars full of cops), then that may be a criminal insurgency. Regardless of its legal domain, I believe the essence of the question was could we use COIN like strategies to address the gang problem, and that is a definite yes.

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    Council Member slapout9's Avatar
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    Quote Originally Posted by Bill Moore View Post
    Posted my JMM99

    I found this post interesting, especially the comment about "these marginal situations". It reinforces my view that the western view of war and conflict is myopic to the extreme, and any so called deviation from our paradigm of war simply throws us into a state of chaos. Unfortunately for us, the problems we define as being on the margin include the majority of security threats we are faced with.

    When we analyze conventional warfare to determine how it differs from the much discussed irregular warfare, we will find conventional warfare is probably derived from the tern convention, which means an agreement between parties, or simply put an agreement on how civilized countries would wage war. Our lawyers would determine what was legal and illegal, which would be very important to the loser who may be held accountable for war crimes. We have a convention, and we have a force that is primarily equipped, organized and trained to fight the type of war we all agreed to fight. Of course a problem is presented when an actor (state or non-state) doesn't follow the convention and conducts conflict/warfare in a manner we consider unconventional or irregular. The reality is most of the world's conflict resides in the so called unconventioal/irregular realm.
    Very,very,very,important point!

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    Default ROEs and Laws of War - a Moveable Feast

    Warfare has always had its ROEs - and its Laws of War, which generally followed the ROEs for the dominant powers that made the Laws of War. E.g., in Medieval Warfare, the officers (knights) certainly had their ROEs and their Laws of War - enforced by the heralds. Scarcely the GCs, but rules none the less.

    As warfare has changed over the centuries, its ROEs have changed and also its Laws of War. For example, the Westphalian concepts were needed because the prior equilibrium of Medieval Warfare had been punctured. Every so often, significant military changes create situations where new rules have to be developed. The present seems to be one of those eras.

    In an era of change, the neat little boxes of the past are insufficient - especially when divergent cultures become more apparent than they have in the past. I don't see any of this as very surprising since military cultures differ across the world - and the ROEs and Laws of War are an extension of the military cultures in which they are developed.

    Any particular set of ROEs and Laws of War will be egoistic - that is, they will reflect what their particular military wants. As such, they differ - some greatly, some only a little. For example, we will hold KSM to our ROEs, Laws of War and Rule of Law. He holds himself (and us), as in his recent brief, to his ROEs, Laws of War and Rule of Law. We find him wanting; he finds us wanting.

    I don't view either us or him as being hypocritical - although there is often enough self-rightiousness to allow everyone to share. But, I also do not view the obvious dichotomy as being relativistic. I am on one side in my choices; he is on the other side - and, yes, I will impose my choice on him if it is my power to do so.

    So also with Nicki the Narco Warlord, who also has his ROEs, Laws of War and Rule of Law - perverted though they may be from our viewpoint. In order to defeat KSM or Nicki, we have to understand their concepts. In terms of Slap's article, we have to understand their system - which includes their ROEs, Laws of War and Rule of Law.

    While that article uses vocabulary that I don't use (not being schooled therein), I do get the concepts. What seems to me most important is that the article takes an offensive approach to the problem, as exemplified by its conclusion (underlines added by JMM):

    Conclusion

    Our work is not a panacea, but it should add multiple dimensions to a strategy that sometimes focuses too much on the product of the system and not enough on the system itself. To disrupt the importation of energy, shape the environment and attack the environment/organization boundary. To destroy through-put, have a process-oriented attack plan. To attack export, meet the product head-on before it has been fully deployed. To interfere with the cyclic pattern of activities, interfere with internal activities that are critical, well-connected, or consist of exponential feedback loops. Attack negative entropy by disrupting or destroying critical stores. Disrupt the feedback and coding process by engaging in counter-intelligence and influence operations designed to increase uncertainty and disrupt communication. Destroy homeostasis by attacking critical nodes and disrupting system congruity. While doing these things, keep in mind our newly formulated principles of war for countering VNSAs, as they should inform all actions whether directed at input, conversions, or output. Our inter-disciplinary application of open systems theory provides a powerful framework for diagnosing adversaries, shaping their development and structuring an effects-based strategy for coercion and conquering. It is a global approach to a global challenge.
    My bottom line (as to a part of this) is that our ROEs, Laws of War and Rule of Law should be shaped to reflect an offensive strategy which is acceptable to us.
    Last edited by jmm99; 03-11-2009 at 07:53 PM. Reason: add link

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