The Rules - Engaging HVTs & OBL

[jmm99]

I do want feedback. However, it would help if I spelled out the type of feedback that I think would be helpful to this topic - in general, as applied to future "kill or capture" missions.

Primo: The following are questions for non-lawyers. The number of lawyers around here are less than two handfuls of fingers.

Here's the primary question:

What standard(s) of "proof" should be used by an operator in a "kill or capture" mission ?

The standard of "proof" could be different for a "kill" vice a "capture".

First, some "working definitions".

As to the "Facts" ("Proof"):

Facts of the Event - all "evidence" (what a non-lawyer would take as material and credible) known to the operator before and during the event.

Facts of the Case - all evidence admitted in a subsequent proceeding to investigate or determine the event's legality.

In terms of the operator, the Facts of the Event should be the primary test since that is what he knew at the scene. The operator cannot be blamed for what he did not know (such as after-acquired evidence), or what is excluded by the Rules of Evidence. However, after-acquired exculpatory evidence should be considered - if afterwards, there is a "Case".

As to the Standards of Proof (as argued in Gitmo capture-detention cases - in my "more formal" Lima Bravo Sierra terms - OK, a concession to Stan ):

1. Preponderence of the evidence - "advance the ball to the 50 yard line + a nose"

2. Clear and Convincing Evidence - "advance the ball to usually successful field goal range."

3. Beyond a Reasonable Doubt - "advance the ball to the red zone or first and goal."

The higher standards (2 & 3) have been argued by detainees in the Gitmo habeas cases; and have been rejected by the DC Circuit in a number of cases. The standard used by that court has been "1. Preponderence of the evidence" (i.e., it is more likely than not that the captive-detainee was a "bad guy").

Note that, if "preponderence" is not met, it is more likely than not that the target is NOT a "bad guy".

The DC Circuit has suggested that a different, less restrictive standard might apply in capture-detention cases. Perhaps, some sort of "reasonable suspicion" standard might be developed - say, advancing the ball to somewhere between the 20 and 50 yard lines. In short, capture, detain and investigate (to reach or not reach the "preponderence standard"). Consider that possibility in your analysis.

Again, the standard of proof need not be the same for "kill" and for "capture".

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Here is why a Standard of Proof, consistent with reasonable military conduct employed by the operator, is important. It is so Neal Puckett or someone else can assert a Rule 916 Justification Defense in the operator's court-martial.

How to Keep Military Personnel from Going to Jail for Doing the Right Thing: Jurisdiction, ROE & the Rules of Deadly Force, Lieutenant Colonel W. A. Stafford, United States Marine Corps, Assistant Staff Judge Advocate, United States Southern Command, Miami, Florida (NOVEMBER 2000 20 THE ARMY LAWYER • DA PAM 27-50-336)

In addition to the defenses of self-defense and defense of others, military criminal law allows defenses of “legal duty” and “obedience to orders” as justification for homicide and assault.[194] However, to meet the justification of “legal duty,” the duty must be “legal” and “imposed by statute, regulation, or order.”[195] Similarly, the defense of “obedience to orders” fails if the accused subjectively or objectively knew the orders were unlawful.[196] Consequently, if the Standing ROE or Rules of Deadly Force are not grounded in law, a serviceperson could be held liable under the Uniform Code of Military Justice for exceeding the law.[197]

194. MANUAL FOR COURTS-MARTIAL, UNITED STATES, R.C.M. 916(c)-(e) [hereinafter MCM]. Under military law, homicide and assault are justified in self-defense and defense of another based on a reasonable apprehension that death or grievous bodily harm is “about to be inflicted” wrongfully. See id. R.C.M. 916(e).

195. Id. R.C.M. 916(c), discussion. “A death, injury, or other act caused or done in the proper performance of a legal duty is justified and not unlawful . . . . The duty may be imposed by statute, regulation, or order.” Id. (emphasis added).

196. Id. R.C.M. 916(d). “It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.” Id.

197. If a killing or assault under the ROE or Rules of Deadly Force is unlawful, and the defenses of self-defense, defense of others, legal duty, or obedience to orders do not apply, a military member could be found guilty of murder or assault. See UCMJ arts. 118(b), 128; MCM, supra note 194, R.C.M. 916(c)-(e). Under the UCMJ, the elements of murder with “[i]ntent to kill or inflict great bodily harm” are: “(a) That a certain named or described person is dead; (b) That the death resulted from the act or omission of the accused; (c) That the killing was unlawful; and (d) That, at the time of the killing, the accused had the intent to kill or inflict great bodily harm upon a person.” UCMJ art. 118(b)(2). The elements of “[a]ssault consummated by a battery” are “(a) That the accused did bodily harm to a certain person; and (b) That the bodily harm was done with unlawful force or violence.” Id. art. 128(b)(2). Murder with intent to kill or inflict great bodily harm carries “such punishment other than death as a court-martial may direct,” including life imprisonment, a dishonorable discharge (for enlisted) or dismissal (for officers), and forfeiture of all pay and allowances. Id. art. 118(e). Assault carries a maximum punishment of dishonorable discharge, total forfeitures, and ten years confinement (for “[a]ssault in which grievous bodily harm is intentionally inflicted . . . with a loaded firearm”). Id. art. 128(e).

I don't know "why" many of these guys who write about combat rules are USMC; but they are (Mark Martins, of course, being a very notable exception).

Opinions about a specific event can differ, PBS, Rules of Engagement (eight interviews with Bing West, Josh White, Gen. James Conway, Neal Puckett, Lt. Col. David Bolgiano, Tim McGirk, Lucian Read, Gary Solis) - Full interview with Gen. Conway. Da Bear will have comments on this aspect of Kilo Coy.

My conclusion is that it is the job of the superior military officers (not their lawyers) to bring clarity to the rules. Lawyers can draft clear rules only when their superiors submit clear intent and guidance. To be blunt: A lawyer who is given free rein by his client (who then abdicates the scene) has a fool for a client.

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Now, our short case study - where clarity in spelling out the ROEs was not a military virtue (in the Corps, no less ).

IRAQ: To shoot or not to shoot is the question, July 2, 2008 (LA Times):

In the end, the criminal case against Marine sniper Sgt. Johnny Winnick (pictured) may boil down to the simplest but yet most confounding question facing troops in Iraq: When can a Marine or soldier use deadly force against a suspected insurgent?

It's a question not even supposed experts can agree on. During the preliminary hearing completed Wednesday, a Marine lieutenant testified that he asked two majors — one a lawyer, the other a battalion executive officer — and got contradictory explanations.

Winnick is charged with manslaughter and assault for killing two Syrians and wounding two others.

Winnick says he opened fire because he believed the men were planting a roadside bomb, but no bomb was found. His superiors say he lacked the "positive identification" and "reasonable certainty'' needed to squeeze the trigger.

But what do those terms mean, particularly for snipers whose job is to kill the enemy from ambush at long range?

Winnick's attorney, Gary Myers, tried to get one of Winnick's fellow snipers to define "reasonable certainty." The young Marine said that, well, reasonable certainty means being reasonably certain.

"This is all words," said an exasperated Myers.

An officer testified that reasonable certainty means being "85% certain." Another said it means being "pretty damn sure."

A Pentagon expert [JMM: David Bolgiano] called by Myers disagreed with the "85% certain" rule. He thinks young troops are being given confusing and contradictory guidelines by their superiors. He's written about his concerns in a tome titled "Combat Self-Defense: How to Save America's Warriors From Risk-Adverse Commanders and Their Lawyers."

