The Rules - Engaging HVTs & OBL

[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