The Rules - Engaging HVTs & OBL

[jmm99]

Geoff Corn, one of the briefers, has filed an explanation of the reasons for filing the brief, Amicus Brief Challenging the ICTY’s Ruling on Distinction in Gotovina. He also provides a brief summary of the key facts re: the military operation:

On April 15, 2011, the International Criminal Tribunal for the Former Yugoslavia issued its judgment in the case of Prosecutor v. Gotovina, et. al. Colonel General Ante Gotovina and two co-defendants were Generals in the Croatian Armed Forces (HV) tasked with launching the 1995 offensive to reestablish Croatian authority over the Croatian Serb breakaway region of the Krajina. Known as Operation Storm, the campaign involved a complex movement to contact by HV forces to defeat in depth Croat Serb forces (the SVK), capture the Krajina capital of Knin, and relieve pressure on neighboring Bosnian government forces fighting the Bosnian Serb dissident forces under the command of Ratko Mladic.

Ante Gotovina was an expatriate Croat and former non-commissioned officer in the French Foreign Legion. He returned to Croatia when the civil war began to join in the struggle against Serbian efforts to retain authority over the republic. Rising quickly through the ranks of the HV, he soon emerged as an exceptional operational leader. When the Croatian government decided to launch an offensive to reestablish its control over the breakaway Serb enclave in 1995, Gotovina was selected to lead the effort.

Operation Storm was remarkably successful. According to one source:

At dawn on 4 August 1995, the attack began with 150,000 Croatian Army troops amassed along 630 kilometres of front lines. Their forces soon broke through the lines of the Krajina Serb army and began a rapid advance toward the capital of Knin. By the second day of the operation, the Serb forces collapsed and the bulk of the [SVK] army retreated. The Croatian forces swiftly captured the entire region in four days, effectively ending the operation on 8 August. The operation, which lasted 84 hours, was documented as the largest European land offensive since World War II.

The operation also, however, resulted in the displacement of a large number of ethnic Serbs living in the Krajina. This ultimately led to an ICTY indictment alleging that Gotovina and his co-defendants committed crimes against humanity and ethnically cleansed the region.

Central to the Office of the Prosecutor’s (OTP) theory was an allegation that Gotovina ordered an unlawful artillery attack against the City of Knin on 4-5 August, the two days of the HV main offensive that lead to the capture of the city. At his trial, the OTP presented the opinion of Lieutenant Colonel Koenig, a career Dutch Artillery officer. Koenigs opined that the totality of the evidence, including operational orders, firing logs, enemy dispositions in Knin, and the pattern of artillery effects, indicated that Gotovina had ordered an indiscriminate use of HV artillery and that he had essentially treated the entire city as a general target. In response, the defense offered a report that I prepared on their behalf, and my testimony. In that report, I opined that there were a number of lawful military objectives located within Knin, that the totality of the evidence did not support a conclusion of unlawful attack, and that based on the assumptions provided to me by the defense (which were based on their understanding of the record facts), Gotovina’s employment of cannon and rocket artillery assets was both remarkably effective and compliant with the law of armed conflict.

Given facts like this (contested expert opinions), the choice of law by the Appeals panel becomes all important.

The amicus brief presents a number of legal issues. To me, the primary legal issue is the standard of proof required of a commander who orders an attack, where civilians might be involved (pp.15-16 pdf):

8. The Amici assume that the Appeals Chamber will likely follow the standard for targeting legality articulated in the Galic trial judgment. In that judgment, the Trial Chamber held that for an attack to qualify as a war crime, it “must have been conducted intentionally in the knowledge, or when it was impossible not to know, that civilians or civilian property were being targeted.” [Galic, ¶ 42 (quoting Prosecutor v. Blaškic; Case No. IT-95-14-T, Trial Judgment, ¶ 180 (3 March 2000)]. In other words, the acts of violence must be wilfully directed against the civilian population or individual civilians.

Accordingly, we proceed on the premise that criminal culpability for targeting decisions requires proof that establishes beyond a reasonable doubt not only 1) that the commander intended to target protected persons or objects, or failed to exercise due care in the targeting process, but also 2) that the commander acted with this culpable state of mind based on the information reasonably available at the time he ordered the attack. If the commander made targeting decisions based on the situation as he reasonably believed given the “circumstances ruling at the time,” proof that his decision was in error is not dispositive of guilt. Only if the evidence establishes he knew or should have reasonably known the attack was unlawful at the time he directed it has he violated the law. In short, the legal standard does not impose an obligation to always be right: it imposes an obligation to make a reasonable decision based on the information available at the time.

Accordingly, a commander must not be found guilty of illegally targeting civilians or civilian objects based exclusively on a retrospective assessment of the evidence. The only valid basis for the criminal condemnation of a commander’s targeting decision is proof of the commander’s state of mind at the time the decision was made.

Frankly, the brief is "muddy" when it mixes two different standards of proof (1) actual intent - "conducted intentionally in the knowledge, or when it was impossible not to know, that civilians ... were being targeted"; and (2) negligence - "or failed to exercise due care in the targeting process". This disconnect may well come back to haunt the briefers.

Regards

Mike

[jmm99]

How the Enemy recruits and trains for HVTs (hereof an airliner and possibly Detroit Metro Airport).

From US v Omar Farouk Abdulmutallab, USG Sentencing Memorandum (starting p.12 pdf):

In August 2009, defendant left Dubai, where he had been taking graduate classes, and traveled to Yemen. For several years, defendant had been following the online teachings of Anwar Awlaki, and he went to Yemen to try to meet him in order to discuss the possibility of becoming involved in jihad. Defendant by that time had become committed in his own mind to carrying out an act of jihad, and was contemplating “martyrdom;” i.e., a suicide operation in which he and others would be killed.

Once in Yemen, defendant visited mosques and asked people he met if they knew how he could meet Awlaki. Eventually, defendant made contact with an individual who in turn made Awlaki aware of defendant’s desire to meet him. Defendant provided this individual with the number for his Yemeni cellular telephone. Thereafter, defendant received a text message from Awlaki telling defendant to call him, which defendant did. During their brief telephone conversation, it was agreed that defendant would send Awlaki a written message explaining why he wanted to become involved in jihad. Defendant took several days to write his message to Awlaki, telling him of his desire to become involved in jihad, and seeking Awlaki’s guidance. After receiving defendant’s message, Awlaki sent defendant a response, telling him that Awlaki would find a way for defendant to become involved in jihad.

Thereafter, defendant was picked up and driven through the Yemeni desert. He eventually arrived at Awlaki’s house, and stayed there for three days. During that time, defendant met with Awlaki and the two men discussed martyrdom and jihad. Awlaki told defendant that jihad requires patience but comes with many rewards. Defendant understood that Awlaki used these discussions to evaluate defendant’s commitment to and suitability for jihad. Throughout, defendant expressed his willingness to become involved in any mission chosen for him, including martyrdom - and by the end of his stay, Awlaki had accepted defendant for a martyrdom mission.

Defendant left Awlaki’s house, and was taken to another house, where he met AQAP bombmaker Ibrahim Al Asiri. Defendant and Al Asiri discussed defendant’s desire to commit an act of jihad. Thereafter, Al Asiri discussed a plan for a martyrdom mission with Awlaki, who gave it final approval, and instructed Defendant Abdulmutallab on it. For the following two weeks, defendant trained in an AQAP camp, and received instruction in weapons and indoctrination in jihad. During his time in the training camp, defendant met many individuals, including Samir Khan. [9. Khan later came to be involved with AQAP’s Inspire magazine. Both Khan and Awlaki were killed in September 2011.]

Ibrahim Al Asiri constructed a bomb for defendant’s suicide mission and personally delivered it to Defendant Abdulmutallab. This was the bomb that defendant carried in his underwear on December 25, 2009. Al Asiri trained defendant in the use of the bomb, including by having defendant practice the manner in which the bomb would be detonated; that is, by pushing the plunger of a syringe, causing two chemicals to mix, and initiating a fire (which would then detonate the explosive).

Awlaki told defendant that he would create a martyrdom video that would be used after the defendant’s attack. Awlaki arranged for a professional film crew to film the video. Awlaki assisted defendant in writing his martyrdom statement, and it was filmed over a period of two to three days. The full video was approximately five minutes in length. [10 The Court has seen the thirty-four-second excerpt of the video that was subsequently released by AQAP as part of its video America and the Final Trap.]

Although Awlaki gave defendant operational flexibility, Awlaki instructed defendant that the only requirements were that the attack be on a U.S. airliner, and that the attack take place over U.S. soil. Beyond that, Awlaki gave defendant discretion to choose the flight and date. Awlaki instructed defendant not to fly directly from Yemen to Europe, as that could attract suspicion. As a result, defendant took a circuitous route, traveling from Yemen to Ethiopia to Ghana to Nigeria to Amsterdam to Detroit. Prior to defendant’s departure from Yemen, Awlaki’s last instructions to him were to wait until the airplane was over the United States and then to take the plane down.