What Standard(s) of "Proof" (expressed in your terms; not necessarily in "legal terms") would you like to see in "kill or capture" missions. E.g., you might suggest one standard for "kill" and another for "capture".

This question (IMO) is probably best answered by those with combat experience of one kind or the other; although as Jedburgh long ago advised me - let the thread go where the thread goes.

Regards

Mike

[jmm99]

Seems a bit odd that this was released as a blog post, but in any event, DoS Legal Adviser Harold Hongju Koh affirmed his March 25, 2010 ASIL speech; and went on specifically (reparagraphed to point up Mr Koh's five points):

Given bin Laden’s unquestioned leadership position within al Qaeda and his clear continuing operational role, there can be no question that he was the leader of an enemy force and a legitimate target in our armed conflict with al Qaeda.

In addition, bin Laden continued to pose an imminent threat to the United States that engaged our right to use force, a threat that materials seized during the raid have only further documented. Under these circumstances, there is no question that he presented a lawful target for the use of lethal force.

By enacting the AUMF, Congress expressly authorized the President to use military force “against … persons [such as bin Laden, whom the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 …in order to prevent any future acts of international terrorism against the United States by such … persons” (emphasis added).

Moreover, the manner in which the U.S. operation was conducted—taking great pains both to distinguish between legitimate military objectives and civilians and to avoid excessive incidental injury to the latter—followed the principles of distinction and proportionality described above, and was designed specifically to preserve those principles, even if it meant putting U.S. forces in harm’s way.

Finally, consistent with the laws of armed conflict and U.S. military doctrine, the U.S. forces were prepared to capture bin Laden if he had surrendered in a way that they could safely accept. The laws of armed conflict require acceptance of a genuine offer of surrender that is clearly communicated by the surrendering party and received by the opposing force, under circumstances where it is feasible for the opposing force to accept that offer of surrender. But where that is not the case, those laws authorize use of lethal force against an enemy belligerent, under the circumstances presented here.

This is really OK - and Mr Koh's knees did not wobble - in his exclusive reliance on the Laws of War.

Regards

Mike

[jmm99]

as evidenced in The MMRMA Deadly Force Project, MMRMA = Michigan Municipal Risk Management Authority, the insurer for many municipalities.

As Legal Adviser Koh's statement makes clear, OBL was targeted because he was part of a force declared hostile (see this post for SROE ref). PID (that he was he) was sufficient to justify "shoot".

The Deadly Force Project involved a multi-scenario simulation geared to civilian law enforcement. I can't claim any sort of personal experience with those MI departments (Grand Rapids Police Department, Ingham County Sheriff’s Department, Kent County Sheriff’s Department, Livingston County Sheriff’s Department, Livonia Police Department and the Southfield Police Department):

Each participating officer/deputy was randomly subjected to a total of three scenarios, with one of each of three types of scenarios:

• Robbery-In-Progress
• Burglary Alarm-In-Progress
• Mugging-In-Progress

Of these three scenarios listed above, all officers were also randomly exposed to three different outcomes of each scenario [JMM: all started with subject's back to officer and hands at waist level of subject's front; then an about face to confront officer]:

• Suspect empty-hand surrender
• Suspect surrender with (non-weapon) object in-hand
• Suspect shoots at officer

To further determine whether outward appearance might influence a participant’s tendency to use deadly force, we also embedded random variations of suspect attire in the scenarios. In all scenario varieties, suspects were filmed in both “dress” and “punk” attire. “Dress” attire was usually a shirt and tie, often with a dress jacket or coat as an outer garment. “Punk” attire varied from individual to individual, based on what actors brought to the film session. Clothing ranged from blue jeans, hooded sweatshirts and leather jackets.

An important finding from the study was lag-time, as well as a definite speed up in the officer response time depending on how serious the situation (robbery > mugging > burglery) was perceived by the officer:

As one might anticipate, the lag-time between when the officer made his/her decision to fire and when the initial shot is fired has critical implications. If an officer finds him/herself behind the reactionary curve in a rapidly evolving situation, the lag-time associated with decision-making can allow the suspect to fire one or more shots at the officer before fire can be returned by the officer. Another critical lag-time consideration becomes manifest when an officer fires at a person who ultimately becomes known to be an unarmed person. As suspects turn toward the camera (officer) they may appear to be armed as the turn is initiated - the suspect’s hands may be clenched and/or positioned at or near waist level. However, since the officer’s decision to fire at the suspect predates the subject being shot .25 seconds or more, the officer can (and easily does) shoot the suspect as he/she is raising his/her hands into a “surrender” position. This was a frequent and somewhat unanticipated outcome in many of the shootings that involved “unarmed” suspects; suspects getting shot while “surrendering.” The officer typically has 1/3 of a second or less (from a critical juncture in each scenario) to decide whether or not to employ deadly force, and then to apply that force, before he/she risks being “shot.”

Those officers who managed to shoot armed suspects before the suspect was able to fire seemed to have elected to use deadly force before it could be clearly determined that the suspect did, in fact, have a handgun. This tendency to employ deadly force “preemptively” was at the core of our objective to quantify when such actions were objectively reasonable. As anticipated, most officers found themselves firing after the suspect fired his/her first shot at the officer.

Officer’s Reaction to When Suspect Fires - Frequency
Officers shoots after subject shoots - 61.44%
Officer shoots before subject shoots - 38.56%

As one might expect, officers seemed more vigilant and situationally postured when they were informed that they were responding to a forcible felony-in-progress. Participants typically had their handguns drawn sooner in the robbery scenarios and were more inclined to utilize the cover that was afforded to them. When handguns were drawn and used in conjunction with a verbal challenge in the robbery scenarios, participant muzzle dispositions were notably higher (i.e., more elevated toward the suspect). And yet, even this higher state of situational readiness seemed to offer little more than a statistical “dead-heat” to the suspect’s first shot fired.

The unarmed shoots became the centerpiece of the study's analysis:

Inter-Agency Shooting Variations

The 307 officers/deputies participating in this study shot a total of 117 unarmed suspects – a frequency of 38% (0.3811). However, there was a significant difference between one agency on the low end of the frequency scale and agencies on the higher end. It should also be noted that the agency with the lowest frequency of participants shooting unarmed suspects and the agency with the highest frequency of unarmed suspects shot were both largely classified as being “urban” agencies. (See table below)

AGENCY, PARTICIPANTS, UNARMED SUSPECTS SHOT, FREQUENCY
1 76 18 24%
2 46* 18 39%
3 51 20 40%
4 38* 16 42%
5 54* 24 44%
6 43 21 49%
*Indicates that individual participants shot more than one unarmed suspect

The question will undoubtedly arise; “What noted differences were there between the agency with the lowest frequency of shootings (of unarmed suspects) and those with the highest frequency?” The answer, simply put; “It was a difference in training.” (See “Training Implications”)

The aggregate 38% unarmed being shot, and the aggregate 38.6% officer shoots first, correlate.

The range from 49% unarmed shoots to 24% unarmed shoots can be superimposed on a rough legal standard - not addressed by the study as such. The 49% unarmed result just accords with "preponderence" (more likely than not, or 50 yards and a nose). The 24% unarmed result reaches into what I would call "clear and convincing evidence". However, that result was a definite outlier. Why ?:

As was previously noted (“Inter-Agency Shooting Variations”), the distinct inter-agency differences relevant to shooting unarmed suspects seem directly attributable to training. There were no substantive differences in agency policies pertinent to the use of deadly force.

