The Rules - Engaging HVTs & OBL

[jmm99]

The direct action against OBL is beginning to generate discussions, which will continue so long as HVTs are out there. This topic has popped up in a number of threads; but not focused on the practical interplay between operations and operational law.

I'll start with a personal observation. Two cablenews interviews with non-active duty Seals have stuck in my mind because of one's rank (O-4) and another's civilian occupation (legislator). Both based their limited "legal" comments on a "law enforcement" (Rule of Law) approach - i.e., the default under the SROEs allowing defense of self and others in the face of a "hostile act" or "hostile threat".

Neither of them mentioned the shift in rules (to the Laws of War) once we have a designated "hostile force" and positive ID of one of its combatant members. Now I'm not jumping on these two Seals because I've got a bigger target who should know better, our to be SecDef.

From On the Legality of Killing UBL Even If He Was Unarmed (and On the Title 50 Issue), by Robert Chesney (4 May 2011) (emphasis added):

JIM LEHRER: What did you find out then or since about whether or not Osama bin Laden said anything to the American SEAL commandos?

LEON PANETTA: To be frank, I don’t think he had a lot of time to say anything. It was a firefight going up that compound. And by the time they got to the third floor and found bin Laden, I think it – this was all split-second action on the part of the SEALs.

JIM LEHRER: Was Osama bin Laden armed? Was he shooting back at the SEALs?

LEON PANETTA: I don’t believe so. But obviously, there were some firefights that were going on as these guys were making their way up the staircase in that compound. And when they got up there, there were some threatening moves that were made that clearly represented a clear threat to our guys. And that’s the reason they fired.

JIM LEHRER: And they had orders to fire. In other words, it was clear – it was fine with the United States government that they went in and shot this guy, right?

LEON PANETTA: The authority here was to kill bin Laden. And obviously, under the rules of engagement, if he had in fact thrown up his hands, surrendered and didn’t appear to be representing any kind of threat, then they were to capture him. But they had full authority to kill him.

This is LBS (Lima=Legal + Bravo Sierra) - or just muddled legal thinking.

Actually, Mr Panetta ought to have stuck with his prior statement on the "ROE", We Hear from Mary Ellen O’Connell, by Benjamin Wittes (4 May 2011):

BRIAN WILLIAMS: Did the President’s order read capture or kill or both or just one of those?

LEON PANETTA: The authorities we have on Bin Laden are to kill him. And that was made clear. But it was also, as part of their rules of engagement, if he suddenly put up his hands and offered to be captured, then–they would have the opportunity, obviously, to capture him. But that opportunity never developed.

Mr Panetta is a lawyer (JD 1963) and was an Army officer (1964-1966).

----------------------------------
This was a Naval operation at the spear's tip. What were the rules for the, say, 2 Seals who came through the bedroom door, based on the Commander's Handbook on the Law of Naval Operations (2007; NWP 1-14M).

First, some quick posits: 2001 AUMF authorizes armed force vs AQ; OBL is CinC AQ and is a combatant of a force declared hostile.

Then moving to the Handbook:

5.4.1 Combatants

Combatants are persons engaged in hostilities during an armed conflict. Combatants can be lawful or unlawful.

The term “enemy combatant” refers to a person engaged in hostilities against the United States or its coalition partners during an armed conflict. The term “enemy combatant” also includes both “lawful enemy combatants” and “unlawful enemy combatants.”

and:

8.2.1 Lawful Combatants

Lawful combatants (see paragraph 5.4.1.1) are subject to attack at anytime during hostilities unless they are hors de combat (see paragraph 8.2.3).

8.2.2 Unlawful Combatants

Unlawful combatants (see paragraph 5.4.1.2) who are members of forces or parties declared hostile by competent authority are subject to attack at anytime during hostilities unless they are hors de combat (see paragraph 8.2.3).