Yet, some have asserted that al-Aulaqi's First Amendment rights were violated.

Regards

Mike

[jmm99]

The full text of AG Holder's speech at Northwestern Law is here, with Bobby Chesney's, Holder on Targeted Strikes: The Key Passages, with Commentary (both HT to Lawfare).

The larger portion of the speech (about 2/3rds) deals with the options of military detention, trial in Federal court and trial before military commission - see related threads, The Rules - Detaining HVTs and Others and Crimes, War Crimes and the War on Terror, for my two cents (which is similar in result to that reached by AG Holder).

The portion dealing with targeted strikes begins with AG Holder's exposition of the duty "... to defend the United States through the appropriate and lawful use of lethal force."

This principle has long been established under both U.S. and international law. In response to the attacks perpetrated – and the continuing threat posed – by al Qaeda, the Taliban, and associated forces, Congress has authorized the President to use all necessary and appropriate force against those groups. Because the United States is in an armed conflict, we are authorized to take action against enemy belligerents under international law. The Constitution empowers the President to protect the nation from any imminent threat of violent attack. And international law recognizes the inherent right of national self-defense. None of this is changed by the fact that we are not in a conventional war.

Our legal authority is not limited to the battlefields in Afghanistan. Indeed, neither Congress nor our federal courts has limited the geographic scope of our ability to use force to the current conflict in Afghanistan. We are at war with a stateless enemy, prone to shifting operations from country to country. Over the last three years alone, al Qaeda and its associates have directed several attacks – fortunately, unsuccessful – against us from countries other than Afghanistan. Our government has both a responsibility and a right to protect this nation and its people from such threats.

This does not mean that we can use military force whenever or wherever we want. International legal principles, including respect for another nation’s sovereignty, constrain our ability to act unilaterally. But the use of force in foreign territory would be consistent with these international legal principles if conducted, for example, with the consent of the nation involved – or after a determination that the nation is unable or unwilling to deal effectively with a threat to the United States.

Furthermore, it is entirely lawful – under both United States law and applicable law of war principles – to target specific senior operational leaders of al Qaeda and associated forces. This is not a novel concept. In fact, during World War II, the United States tracked the plane flying Admiral Isoroku Yamamoto – the commander of Japanese forces in the attack on Pearl Harbor and the Battle of Midway – and shot it down specifically because he was on board. As I explained to the Senate Judiciary Committee following the operation that killed Osama bin Laden, the same rules apply today.

Some have called such operations “assassinations.” They are not, and the use of that loaded term is misplaced. Assassinations are unlawful killings. Here, for the reasons I have given, the U.S. government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful — and therefore would not violate the Executive Order banning assassination or criminal statutes.

AG Holder's analysis follows an almost "pure" Laws of War approach (with which I agree), except for the unfortunate use of the terms "in self defense" and "an imminent threat of violent attack" (I don't agree).

Why so ? What follows is my logic.

If (as AG Holder posits) the rules of conventional warfare transfer to the unconventional warfare being waged by AQ (directly or via an associated force), then a combatant member of AQ (or that associated force) may be killed or captured at any time and at any place, even though that combatant member is not at that time presenting an "imminent threat of violent attack".

The ROE in that situation is based on status (the person's enemy combatant status), which extends the always in effect SROE based on defense of self and others in the face of the target's conduct (a hostile act or imminent hostile threat). AG Holder's subordinates have argued that status rule succcessfully in a number of DC District and Circuit habeas cases.

Why did the AG not take that approach ? I don't have ESP, but here is my brief analysis.

The concept of an "imminent threat of violent attack" is valid in situations of personal or unit self defense. The same concept is valid in situations of national self defense - as stated by the AG in the first paragraph quoted above: "The Constitution empowers the President to protect the nation from any imminent threat of violent attack." The devil is in what is meant by "imminent" in these self defense siuations - and what "standard of proof" is required of the defender.

My inference (sans ESP) is that the AG and the WH have not been and still are not really comfortable with applying in full the Laws of War in this situation of unconventional warfare.

I've emphasized AG Holder's apparent conflation of the Laws of War and Rule of Law because Bobby Chesney does not mention the point in his analysis - see roughly the first 40% of his commentary.

(cont. in part 2)

[jmm99]

AG Holder then addresses the problem of US citizens who are members of AQ (or an associated group). Chesney (his post at Lawfare linked in part 1) presents his analysis with his comments in regular face and Holder's statements in italics (both are bolded as in Chesney's post).

First, as to the general rule:

[Chesney] At a minimum, force can be used against a citizen in the following circumstances…. Against that backdrop, Holder then describes a set of circumstances in which deadly force lawfully can be used against a citizen. Note that his language pointedly does not exclude the possibility of using force in other circumstances:

[Holder] Let me be clear: an operation using lethal force in a foreign country, targeted against a U.S. citizen who is a senior operational leader of al Qaeda or associated forces, and who is actively engaged in planning to kill Americans, would be lawful at least in the following circumstances:

First, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States;

second, capture is not feasible; and

third, the operation would be conducted in a manner consistent with applicable law of war principles.

[Chesney] Restating the test… I wish the preceding paragraph had been formulated more clearly, but in any event it seems to me that there are as many as seven elements in that statement. Read literally, Holder has defended targeted strikes against a citizen where the following conditions are met: the person must be (i) located abroad rather than in the United States, (ii) have a senior operational role (iii) with al Qaeda or an al Qaeda-associated force, (iv) with plotting focused on the death of Americans in particular, (v) with the threat being “imminent” (though not that this is defined in a broad sense, consistent with Brennan’s fall 2011 speech), (vi) with no feasible option for capture, and (vii) all subject to law of war principles. And, again, note that he carefully did not describe this as the outer boundary of lethal force authority when it comes to a citizen.

This sounds somewhat similar to the type of logic followed in Tennessee v Garner re: shooting a fleeing violent felon; except that it is based on Fifth Amendment Due Process (the viewpoint of some Garner dissenters; the majority went off on Fourth Amendment Search & Seizure) and does not require judicial approval at any stage. Again, to Chesney:

[Chesney] Rejecting a requirement for advance judicial permission… This part is interesting. The main line of criticism arising under the 5th Amendment has been that force cannot be used against citizens, on a pre-targeted, individualized basis, without the factual predicates for the action being put to the test in an independent, judicial forum. Holder rejects that conclusion, in part apparently in reliance on the decision by Judge Bates not to adjudicate the habeas petition brought by al-Awlaki’s father, in part on comparative institutional competence grounds to the effect that the executive branch has superior access to relevant information and expertise (and capacity to make quick decisions) with respect to targeting decisions, and comparative institutional legitimacy grounds to the effect that such decisions are a “core function” of the executive branch:

[Holder] Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces. This is simply not accurate. “Due process” and “judicial process” are not one and the same, particularly when it comes to national security. The Constitution guarantees due process, not judicial process.

[Chesney] The conduct and management of national security operations are core functions of the Executive Branch, as courts have recognized throughout our history. Military and civilian officials must often make real-time decisions that balance the need to act, the existence of alternative options, the possibility of collateral damage, and other judgments – all of which depend on expertise and immediate access to information that only the Executive Branch may possess in real time. The Constitution’s guarantee of due process is ironclad, and it is essential – but, as a recent court decision makes clear, it does not require judicial approval before the President may use force abroad against a senior operational leader of a foreign terrorist organization with which the United States is at war – even if that individual happens to be a U.S. citizen.

It is a given then that the Federal courts will not be involved in deciding these three areas covered by AG Holder - though not in great detail:

What is meant by “imminent threat”

[Holder] The evaluation of whether an individual presents an “imminent threat” incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States. As we learned on 9/11, al Qaeda has demonstrated the ability to strike with little or no notice – and to cause devastating casualties. Its leaders are continually planning attacks against the United States, and they do not behave like a traditional military – wearing uniforms, carrying arms openly, or massing forces in preparation for an attack. Given these facts, the Constitution does not require the President to delay action until some theoretical end-stage of planning – when the precise time, place, and manner of an attack become clear. Such a requirement would create an unacceptably high risk that our efforts would fail, and that Americans would be killed.

What is meant by “capture is not feasible"

[Holder] Whether the capture of a U.S. citizen terrorist is feasible is a fact-specific, and potentially time-sensitive, question. It may depend on, among other things, whether capture can be accomplished in the window of time available to prevent an attack and without undue risk to civilians or to U.S. personnel. Given the nature of how terrorists act and where they tend to hide, it may not always be feasible to capture a United States citizen terrorist who presents an imminent threat of violent attack. In that case, our government has the clear authority to defend the United States with lethal force.