The one agency that required its personnel to complete a “Use of Force Report” whenever unholstering their handguns had a 44% rate of frequency in engagement of unarmed suspects. Its participants did typically unholster their handguns more slowly than participants from other agencies, but that didn’t seem to influence their overall judgment in the research scenarios.

The agency with the lowest frequency of unarmed suspects shot (24%), judging from all informal participant debriefs, had the most rigorous scenario-based training regimen. Virtually every participant interviewed from that agency stated that he/she had had one or more force-on-force training sessions in the last 12 months. In itself, this might not seem evidence adequate to suggest that training was the most influential factor, but it is the only factor that clearly stood out from all others.

We were impressed by the overall professionalism exhibited by participants afforded to us by all agencies. Scenario-based training was evident to some degree in all participating agencies. However, in all but one agency, it seemed much more intermittent rather than routine.

All of this accords with e.g., Mark Martins' articles (from the 1990s to today) that ROEs must be taught in the context of tactical-based scenarios - and cannot be "legislated".

The policy implications of the study should be obvious - in the following, "immediate" roughly equates to a "clear and convincing" > "beyond a reasonable doubt" stuation, and "imminent" equates to a "preponderence" > "clear and convincing" situation:

As many aforementioned findings suggest, many police shootings are “gray-area” events that often reflect split-second differentials between in-policy and out-of-policy shootings. The almost universal embrace of the “imminent threat” standard, in our opinion, is warranted and court-defensible.

For clarification purposes, “immediate threat” scenarios are “must-shoot” incidents, and therefore generate the least amount of post-incident controversy. When an officer responds to an immediate threat, he/she is either reacting to someone lunging with an impact or edged weapon, looking down the barrel of a suspect’s gun, or dodging bullets that have already been fired.

We don’t require that officers wait until a threat has manifested to that level before he/she can react with deadly force. An insightful operational definition of what “imminent danger” is was expressed by the New Jersey Division of Criminal Justice in 2000;

Imminent Danger:

• Threatened actions or outcomes that may occur during an encounter

• Threatened harm does not have to be instantaneous

This concept affords officers a large degree of latitude in their interpretation of events – as does the Graham v. Connor “reasonable officer” standard.

Koh: "...bin Laden continued to pose an imminent threat.."

The MMRMA Deadly Force Project was the most comprehensive found by me after some InterWeb searching.

Regards

Mike

[jmm99]

Direct actions (whether by drone or by men) are continuing - with a possible success being registered here, Mohammad Ilyas Kashmiri, commander-in-chief of the Kashmiri militant group Harakat-ul Jihad-i-Islami (purportedly on 3 Jun).

The Obama WH has been divided about drone strikes - and the degree to which Pakistan should be involved in the process, Administration Internal Divisions Over Drone Strikes in Pakistan? (by Ken Anderson at Volokh):

According to the article, continuing the program as it stands has prevailed for now, with more review down the road. But the article includes some additional tidbits, including a remark in passing that although the Pakistani government puts the civilian casualties of drone strikes in the hundreds, the CIA puts it at around 30. The article also adds that the Pakistani government would like to have equal say in the agreed target list:

U.S. Ambassador to Pakistan Cameron Munter, backed by top military officers and other State Department officials, wants the strikes to be more judicious, and argues that Pakistan’s views need to be given greater weight if the fight against militancy is to succeed, said current and former U.S. officials.

Defenders of the current drone program take umbrage at the suggestion that the program isn’t judicious. “In this context, the phrase ‘more judicious’ is really code for ‘let’s appease Pakistani sensitivities,’ ” said a U.S. official. The CIA has already given Pakistani concerns greater weight in targeting decisions in recent months, the official added. Advocates of sustained strikes also argue that the current rift with the Pakistanis isn’t going to be fixed by scaling back the program.

Since the future direct actions will occur other than in Pakistan, larger and future issues hinge on Title 10 and Title 50 Interface (under domestic law) and the significance of International Law to those issues.

On the "interface", Washington Post’s David Ignatius writes, The blurring of CIA and military:

One consequence of the early “war on terror” years was that the lines between CIA and military activities got blurred. The Pentagon moved into clandestine areas that had traditionally been the province of the CIA. Special Forces began operating secretly abroad in ways that worried the CIA, the State Department and foreign governments.

The Obama administration is finishing an effort to redraw those lines more carefully, issuing a series of new executive orders (known as “EXORDS”) to guide the military’s intelligence activities, sometimes through what are known as “special access programs,” or SAPs.

The power of combining CIA and military resources was shown in the May 2 raid that killed Osama bin Laden. The firepower came from the Navy SEALs, a Special Forces unit that normally functions under the Title 10 war-fighting authority of the military. Because the SEALs were operating inside Pakistan, a country with which the United States isn’t at war, the CIA supervised the mission under Title 50, which allows the agency to conduct “deniable” activities overseas.

The system worked in the Abbottabad raid. But over the past 10 years, there have been instances when crossing the traditional lines created potential problems for the United States. It’s especially important to understand these boundaries now as Gen. David Petraeus prepares to take over as CIA director. If the rules aren’t clear, people at home and abroad may worry about a possible “militarization” of U.S. intelligence.

More in depth by Ken Anderson (6 Jun), Law and Order - Targeted killing is legitimate and defensible (emphasis added):

Much more important, however, but also much harder to convey, is the importance of engagement with international law. The time for saying with a shrug, of course it’s illegal or extralegal, is long gone. Needed, rather, is for the United States to articulate on a regular basis its views of why it thinks its counterterrorism programs are consistent with international law. State Department legal adviser Harold Koh, to his credit, has done so both in the case of targeted killing using drone warfare, in a widely remarked speech last year, and more recently in a short statement on the bin Laden killing to the international law blog Opinio Juris.
....
It is quite true that wide swaths of critics won’t be satisfied; that’s not the point. The international law community will never be satisfied, and whatever one gives them, if it’s done merely to appease them, they will take as weakness. International law critics will speak with utter confidence and great bluster. “International law” is better understood not so much as a unified field with definitive answers but as a set of more and less “plausible” interpretations, in a world of sovereign states in which there is no final adjudicator to say yes or no. It is fused with diplomacy, politics, and real-world consequences.

The United States should seek to convey that it has a considered, plausible view of the law, whether shared by the critics or not. That view will achieve public legitimacy in no small part because the U.S. government has the confidence to articulate it and defend it as such. This is an approach to the public articulation of international law begun by then-State Department legal adviser John Bellinger in the later years of the Bush administration, and while it requires being willing to weather a great deal of criticism and sometimes abuse, it is the right approach.

The bolded sentence seems to me to be a practical definition of International Law.

Regards

Mike

[Fuchs]

There are final adjudicators that all have agreed on.

Some countries just broke their word about respect towards them and lost their honour this way.
The repercussions are sometimes more, sometimes less subtle.

[jmm99]

Ken Anderson covers a number of sources in the on-going policy debate underlying US use of drones, at Opinio Juris, Tactically Precise, Strategically Incontinent ? (by Kenneth Anderson, 25 Sep 2011).

The principal sources cited are the following:

Wash. Post, The price of becoming addicted to drones (by David Ignatius, 21 Sep 2011).

Report of the Special Rapporteur (Philip Alston) on extrajudicial, summary or arbitrary executions - Addendum: Study on targeted killings (28 May 2010).

Remarks of John O. Brennan, at the Harvard Law School (16 Sep 2011) [John Brennan, WH counterterrorism adviser, argued that U.S. legal authority to use force against al-Qaeda wasn’t “restricted solely to ‘hot’ battlefields like Afghanistan” but could be expanded to other theaters “without doing a separate self-defense analysis each time.”]