The same rules apply whether OBL is regarded as a lawful combatant or an unlawful combatant. First, the exception:

8.2.3 Hors de combat

Combatants, whether lawful or unlawful, who are hors de combat are those who cannot, do not, or cease to participate in hostilities due to wounds, sickness, shipwreck, surrender, or capture. They may not be intentionally or indiscriminately attacked. They may be detained (see Chapter 11 on treatment of detainees).

Not applicable under the facts as posited (door breaching, then a double tap).

Note: I'm now (2309) watching CNN which is running different versions of the facts - among them, OBL daughter is alleging his capture on the first floor and then execution in front of her and others.

What follows applies to door breaching and a double tap.

As to surrender:

8.2.3.3 Surrender

[1] Combatants, whether lawful or unlawful, cease to be subject to attack when they have individually laid down their arms and indicate clearly their wish to surrender. The law of armed conflict does not precisely define when surrender takes effect or how it may be accomplished in practical terms.

[2] Surrender involves an offer by the surrendering party (a unit or individual combatant) and an ability to accept on the part of the opponent. The latter may not refuse an offer of surrender when communicated, but that communication must be made at a time when it can be received and properly acted upon — an attempt to surrender in the midst of an ongoing battle is neither easily communicated nor received. The issue is one of reasonableness.

[3] The mere fact that a combatant or enemy force is retreating or fleeing the battlefield, without some other positive indication of intent, does not constitute an attempt to surrender, even if such combatant or force has abandoned his or its arms or equipment.

No requirement exists that a "surrender offer" be made by the attacker. So, subject moves forward - shoot; moves right - shoot; moves left - shoot; moves back - shoot; and doesn't move - shoot. Says "I surrender" - see part [1] above.

A comment from Ken Anderson on Whether IHL Requires an Invitation to Surrender in the Context of an Attack Against a Lawful Target, by Robert Chesney (4 May 2011) (emphasis added):

I think there is a move being made by various people like the [UN] Special Rapp to use this as an opportunity to try and re-define the law of attack by inserting into it an obligation to invite surrender that is not part of the law of war. The administration should not take the easy way out and say, okay whatever makes you happy so long as you get to yes on killing Bin Laden. The administration does not actually believe this as a matter of law, I personally doubt it behaved this way in fact in this case, it hasn’t behaved this way in other targeted killings (no air attack can meet this standard, after all), and it won’t in the future. Sliding into this move as a way of avoiding apparently unnecessary debates now simply kicks the can down the road and will end in legal tears for someone. It is far better for the administration to assert its actual legal position on this now, in the strongest factual case it could possibly come up with.

Moreover – and I am pretty sure no one has made note of this yet – if one does endorse even implicitly a “invite surrender” view, the administration will actually have both more incentives to strike from the air with drones – and more criticism. It removes the “he said-she said” over whether the person was invited or attempted surrender, while ratcheting up the legal debate over whether there is an obligation to use human teams in order to invite surrender on the ground. The administration would be undermining how its operational law officers understand the fundamental nature of attack, whether in conventional operations or special ops, by not pushing back hard on this view and rejecting it outright.

Amen, brother, amen.

Lawfare had much more of this topic today, but I just hit the highlights.

Comments on the practical military aspects of all this are welcome. Of course, if you think all of this Laws of War stuff is Bravo Sierra, you're welcome to say that.

The more I think about this event - and the lesser cases of PIDs entering buildings "somewhere", I think of my dad saying not to send a patrol when you can send some 105s. My question is, if you have positive ID and know you will get the target by some kind of "fire mission", why not just eradicate the target if you want the target dead ?

Regards

Mike

[stanleywinthrop]

Good post, jmm, just a couple of quick questions which will show my ignorance:

1. Are you sure that "Handbook on the Law of Naval Operations" applied to this mission? Does the law follow the people (SEALs) or does the location of action determine the governing law?

2. I'm lazy. Could you throw up the definitions of "lawful combatant" and and "unlawful combatant" as used in the AUMF?

[Polarbear1605]

I can’t tell you how much I agree with the need for this discussion. I understand, to a certain degree, why politicians blur the line between the Rules of Law and the Laws of War. My biggest issue with the “blurring’ is that our generals and admirals now follow the same practice. Again, I ain’t no lawyer; just a military mind at work here.