What is meant by “consistent with applicable law of war principles"

[Holder] Of course, any such use of lethal force by the United States will comply with the four fundamental law of war principles governing the use of force. The principle of necessity requires that the target have definite military value. The principle of distinction requires that only lawful targets – such as combatants, civilians directly participating in hostilities, and military objectives – may be targeted intentionally. Under the principle of proportionality, the anticipated collateral damage must not be excessive in relation to the anticipated military advantage. Finally, the principle of humanity requires us to use weapons that will not inflict unnecessary suffering.

The first two limitations do not arise directly from the Laws of War. Again, they seem to indicate the discomfort of AG Holder and the WH with full bore application of the Laws of War to this unconventional warfare situation. As a counter-example, in the conventional WWII ETO situation, US citizens fighting with the German Army were treated the same as any other German soldier.

Regards

Mike

[jmm99]

HT to Lawfare. From the The Washington Post: The bin Laden plot to kill President Obama (by David Ignatius, Published: March 16, 2012):

Before his death, Osama bin Laden boldly commanded his network to organize special cells in Afghanistan and Pakistan to attack the aircraft of President Obama and Gen. David H. Petraeus.

“The reason for concentrating on them,” the al-Qaeda leader explained to his top lieutenant, “is that Obama is the head of infidelity and killing him automatically will make [Vice President] Biden take over the presidency. . . . Biden is totally unprepared for that post, which will lead the U.S. into a crisis. As for Petraeus, he is the man of the hour . . . and killing him would alter the war’s path” in Afghanistan.
...
The scheme is described in one of the documents taken from bin Laden’s compound by U.S. forces on May 2, the night he was killed. I was given an exclusive look at some of these remarkable documents by a senior administration official. They have been declassified and will be available soon to the public in their original Arabic texts and translations. ... (much more)

Regards

Mike

[jmm99]

Jack Goldsmith is a Harvard Law professor and a member of the Hoover Task Force on National Security and Law. He served in the Bush administration as assistant attorney general in charge of the Office of Legal Counsel. His new book is Power and Constraint: The Accountable Presidency after 9/11.

He recently wrote at Foreign Policy, Fire When Ready (12 Mar 2012), which overall is a good summary of the points covered in this thread re: targeted killings (emphasis added).

His BLUF:

While the Obama administration can improve its public explanations for targeted killing, its critics have wildly overstated the legal concerns about the practice. Even exaggerated criticisms, however, can serve a useful role. As I detail in my book, an important lesson of the first decade of indefinite war against al Qaeda and its affiliates is that relentless and sometimes brutal scrutiny and criticism of the presidency from all quarters forces the presidency to engage in self-reflection and public justification that, in the end, strengthen it. The criticisms of targeted killing have produced public debate and limited judicial scrutiny of targeted killings that have enhanced the legitimacy of the practice. They have also encouraged the executive branch to tread very carefully and to provide much more public information and explanation about its operations than usual. There is room for improvement, of course, but we should not be blind to how deeply the Obama administration's targeting killing practices are embedded in the rule of law.

Agreed, except I would make it clear that the primary justification has to be based on the Laws of War. Those can, of course, be included within the rule of law as broadly defined (as LawVol, for example, has pointed out).

If one views policy as being the primary driver for whether targeted killings are or not employed, then Jack's citation of the polls is a critical element:

These disclosures have fostered a robust public debate about targeting killing in the United States and abroad, and the American public broadly approves of what it sees. According to a recent Washington Post/ABC News poll, 83 percent of respondents (including 77 percent of liberal Democrats) say they approve of the Obama administration's use of drones against terror suspects overseas, while only 11 percent disapprove. The approval/disapproval numbers drop to 65/26 percent when respondents are told that the targets are American citizens. As the Washington Post's Greg Sargent noted, "65 percent is still a very big number." Sargent added that "Democrats approve of the drone strikes on American citizens by 58-33, and even liberals approve of them, 55-35."

Given this political support, the political issue of targeted killings appears closed among USAians. Of course, lawyers and non-lawyers, academics and non-academics are free to argue the issue one way or the other. Thus, the comments to Jack's piece are interesting.

An interesting comparison is that roughly the same numbers oppose US air strikes and US ground force intervention in Syria (more oppose ground force intervention). And, roughly the same number support withdrawal from Astan by 2014 or sooner.

Regards

Mike

[jmm99]

The recent speech by Ben Emmerson QC [Queen's Counsel], United Nations Special Rapporteur on Counter-Terrorism and Human Rights, at the Harvard Law School (26 Oct 2012), is attached as a pdf file.

At the outset, it is best to recognize that Mr. Emmerson believes he has a "mandate" (a term used just south of a dozen times in 17 pdf pages). I believe that he believes deeply in every single sentence he's written. I don't.

In terms of the legal jargon, International Human Rights Law is analogized in US Law by Bill of Rights Law (as expanded by the later post-Civil War amendments) - the two sets are overlapping, but not co-extensive. International Humanitarian Law is analogized in US Law by its Laws of War (or Laws of Armed Conflict) - again, the two sets are overlapping, but not co-extensive.

Leaving aside biographies for the moment, we will cover the key points of the Special Rapporteur's speech.

The UN Security Council's Mandate to Members

Initially, there was little mention of human rights in any of the initiatives at UN level. But in 2003 the Security Council passed resolution 1456 which included for the first time a provision requiring States to ensure that any measures taken to combat terrorism must comply with their obligations under international law, and in particular international human rights, humanitarian and refugee law.
...
The process of reform at UN level did not begin in earnest until 2006 when the General Assembly adopted the UN Global Counter-Terrorism Strategy. This was intended to be the first comprehensive international statement of obligations resting on States to combat terrorism, and to promote international co-operation within a rule of law framework. Pillar IV of the Strategy sets out specific rule of law guarantees. The requirement for human rights protection underpins the entire Strategy. Whilst the Strategy was under negotiation the UN Human Rights Commission established the mandate of Special Rapporteur on Counter-Terrorism and Human Rights, the mandate which I now hold.
...
The positive statements of principle by the General Assembly and the Security Council have to be turned from mere rhetoric into practice.
...
Security Council resolution 1963 (2010) finally recognised in terms that terrorism will not be defeated by military force, law enforcement measures, and intelligence operations alone, and underlines the need to address the conditions conducive to the spread of terrorism. It recognises that respect for the rule of law, and the protection of human rights and fundamental freedoms, are essential means of offering a viable alternative to those who could otherwise be susceptible to terrorist recruitment and to radicalization.

In other words, the Security Council itself has now come to accept that it is necessary to tackle not only the manifestations of terrorism but also its causes. In the process it has also acknowledged that respect for human rights is essential to an effective strategy of prevention, and that the reverse is equally true.

One wonders how much materiality Mr. Emmerson would give to certain brands of Islam as causes of terrorism.

His Attack on the War Paradigm

The first core challenge is what I will call the global war paradigm. This is the proposition, culled by lawyers and officials of the US State Department under the Bush administration, that since 9/11 the US and its allies have been at war with a stateless enemy and that accordingly its actions are to be judged by the laws of war, rather than the laws applicable in peace-time.
...
The idea that international terrorism in all of its modern forms and manifestations is capable of being definitively defeated by military means seems with retrospect extremely nave. We have seen new forms of terrorism, and new alliances forming even over the past few months in Libya, Mali, other parts of North Africa, Syria and elsewhere. No one now seriously believes that terrorism is a phenomenon that is capable of being militarily defeated.

Most all US courts (the DC Circuit being the leading example) have adopted the "war paradigm" - the US Laws of War (LOAC) as the rules of decision. More than 80% of US voters support the Obama drone strikes, except as to US citizens (e.g., al-Awlaki, where the percentage is still higher than 60%).

His War Crime Indictment

A leading academic study by two US universities, released last month, has endorsed the figures of the London-based Bureau of Investigative as amongst the most reliable sources available in relation to the impact of these drone attacks. Those figures suggest that at least 474 civilians have been killed in Pakistan alone, and that 176 children are reported among the deaths. The Bureau has also alleged that since President Obama took office at least 50 civilians were killed in follow-up strikes when they had gone to help victims and more than 20 civilians have also been attacked in deliberate strikes on funerals and mourners. My colleague Christof Heyns, the Special Rapporteur on extra-judicial, summary and arbitrary executions has described such attacks, if they prove to have happened, as war crimes. I would endorse that view.

The Bureau of Investigative Journalism (BIJ): to correct the typo in the text. I've discussed that source briefly in a couple of posts (as has David). The "facts" alleged in the foregoing quote will be disputed by the USG.