Three Quick Comments on David Ignatius’ Critique of Drones in Today’s Washington Post (by Kenneth Anderson, 22 Sep 2011) - making it clear that we have experienced and are experiencing something of a "counterterrorism" vice "counterinsurgency" dichotomy:

Second, the primary theorists of blowback in the Afghanistan war are theorists of counterinsurgency, and the specific application of the blowback thesis is that even if the counterterrorism drone policy works on its own CT terms, it undermines the counterinsurgency war because it damages the ability to win over populations. The extent to which the campaign actually has those effects can be debated. That has to include that asking populations if they’re resentful is not a purely neutral measurement of social science; it tends to signal to them that they get advantages out of being resentful. An awful lot of blowback has to do with the expectations of the population. Telling the local population (as the US did, for example, early on in the Iraq war) that if our war has not made them happy, then it is our fault, is very much a mechanism for foolishly raising the bar of expectations. But David Kilcullen and Andrew Exum, in their writings, for example, are talking about counterinsurgency, and counterterrorism’s effects on that. The Obama administration’s whole effort, however, is to get out of counterinsurgency, and quite rightly is worried far less about blowback arising from a switch in strategy to transnational CI.

Ignatius keeps talking, in column after column, about our “addiction” to drones. Why, instead, doesn’t he talk (as the Obama administration implicitly does) about our “addiction” to counterinsurgency, and see drones as the “cure” for that? It’s not as if counterinsurgency warfare in Afghanistan doesn’t have plenty of downsides and its own forms of blowback and bad unanticipated consequences, as the Obama administration and, for that matter, most of the American people, see it. Downsides starting with no end in sight and no clear avenue to a victory that allows an exit. The Obama administration sees counterterrorism as a realistic and, to date, functioning strategy against our actual long term adversary, and an exit for our addiction to the cul-de-sac of counterinsurgency, and why isn’t it right about that?

Wash. Post - Editorial Board Opinion: It takes more than drones (24 Sep 2011), "CT" + "COIN":

In our view the legal situation is straightforward. It’s been clear for more than a decade that al-Qaeda is a transnational organization that seeks to wage war against the United States from multiple foreign bases; especially in areas where national sovereignty has broken down, a U.S. military response is justified. It would be helpful if Congress would clarify this by passing legislation that renews the authorization of military force and stipulates that it can be used against al-Shabab and other al-Qaeda branches.

The harder question is whether the administration’s increasing reliance on drones is weakening what should be a much broader strategy. While militants can and should be picked off by targeted strikes in Yemen and Somalia, neither country will cease to be a source of terrorism until it can be stabilized under a responsible government. The United States has been trying to encourage a political settlement in Yemen that would end months of near-anarchy, and has been helping to fund and train Somalia’s transitional government and security forces. But the efforts have been underfunded and underambitious.

Targeted Killing and Drone Warfare: How We Came to Debate Whether There is a ‘Legal Geography of War’ (Kenneth Anderson, 27 Apr 2011):

Abstract:

This brief policy essay examines the evolution of the argument around the proposition that there is a “legal geography of war.” By that term is meant whether the law of war applies only within certain geographically defined areas. It does so in the context of the war on terror and counterterrorism, and specifically in the debates over targeted killing and armed drone warfare.

The essay is a non-technical policy essay that is part of an online volume on current national security issues published by the Hoover Institution Task Force on National Security and Law. The essay's purpose is not to offer a formal legal argument on the proposition of a “legal geography of war,” but instead to reflect more discursively on how the communities of international law, policy, diplomatic, laws of war, military, intelligence, nongovernmental organizations, and international advocacy have debated this since 9/11. It argues that the Bush administration’s assertion of a global war on terror and its claims of the legal incidents of war on a worldwide basis caused a backlash among its critics, toward geographical constraints on war as formal legal criteria. This was a shift away from the traditional legal standard that war takes place, and the law of war governs, where(ever) there is “conduct of hostilities.”

Drones and targeted killing, insofar as they are asserted within the law of war, particularly strain the legal framework. However, as the Obama administration has moved away from the global war on terror as a means to widen the application of the law of war beyond the conduct of hostilities, legal views appear to be converging once again on the traditional “conduct of hostilities” standard. The essay concludes with a brief, speculative post-script on the meaning of the deployment of armed drones to the Libyan conflict, and how that deployment seems peculiarly to have shifted the perceived acceptability of drone warfare in a way that was not quite so evident when the issue was not humanitarian war in Libya, but the US’s wars of national security in Afghanistan and Pakistan.

Efficiency in Bello and ad Bellum: Targeted Killing Through Drone Warfare (Kenneth Anderson, 23 Sep 2011):

Abstract:

A peculiar feature of the targeted killing using drone technology debate is that it appears to set up a tension between the two traditional categories of the law and ethics of war, jus in bello and jus ad bellum. The more targeted killing technologies allow more precise targeting and reducing collateral casualties and harm (jus in bello), and that moreover at less personal risk to the drone user’s forces, perhaps the less inhibition that party has in resorting to force (jus ad bellum).

Regards

Mike

[jmm99]

We had our 50th (Class of 1961) Hancock High School Reunion this weekend. Chowed down with (ret) 2 Navy O's and 1 SNCO (Mel came up from NC to see us - as he correctly said "the last time I saw you was at the Naval Reserve Center in 1961" - the NRC allowed us the Center for our graduation party; and thereby kept kiddy drunks off the roads). So, a good time with them and 50+ others.

Interestingly enough, the four of us had no discussion re: current military situations.

Now, in looking at the Awlaki mission, we do in fact have a lot of legal opinions, which range from close to the "normative" to vary adverse to the "normative". I'm going to take this on gradually - over the next week or so.

Here's a bold-face - "Killing Awlaki was illegal, immoral and dangerous" - CNN Link - by one of my personal favs, Mary Ellen O'Connell, who is generally in my "opposition":



Yes, she is an "Irish Colleen"; but:

She earned her B.A. in History, with highest honors, from Northwestern University in 1980. She was awarded a Marshall Scholarship for study in Britain. She received an MSc. in International Relations from the London School of Economics in 1981, and an LL.B., with first class honors, from Cambridge University in 1982. She earned her J.D. from Columbia University in 1985, where she was a Stone Scholar and book review editor for the Columbia Journal of Transnational Law. After graduation, she practiced with Covington & Burling in Washington, D.C. [JMM: a very good DC law firm; but not S & C.]

which allows this Mick:



to slug it out virtually - as barristers do.

That being said, check out her articles at the site above; and do a Google for her many pdfs. Or, search SWC for her name vice jmm99 (I often cite to her as one of the "opposition").

Another personal fav - for Gitmo cases and "War Crimes" - is Andy Worthington:



He, like ME O'C, is pretty straight-up in his beliefs - even though generally opposite to my own. Neither of them have horns; nor, do I !

See also, from Antiwar.com as the source, to provide a "fair and balanced side of the coin" (WTF does that really mean ?):

CIA Assassinates Two US Citizens in Yemen

US Officials Work to Posthumously Promote Anwar Awlaki

Legality of Assassinating Americans Considered

Anwar Awlaki Never Actually a Member of al-Qaeda

Secret Justice Dept. Memo Sanctioned Killing of Awlaki

Now, you all have the side of the coin which (mostly) differs from my side.

Later....

Regards

Mike

[Bill Moore]

Mike,

This is a good news story all around, first we have two bad actors off the street, and I agree with the analysis that Awlaki was numero uno threat to the homeland, and Samir Khan was not an innocent by stander. Second, we civil libertarians jumping up to challenge the legality of this action, which in their own way is protecting Americans as much as the mission that killed Awlaki.