JMM99 has pointed out that under the Laws of War “combatants” have the legal right to kill one another; seen, unseen; planned, unplanned; in this room or in a room on the other side of the world. The only thing that changes that is when they throw their hands in the air and yell I surrender, I give up, I quit, or I want to go see Disney World Orlando. The laws are designed that way to not only allow combatants to legally kill each other out of military necessity but also, if you happened to be a combatant, provide for your self-defense (defense for country is implied j/k).

Now, I am not trying to muddy the waters further but... When I first heard about this operation, it all made sense that Navy Seals were following their ROE or Laws of War. I thought that the CIA and the NCA were following the same model we used in the 2001 invasion of Afghanistan. The command structure was President to General Franks, Combat Commander Central Command, to CIA forces deployed to Combat Commander Central Command. The operation was conducted under Frank's Combat Command Authority…remember that authority cannot be delegated. Using the Combat Command made it war and therefore the Laws of Wars were in effect.

”Combat Command - Nontransferable command authority established by title 10 ("Armed Forces"), United States Code, section 164, exercised only by commanders of unified or specified combatant commands unless otherwise directed by the President or the Secretary of Defense. Combatant command (command authority) cannot be delegated and is the authority of a combatant commander to perform those functions of command over assigned forces involving organizing and employing commands and forces, assigning tasks, designating objectives, and giving authoritative direction over all aspects of military operations, joint training, and logistics necessary to accomplish the missions assigned to the command. Combatant command (command authority) should be exercised through the commanders of subordinate organizations. Normally this authority is exercised through subordinate joint force commanders and Service and/or functional component commanders. Combatant command (command authority) provides full authority to organize and employ commands and forces as the combatant commander considers necessary to accomplish assigned missions. Operational control is inherent in combatant command (command authority). Also called COCOM.”

Now it seems that the chain of command to the kill Osama mission was President, to CIA, to Joint Special Operations Command (Adm McRaven), to Navy Seal Team under title 50. Title 50? What in blazing blue balls of flame is that? (That is a rhetorical question for all you lawyers out there). I am reading title 50 now, you are going to have to give me a day or two on that I am having trouble on the repealed chapter concerning “INTERFERENCE WITH HOMING PIGEONS OWNED BY UNITED STATES”. Yep!...it is marked repealed but it is there.

So the question still stands; why do we blur the line between Laws of War and Rule of Law?

[jmm99]

Thank you for the kind words. In answer to your questions.

from sw
1. Are you sure that "Handbook on the Law of Naval Operations" applied to this mission? Does the law follow the people (SEALs) or does the location of action determine the governing law?

In default of having the actual "mission order" (more than one document, I'd expect; and a bunch of annexes) and the subsidiary "commander's guidance and intent", we of lower pay grades have to be satisfied with what we can reach: Laws of War as accepted by the US; 2001 AUMF as interpreted (primarily by the DC Circuit); JCS SROEs (the unclassified open-source); and the respective service handbooks on Operational Law (Navy being as good as any under the present circumstances).

from sw
2. I'm lazy. Could you throw up the definitions of "lawful combatant" and and "unlawful combatant" as used in the AUMF?

I'm not lazy, but I am busy. So, negat. I'm not asking for "sir, I'll find out, sir"; but I do request the "I'll find out" from you.

I've many posts dealing with the AUMF and its relevance to "kill or capture" missions - all of the Gitmo detainments are based on the same basic legal analysis. Start with this post in War Crimes, Gitmo Update, and read through all the court opinions I cite, as you move to the end of the page.

Then, after understanding the Laws of War as decided by the DC Circuit, do an SWC Advanced Search on AUMF (as key word) and jmm99 (as member). I got 77 posts just now.

You'll learn nothing if I feed you a bowl of Pablum (my baby food; it's awful). My purpose here is not to display my own knowledge (such as it is or is not), but to educate others. Do some work.