The Lawsuits vs the United States

There are now a large number of law suits, in different parts of the world, including in the UK, Pakistan and in the US itself, through which pressure for investigation and accountability is building. Just last week the High Court in London heard an application for judicial review by the son of a man who was allegedly killed in a US drone strike in North Waziristan in March last year. The strike killed 40 people who – it is claimed – were meeting to discuss a local mining dispute. He is seeking a declaration from the High Court that it is unlawful for the UK's signals intelligence agency GCHQ to share targeting intelligence with the United States, for the purposes of drone attacks. The claim is that GCHQ has been using telephone intercepts to provide the US with locational intelligence on alleged militants in Pakistan and Afghanistan.

In Pakistan itself, there are two separate claims proceeding in the courts. One is aimed at triggering a criminal investigation into the actions of two former CIA officials alleged to be responsible for drone strikes which caused disproportionate civilian casualties. The other is seeking a declaration that the strikes amount to acts of war, in order to pressurise the Pakistani air force into shooting down drones operating in the country's airspace. Whatever the outcome of these cases, the suggestions that have been made to the effect that the Government of Pakistan has given tacit consent to the use of US drones on its territory is under scrutiny.

During the last session of the UN Human Rights Council in Geneva in June many states, including Russia and China, called for an investigation into the use of drone strikes as a means of targeted killing. One of the States that made that call was Pakistan. I was asked by these States to bring forward proposals on this issue, and I have been working closely on the subject of drones with Christof Heyns. The issue is moving rapidly up the international agenda.

Therefore, US and US citizens be forewarned as to what is coming.

- cont. -

[jmm99]

The 2010 UN Report

In February 2010 my mandate, together with three other UN special procedures mandates, presented a Joint Study on Global Practices in Relation to Secret Detention in the Context of Countering Terrorism to the United Nations Human Rights Council. The UN Study included a detailed analysis of the evidence as to the practice of secret detention both before and after 11 September 2001 in Asia, Central Asia, Europe, the Middle East and North Africa and Sub-Saharan Africa and made recommendations including as to the duty of states to investigate allegations of secret detention, torture and rendition and, where appropriate, provide reparation to victims of these practices.

The report identified a number of States that appeared to have been directly complicit in violations of international law by detaining so-called high-value detainees in secret black site locations on their territory, or allowing the use of their air transport facilities or airspace to facilitate extraordinary renditions, that is international movement of suspects outside the framework of international law. Some of those detained have alleged that they
were tortured at these locations.

Similar investigations have been conducted by the Human Rights Sub-Committee of the European Parliament and by the Council of Europe's Parliamentary Assembly. Despite significant obstacles, the case for securing accountability is gathering momentum. Congress has also conducted an investigation into these practices, although its report has not yet been made public. Meanwhile there are criminal, parliamentary and judicial inquiries taking place in a number of States. A prosecution of a senior official has begun in Poland, and the European Court of Human Rights has recently demanded a complete explanation from Poland and from Romania of their involvement in the CIA programme in the context of an application brought by one of the Guatanamo detainees who is currently facing the death penalty in a military commission trial alleging his participation in the attack on the USS Cole. There are at least four other cases in the pipeline in which European States are being called to account for the complicity in the use of secret detention, rendition and torture in support of the operations run by the Bush-era CIA.

I'll take these assertions at face value (unless corrected by someone); and that the EU states are hot on the hunts for "war criminals".

The UN Special Investgation Unit

If the relevant States are not willing to establish effective independent monitoring mechanisms that meet these international standards, then it may in the last resort be necessary for the UN to act, and to establish such mechanisms itself. Steps are already in hand to set up the necessary modalities, and following discussions this week I can today announce that, together with my colleague Christof Heyns, I will be launching an investigation unit within the Special Procedures of the Human Rights Council to inquire into individual drone attacks, and other forms of targeted killing conducted in counterterrorism operations, in which it is alleged that civilian casualties have been inflicted, and to seek explanations from the States using this technology and the States on whose territory it is used. This unit will begin its work early next year and will be based in Geneva.

One wonders, at what point, will apparent UN and EU values (if well represented by Mr Emmerson and Mr Heyns) differ from US values by so much that a break in relations will occur.

Biography of Ben Emmerson (at Matrix Chambers, his firm):

Ben Emmerson QC is an international lawyer, specialising in European human rights law, public international law and international criminal law. He was a founder member of Matrix Chambers and has 25 years’ experience litigating before international courts and tribunals including the International Court of Justice, the European Court of Human Rights, the European Court of Justice, the International Criminal Court and the International Criminal Tribunal for the Former Yugoslavia. Within the UK he is a deputy High Court Judge, a Master of the Bench of Middle Temple and an Honorary Fellow of Mansfield College, Oxford. ... (much more at webpage)

Biography of Christof Heyns, Special Rapporteur of the United Nations on extrajudicial, summary or arbitrary executions (at Univ. of Pretoria):

Christof Heyns holds the degrees MA LLB University of Pretoria; LLM Yale Law School; and PhD University of the Witwatersrand. He is Professor of Human Rights Law and Co-director of the Institute for International and Comparative Law in Africa at the University of Pretoria. In August 2010 he was appointed as United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions. He is an adjunct professor at the Washington College of Law of the American University in Washington DC, USA, and a Visiting Fellow at Kellog College at Oxford University, UK, where he has been teaching in the masters’ programme since 2005. ... (much more at webpage)

Regards

Mike

[Polarbear1605]

I just finished reading the Ben Emmerson attachment…and it is a bit too righteous for my taste. First: Thanks to JMM99 for the two above posts. Second; a disclaimer; I am a retired military guy and ain’t no lawyer (no offense there JMM99). Like JMM99 I have some issues with that word “mandate” that Mr Emmerson seems to quick draw from his two holster gun belt.

As a military guy, Mr Emmerson also annoys me greatly because he quick draws another term…i.e “rule of law”. It annoys me because I see and hear our own (US) general officers draw, fire and then aim that term whenever they want to invoke an “all bark and no bite” conversation about war, COIN and strategy. Having said that indulge me, as I ask some questions.

Mr E. speaks of the “Rule of Law”… whose’s? US ROL? UK’s? Pakistan? international human rights ROL. And which one of these sets of ROL applies to non-state terrorist operating outside each jurisdiction?? On 9/11 the US had to make a decision between the ROL or the LOW. LOW always seemed the right choice to me.

Is international human rights that Mr E represents a ROL? Or “The drafters almost certainly believed that they were stating general principles, not laws that would be enforced by national courts...I can affirm that the administration I represented considered it primarily a diplomatic weapon”. IRL is the embodiment of “War is simply the continuation of political intercourse with the addition of other means”. In other words it is not law; it’s politics.

He mentioned the 474 civilians killed in Pakistan by drone strikes (including 176 children) but make no mention of the Afghanistan civilian casualties due to enemy (Taliban) activity?... it is in the thousands and been rising 30% per year since 2006. Why start with drone strikes Mr E. when so many more are the victims of enemy activity?

Mr E mentions a Pakistan citizen from Northern Waziristan receiving a judicial review from the High Court in London. How does a Pakistani from North Waziristan get a judicial claim for a drone attack through the ROL process all the way to London? Who is helping him?

Where is the argument for “self-defense Mr E? Not only is self-defense a universal principle but also it goes back as far as St Thomas Aquinas. As a county and as an individual we have a right to self-defense especially when a set of non-state extremists opening declare total war on all US citizens and prove it by collapsing two skyscrapers and killing nearly 3000 innocent civilians.

Why introduce the torture issue as an absolute when it is actually a debate because no one seems to have the political courage to define it? You know better…my opinion is here.

I suspect that Mr E. is more politics and less counter terrorism LOW for a number of reasons. He is trying to gather political support at the US expense and he is playing into the lawfare campaign of terrorist.

I have to think that Mr E. has it all wrong.

[jmm99]

except to segue into what he really wants to say.

Anyhow, I'm now a Retired Gentleman (a ripoff from Victor McLaughlin in "She Wore a Yellow Ribbon") - not a lawyer[*] ...

But, in answer to your question - Mr Emmerson will use any law he can argue (1) to defend his clients; and (2) to paint the USG as war criminals. What is ironic is that the USG is footing a good percentage of Mr Emmerson's "mandate" to make that happen.

[*]

Not being entirely stupid, my Mich license is still in effect (which also applies to the Federal Courts, including SCOTUS); but other than posts here, I've kept away from the rest of law for the past year.

Instead, I been working on my house (a Karate Kid type "wax on, wax off" approach to reach some semblence of physical condition), and some selected military readings (e.g., the BEF in WWI, including many personal memoirs from that conflict).

Regards

Mike

[jmm99]

Strikes (whether drone or other air, or boots on the ground direct actions) can be divided into two catagories, depending on what is known and unknown re: the target.

A "personality strike" is one targeting an individual whose identity and past and current activities are known. When the strike is conducted, those making the decision to engage are primarily concerned with (1) the degree of confidence that the particular individual is present; and (2) the extent of collateral damage that can be tolerated. UBL and al-Awlaki, for example.