I personally felt the argument fell short when they argued that Yemen wasn't a battlefied, so therefore the mission was illegal. Whereever we kill terrorists is a battlefield, it isn't confined to a specific geographical region. It seems ludricous to believe that if a terrorist is conducting operations againstthe U.S. outside of a designated battlespace we can't kill him. Were these same arguments made when President Clinton launched missiles into Sudan and Afghanitan in the late 90s in an attempt to kill UBL?

The fact that both Awlake and Khan were U.S. citizens obviously complicates matters, and I don't think this decision was made lightly. It is impossible to deny that Awlaki was promoting the killing of Americans, to include using weapons of mass effect (crashing a jet liner). The Government has an obligation to protect its people, and it would seem that a case could be made that if they failed to act and Awlaki was successful again (as he was with MAJ Hasan), the relatives of those killed should have the right the suit the government for not acting.

I keep hearing the term assassination thrown around, and I recall being taught that we couldn't do assassinations. Assassinations were defined for this purpose as the planned killing of a political figure (like Castro). Killing an individual terrorist wouldn't seem to fall under that category to me, it is just a targeted killing. If we killed the President of Yemen, then that would be an assassination.

Good kill even if it was/is somewhat messy legally. President Bush stated shortly after 9/11 this would be a different kind of war, yet I still don't think most people understand what he meant when he said that. It is a global war, because the hostile network is global. It isn't a war confined to GPF fightiing in Afghanistan.

[slapout9]

I keep hearing the term assassination thrown around, and I recall being taught that we couldn't do assassinations. Assassinations were defined for this purpose as the planned killing of a political figure (like Castro). Killing an individual terrorist wouldn't seem to fall under that category to me, it is just a targeted killing. If we killed the President of Yemen, then that would be an assassination.

Exactly, it is legal to under exigent circumstance rules IMO.

[jmm99]

go astray when they demand a law enforcement approach against these violent non-state actors. These VNSAs are waging unconventional warfare against the US. They sometimes do that directly (as in 9/11), but often through local "franchises" or "non-franchised insurgencies" (your enemy is my enemy, etc).

Their practice does differ from the unconventional warfare doctrine of "FM31-21" in that they do not (at present) have conventional forces which the irregular forces support and with which they seek a juncture. Thus, because these VNSAs are not a state, are not regular forces, and do not occupy defined geographic spaces, some folks (e.g., O'Connell and Worthington) have a very difficult time considering these VNSAs as being involved in an armed conflict.

In fact, they may see associated groups (such as the Taliban, which has some aspects of a "state", has somewhat organized forces and does occupy defined spaces) as the essential parties to an "armed conflict". The conflict to them is then limited geographically to territory contested by the associated group. I think that is focusing too much on the horse, and not on the jockey (AQ); but, in any event, law enforcement methodology is demanded with respect to the jockey (AQ).

Now, law enforcement is part of a larger system - the criminal justice system. That system includes as integral parts not only law enforcement officers, but also prosecutors and defenders - and courts (with or without juries) as the ultimate decision-makers of what is "legal" or "illegal". In the US at the Federal level, Article III is the constitutional basis.

If an "armed conflict" exists, the criminal justice system does not generally play a role. E.g., Articles I and II provide the basis for Executive and Congressional power over armed conflicts; and generally the Article III bodies have recognized their lack of power in that area.

Some have argued for sets of rules that would extend the law enforcement methodology beyond its normal scope - so as to allow targeted killing under limited circumstances. Personally I think that would be a disaster; and I would much prefer to see a clear line drawn between law enforcement ("Rule of Law") and armed conflict ("Laws of War").

Mike Hayden said it well a few weeks ago, in a debate I reported here, Resolved: It's Time to End the War on Terror - from the transcript, p.11:

Michael Hayden:

Let me give you -- thank you. Let me give you a slightly different description of that event. A heavily armed agent of the United States government was in a room with an unarmed man who was under indictment in the United States judicial system and was offering no significant resistance to the heavily armed agent of the United States government, and that heavily armed agent of the United States government killed him.

If you do not think we are at war, there are some very troubling definitions that you might want to attach to that act. That's the kind of authority we have perfectly lawful -- and no way am I suggesting anyone acted inappropriately. We acted perfectly lawfully because we are a nation at war and generally recognized as such.

You don't want to take those tools off the table while there are terrorists out there.

20:03:01

If you let this tool go, you will be less safe. Okay. If you look at the scope of our constitutional system, the law enforcement approach is designed, if you look at the constitution, the Bill of Rights and the American statutory law, the law enforcement approach is designed to make the government weak because we don't want the government arbitrarily taking away your liberties.

On the other hand, if you look at those sections of the Constitution that deal with armed conflict, they're designed to make the government strong so that it can protect you. You don't want to take that tool off the table. And quite perversely, if you take that tool off the table, you may actually threaten your own civil liberties.

Bear with me. There's a tight connection here. If the options of a nation at war are taken away from your tool kit, you must then rely on the options offered by law enforcement.

20:03:59

If you recall the events in -- on Christmas day a year or two ago, Detroit, Umar Farouk Abdulmutallab, the "Underwear Bomber" -- and he was Mirandized after about 50 minutes of interrogation, and I think everyone recognized that was probably a mistake. We should have interrogated him further.

We had the attorney general talking to the American Congress about legislation that would make Miranda more malleable so that we could interrogate these kinds of people longer in our law enforcement approach.

I don't want to make Miranda more malleable. Miranda defends me. Defends you. Defends your rights. And we're forced to contort the law enforcement approach when we attempt to make it answer and deal with questions it was never designed to deal with. This is one of those questions. Don't take that other tool, "We are a nation of war [sic ! at war]" off the table.

So, I agree with Hayden.

How effective would a law enforcement approach be against our own unconventional warriors if they were waging unconventional warfare against another state ? Posit that our conventional forces cannot be involved (so there is a rough equivalence to AQ's situation).

More later - maybe tonite.

Regards

Mike

[jmm99]

Bill:

I happen to agree with you on this one (surprise ):

from Bill Moore
I personally felt the argument fell short when they argued that Yemen wasn't a battlefied, so therefore the mission was illegal. Whereever we kill terrorists is a battlefield, it isn't confined to a specific geographical region. It seems ludricous to believe that if a terrorist is conducting operations against the U.S. outside of a designated battlespace we can't kill him.

Michael Lewis, Drones and the Boundaries of the Battlefield (Sep 2011) (18 pages), reaches much the same conclusion:

Conclusion

The Air Missile Manual makes it clear that drones are legitimate weapons platforms whose use is effectively governed by current IHL applicable to aerial bombardment. Like other forms of aircraft they may be lawfully used to target enemy forces, whether specifically identifiable individuals or armed formations, if they comply with IHL’s requirements of proportionality, necessity and distinction.

Because drones are only able to operate effectively in permissive environments, the most significant legal challenges facing their development and employment have been based upon where they may be employed. Attempts to apply the strict geographical restrictions that govern the scope of IHL in internal non-international armed conflicts to all non-international armed conflicts, including transnational armed conflicts, threaten to significantly limit the usefulness of drones.

When IHL’s core principles are considered, it becomes clear that the application of strict geographical limitations on IHL’s scope in the context of transnational armed conflicts cannot be defended. The determination of whether the Tadic threshold for an armed conflict is met on the territory of a non-party to the conflict should have no bearing on whether IHL may be applied to the parties to the conflict. In other words, the fact that there is no local violence occurring in Yemen or Somalia should not be used to provide a sanctuary for non-state actors that are involved in an armed conflict with another state.