Now, I have to run and have a PM conversation with a friend.

Regards

Mike

[stanleywinthrop]

Thank you for the kind words. In answer to your questions.



In default of having the actual "mission order" (more than one document, I'd expect; and a bunch of annexes) and the subsidiary "commander's guidance and intent", we of lower pay grades have to be satisfied with what we can reach: Laws of War as accepted by the US; 2001 AUMF as interpreted (primarily by the DC Circuit); JCS SROEs (the unclassified open-source); and the respective service handbooks on Operational Law (Navy being as good as any under the present circumstances).



I'm not lazy, but I am busy. So, negat. I'm not asking for "sir, I'll find out, sir"; but I do request the "I'll find out" from you.

I've many posts dealing with the AUMF and its relevance to "kill or capture" missions - all of the Gitmo detainments are based on the same basic legal analysis. Start with this post in War Crimes, Gitmo Update, and read through all the court opinions I cite, as you move to the end of the page.

Then, after understanding the Laws of War as decided by the DC Circuit, do an SWC Advanced Search on AUMF (as key word) and jmm99 (as member). I got 77 posts just now.

You'll learn nothing if I feed you a bowl of Pablum (my baby food; it's awful). My purpose here is not to display my own knowledge (such as it is or is not), but to educate others. Do some work.

Now, I have to run and have a PM conversation with a friend.

Regards

Mike

Hey pal, you may be a pretty smart guy, but apparently you have trouble understanding my simple question. I was asking for a defintition, not a dissertation on the "AUMF and it's relation to 'kill or capture missions'", or the "law of wars" as decided by the DC circuit (as if the DC Circuit has somehow become the ultimate arbiter on internationally accepted law of war). I'm not sure what reading through "all the court opinions I cite" would do either, for if there is a simple accepted definition for what I asked they would all agree and reading them all would be repititious. However, I bet most do not even address what I asked. In fact THE COMMANDER’S
HANDBOOK ON THE LAW OF NAVAL OPERATIONS EDITION JULY 2007 provides a simple and direct definition for lawful and unlawful combatants which does not require analysis of the "AUMF and it's relation to 'kill or capture missions'" nor, "the "law of wars" as decided by the DC circuit" or "all the court opinions I cite":

5.4.1.1 Lawful Enemy Combatants
Lawful enemy combatants include members of the regular armed forces of a State party to the conflict; militia, volunteer corps, and organized resistance movements belonging to a State party to the conflict, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the laws of war; and members of regular armed forces who profess allegiance to a government or an authority not recognized by the detaining power. Lawful combatants are entitled to combatant immunity—that is, they cannot be prosecuted for their lawful military actions prior to capture.
Lawful combatants also include civilians who take part in a levee en masse. A levee en masse is a spontaneous uprising by the citizens of a nonoccupied territory who take up arms to resist an invading force without having time to form themselves into regular armed units. Combatant immunity for a levee en masse ends once the invading forces have occupied the territory.
5.4.1.2 Unlawful Enemy Combatants
Unlawful enemy combatants are persons not entitled to combatant immunity, who engage in acts against the United States or its coalition partners in violation of the laws and customs of war during armed conflict.

So disregard my question. Enjoy your PM.

[jmm99]

From my link in the first post, On the Legality of Killing UBL Even If He Was Unarmed (and On the Title 50 Issue) - sneaky old ba$tard that I am, I hyperlinked in the OP the first half of the title, which I discussed in the OP - you will find:

Finally, apropos of my post exploring whether the UBL operation was conducted under Title 10 or Title 50 authorities, Panetta was quite clear that it was a Title 50 operation notwithstanding JSOC’s role in actually executing the attack:

LEON PANETTA: Since this was what’s called a “title 50″ operation, which is a covert operation, and it comes directly from the president of the United States who made the decision to conduct this operation in a covert way, that direction goes to me. And then, I am, you know, the person who then commands the mission.