A "signature strike" is one targeting an individual (or individuals) whose precise identity is (precise identities are) unknown or uncertain. Instead, the individual or individuals must match a pre-identified “signature” (a behavior set) that the targeter links to terrorist activity or association.

I expect we'll be hearing much more about "signature strikes".

The signature strike matrix below is strictly hypothetical (presented as a quote only to set it off):

A Signature Strike Matrix

(1) Individual(s) Planning Attacks

(2) Individual(s) Transporting Weapons (not incl. legal weapons ?)

(3) Individual(s) Handling Explosives

(4) Individual(s) in Terrorist Compound

(5) Individual(s) in Terrorist Training Camp

(6) Military-Age Male(s) in Known Terrorist Activity Area

(7) Individual(s) Consorting with Known Militants

(8) Armed Man(Men) Traveling (on foot)(in vehicles) in Terrorist-Controlled Area

(9) Individual(s) in Suspicious Camp located in Terrorist-Controlled Area

(10) Group(s) of Armed Men Traveling Toward Conflict Area

(11) Individual(s) Operating a Terrorist Training Camp

(12) Individual(s) Training to Join a Terrorist Group

(13) Individual(s) Facilitating a Terrorist Group

(14) Individual(s) in Terrorist Rest Facilities (Safe Houses)

Discuss, if you wish, the plusses and minuses of the matrix as written

- as well as

(1) the test you would use to include a factor (e.g., "more likely than not", "reasonable certainty", "high degree of confidence", etc., etc.);

(2) whether you would include or exclude each factor separately without considering the other factors (strict "must stand on its own" test); or would you aggregate all factors supported by some evidence, even where each such factor would not "stand on its own" ("conditional probability"); and

(3) whether other factors should be added to the matrix.

This doesn't require legalese.

Regards

Mike

[jmm99]

1. President Obama will target Al Qaeda operatives with drones and special forces. President Romney will target Al Qaeda operatives with drones and special forces.

2. President Obama will not close Guantanamo Bay and will follow a policy of indefinite detention. President Romney will not close Guantanamo Bay and will follow a policy of indefinite detention.

3. President Obama will use a combination of federal courts and military commissions to try suspected terrorists. President Romney will use a combination of federal courts and military commissions to try suspected terrorists.

4. President Obama will work to update the Authorization of the Use of Military Force (AUMF) and institutionalize its authorities. President Romney will work to update the Authorization of the Use of Military Force (AUMF) and institutionalize its authorities.

5. President Obama will not reinstate the Bush administration’s interrogation policies; but neither will he create any mechanism of accountability for those responsible for the Bush-era interrogations. President Romney will not reinstate the Bush administration’s interrogation policies; but neither will he create any mechanism of accountability for those responsible for the Bush-era interrogations.

6. President Obama will use warrantless wiretapping. President Romney will use warrantless wiretapping.

7. The "international legal community" will not approve of President Obama's policies; and the NY Times and Wash Post Editorial Boards will wring their hands about the lack of "international support". The "international legal community" will not approve of President Romney's policies; and the NY Times and Wash Post Editorial Boards will wring their hands about the lack of "international support".

HT to Ben Wittes for the basic concept.

Regards

Mike

[jmm99]

The initial decision of the ICTY condemning Gotovina and Markac to 24 years and 18 years imprisonment (they have been in detention since 2005) was reported here at posts 117, 118 & 119. The Amicus Brief (by US-UK military law experts) arguing reversal of the convictions is reported here at posts 120 & 121.

Reuters, Hague appeal tribunal frees jailed Croatian officers:

Svebor Kranjc
Reuters
9:39 a.m. CST, November 16, 2012

THE HAGUE (Reuters) - The most senior Croatian military officer convicted of war crimes during the Balkan wars of the 1990s was freed on appeal on Friday in a decision that will strain already fraught relations between Croatia and its old enemy Serbia.

General Ante Gotovina was cleared by appeal judges at the U.N. war crimes tribunal after being convicted of targeting hospitals and other civilian sites during a military operation to retake Croatia's Krajina region from rebel Serbs.

Gotovina, hailed as a hero at home but reviled in neighboring Serbia, was freed along with Croatian police commander Mladen Markac. ... (more in story)

Since it was set up in 1993, the tribunal has indicted 161 people for crimes committed during the Yugoslav wars, of whom only 14 have been acquitted.

ICTY, The Hague, 16 November 2012: Appeals Judgement Summary for Ante Gotovina and Mladen Markač:

...
The Appeals Chamber recalls that the Trial Chamber concluded that the Appellants were members of a JCE whose common purpose was to permanently remove Serb civilians from the Krajina by force or threat of force. The Trial Chamber’s conclusion that a JCE existed was based on its overall assessment of several mutually-reinforcing findings. The Appeals Chamber, Judge Agius and Judge Pocar dissenting, considers that the touchstone of the Trial Chamber’s analysis concerning the existence of a JCE was its conclusion that unlawful artillery attacks targeted civilians and civilian objects in the Four Towns, and that these unlawful attacks caused the deportation of large numbers of civilians from the Krajina region.

The Trial Chamber’s finding that the artillery attacks on the Four Towns were unlawful was heavily premised on its analysis of individual impact sites within the Four Towns, which I will refer to as the “Impact Analysis”. This Impact Analysis was in turn based on the Trial Chamber’s finding a 200 metre range of error for artillery projectiles fired at the Four Towns, which I will refer to as the “200 Metre Standard”. Based on this range of error, the Trial Chamber found that all impact sites located more than 200 metres from a target it deemed legitimate served as evidence of an unlawful artillery attack. In identifying legitimate targets, the Trial Chamber took into account, in part, its finding that the HV could not identify targets of opportunity, such as moving police or military vehicles, in the Four Towns.

The Appeals Chamber unanimously holds that the Trial Chamber erred in deriving the 200 Metre Standard. The Trial Judgement contains no indication that any evidence considered by the Trial Chamber suggested a 200 metre margin of error, and it is devoid of any specific reasoning as to how the Trial Chamber derived this margin of error. The Trial Chamber considered evidence from expert witnesses who testified as to factors, such as wind speed and air temperature, that could cause variations in the accuracy of the weapons used by the HV against the Four Towns, and the Trial Chamber explicitly noted that it had not received sufficient evidence to make findings about these factors with respect to each of the Four Towns. In its Impact Analysis, however, the Trial Chamber applied the 200 Metre Standard uniformly to all impact sites in each of the Four Towns.

In these circumstances, the Appeals Chamber is unanimous in finding that the Trial Chamber erred in adopting a margin of error that was not linked to the evidence it received.

With respect to targets of opportunity in the Four Towns, the Appeals Chamber holds that the Trial Chamber did not err in determining that the HV had no ability to strike targets of opportunity in the towns of Benkovac, Gračac, and Obrovac. However, the Appeals Chamber notes that the Trial Chamber was presented with, and did not clearly discount, evidence of targets of opportunity in the town of Knin. In this context, the Appeals Chamber, Judge Agius and Judge Pocar dissenting, holds that the Trial Chamber erred in concluding that attacks on Knin were not aimed at targets of opportunity.

The Appeals Chamber, Judge Agius and Judge Pocar dissenting, recalls that, while the Trial Chamber considered a number of factors in assessing whether particular shells were aimed at lawful military targets, the distance between a given impact site and the nearest identified artillery target was the cornerstone and organising principle of the Trial Chamber’s Impact Analysis. The Appeals Chamber, Judge Agius and Judge Pocar dissenting, holds that the Trial Chamber’s errors with respect to the 200 Metre Standard and targets of opportunity are sufficiently serious that the conclusions of the Impact Analysis cannot be sustained. Although the Trial Chamber considered additional evidence in finding that the attacks on the Four Towns were unlawful, the Appeals Chamber, Judge Agius and Judge Pocar dissenting, holds that, absent the Impact Analysis, this remaining evidence is insufficient to support a finding that the artillery attacks on the Four Towns were unlawful.

In view of the foregoing, the Appeals Chamber, Judge Agius and Judge Pocar dissenting, finds that no reasonable trial chamber could conclude beyond reasonable doubt that the Four Towns were subject to unlawful artillery attacks. Accordingly, the Appeals Chamber, Judge Agius and Judge Pocar dissenting, grants Mr. Gotovina’s First Ground of Appeal, in part, and Mr. Markač’s Second Ground of Appeal, in part, and reverses the Trial Chamber’s finding that the artillery attacks on the Four Towns were unlawful.

Thus, the major point made by the US-UK Amicus Brief was sustained by the appellate court and the defendants released.

