Narco Warlord...

[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.


Boot


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

[William F. Owen]

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.

[jmm99]

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 ?

[Danny]

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.

[jmm99]

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.

[Danny]

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.