But having said that, I have to tell you that the real commander was Adm. McRaven because he was on site, and he was actually in charge of the military operation that went in and got bin Laden.

Moving on to the post cited, Further Thoughts on Congressional Oversight, the UBL Operation, and the Title 10/Title 50 Issue:

Yesterday I posted some initial thoughts on whether the UBL operation constituted a “covert action” for statutory purposes. If so, the operation would require a presidential finding and notificiation to the SSCI and HPSCI. I argued that the operation was not a covert action, on the alternative theories that the operation was not intended to be denied and that in any event it constituted a “traditional military activity” (TMA being an explicit exception to the covert action definition).....

Some specific statutes cited, etc. - basically War Powers and Congressional Oversight. You are an inquisitive bear, aren't you ? That's good.

----------------------------
Side issue

I'm getting tired wearing a dress uniform, carrying around a slung 63" 1728 Charlesville fusil.



Perhaps, a new avatar of my Troupe de la Marine in the more normal uniform of the Great Lakes - and more "carbined" fusil.



What think thee, Great White Bear (and anyone else) - still a .69 cal. ball.

Regards

Mike

[jmm99]

from sw
So disregard my question....

"Pal", I'll leave that on the shelf where it belongs.

No regards

Mike

[An Outsider]

As a civilian with limited knowledge of USAF doctrine and international law I'm having trouble understanding where the argument comes from on the Bin Laden apologist side. I was under the impression that as the leader of an organization who had formally declared war on the US, Bin Laden was a legitimate target of any military action that did not violate the Geneva Convention. Does this mean that they would consider it illegal for a spec ops squad to take out any enemy commander in times of war unless you give the poor bastard a chance to surrender? I appreciate your patience in advance.

[Bill Moore]

Mike,

Too busy to read through all your great material at the moment, but I am having a hard time stomaching the so called moral/ethical debate on killing a mass murderer. This guy told the world he would never be captured alive (expectation he'll resist in any possible), and there were rumors he would always wear a suicide vest (doubt he actually had the conviction to do that), so any reasonable operator should assume that his hands are not up in the air and clearly exposing his palms he may be trying detonate a suicide vest or reach for a weapon based on his own rhetoric.

Then you have the greater good argument (maybe not a viable legal argument, but clearly one based on common sense), which is if he was captured we could reasonably expect his followers to try to take numerous hostages and demand his release.

The UN is pushing garbage as usual and after being a lukewarm supporter for years, maybe it is time we greatly reduce our funding to the UN. They don't stand up against real evil in the world, but will attempt to generate legal action and other punishment (indirectly) against the U.S. because we put up with their crap, while our enemies tell them where to get off. We're making ourselves a soft target for the UN, and it is time we toughen our stance.

Any clown that wants to come to the rescue of UBL under the guise of rule of law doesn't need to be a position where he has a credible voice in influencing American policy. As soon as we find the leads to his associates I hope the helicopters and SOF roll to kill them off also. We don't need lawyers at this point, we need leadership that recognizes we're at war and takes the appropriate action. We would have lost WWII if we followed the rules we're supposed to follow now.

[jmm99]

from An Outsider (hey, Canucks aren't outsiders to me )

I was under the impression that as the leader of an organization who had formally declared war on the US, Bin Laden was a legitimate target of any military action that did not violate the Geneva Convention. Does this mean that they would consider it illegal for a spec ops squad to take out any enemy commander in times of war unless you give the poor bastard a chance to surrender?

Your first sentence correctly summarizes the USG legal position as it has been formally presented. Some Obama administration personnel get off that message because they have trouble seeing anything but a "law enforcement" image (i.e., force is limited to defense of self or others in response to a hostile act or threat).

The answer to your second sentence (and question) is "yes"; many folks take the position that response to Transnational Violent Non-State Actors (such as AQ) must be via "law enforcement" rules (capture primary, with kill reserved only for defense of self or others).

