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Old 05-07-2011   #21
jmm99
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Default Another ASIL "Insight" - validating the OBL DA

Pakistan's Sovereignty and the Killing of Osama Bin Laden, By Ashley S. Deeks, May 5, 2011.

This article tends to a Fiddler on the Roof methodology - on one hand, on the other hand; on one hand, on the other hand ... I have long since reached the point where there is no other hand; although, I suppose there is still that "but" in my "Never Again, but ..."

Here is Ms Deeks BLUF:

Quote:
Conclusion

The facts and politics in this case make it unlikely that Pakistan’s defense of its sovereignty will find significant international support. Nevertheless, it would be useful as a matter of international law for states to agree that the “unwilling or unable” test is the correct test for situations such as the U.S. raid against Bin Laden in Pakistan and to provide additional content to that test. Doing so potentially could serve international law’s interests by minimizing legal disagreements at times when political and factual disagreements are running high.
JMM: Frankly, I think these are political questions to be settled in one way or the other by the two states. State action could range from a diplomatic protest to a declaration of war. Here, Pstan elected to protest (from article):

Quote:
In the wake of the successful U.S. military operation, the Pakistan Government objected to the “unauthorized unilateral action” by the United States and cautioned that the event “shall not serve as a future precedent for any state.”[1] Former President Musharraf complained that the operation violated Pakistan’s sovereignty.[2]

[1] Jane Perlez & David Rohde, Pakistan Pushes Back Against U.S. Criticism on Bin Laden, N.Y. Times, May 3, 2011.

[2] See, e.g., John Bacon, Musharraf: U.S. Violated Pakistan’s Sovereignty, USA Today, May 3, 2011,
Pstan's remedy under I Law was elected and made by it.

I don't see that process (state to state "interaction") as malign. However, those who would like to see a "World Court" take jurisdiction, are inclined to follow along with the 1986 ICJ Nic Farce (cited in the article):

Quote:
[7] Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, ¶ 194 (June 27) (“The Parties also agree in holding that whether the response to the attack is lawful depends on observance of the criteria of the necessity and the proportionality of the measures taken in self-defence.”); Yoram Dinstein, War, Aggression and Self-Defense 207-12 (3d ed. 2001); Christine D. Gray, International Law and the Use of Force 148 (3d ed. 2008) (“As part of the basic core of self-defense all states agree that self-defence must be necessary and proportionate.”).
In reality, recourse to any existing (or proposed) judicial system, for determination of what are really political-military questions, will fail because the process is too slow and cumbersome. That is one reason why I do not want us (US) to become involved in an international Bleak House.

Regards

Mike
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Old 05-08-2011   #22
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Default And so it begins...

I came across this today: UN wants answers

the money quote:
Quote:
"However, the norm should be that terrorists be dealt with as criminals, through legal processes of arrest, trial and judicially decided punishment."
I'm sure PolarBear will have a few words to say on this and I bet we'll agree. This is a parsing of laws, nothing more. I've been following the discussion regarding location of the operation. Mike has done a much better job that I ever could explaining this "wrinkle."

This, I think, is what PolarBear is getting at (please correct me, if I'm wrong). Blending the law of war and criminal law (I'll use this term rather than RoL since I view RoL as much broader and it was this broader view that led to my slight disagreement with previous RoL vs LoW arguments) leads to confusion on the battlefield. Which rules apply? Can I be prosecuted for taking action? And so on....

I do view RoL as much broader than some and believe it encompasses criminal law, law of war, and many other types of law. Thus, when a military unit engages combatants (lawful or otherwise), captures some, and then turns them over for prosecution, I see this as seemless RoL. In contrast, using military in a law enforcement role akin to what the UN apparently expects according to the story linked above, RoL is still seemless and in effect. In combatting insurgents/terrorists, the opposing force is permitted to choose its own strategy so long as it complies with law. The US has chosen to prosecute a "war" subject to the international laws regarding the conduct of war. The legality of this, I think, is beyond doubt given that many other countries have chosen to do the same (and one might even link the UN-approved action in Libya as support for this approach). Thus, while the UN approach is a lawful one regarding combatting terrorism, it is not the only lawful one.

Now, had bin Laden been captured I think we'd see a trial and thus criminal law would take over. However, this would make the OJ trial look like a common law legal system at its perfection. Thus, having him dead is a much better result in the long run IMO (see the Machiavelli quote below).

Of course, all this would be for nought if Obama had simply made an announcement and left it at that. By constantly changing the story, he has invited criticism. See this analysis for a much better outline of the problem than I could offer.