The answer for how the boundaries of the battlefield and the scope of IHL’s application can be properly determined is found in neutrality law. This is historically how geographical limitations have been imposed upon IHL’s scope in international armed conflicts. It was applied in the aftermath of the 9/11 attacks, with at least tacit international approval, to the situation involving the United States, al Qaeda and Afghanistan. Its application is checked by the consent of the sovereign states involved, making an escalating spiral of violence less, rather than more, likely. And perhaps most importantly, neutrality law’s application to transnational armed conflicts does not lead to the anomalous results that are produced when strict geographical limitations are applied to transnational armed conflicts in which IHL is read to favor its otherwise most disfavored groups.

The bottom line is that the "Laws of War" (IHL to the law profs) follow the participants, who do not fit into the neat little boxes set up for the regular forces of Westphalian states engaged in conventional warfare.

Some of the assertions made in the name of "IHL" are quite amazing. E.g., Lewis cites this (p.8):

Similarly, Mary Ellen O’Connell has claimed that the shooting down of Admiral Yamamoto’s plane over Bougainville by U.S. fighter aircraft during World War II would today be considered illegal because it occurred ―far from [the] battlefield.[40]

40. O‟Connell, The Choice of Law Against Terrorism, 4 Journal of Nat‟l Security Law & Policy 343, 361 (2010).

She actually did say something akin to that in the 2010 article cited by Lewis:

Dean Koh mentioned a case from World War II in which the U.S. set out to kill a named individual far from actual hostilities when it attacked the plane carrying Japanese General Yamamoto, a reputed planner of the Pearl Harbor attack.[93]

93. Koh, The Obama Administration and International Law, supra note 41.

There are several problems with this interpretation. First, Dean Koh did not refer to remote participation. Moreover, many persons killed and detained have had no connection with Afghanistan. Even respecting those who did, the Yamamoto case was not uncontroversial at the time;[94] today it would be in conflict with the basic treaties that form today‘s law on the use of force, namely the 1945 United Nations Charter and the 1949 Geneva Conventions. These treaties provide little or no right to use military force against individuals far from battlefields.

94. Diane Amann relates that at least one of the participants in that attack, U.S. Supreme Court Justice John Paul Stevens, today has doubts as to whether it was lawful. See Diane Marie Amann, John Paul Stevens, Human Rights Judge, 74 FORDHAM L. REV. 1569, 1582-83 (2006).

Not to degrade Justice Stevens' role as a Pearl Harbor traffic analyst (who saw the Yamamoto "shot down" message after the fact, see Bill Barnhart, John Paul Stevens and the U.S. Navy at War); but why try to present him as "one of the participants in that attack."

Talk about indirect "stolen valor"; factually inaccurate argumentation as to WWII; and with respect to the 1945 United Nations Charter and the 1949 Geneva Conventions, an off the wall legal analysis....

And, a material misrepresentation (whether innocent or intentional ?) of Stevens' position. We have that as stated by Thomas Lee to Jeffrey Toobin, After Stevens (2010):

In April, 1943, a coded message came across Stevens’s desk—“one eagle and two sparrows, or something like that,” he said. Stevens knew the transmission meant that an operation based on intelligence from his station had been a success. American aviators had tracked and shot down the airplane of Admiral Isoroku Yamamoto, who was the architect of the Japanese attack on Pearl Harbor and the leader of Axis forces in Midway.

Stevens was a twenty-three-year-old lieutenant, and the mission, essentially a targeted assassination, troubled him. “Even at the time, it seemed to me kind of strange that you had a mission that was intended to kill a particular individual,” he told me. “And it was an individual who was a friend of some of the Navy officers.” (Before the war, Yamamoto had trained with the U.S. Navy and studied at Harvard.)

Ultimately, Stevens concluded that the operation, which was approved by President Roosevelt, was justified, but the moral complexity of such a killing, even in wartime, stayed with him. “It is a little different than your statistics about so many thousands of highway deaths—that doesn’t mean all that much,” he said. “But if somebody you know is killed, you have an entirely different reaction.” The morality of military action became a lifelong preoccupation.

The need to fact check every assertion by the "IHL Intelligensia" makes for a very time-consuming process - especially when they make those assertions with apparent complete certainty.

Regards

Mike

[jmm99]

Rajib Karim's emails with Al-Awlaki were disclosed in Karim's UK criminal case:

:: January 25, 2010 From al-Awlaki to Karim: ''... depending on what your role is and the amount of information you can get your hands on, you might be able to provide us with critical and urgent information and may be able to play a crucial role for the ummah...

''I was pleased when your brother conveyed from you salaams to myself and was excited by hearing your profession. I pray that Allah may grant us a breakthrough through you. As a starter, can you please answer these questions in as much elaboration as possible: can you please specify your role in the airline industry, how much access do you have to airports, what information do you have on the limitations and cracks in present airport security systems, what procedures would travellers from the newly listed countries have to go through, what procedures would a person on a watch list have to go through?''

:: January 29, 2010 From Karim to the ''prof'', alleged to be al-Awlaki: ''It has been three years that I have been living here away from the company of good brothers and spending a good part of my day working with the kuffar. I was also keeping a low profile by hiding my real religious viewpoints, trimming my beard and not getting too involved in the local Muslim community or any Islamic activities. But leading a life like that was really killing me inside, that's why I desperately wanted to make hijrah as I was not seeing any opportunities to do anything in this land...

''I have knowledge about the key people in BA starting from the top management and the key people in BA IT department. I also have knowledge about key IT hardware locations, which if targeted can bring huge disruption to flights and cause BA a major financial loss ... but this would be at the risk of exposing myself as I will have to do that with my own login ID...

''I personally know two brothers, one who works in baggage handling at Heathrow and another who works in airport security. Both are good practising brothers and sympathise towards the cause of the mujahideen and do not slander them. They are of the type who would help with money and moral support but I am not sure if they are at the stage to sacrifice with their lives.''

:: February 13, 2010 From al-Awlaki to Karim: ''Our highest priority is the US. Anything there, even if on a smaller scale compared to what we may do in the UK, would be our choice. So the question is: with the people you have, is it possible to get a package or a person with a package on board a flight heading to the US? If that is not possible, then what ideas do you have that could be set up for the uk?''

:: February 15, 2010 From Karim to his brother, Tehzeeb: ''If it's not a good idea to visit you guys, then I intend to visit BD or USA. If I visit USA, I can check out what their security process is like.''

From Karim to al-Awlaki: ''I have started working on the bros I mentioned on the last letter without mentioning you directly. Alhamdulillah the bros responded better than I expected...

''Like you say, I also agree that US is a better target than UK, but I do not know much about US. I can work with the bros to find out the possibilities of shipping a package to a US-bound plane.''

HT to Thomas Joscelyn, Awlaki's emails to terror plotter show operational role (LWJ, March 2, 2011), who provides more background and discussion.

Draw your own conclusions as to whether Al-Awlaki was simply a cleric exercising his First Amendment rights.

Regards

Mike

[M-A Lagrange]

I personally felt the argument fell short when they argued that Yemen wasn't a battlefied, so therefore the mission was illegal. Whereever we kill terrorists is a battlefield, it isn't confined to a specific geographical region. It seems ludricous to believe that if a terrorist is conducting operations againstthe U.S. outside of a designated battlespace we can't kill him. Were these same arguments made when President Clinton launched missiles into Sudan and Afghanitan in the late 90s in an attempt to kill UBL?

