Hey Marc,

What goes into a ROE is illustrated quite simply:



The devil, of course, is in the details - each major circle may involve hundreds of considerations - some conflicting with others.

Let's look at the "Law" circle, using as examples three 2011 articles on targeted killing by drones and direct actions:

Ashley S. Deeks, Pakistan's Sovereignty and the Killing of Osama Bin Laden.

Mary Ellen O’Connell, Unlawful Killing with Combat Drones - A Case Study of Pakistan, 2004-2009.

Robert Chesney, Who May Be Killed ? Anwar Al-Awlaki as a Case Study in the International Legal Regulation of Lethal Force.
Each of these articles presents a different take in answering the question: What is "The Law" ?

Who decides on Choice of Law ? My take: that is a political question best decided in a constitutional democracy by the branch(es) of government assigned powers over armed conflicts.

That, of course, is not the only answer on the table. Mary Ellen O’Connell, The Choice of Law Against Terrorism (2010), in reality assigns that function to the I Law community (primarily academics; herself and some others):

On 9/11, the United States made a radical change in its choice of law against terrorism. After a century of pursuing terrorists using criminal law and police methods, the United States invoked the law of armed conflict and military means. This article has presented evidence that the change was and is not supported by international law. In November 2008, this author and colleagues David Graham and Phillipe Sands drew up a set of principles to guide the Obama administration toward reforms of post-9/11 U.S. laws and policies. Our aim was to improve U.S. compliance with the world‘s law against terrorism. The first principle was to stop relying on war as the legal and policy basis for confronting terrorists:

The phrase "Global War on Terrorism" should no longer be used in the sense of an on-going war or armed conflict being waged against terrorism. Nor should it serve as either the legal or security policy basis for the range of counter- and anti-terrorism measures taken by the Administration in addressing the very real and present challenges faced by the United States and other nations in addressing terrorism. [115]

115. Washburn Consensus on Post-9/11 Principles are reproduced in, Mary Ellen O‘Connell, The Way Forward: Post 9/11 Principles, JURIST (Nov. 25, 2008), available at http://jurist.law.pitt.edu/forumy/20...principles.php.
Peacetime criminal law, not the law of armed conflict is the right choice against sporadic acts of terrorist violence. The example of the United States adhering closely to its legal obligations in this vital area can only help create a world of greater respect for the rule of law.
As expressed in so many other posts, I disagree with Ms. O'Connell. The "Laws of War" and "Rule of Law" both have a role, but cannot be conflated. Some situations are handled better by LoW and others by RoL. The choice of which course to follow in a given situation is a political question, especially in a constitutional democracy.

That being said, I expect that the Red Cross will in the end adopt something closer to Ms O'Connell's position. That result is likely therefore to be contrary to the policies followed by two Executives and several Congresses since 9 Sep 2001 (and, as affirmed by the US appellate courts to date - AUMF, etc.).

Regards

Mike