BTW, I see this UN thing is classic lawfare but that's another discussion...
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Old 05-08-2011   #23
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Default on location

For those rejecting the requirement of a nexus netween location of a combatant and the lawfulness of the target: when do US personnel become a lawful target?

Is the President a lawful target despite the fact that he is not in a combat zone? He does direct the war effort, right? What about Joe Schmoe back on the block? Is he a lawful target while he's chillin' in front of his TV? If not, how do you distinguish the lawfulness of targetting bin Laden while he is off the battlefield?

stirring the pot...
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Rule of Law in Afghanistan

"You must, therefore know that there are two means of fighting: one according to the laws, the other with force; the first way is proper to man, the second to beasts; but because the first, in many cases, is not sufficient, it becomes necessary to have recourse to the second." -- Niccolo Machiavelli (from The Prince)
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Old 05-08-2011   #24
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Default Hi John,

looks like you're rolling along.

The UN's Future Role & One's Worldview

Briefly on the UN. An elite, influential and well-financed group expreses its opinions (Ms O'Connell is but one of many) - and attempts to shape I Law, the "Rule of Law" and the "Laws of War" - along with their Worldview of UNC Art. 2(4). That, in its purest state to them, would expressly say: "Members shall not employ force or the threat of force except upon express authority granted by the UN." The UN then would have, in a Weberian sense, a monopoly on the lawful use of force (violence) - and, in Weberian terms, would become the transnational state.

We who believe otherwise should not delude ourselves into thinking that this challenge can be met by well-stated legal arguments. Those are a waste of time and effort for the most part. What is required is Political Struggle to marginalize them (non-violent, of course, following Gene Sharp) using a methodology similar to that used by the NRA and the Second Amendment Foundation.

FYI, the present UNC Art. 2(4) is:

Quote:
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
and could be re-phrased as follows (going from a negative commandment to a positive allowance with negative exceptions):

Quote:
All Members in their international relations may employ the threat or use of force provided that threat or use of force is neither against the territorial integrity or political independence of any state, nor in any other manner inconsistent with the Purposes of the United Nations.
One's Worldview definitely enters into this discussion.

----------------------------------------
Who can kill Whom ?

Quote:
from Da LawVol
[1] Is the President a lawful target despite the fact that he is not in a combat zone? He does direct the war effort, right? [2] What about Joe Schmoe back on the block? Is he a lawful target while he's chillin' in front of his TV? [3] If not, how do you distinguish the lawfulness of targetting bin Laden while he is off the battlefield?
1. To a combatant with combatant immunity, POTUS is a lawful target because of his CinC position. To a combatant without combatant immunity, no one is a lawful target because that combatant can be prosecuted in a court of law. To which threat, that combatant probably says "Big Deal. FO" and goes about his business. In state to state conventional warfare, targeted killings of CinCs have been avoided as a matter of comity (not illegality).

2. Joe Schmoe - what channel is he watching: FoxNews, CNN or MSNBC ? Seriously, going the other way (Us vs Them), the issues under US law hinge on a person being (1) "part of" a TVNSA; (2) part of an "affiliated group"; OR (3) a "provider of material support" to such a group or groups. Again, To a combatant without combatant immunity, no one is a lawful target because that combatant can be prosecuted in a court of law. In which case, he is not likely to be carried by six.

3. Mandatory reading is Executive Order 12333 and Assassination (1989, by W. Hays Parks) - never bettered in 9 pages:

Quote:
In a Memorandum of Law originally dated November 2, 1989, W. Hays Parks, Special Assistant for Law of War Matters to The Judge Advocate General of the Army, examined national and international legal interpretations of assassination in order to provide guidance in revising a U.S. Army Law of War Manual. The memo is not a statement of policy, but rather a discussion of the definition of assassination and legal issues to consider in its application, including levels of conflict and the distinction between assassination in wartime and peacetime. It explores the meaning and possible application of assassination - which is prohibited as a matter of national policy by Executive Order 12333 - in conventional, counterinsurgency, and counter-terrorist operations. The memo concludes that the use of military force against legitimate targets that threaten U.S. citizens or national security as determined by the President does not constitute assassination and would therefore not be prohibited by Executive Order 12333 or by international law.
This memo, in truth, was written by a Marine for Marines, who (as Polarbear1605 has recently advised me) can only read one word at a time.