Well, in case of Yemen, the situation is a little in the grey area (As for Somalia).
The thing is that actions taken in Northern Yemen are conducted in an environment that is not controlled by central government and where the Yemeni government is conducting military actions. (In Somalia, there is no legal government out of 3 blocks in Mogadishu...)

As the area is already a battlefield (or can be assimilated to) for the Yemeni government, it can be argued that as there is already a battlefield, a military action conducted by an ally in that area against a shared legitimate target is legitimate if not legal.

Where it becomes fuzzy is when you conduct such operations in a country where there are no battlefield at all. For example a drone attack on a drug lord in Mexico. (And yes, Slap, there are no battlefield in Mexico, under legal definition, even if there is a "war against drug")

An interesting article from 2008, published by ICRC summaries quite well the question: can just at bellum override just in bello
http://www.icrc.org/eng/assets/files...872-moussa.pdf

I found the reflection on the problematic of intervention against VNSA quite interesting and well presented:

no amount of legal argument will persuade a combatant to respect the rules when he himself has been deprived of their protection …This psychological impossibility is the consequence of a fundamental contradiction in terms of formal logic …It is impossible to demand that an adversary respect the laws and customs of war while at the same time declaring that every one of its acts will be treated as a war crime because of the mere fact that the act was carried out in the context of a war of aggression.

The conclusion is, as usual, very consensual:

Determining the existence of a ‘just’ or legal jus ad bellum cause is essentially a political and hence subjective exercise. Throughout its history, the UN Security Council has largely avoided making a determination of aggression, leaving the matter, essentially, to the discretionary determination of states. Allowing such a determination to colour, in any way, the application of jus in bello undermines the rule of law in an area of international law that requires strict restraining principles. The matter is even more controversial in the case of conflict between a state and non-state actors, in which both parties tend to subordinate international humanitarian law to jus ad bellum.

It is less targetted on the issue than Mike but I hope this also helps to understand where the legal reflection comes from, on the IHL side.
Personnaly, I tend to be against the "geographically unlimited battlefield".

[jmm99]

Marc:

from MAL

As the area is already a battlefield (or can be assimilated to) for the Yemeni government, it can be argued that as there is already a battlefield, a military action conducted by an ally in that area against a shared legitimate target is legitimate if not legal.
....
Personnaly, I tend to be against the "geographically unlimited battlefield".

My BLUF: Just because Country A is already a "battlefield" (whether because an "armed conflict" exists between State A and State B, State A and Group A, Group A and Group B, or some or all of them), that fact does not by itself justify State X using armed force within Country A against Group X.

However, if State X is present in Country A as a co-belligerent; a military occupier; or perhaps a peace enforcer or a state/nation builder, justification may well exist for State X's use of armed force within Country A. Let's posit that none of those situations exist - which seems to me to be the case for the US vice both Yemen and Somalia.

Proceeding further than this requires at least temporarily bypassing ("assuming arguendo" as the law profs might say) the question of whether a State X can engage in an "armed conflict" with a Group X - except in the limited context of that conflict being solely internal to Country X (as the Commentary to 1949 Common Article 3 suggests).

If that treshhold issue is temporarily bypassed, then a host of Jus ad Bellum questions can be presented. In general, then one must ask and answer whether the rules (jus ad bellum) are the same for an "armed conflict" between State X and State Y vice between State X and Group XY (a Transnational Violent Non-State Actor, TVNSA, present in State X and elsewhere).

My BLUF: No; the rules (jus ad bellum) are quite different - although they are often mixed together in what becomes a fruit salad mess. State X can follow Group XY to the extent Group XY is engaged in transnational unconventional warfare against State X in various countries (say, State A) - subject to the traditional I Law rights of State A to assert its own sovereignty rights (from diplomatic protest to waging war against State X). I really can't see any Jus ad Bellum rights that could be asserted directly by Group XY or its members, unless it avails itself of the option under 1949 Common Article 2 to accept and to apply the 1949 GCs - certainly AQ has not done that.

OK, we now have State X in Country A (either in accord with or contrary to whatever Jus ad Bellum rules we've come up with or agreed to disagree about). Where to now ? The answer is not to continue haggling about the Jus ad Bellum, but to turn to Jus in Bello. Here is the distinction from the basic ICRC explanation, IHL and other legal regimes - jus ad bellum and jus in bello (29-10-2010) - see I do read their publications :

Overview
...
The clear distinction between jus in bello and jus ad bellum is comparatively recent. The terms did not become common in debates and writings about the law of war until a decade after World War II. The concepts they cover certainly did feature in legal debate before then, but without the clear distinction the adoption of the terms has brought about.

The purpose of international humanitarian law is to limit the suffering caused by war by protecting and assisting its victims as far as possible. The law therefore addresses the reality of a conflict without considering the reasons for or legality of resorting to force. It regulates only those aspects of the conflict which are of humanitarian concern. It is what is known as jus in bello (law in war). Its provisions apply to the warring parties irrespective of the reasons for the conflict and whether or not the cause upheld by either party is just.
...
In the case of international armed conflict, it is often hard to determine which State is guilty of violating the United Nations Charter. The application of humanitarian law does not involve the denunciation of guilty parties as that would be bound to arouse controversy and paralyse implementation of the law, since each adversary would claim to be a victim of aggression. Moreover, IHL is intended to protect war victims and their fundamental rights, no matter to which party they belong. That is why jus in bello must remain independent of jus ad bellum or jus contra bellum.

The ICRC's history on the two terms is a 1997 article, Robert Kolb, Origin of the twin terms jus ad bellum / jus in bello (31-10-1997, International Review of the Red Cross, No. 320), snips from start and finish:

The august solemnity of Latin confers on the terms jus ad bellum and jus in bello [1] the misleading appearance of being centuries old. In fact, these expressions were only coined at the time of the League of Nations and were rarely used in doctrine or practice until after the Second World War, in the late 1940s to be precise. This article seeks to chart their emergence.

1. Jus ad bellum refers to the conditions under which one may resort to war or to force in general; jus in bello governs the conduct of belligerents during a war, and in a broader sense comprises the rights and obligations of neutral parties as well.
...
Interestingly enough, neither term can be found in the texts produced by other major publicists during the interwar years, nor, according to our investigations, were they used in the courses on war and peace given at the The Hague Academy of International Law or in any other courses. The breakthrough occurred only after the Second World War, when Paul Guggenheim, another disciple of the School of Vienna, drew the terminological distinction in one of the first major international law treatises of the postwar era [60]. A number of monographs subsequently took up the terms [61], which soon gained widespread acceptance and were launched on their exceptionally successful career. In a thesis written under Guggenheim’s supervision and published in 1956, Kotzsch gave them pride of place, treating them in the manner to which we have grown accustomed and which we now take for granted. [62]

60. P. Guggenheim, Lehrbuch des Völkerrechts, Vol. II, Basel, 1949, p. 778.

61. See for example F. Grob, The relativity of war and peace, New Haven, 1949, pp. 161 and 183-185.

62. The concept of war in contemporary history and international law, Geneva, 1956, pp. 84 ff.

Obviously, I have no problem with drawing a line between Jus ad Bellum and Jus in Bello. So, on that bright line separation, the ICRC and I are on the same side.

This should bring us to discussion of Jasmine Moussa's 2008 article, Can jus ad bellum override jus in bello? Reaffirming the separation of the two bodies of law. But, I've been trying to get the pdf to view or download for the last two years without success (using different computers, Windows and Adobe versions) - I get 288 KB and it freezes - "file damaged, cannot be repaired").