Regards

Mike

[jmm99]

HT to Ken Anderson for, Readings: Autonomous Weapon Systems and Their Regulation (December 11, 2012), and Readings: Jeffrey S. Thurnher on Law of Armed Conflict Applied to Autonomous Weapon Systems (January 19, 2013).

The two articles by MAJ Jeffrey S. Thurnher (an Army JAG officer on the faculty at the Naval War College), The Law That Applies to Autonomous Weapon Systems (ASIL Insights, January 18, 2013, Volume 17, Issue 4) (6 pp.), and No One at the Controls: Legal Implications of Fully Autonomous Targeting (Joint Force Quarterly, National Defense University, Washington DC, Vol. 67, No. 4, Oct. 2012) (8 pp.), provide easy entry into complicated subject matter.

From Thurnher's first article, the legal BLUF (snips from several pages):

The Law: How to Determine the Lawfulness of a Weapon System

It is incontrovertible that the law of armed conflict applies to autonomous weapon systems. When determining the overall lawfulness of a weapon system, there are two distinct aspects of the law that need to be analyzed: weapons law and targeting law. ...
...
When analyzing whether the weapon system itself is lawful, there are two distinct rules that apply. The first rule is that the weapon system must not be indiscriminate by its very nature. A weapon is deemed indiscriminate by nature if it cannot be aimed at a specific target and would be as likely to strike civilians as combatants. ...
...
The second rule, codified in Article 35(2) of Additional Protocol I, is that a weapon system cannot cause unnecessary suffering or superfluous injury. ...
...
Assuming the particular weapon satisfies the above weapons law rules, the weapon must still be examined under targeting law to determine whether the actual use of the weapon might be prohibited in some manner. To conduct this analysis, three core law of armed conflict requirements are particularly salient: distinction, proportionality, and precautions in the attack. ...
...
The first requirement is distinction. Distinction is the most fundamental principle of the law of armed conflict. A customary law principle, distinction obliges a combatant to distinguish between combatants and civilians, as well as between military and civilian objects. ...
...
The second requirement, proportionality, requires combatants to examine whether the expected collateral damage from an attack would be excessive in relation to the anticipated military gain. ...
...
The third and final core requirement is the obligation to take feasible precautions in the attack. ... With all of the required precautions in attack, there is inherently a value judgment about whether all feasible steps have been taken. How autonomous systems will reasonably make this value judgment may prove to be one of the biggest challenges in terms of compliance. Ultimately if a country intends to use an autonomous weapon system on a battlefield, it must ensure that the system can adequately take these feasible precautions.

Thus, Thurnher is satisfied that a particular AWS will or will not pass muster based on existing law.

His second article is concerned with the operational commander's responsibilities in controlling the AWS - here, lethal autonomous robots (LARs). He recommends four basics:

First, operational commanders need to ensure that all LARs have the proper rules of engagement (ROE), tactical directives, and other national caveats embedded in their algorithms. Moreover, commanders must ensure that any revisions to the ROE or directives are rapidly inputted into and incorporated by the LARs. Unmanned underwater systems, particularly those without regular communications with the headquarters, may prove to be the most challenged in this arena. For LARs that cannot make such adjustments while deployed, commanders need to ensure those systems can be recalled and then reprogrammed quickly.

Second, commanders should limit when and where LARs are employed to avoid potential proportionality issues. Geographically, LARs are best suited to engage targets in areas where the likelihood of collateral damage is reduced, such as underwater or in an area like the demilitarized zone in Korea. Regardless of geography, LARs might be appropriate when the target is one of particularly high value. In such situations, a commander may have fewer proportionality concerns or might at least be able to quantify the amount of acceptable collateral damage. Utilizing LARs only in specific geographic environments or when pursuing high value targets would alleviate many of the critics’ proportionality concerns and best protect operational commanders.

Third, operational commanders should carefully examine the type of conflicts where they might deploy LARs. They would be wise to use LARs predominantly during high-intensity situations where the ROE are status-based, meaning there is a declared hostile force to attack. Those declared hostile forces would then be more easily recognizable, eligible targets for LARs. LARs are less appropriate in counterinsurgency or irregular warfare situations, where “the blurring of the lines between civilian and military is a commonplace occurrence.” Similarly, commanders may also want to restrict LARs in emergency situations where the proposed target is not already on a preset list of targets. In such irregular fights and in emergency situations, the legal authority to engage with lethal force is more often conduct-based and thus contingent upon an enemy demonstrating a hostile intent or engaging in a hostile act. Given the higher degree of difficulty in identifying targets and the greater distinction concerns, the best approach may be to avoid using LARs under these circumstances. Prudent commanders should only use LARs in appropriate situations and recognize when it is best to resort to manned systems instead.

Lastly, LARs should be required to have some version of a human override, sometimes referred to as software or ethical “brakes.” The systems should be able to be shut down or recalled immediately upon a commander’s order. Commanders should also establish triggers for when LARs must seek human guidance before engaging a target. For instance, when a LARs system identifies expected collateral damage greater than a predetermined acceptable limit, it could be forced to seek guidance from the command before engaging that target. Commanders would need to establish protocols and support structures to facilitate quick decisionmaking for these potential targets. In these circumstances, human decisionmakers need a high degree of clarity about what situation the robot is facing. This oversight would not be effective if the human operator were merely a rubber stamp to approve an engagement. With prudent additional control measures such as these, commanders can more safely employ LARs on the battlefield and better protect themselves and their commands.

The AWS CO has to be soundly based in the technologies of the system, and also in the legal requirements governing use of the system.

The DoD has provided a definitive set of principles applicable to these weapon systems: Ashton B. Carter, Deputy Secretary of Defense, “Autonomy in Weapons Systems,” Department of Defense Directive, Number 3000.09, November 21, 2012.

The other side of the debate ranges from the more emotional - Noel Sharkey, “America's Mindless Killer Robots Must Be Stopped: The rational approach to the inhumanity of automating death by machines beyond the control of human handlers is to outlaw it,” Guardian, December 3, 2012 - to the very scholarly intended for academic publication - Human Rights Watch and Harvard Law School International Human Rights Clinic, “Losing Humanity: The Case Against Killer Robots,” November 19, 2012. Their bottom line is the same - an absolute ban before they breed and multiply.

We have three responses to the Human Rights Watch and Harvard Law School International Human Rights Clinic report.

Michael N. Schmitt, International Law Department, US Naval War College, “Autonomous Weapon Systems and International Humanitarian Law: A Reply to the Critics,” SSRN Working Paper, Draft of December 4, 2012.

William Marra and Sonia McNeil, “Understanding “The Loop’: Regulating the Next Generation of War Machines,” 36 Harvard Journal of Law and Public Policy 3 (2013), Lawfare Research Paper Series 1-2012.

Kenneth Anderson and Matthew Waxman, “Law and Ethics for Robot Soldiers,” Policy Review, December-January 2012-13 (final published version at Policy Review here, and working draft with footnotes at SSRN here).

Finally, for those wishing to get down into the legal weeds with M-A Lagrange and JMM99, see this SWC thread from late 2011 and early 2012, New technologies and war legislation: a progress? (a conversation started by Marc-Andre, which deals primarily with Geneva's view toward new weapons technologies).

Regards

Mike

[jmm99]

Late last year, the Washington Post broke a series of stories dealing with drones and targeted killings, including Plan for hunting terrorists signals U.S. intends to keep adding names to kill lists (by Greg Miller, 23 Oct 2012):

Over the past two years, the Obama administration has been secretly developing a new blueprint for pursuing terrorists, a next-generation targeting list called the “disposition matrix.”

The matrix contains the names of terrorism suspects arrayed against an accounting of the resources being marshaled to track them down, including sealed indictments and clandestine operations. U.S. officials said the database is designed to go beyond existing kill lists, mapping plans for the “disposition” of suspects beyond the reach of American drones.

Although the matrix is a work in progress, the effort to create it reflects a reality setting in among the nation’s counterterrorism ranks: The United States’ conventional wars are winding down, but the government expects to continue adding names to kill or capture lists for years. ... (more in story)

Bobby Chesney's comments on this story are here, Kill Lists, the Disposition Matrix, and the Permanent War: Thoughts on the Post Article (24 Oct 2012).

Last week, WP added to the stew with CIA drone strikes will get pass in counterterrorism ‘playbook,’ officials say (by Greg Miller, Ellen Nakashima and Karen DeYoung, 19 Jan 2013):

The Obama administration is nearing completion of a detailed counterterrorism manual that is designed to establish clear rules for targeted-killing operations but leaves open a major exemption for the CIA’s campaign of drone strikes in Pakistan, U.S. officials said.

The carve-out would allow the CIA to continue pounding al-Qaeda and Taliban targets for a year or more before the agency is forced to comply with more stringent rules spelled out in a classified document that officials have described as a counterterrorism “playbook.”