The second position is very prevalent in Academia and in many EU countries. An example in US Academia is Mary Ellen O’Connell, the Robert and Marion Short Chair in Law and Research Professor of International Dispute Resolution - Kroc Institute. She is a Vice President at the American Society of International Law and the author of author of The Choice of Law Against Terrorism, 4 J. NAT. SEC. L. & POL’Y 2010. Full pdf at One-Click Download.

Abstract:
The Obama administration has continued to apply the wartime paradigm first developed by the Bush administration after 9/11 to respond to terrorism. In cases of trials before military commissions, indefinite detention, and targeted killing, the U.S. has continued to claim wartime privileges even with respect to persons and situations far from any battlefield. This article argues that both administrations have made a basic error in the choice of law. Wartime privileges may be claimed when armed conflict conditions prevail as defined by international law. These privileges are not triggered by declarations or policy preferences.

Actually, she and I agree on the bolded sentence; except Ms O'Connell has a very limited view of "armed conflict conditions". This is just one example of why, in law, you can't agree automatically to what looks like a good principle. By their works, you will know them.

As to OBL, The Death of bin Laden as a Turning Point, by Mary Ellen O'Connell (4 May 2011) - good statement of her position (contrary to mine). Also read the comments to her article - views at Opinio Juris vary. Her update is summed here, More from O’Connell on bin Laden Killing as Peacetime Use of Force, by Roger Alford (5 May 2011):

The use of lethal force is governed by two types of international law: the law of peace and the law of armed conflict. In peace, international law supports national legal systems when it comes to the resort to force. National systems restrict the use of force to law enforcement authorities — the police, or in special circumstances, the military (I argue here that the SEALs, who are military, kept their use of force at law enforcement levels). Unauthorized persons may resort to force in self-defense if necessary to save a life immediately. Otherwise, using force is considered a crime under international law.

Some crimes are so serious they are outlawed in international law, as well as national law, with the crime of terrorism is a prime example. As an international crime, states around the world have an obligation to suppress terrorism. But in suppressing even the most serious crimes, law enforcement agents must limit the amount of lethal force they use, and excessive force, even in anti-terrorism cases, has been ruled a violation of human rights law by both the European Court of Human Rights [ECHR] and the Inter-American Court.

The ECHR considered a case in 1995 with parallels to the bin Laden raid. In McCann v. The United Kingdom, the court found that members of the elite British SAS used excessive force when they killed IRA members in Gibraltar who were suspected of preparing a bombing. The court found that the operatives should have attempted to arrest the terrorists, instead of shooting them based on intelligence they possessed that the suspects were preparing to use explosives. If the suspects had resisted arrest or attempted to escape, authorities then would have had had the right to resort to lethal force.

This is the law that applied in bin Laden’s case. On May 2, no fighting was going on in Pakistan that would rise to the level of “armed conflict” as defined under international law; Pakistan had to suspend major military operations against militant groups in the country’s tribal areas after the floods of 2010. And despite what some commentators have argued, under international law there is no right to engage in cross-border military force based on the argument that a state is unable or unwilling to deal with the threat themselves. The correct choice of law, therefore, was peacetime law.

No, no, Ms O'Connell - not correct at all; but you believe in what you say. I believe in what I say.

So, choice of law is the argument. What the law is under either choice is actually pretty clear to most folks who have studied it.

------------------------------
As to the Bear's research project (Title 50), also at Opinio Juris, Was the C.I.A. Director in Charge of the Bin Laden Operation? Apparently so. Does It Matter?, by John Dehn

[Major John C. Dehn is an Assistant Professor in the Department of Law, US Military Academy, West Point, NY. He currently teaches International Law and Constitutional and Military Law. He is writing in his personal capacity and his views do not necessarily represent the views of the Department of Defense, the US Army, or the US Military Academy. The analysis presented here stems from his academic research of publicly available sources, not from protected operational information from, or actual involvement in, aspects of this or any other military operation.]