Regards

Mike

Last edited by jmm99; 05-08-2011 at 08:54 PM.
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Old 05-09-2011   #25
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You're reworded version of Art 2(4) is how I've always viewed it. That put me in the minority among my multi-national peers at McGill. I know there are many who subscribe to the worldview you mentioned, but it that really a serious threat? Maybe I just haven't been paying attention or I read the wrong stuff. It would seem that state action negates any possibility of this view being cemented. And given China's views on sovereignty, they would actually ally with the US on this issue I think.

Okay, so an "illegal combatant," to use the phrase in vogue, is never engaging a lawful target because his very status prevents him from having a lawful target. Makes sense. But what about so-called freedom fighters? By this I'm referring to the Geneva protocol (the first I think) that redefines combatant to remove the requirement of a uniform. I'm going off memory here, so I could have it a bit off. Let's assume we're fighting Hamas (which would probably fall within this status) or even the Iraq Republican Guard circa 2003. Would Joe be a lawful target to them while he's chillin' in Bean Town?

A secondary consideration to consider: if we say a Talib conducting a mission in Boston has no lawful target due to his status, are we being consistent? Another words, we treat him as a criminal, but not when it comes to engaging him. Shouldn't we treat him as a combatant, able to be engaged militarily, but one that has violated the laws of war and become a war criminal? If a member of a state force commits war crimes, can't he still engage lawful targets later on? Am I making sense here or do I need to restate?
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"You must, therefore know that there are two means of fighting: one according to the laws, the other with force; the first way is proper to man, the second to beasts; but because the first, in many cases, is not sufficient, it becomes necessary to have recourse to the second." -- Niccolo Machiavelli (from The Prince)
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Old 05-09-2011   #26
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Default I like it!

Hmmm....definitely like the new uniform... not only do the leather leggings reflect adaptation to the situation but also the mockensons show the implemented of the latest stealth technology and the dash of treachery a good tactician learns in dealing with the enemy.

As for the weapon...any weapon that has a caliber of 45 or greater is always welcome.

Now in researching these Marines I fouund this:


We need to analyse this phote for a sec or two. The good sargeant was stationed at Fout Toulouse (AL assuming) in 1730. He was 44 at the time. He passed (at the fort and still on duty) in 1755 probably 68+ years old. So... stationed at the fort from 44 to 68 AND the marker is dedicated to his proliferation or as he is a "progentor" (for you Marines out there that means forefather) of ALL Fontenots on North America...quite the reputation...and we thought George Washingtom slept in a lot of places. Moral of the story...at least one fort commander realize that the speed and agility of youth is equal to or less than the experience and knowledge of (shall we say) a mature warrior. jmm99 - the pic shows there is still hope for us old guys.



Quote:
Originally Posted by jmm99 View Post
From my link in the first post, On the Legality of Killing UBL Even If He Was Unarmed (and On the Title 50 Issue) - sneaky old ba$tard that I am, I hyperlinked in the OP the first half of the title, which I discussed in the OP - you will find:



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



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

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

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



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



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

Regards

Mike
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Old 05-09-2011   #27
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Default Very briefly,

I'd suspect that 99.9% of any surveyed country would not know, and could care less about, differing views of UNC Art. 2(4). On the other hand, far more folks (over the Globe) have more definite and divergent views on "gun control" (depending on how one defines "gun control").

As to a "serious threat", I don't see Mary Ellen O'Connell as a "threat" to me in any form; and I'm sure not going to threaten her or anyone else with physical harm.

As I said, it's a "Political Struggle". As to that, some will support your political beliefs, others will oppose them; but most people on most issues are neutral or leaners.

Thus, he or she who says "if you are not for me (my beliefs), you are against me (my beliefs)", has elected to make many, many enemies.

Cheers

Mike
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Old 05-09-2011   #28
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Default Hi John

Leaving the Sidedish and Back to the Meat

1949 and 1977 GCs, etc., quoted below, etc. - at ICRC, The Geneva Conventions Index.

Quote:
from LawVol
[1] Okay, so an "illegal combatant," to use the phrase in vogue, is never engaging a lawful target because his very status prevents him from having a lawful target. Makes sense. [2] But what about so-called freedom fighters? By this I'm referring to the Geneva protocol (the first I think) that redefines combatant to remove the requirement of a uniform. I'm going off memory here, so I could have it a bit off. [3] Let's assume we're fighting Hamas (which would probably fall within this status) or even the Iraq Republican Guard circa 2003. Would Joe be a lawful target to them while he's chillin' in Bean Town?
Taking the three parts separately.