The document, which is expected to be submitted to President Obama for final approval within weeks, marks the culmination of a year-long effort by the White House to codify its counterterrorism policies and create a guide for lethal operations through Obama’s second term. ... (more in story)

Bobby Chesney's comments on this story are here, Lethal Force Beyond the Battlefield: The Post’s “Playbook” Article (21 Jan 2013):

What does this portend for the use of armed drones going forward? It seems to me that this is yet another piece of evidence suggesting that the US government will continue to assert authority to use lethal force for counterterrorism purposes in at least some situations, outside the context of conventional conflict. Not that this is a big surprise. ... (more in article)

Barring an unforeseen Damascus moment, all the evidence suggests that US drone strikes will continue under a war paradigm - probably a "refined" paradigm, but still a war paradigm which will largely remain classified. See, U.S. drone strikes in Pakistan on rise for 2013 (by Greg Miller, 10 Jan 2013):

The CIA has opened the year with a flurry of drone strikes in Pakistan, pounding Taliban targets along the country’s tribal belt at a time when the Obama administration is preparing to disclose its plans for pulling most U.S. forces out of neighboring Afghanistan.

A strike Thursday in North Waziristan was the seventh in 10 days, marking a major escalation in the pace of attacks. Drone attacks had slipped in frequency to fewer than one per week last year.

Current and former U.S. intelligence officials attributed the increased tempo to a sense of urgency surrounding expectations that President Obama will soon order a drawdown that could leave Afghanistan with fewer than 6,000 U.S. troops after 2014. The strikes are seen as a way to weaken adversaries of the Afghan government before the withdrawal and serve notice that the United States will still be able to launch attacks. ... (more in story)

This continuation of the war paradigm (over what is now four presidential terms !) will, no doubt, discomfort any number of US "coalition partners", as exemplified by this story from Deutsche Welle last week, Should drone strikes be considered lawful? (18 Jan 2013):

Those opposed to drones, however, compare targeted killing to extrajudicial and state-sanctioned murder. They challenge the notion that targeted killing takes place in the context of war; the US and Pakistan, for example, are not at war with each other.

That is a crucial point in international law. In the case of war, the victims are combatants, the killing of whom can be justified under laws of war.

But if aggressors and victims are not at war, targeted killing is, technically speaking, illegal. That is, of course, unless the person or people killed posed an immediate danger to others - like a fatal shot fired by police at a hostage taker to save the lives of the hostages. ... (more in story)

The BLUF of the comments by DW's expert (Armin Krishnan) is that present US drone strike policy is illegal under the German view of law (domestic and international). See also DW, The legal gray zone of drone attacks (23 Jul 2012):

A US drone attack claimed its first German victim, a suspected Muslim fundamentalist, in 2010. A German federal investigation into the incident has reignited debate about the use of unmanned aircraft.

Shortly before his death, a man named in reports as Bunyamin E. travelled to the Pakistani region of North Waziristan, an Islamist stronghold. On October 4, 2010, a missile strike by a US drone struck the suspected radical Islamist along with a number of companions.
...
Federal German legal authorities are now investigating the controversial tactic after a nearly two-year long process of determining whether such an investigation is within the scope of their office. The US is operating in a legal gray zone and may have violated international law. Jochen Hippler of the Duisburg Institute for Development and Peace sees the drone attacks in Pakistan as especially problematic since they go against the will of the Pakistani government - at least officially.

"On the one hand, we have the problem that military attacks against a country with which one is not at war violate international law," the expert told DW. He believes a further problem lies in the killing of people merely suspected of being Islamic extremists: "In the US and in Germany, people have argued with good reason that the drone attacks represent capital punishment for people who have been accused of a crime without being given a trial." ... (much more in story)

Of course, the viewpoints expressed by DW's experts are based on application of a peace paradigm.

The situation (divergent views between the US and many of its NATO partners) reminds one of the pre- and post-WWI strategical disconnects analysed by Andre Beaufre. Pre-WWI, the lines were rather clearly drawn between the political struggle (the peace paradigm) and the military struggle (the war paradigm). After WWI, and especially after WWII with the advent of the Cold War and Nuclear Armament, the political and military struggles became mixed - as Gen. J. L. Collins titled it - "War in Peacetime".

Following Beaufre's logic, it seems doubtful that we can return to the simplicity of the 19th century where Peace was peace, War was war, and ne'er the twain shall meet. We will most likely continue to see situations which do not really fit either a pure peace paradigm or a pure war paradigm. Those situations will create both strategic and legal problems.

Regards

Mike

[jmm99]

Those who belong to armed forces or to armed groups may be attacked at any time.

Now, where did that come from ? I'll tell you later.

Several days ago, the NY Times ran a story, Drone Strike Prompts Suit, Raising Fears for U.S. Allies (by Ravi Somaiya, January 30, 2013).

I held off on posting it (and two related pieces by John Bellinger) to see what might happen. The story obviously ties in with my post above dealing with the "discomfort" of European "coalition partners" with US drone strikes:

The death of Malik Daud Khan, a Pakistani tribal elder, in a C.I.A. drone strike might have remained widely unremarked upon, lost amid thousands of others analysts have tallied in the American drone campaign, had not the British courts been brought into it.

The drone strike, which killed Mr. Khan and dozens of others at a tribal council meeting in North Waziristan in 2011, spawned a lawsuit that accuses British officials of becoming “secondary parties to murder” by passing intelligence to American officials that was later used in drone strikes.
...
In interviews, current and former British government and intelligence officials, some of whom worked closely with the United States after the drone campaign’s inception in 2004, said Britain does provide intelligence to the United States that is almost certainly used to target strikes. Many in Britain’s intelligence community, said one person with detailed knowledge of internal discussions, are now distinctly worried they may face prosecution.

British and other EU officials may now have to face the consequences of their countries having had reduced threats from terrs, all without being directly involved in the US drone strikes:

Few argue against the notion that European nations, many of which have been attacked by terrorists, have benefited from the drone killing, however controversial, of many of the most hardened Islamic extremist leaders.

The threat level for international terrorism in Britain was reduced to “substantial,” the middle of five ratings, in July 2011. The switch was due largely to the “removal of operational planners” through drone strikes in Pakistan’s tribal areas and Yemen, a former senior intelligence official said. Another former official put it more simply, saying the “strikes have decimated the Al Qaeda senior leadership, and we didn’t have to get directly involved.”
...
For the government’s part, one senior official said, it “would just like the issue to go away.”

John Bellinger also wishes the problem to go away. In a Lawfare piece, New York Times on Noor Khan Lawsuit (by John Bellinger, January 31, 2013):

The New York Times has this long article about the Noor Khan lawsuit in Britain, in which the son of a man killed in a drone strike in Pakistan has sued the British Foreign Secretary for information about British intellligence support to the US. The article, entitled “Drone Strike Prompts Law Suit, Raising Fears for U.S. Allies,” notes that European governments are growing increasingly uncomfortable about sharing intelligence with the US that might be used in drone strikes: “Many in Brtian’s intelligence community…are now distinctly worried they may face prosecution.”
...
I have been warning for several years about the international legal risks posed by the Obama Administration’s heavy reliance on drone strikes, including my Post op-ed in October 2011 entitled “Will Drone Strikes Become Obama’s Guantanamo?”
...
At the time I wrote it, I thought there was perhaps only a 25% chance that Obama’s drone strikes would become as internationally maligned as Guantanamo, given the preference of human rights groups and European governments to avoid criticising the Obama Administration. But over the last eighteen months, I have seen a crescendo in international criticism, resulting in lawsuits in the US, Britain, and Pakistan, and a potential decrease in intelligence cooperation. This has echoes of the rapid decline in European governmental support for US counterterrorism efforts after 9-11 as national parliaments pressed their governments to distance themselves from unpopular US policies. I would not be surprised if, in the next year, war crimes charges are brought against senior Obama officials in a European country with a universal jurisdiction law.

The bottom line, as I read Mr Bellinger, is that the Obama administration should make nice with European countries by adapting to their view of "international humanitarian law" (aka their version of the laws of armed conflict or laws of war); from his 2011 article linked in prior quote:

Even if Obama administration officials are satisfied that drone strikes comply with domestic and international law, they would still be wise to try to build a broader international consensus. The administration should provide more information about the strict limits it applies to targeting and about who has been targeted. One of the mistakes the Bush administration made in its first term was adopting novel counterterrorism policies without attempting to explain and secure international support for them.

Well, the Obama administration has, in effect, said "stuff it - we'll stick with our domestic laws and the laws of armed conflict as we see them." Earlier tonite from NBC, EXCLUSIVE: Justice Department memo reveals legal case for drone strikes on Americans (by Michael Isikoff):

A confidential Justice Department memo concludes that the U.S. government can order the killing of American citizens if they are believed to be “senior operational leaders” of al-Qaida or “an associated force” -- even if there is no intelligence indicating they are engaged in an active plot to attack the U.S.