He does not reach a firm conclusion - work still in progress. And, he noted the importance of our topic here; but alas, did not mention SWC:

The OBL operation is an example of an evolving and unique relationship between the military and the CIA that is, in my humble opinion, under-examined and under-theorized both with respect to the international and domestic legal frameworks and as an element of civil-military relations. Over at Lawfare, a recent post by Bobby Chesney raises intelligence oversight issues about the OBL operation, which seems to me only one aspect of the necessary constitutional/domestic legal analysis. Ben Wittes solicited Mary Ellen O’Connell — twice – for her views on the international legal framework applicable to the operation. Her post below seems to present an implausible view of the attack as a law-enforcement operation. Assuming it is best characterized as a military operation conducted to IHL standards, as Kevin and Michael both seem to agree, may the C.I.A. lawfully oversee it?

He also cites and quotes some specific Title 50 text.

--------------------------------
Ah, the riddle question (as originally stated with emphasis added):

from sw
Could you throw up the definitions of "lawful combatant" and and "unlawful combatant" as used in the AUMF?

Please note and renote "as used in the AUMF".

Let's look (text in Wiki). Gee, "combatant" ain't in the 2001 AUMF. How about that ?

The question often is a debating question - leading to "ain't in the 2001 AUMF; thence, can't be in the rules of situations covered by the 2001 AUMF; hence, you are guilty of war crimes."

Now, there is a link up between the 2001 AUMF (no combatant definitions)and the 2007 Navy Handbook (definitions) - 5.4.1.1 Lawful Enemy Combatants and 5.4.1.2 Unlawful Enemy Combatants. Gee, how could I have missed those sections. Oh, I didn't miss them - I just gave the cites to them, in The Rules - Engaging HVTs & OBL (the OP):

5.4.1 Combatants

Combatants are persons engaged in hostilities during an armed conflict. Combatants can be lawful or unlawful.

The term “enemy combatant” refers to a person engaged in hostilities against the United States or its coalition partners during an armed conflict. The term “enemy combatant” also includes both “lawful enemy combatants” and “unlawful enemy combatants.”

and:

8.2.1 Lawful Combatants

Lawful combatants (see paragraph 5.4.1.1) are subject to attack at anytime during hostilities unless they are hors de combat (see paragraph 8.2.3).

8.2.2 Unlawful Combatants

Unlawful combatants (see paragraph 5.4.1.2) who are members of forces or parties declared hostile by competent authority are subject to attack at anytime during hostilities unless they are hors de combat (see paragraph 8.2.3).

How mean of me to miss the evening feeding.

Whoever is interested in learning something can follow my leads from the AUMF (methodology in a prior post) and come up with the answers.

Regards

Mike

[jmm99]

Thanks for the kind words ("great materials").

I tune out others' moral and ethical debate about what should have been done to Bin Laden. My own moral and ethical beliefs about that were formed within the two weeks after 9/11 - since then I've had no internal debate. The limits imposed by my beliefs are well outside of any legal constraints that are likely to be developed.

I do react when I hear the term "assassination" used (as on CNN last nite by Piers Morgan) and allowed to stand without refutation. I conclude that few have read Hays Parks memo on "assassinations" (Peacetime) vs "targeted killing" (Wartime).

Amen on this:

from Bill Moore
As soon as we find the leads to his associates I hope the helicopters and SOF roll to kill them off also. We don't need lawyers at this point, we need leadership that recognizes we're at war and takes the appropriate action. We would have lost WWII if we followed the rules we're supposed to follow now.

The rules in the Navy Handbook are not that much different from the rules of WWII ETO, taught to me when I was about 8 by this guy (war is hell; but it should be subject to a code):



Then, I got a little close to his personal experiences (the non-funny ones). So, he gave me his copy of his unit history (a little bit here) and told me to read it. Which I did; and still do - learning about many brave and honorable men.

Of course, they fought the Wehrmacht and Waffen SS, regular forces in conventional warfare. But, I believe those WWII rules can be applied to unconventional warfare against irregular forces - making appropriate adjustments for the lack of reciprocity and commission of war crimes by those irregular components. Following a code is for our long term benefit; but that code cannot be a self-imposed suicide pact.