Obviously, I agree with the title as stated by Ms Moussa. Now, as to her abstract:

The theoretical separation of "jus ad bellum" and "jus in bello" provides important protection during armed conflict. It guarantees that "jus in bello" will apply regardless of the cause of a conflict. However, this distinction has been challenged by the view that in some cases, a situation of self-defence may be so extreme, and the threat to the survival of the State so great, that violations of "jus in bello" may be warranted. The situation is compounded by the confusion of the principles of necessity and proportionality under "jus ad bellum" and "jus in bello" in both academic writing as well as the jurisprudence of international courts. The dangers of blurring the distinction will be elucidated by examining how "jus ad bellum" considerations have affected the application of "jus in bello" in armed conflicts between States and non-State actors.

I have no complaints; except to note that "self-defense" and "defense of others" pop up as valididating factors in "jus in bello" - independent of those same terms used in the "jus ad bellum" context.

As to her conclusion quoted by you:

Determining the existence of a ‘just’ or legal jus ad bellum cause is essentially a political and hence subjective exercise. Throughout its history, the UN Security Council has largely avoided making a determination of aggression, leaving the matter, essentially, to the discretionary determination of states. Allowing such a determination to colour, in any way, the application of jus in bello undermines the rule of law in an area of international law that requires strict restraining principles. The matter is even more controversial in the case of conflict between a state and non-state actors, in which both parties tend to subordinate international humanitarian law to jus ad bellum.

I also agree; but would again have to add that "jus in bello" (our ROEs being the essential end product) also involve political and military exercises - and present "gray areas" (there are always areas where discretion has to exercised).

I can't comment on your other snips from Moussa since I don't have the article.

I don't think the terms "geographically unlimited battlefield" or "geographically limited battlefield" add anything useful to the analysis of TVNSAs who wage unconventional warfare (via irregular forces) on a transnational basis. One must look at their strategy and follow the participants.

Regards

Mike

[Levi]

Personnaly, I tend to be against the "geographically unlimited battlefield".

Unless this thread is over with, could I ask you why you are against that? I think perhaps "battlefield" is a poor choice of language. Maybe "geographically unlimited area of special operations" would be better. I don't want someone to be able to stick out their tongue at me from across the street. I also don't want the US to be involved in every tribal/religious/ethnic dispute across the globe. But that's not my decision. If we ARE going to stick out our chins, lets at least allow ourselves to throw a punch. If that makes any sense.

Sorry, I forgot the original question was "proof". If enough or even the "right" members of the intelligence community (or whoever has the job of discovering actionable intelligence? right term?) say that so and so is a terrorist or is in cahoots with terrorists, and have seized documents or tapes or vid or whatever, then thats "proof". I know that there are probably plenty of examples of intelligence failure or manipulation, I can think of a few in my lifetime. But I feel we either try to be as sure as possible, and then go target them, or we are never sure and consequently do nothing.

[Bill Moore]

M-A Lagrange,

In much simplier terms since I'm not a lawyer, I am not arguing for battle space with no boundaries, but the boundaries are defined by where the is at. If a particular geographical area (state, tribal area) said they wanted to remain neutral and any combatants that entered their territory were now former combatants (they wouldn't be allowed to wage war physically, psychologically, financially, etc.) while in their territory, then it would be a safehave as long as they lived up to their end of the bargin. Something along the lines of Switzerland during WWII. However, if an person or group is waging war against us, it really doesn't matter what their locale is. There is no safehaven for active fighters period (or there shouldn't be).

We bombed Romania during WWII because they provided supplies to Germany, we bombed a number of targets in Japan and Germany long before they were battlefields, so where would you draw the line?

It sounds like you suggesting we fight a Clausewitzian view of war, where war is restricted to the warring militaries and victory is decided on a defined battlefield, but that approach doesn't work now (and I doubt it ever did).

[Levi]

by their stubborn resistance have shown what the general arming of a nation and insurgent measures on a great scale can effect, in spite of weakness and porousness of individual parts

secondly, that the probability of final success does not in all cases diminish in the same measure as battles, capitals, and provinces are lost (which was formerly an incontrovertible principle with all diplomatists, and therefore made them always ready to enter at once into some bad temporary peace), but that a nation is often strongest in the heart of its country, if the enemy's offensive power has exhausted itself, and with what enormous force the defensive then springs over to the offensive.

Standing armies once resembled fleets, the land force the sea force in their relations to the remainder of the State, and from that the art of war on shore had in it something of naval tactics, which it has now quite lost.

I have always liked this guy. I always took the summation of what he was saying to mean "total war" as a war without mercy until it was won.

We must, therefore, decide to construe war as it is to be, and not from pure conception, but by allowing room for everything of a foreign nature which mixes up with it and fastens itself upon it—all the natural inertia and friction of its parts, the whole of the inconsistency, the vagueness and hesitation (or timidity) of the human mind.

So if THIS "war" means we have to target people who would not normally be considered combatants, because they are not on a large open space with a weapon pointed in some direction or other, thats what we do. Don't we have to?

[jmm99]

from Levi
So if THIS "war" means we have to target people who would not normally be considered combatants, because they are not on a large open space with a weapon pointed in some direction or other, thats what we do. Don't we have to?

Targeting situations are each unique - a small change in the facts can change a "shoot" to a "no shoot" (and vice versa). E.g., from a "young CPT" (based on one of his experiences several years ago), Iraqi bad guys run into a compound - obvious options: infantry assault, arty fire mission, airstrike. But, women and children are on the roof (yeh, the bad guys probably sent them up there). Decision: back off and basically follow a "law enforcement approach".

Without specific facts, I can't answer your question: "Don't we have to?"

Regards

Mike

[Levi]

It is difficult for me to avoid being vague, without a lot more knowledge. I consistently think I should avoid posting here, I am sure I have no "chair at the table", my qualifications being 4 years active duty Navy, first gulf war, with the closest I ever came to "combat" being ducking a steak thrown at me in anger at the Dubai seafarers club. Thank God for youthful reflexes, my T-shirt remained A1 free.

Anyway, to be more specific, in any instance such as what you refer to (human shields) there must either be an SOP, which could very well be "back off and go to a law enforcement approach" or it would be left up to someone's discretion to "shoot or not shoot." Not shooting results in the continued use of human shields. A law enforcement approach would make me wonder if the (I assume) combat troops are trained for that, and if it results in the desired result of dead or captured insurgents.

What I said (poorly) was that IMO US citizens and citizens of foreign nations who are actively involved in terrorism against the US or allies, or aiding and abetting terrorism, and the proof is there, should be considered valid targets, for police action if possible, and military action if necessary, wherever on the planet they may be. There can't be any "switzerland" or safe haven because they will just recruit and launch from there. As a citizen and a taxpayer, it's in my best interest to see a resolution to the "war on terror". I don't see one without someone dying. Better them than me.

Back in my lane.

[Fuchs]

The U.S. signed and ratified the Charter of the United Nations which forbids going just anywhere and killing people because that's an aggression.

What's more; the U.S. signed and ratified the North Atlantic Treaty which expressly requires its members to follow the principles of the United Nations.


Veto right or not - the idea that the U.S. could legitimately kill people in foreign countries (instead of going the diplomatic route and asking UN to sanction that safe haven) is incompatible with too much to list here.

Seriously, it's a disrespectful and very arrogant idea. Don't be surprised if even formal allies turn sometime against you if you disrespect treaty obligations like this.