1. "illegal combatant"

Quote:
[1] Okay, so an "illegal combatant," to use the phrase in vogue, is never engaging a lawful target because his very status prevents him from having a lawful target. Makes sense.
Probably better than "illegal combatant" or "unlawful combatant" would be a division between "combatant with combatant immunity" and "combatant without combatant immunity". Of what "immunity" do we speak ? We speak of "immunity" from prosecution for a "civilian" crime or a "military" crime - homicide, maiming and kidnapping would be the generic equivalent of the acts granted "immunity" on the battlefield. The "immunity" is conditional and requires compliance with the "rules of warfare" on the part of the combatant and the group he fights for.

Me thinks that is a tempest in a teapot for folks engaged in irregular warfare as irregular combatants (who may or may not be "combatants with combatant immunity"). If they are facing death or indefinite detention simply because they are an irregular combatant (a Common Article 3 combatant), the prospect of being captured and tried before a civilian court or military commission is not likely to be a material consideration as they consider combat.

That seems to be the case with all TVNSA (Transnational Violent Non-State Actors) and DVNSA (Domestic Violent Non-State Actors) groups. None of them have (to my knowledge) availed themselves of the opportunity to avail themselves of protected status, by accepting and applying the Geneva Conventions, under the option of Common Article 2 (para 3) of the 1949 GCs (emphasis added):

Quote:
Art. 2.

In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.
That option has been available to AQ, the various Taliban and all the other groups of consequence ("Powers") in an "armed conflict" involving one or more Contracting Parties to the Conventions.

Why have these VNSAs not availed themselves of Common Article 2 ? Because they want to have their cake and eat it - in short, to be transitory combatants who can turn their civilian status off (to become combatants when they "directly participate in hostilites") and then on again as they cease being "hostile" and return to hiding among the civilians.

2. But what about so-called freedom fighters?

Additional Protocal I (1977) - not accepted by US, but accepted by most ISAF partners - amends Common Article 2 drastically, by its Art. 1 (emphasis added):

Quote:
Art 1. General principles and scope of application

1. The High Contracting Parties undertake to respect and to ensure respect for this Protocol in all circumstances.

2. In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from dictates of public conscience.

3. This Protocol, which supplements the Geneva Conventions of 12 August 1949 for the protection of war victims, shall apply in the situations referred to in Article 2 common to those Conventions.

4. The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.
Please note the use of "self-determination" - a term with which I am very uncomfortable, unless it is defined in a mutually-agreed "working definition" with whomever is discussing the term.

The "transitory combatant" provisions are based on Art. 1(4) and on Art. 43 (emphasis added):

Quote:
Art 43. Armed forces

1. The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.

2. Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities.

3. Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict.
and with more exemplification in Art. 44 and 45.

These provisions make the option of Common Article 2 (that available to all Powers in a conflict) mandatory - including "compliance with the rules of international law applicable in armed conflict", Art. 43(1).

Thus, along with the combatant immunity provided by Art. 43(2), goes a reciprocal obligation to apply the rules of armed conflict. Is there a guerrilla group (there must be at least one ) that applies the rules of armed conflict ? If not, then they should be prosecuted for "war crimes", shouldn't they ? Of course, to a dedicated fanatic, the threat of potential criminal prosecutions would seem to a "Big Deal ! FO" situation.

3. Would Joe be a lawful target to them while he's chillin' in Bean Town?

Joe is presumptively a civilian; and can be detained only for reasons of security by (say) an occupying power. He can be whacked only if he is in some way participating (let's leave aside the "directly" or not issue) in an armed conflict. The strength of legal argument for whacking him runs downhill from (1) he is "part of" an armed force; (2) he is part of an "affiliated group" to an armed force; OR (3) he is a "provider of material support" to such a force or forces.

Last point

Quote:
from LawVol
A secondary consideration to consider: if we say a Talib conducting a mission in Boston has no lawful target due to his status, are we being consistent? Another words, we treat him as a criminal, but not when it comes to engaging him. Shouldn't we treat him as a combatant, able to be engaged militarily, but one that has violated the laws of war and become a war criminal? If a member of a state force commits war crimes, can't he still engage lawful targets later on? Am I making sense here or do I need to restate?
You probably need to restate. My Colonial Marine ancetors were "a-letter-rate"; I h a v e t o r e a d o n e l e t t e r a t a t i m e; some were illiterate cuz their mothers were'nt married (what a dumb joke); and none went to McGill Univ.