My conclusion (and perhaps I'm Pollyanna) is that we have the legal rules (the wartime rules) and the capabilities to engage successfully under those rules. The real issue is whether there is a will to engage under those rules.

But first, I think that a lot of people have to learn what wartime rules mean. We have forgotten how to wage a war under those rules.

Nice to see you posting in one of my threads - keep busy, you old Dinosaur.

Regards

Mike

[stanleywinthrop]

So, what happened to

"Pal", I'll leave that on the shelf where it belongs.

No regards

Mike

?

--------------------------------
Ah, the riddle question (as originally stated with emphasis added):



Please note and renote "as used in the AUMF".

Let's look (text in Wiki). Gee, "combatant" ain't in the 2001 AUMF. How about that ?

The question often is a debating question - leading to "ain't in the 2001 AUMF; thence, can't be in the rules of situations covered by the 2001 AUMF; hence, you are guilty of war crimes."

Now, there is a link up between the 2001 AUMF (no combatant definitions)and the 2007 Navy Handbook (definitions) - 5.4.1.1 Lawful Enemy Combatants and 5.4.1.2 Unlawful Enemy Combatants. Gee, how could I have missed those sections. Oh, I didn't miss them - I just gave the cites to them, in The Rules - Engaging HVTs & OBL (the OP):



How mean of me to miss the evening feeding.

Whoever is interested in learning something can follow my leads from the AUMF (methodology in a prior post) and come up with the answers.

Regards [sic]

Mike

Well thank you for showing exactly how you misinterpreted my "as originally stated with emphasis added" question. Takes a big man to admit that. Because as I "note and renote [sic] "as used in the AUMF", i still don't know how (deleted by Moderator) I suggested you "Gee, how could I have missed those sections." Further, by attempting to assign an argument which I have not made: ("The question often is a debating question - leading to "ain't in the 2001 AUMF; thence, can't be in the rules of situations covered by the 2001 AUMF; hence, you are guilty of war crimes.") (deleted by Moderator).

[An Outsider]

It seems to me from reading Ms. McConnell's article that her argument for engaging OBL under the rules of law enforcement appears to be that he was away from a "battle zone". That seems to be a dangerous precedent to be setting in terms of international law relevant to transnational terrorism. This is saying that armed insurgencies or terrorist groups can, at will, change the set of rules under which they can be engaged by the state actors they fight simply by changing locations or hiding for a while. This would only reinforce the tactical advantage insurgent and terrorist groups have in hit-and-run tactics and erode the strategic advantage government has in having the rule of law on their side.

Why should non-state actors be immune from fighting under the rules of warfare when they openly declare war on states? Since they have no scruples in breaking both the rules of war and civilian law, why should we bend over backwards to grant them legal immunity from reciprocity after murdering thousands of innocent civilians? To limit our rules of engagement so as to increase the enemy's advantage is, in my view, not only misguided political correctness, it is counterproductive to our counter-terrorism efforts.

On a related note, this is making waves this morning:
http://www.express.co.uk/posts/view/...d-were-unarmed

According to the defence official’s account, 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.

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.

On the third floor, the Seals threw open the door to Bin Laden’s bedroom. One of his wives rushed towards the commando in the door, who shot her in the leg. Without hesitation, the same 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.

This really caught my attention. If a combatant is unarmed and in a private residence, but intel indicates that he is likely armed and once inside the compound the squad encounters small arms fire, is it really that surprising that transnational terrorists would be considered armed and dangerous and that the SEALs would react accordingly? Furthermore, if they were going in shooting all that moved (as a lot of liberal commentators seem to insinuate), why would they shoot one of OBL's wife in the leg? What that tells me is that even in the heat of a firefight, they were very professional in trying to keep collateral damage to a minimum.

Just some thoughts. Feel free to let me know if I'm talking out of my ass

(and the name is not so much meant to be about my nationality as my status as a civilian )

[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.

-------------
[*] 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