The 16-page memo, a copy of which was obtained by NBC News, provides new details about the legal reasoning behind one of the Obama administration’s most secretive and controversial polices: its dramatically increased use of drone strikes against al-Qaida suspects, including those aimed at American citizens, such as the September 2011 strike in Yemen that killed alleged al-Qaida operatives Anwar al-Awlaki and Samir Khan. Both were U.S. citizens who had never been indicted by the U.S. government nor charged with any crimes.
...
But the confidential Justice Department “white paper” introduces a more expansive definition of self-defense or imminent attack than described by Brennan or Holder in their public speeches. It refers, for example, to what it calls a “broader concept of imminence” than actual intelligence about any ongoing plot against the U.S. homeland.

“The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future,” the memo states.

Instead, it says, an “informed, high-level” official of the U.S. government may determine that the targeted American has been “recently” involved in “activities” posing a threat of a violent attack and “there is no evidence suggesting that he has renounced or abandoned such activities.” The memo does not define “recently” or “activities.”
...
Although not an official legal memo, the white paper was represented by administration officials as a policy document that closely mirrors the arguments of classified memos on targeted killings by the Justice Department’s Office of Legal Counsel, which provides authoritative legal advice to the president and all executive branch agencies. The administration has refused to turn over to Congress or release those memos publicly -- or even publicly confirm their existence. A source with access to the white paper, which is not classified, provided a copy to NBC News.

The contents of the memo should be no surprise to readers of this thread, the "The Rules - Detaining HVTs and Others" thread, and the "War Crimes" thread, since it employs much the same legal arguments used to justify indefinite detention. Those arguments have already been rejected by the EU countries.

See, “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qa’ida or An Associated Force.”

My lede quote is from the memo. The memo cites to the 1987 ICRC Commentary on AP II, 4789. The same legal point was made by the Obama DoJ in 2009 (expanding the arguments previously made by the Bush II DoJ), as reported in this post, continuation of DoJ memo ...:

My message then (re: legal arguments for detention) and now (re: legal arguments for targeted killings) to the Obama DoJ, was and is: Good job, guys and gals: I will castigate when you move off the "Straight Path".

And, as to that unnamed European country(ies), with universal jurisdiction, now is your opportunity to put up by bringing war crimes charges against senior Obama officials, or shut up.

Regards

Mike

[davidbfpo]

Mike,

My understanding of the law of armed conflict is tiny, but caveat aside now.

There are several laws regarding armed conflict which appear to have universal jurisdiction, hence the arrest and conviction of an Afghan warlord, an asylum claimant in the UK for torture IIRC and recently a Nepalese Army officer for torture - whilst visiting on leave from a UN mission.

Do such laws have international jurisdiction themselves, or is it the result of incorporation into national law? I think it is the later for the UK.

Several activists have called for the UK authorities to take legal action against suspected sinners, most notably Peter Tatchell who called for Robert Mugabe to be arrested, indeed tried himself to make a "citizens arrest" and was cast aside by Mugabe's own bodyguards.

A few years ago a private application for a summons or a warrant was made to enable the arrest of an Israeli military officer, due to make a PR visit to the UK and the police declined to make an arrest when he landed @ Heathrow. The Director of Public Prosecutions (DPP, our national prosecutor for England & Wales), then stepped in, using a hitherto unknown legal power, to take over the case and have the summons / warrant dropped.

Whatever the desires of some activists and lawyers I cannot see the UK authorities asserting a universal jurisdiction or using a national criminal law to launch a prosecution. Yes citing the 'national interest' and 'national security' come to mind, but as with the USA it is remarkable how few, if any prosecutions have been made over national criminal offences in the financial sector. Why does anyone suppose the UK (English & Welsh) prosecution authorities will suddenly become paragons of virtue and brave too?

Now a civil action here is quite different and that is where the alliance of activists and human rights lawyers are "making hay", nibbling away at the government's arguments. Hence the attempt to enable civil court procedures to have information i.e intelligence material heard by the judge only, without challenge or disclosure to the plaintiff.

[carl]

Mike:

The part that bothered me in the NBC story is the following quote.

The completeness of the administration’s public accounts of its legal arguments was also sharply criticized last month by U.S. Judge Colleen McMahon in response to a lawsuit brought by the New York Times and the ACLU seeking access to the Justice Department memos on drone strikes targeting Americans under the Freedom of Information Act. McMahon, describing herself as being caught in a “veritable Catch-22,” said she was unable to order the release of the documents given “the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for the conclusion a secret.

To layman she is describing a situation where nobody knows what the law is or why it is and nobody will discuss it.

[Polarbear1605]

... And, as to that unnamed European country(ies), with universal jurisdiction, now is your opportunity to put up by bringing war crimes charges against senior Obama officials, or shut up.
Regards
Mike

or the current administration should review/pardon criminal cases of US service members (who are currently sitting in Leavenworth) that occurred in combat using the Laws of War vs the Rule of Law... what's good for the goose...

[jmm99]

Polarbear1605:

Yup; since we have wound down Iraq and soon will in Astan, a presidential pardon review is called for in all of those cases.

David:

from David:
Do such laws have international jurisdiction themselves, or is it the result of incorporation into national law?

Both. The degree of independent international jurisdiction inherent in the criminal law system, vice incorporation of international jurisdiction via positive domestic law, varies greatly from country to country. As a general rule, the US requires incorporation of international jurisdiction via positive domestic law. The US exceptions allowing independent international jurisdiction are limited and not material here - and, in any event, rest on various self-executing provisions of the US Constitution.

from David:
Now a civil action here is quite different and that is where the alliance of activists and human rights lawyers are "making hay", nibbling away at the government's arguments. Hence the attempt to enable civil court procedures to have information i.e intelligence material heard by the judge only, without challenge or disclosure to the plaintiff.

In specific areas, e.g., civil suits for information, the UK and the US are different. See, Peto & Tyrie, Neither Just nor Secure - The Justice and Security Bill (2013) for the UK view. And, for other readers to hand clap David, he took time to pass me this reference by PM.

The US view is typified by the case mentioned by Carl, who is going to be renamed "Bloodhound".

Running our Advanced Search - Keyword(s): classified evidence ; Posts Made By: jmm99 - I just got 50 hits, So, if anyone wants, they are there.

Carl:

from Carl:
To layman she is describing a situation where nobody knows what the law is or why it is and nobody will discuss it.

Colleen McMahon knows exactly what the law is as to (1) drone strikes; (2) as to classified evidence; (3) as to limits on request for information. She also knows exactly what she thinks the law should be. Her dilemma was being caught between the law ruling the case and what law she would like to rule the case.

No one in this international law debate is stupid or ignorant. Almost all (including yours truly) graduated from elite law schools with honors, were law review editors at their schools, and have had some post-law school experience among the political elite (judicial clerkships, international law firms, USG or UN experience, etc.). Some are among the current political elite (e.g., President Obama); some are not (yours truly).

There are two cases, which started in the S.D. of New York (Manhattan), which I decided not to post at the district court level because, at this stage of the game, the appellate decisions are what matter. But since the Bloodhound has sniffed the sausage in the bag, here are some links (from Lawfare).

First, Judge McMahon.

Summary Judgment for the Government in Targeted Killing FOIA Request (by Raffaela Wakeman, January 2, 2013).

Judge McMahon's 75-page opinion.

Second, Judge Forrest.

Katherine B. Forrest (Wiki)

Federal Judge Enjoins Section 1021 of the FY2012 NDAA (by Steve Vladeck, May 16, 2012)

Out today, a 68-page opinion from Judge Katherine Forrest of the U.S. District Court for the Southern District of New York, entering a preliminary injunction barring the federal government from enforcing the substantive detention authority codified by the FY2012 NDAA on the ground that enforcement of the relevant provision (section 1021) might interfere with the plaintiffs’ First and Fifth Amendment rights. There’s a lot here, including the central holding (that the NDAA is not merely a “reaffirmation” of the AUMF), but I haven’t had the chance to read it carefully yet. Suffice it to say, I imagine folks will have more to say about the ruling in Hedges v. Obama over the next few days…

Judge Forrest's 68-page opinion.

Judge Forrest Issues Permanent Injunction in Hedges (by Benjamin Wittes, September 12, 2012).

I haven’t read it yet, but here it is.

Judge Forrest's 112-page opinion.

This decision has been permanently stayed until the 2nd Circuit Court of Appeals enters its decision. See Wiki - Hedges v Obama. An important case, but I figured on waiting for the 2nd Circuit since the injunction is stayed, despite the eminent list pf plaintiffs.

Hopes this helps, though it's a bit "weedy" in the opinions.

Thank you, all three, for the input.

Regards

Mike