Beyond all that, you are mixing your Laws of War and Rule of Law. Here's my analysis:

The Talib is on a military mission wherein he is directly participating in hostilities (if he's not, this line of analysis does not apply) by killing Mark Martins as he emerges from the sacred entrance of Harvard Law. The Talib is a combatant under either the 1949 Geneva Conventions (Common Article 3) or under Additional Protocol I (Talib "self-determination" and all that ). If he wastes Martins in an approved "Hague-Geneva" manner, he has committed no "war crime". However, if only the 1949 GCs apply, the Talib could be prosecuted for any number of US Code violations.

I don't see the problem here - except the Tallib is not likely concerned with having to appear in Federal Court.

To the subsidiary questions:

Shouldn't we treat him as a combatant, able to be engaged militarily, but one that has violated the laws of war and become a war criminal? - YES.

If a member of a state force commits war crimes, can't he still engage lawful targets later on? - YES

Regards

Mike
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Old 05-09-2011   #29
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I think this is one where the President should simply say "As the President of the United States of America, by special Presidential Directive, I ordered the killing of Usama bin Laden. We take the law serious and everyone involved in this mission was covered by my legal directive. Next quesion."
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Old 05-09-2011   #30
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Default Nice monument, Bear,

showing the Colonial Marine undress uniform ("BDU") carved in stone.

In battle even less might be worn. In 1755, Capt. Daniel-Hyacinthe-Marie Liénard de Beaujeu led the charge against Braddock at Fort Duquesne. Capt. Claude-Pierre Pécaudy de Contrecœur, the fort's commandant, was too old and sick to take the field. Beaujeau stripped to leggings and mocs, putting on only his grade gorget. The gorget must have made a good target because he was killed by Gage's first volley. Beaujeu's five companies of Colonial Marines (each less than 2/3 of today's USMC platoon), some 100 FC militia and some 600 Indians ("coalition partners") then went on to inflict carnage.

It is not unusual for one pair of ancestors to underpin a French-Canadian surname - or French-Lousianan surname, as in the case of Sgt. Fontenot (Fonteneau). They didn''t have to switch beds to do so; they just had a lot of kids (link):

Quote:
Jean Louis joined the French Colonial Marines as a young man and left France in 1720, at the age of 34, for assignment in the Mobile (Alabama) military district. Six years later (February 8, 1726) he married a widow from New Orleans (Marie Louise Henrique) and was assigned to the Poste aux Alabama (Fort Toulouse) shortly afterwards. Based on "roll call" records at the fort in the mid 1700s, it appears that Jean Louis was the only sergeant at the garrison of about 40 soldiers. He and Marie Louise had twelve children, 8 sons and 4 daughters, all born at the post. When these children became of age (teenagers), the boys joined the marines and married daughters of other marines and the girls married sons of other marines at the fort.
So true also in Canada - Marines married into Marine families (also fur trading and riverine trading families - the three groups fed on each other); their kids became Marines (or militia officers); etc., etc.

Not all Marines engaged in sharp battles ala Beaujeu. A lot of time was spent in garrison - and promotion was very slow. Moreover, much of their activity outside garrison was directed at the "Rule of Law", rather than "Laws of War". LawVol may appreciate this story - from Philippe de Rigault, Marquis de Vaudreuil, Letter, October 12, 1717 (link) (pp.592-593):

Quote:
The trouble which prevented the principal chiefs of the Detroit tribes from coming to Montreal, was created by an Outaouac of that post and four others from Saguinan. These five men pretended they were going to war against the Flatheads; they proceeded to the river of the Miamis and there slew an Iroquois and his wife, who was a Miami woman, and two children. This wrongful attack concerns the Iroquois because the man who was killed was of their tribe. It also concerns the Miamis, for the man was married and living with them. This matter must be settled, and the Iroquois and Miamis must be prevented from taking vengeance on the Outavois and the other tribes of Detroit.

The Sr. de Tonty has already begun, for his part, to take action with the Miamis through the Sr. de Vincennes to dissuade them from their intention of avenging themselves and to remove every pretext for their pursuing this course which would give rise to a war between them and the people at Detroit and Saguinan, which it would be difficult to stop. He has induced the tribes of Detroit to join him in sending to Saguinan to seize these murderers and deliver them up to the Miamis.

The Outaouacs and Poutouatamis each sent a boat of their men, to which the Sr. de Tonty added a boat of Frenchmen under the command of the Sr. de Bragelongue, a Lieutenant, who brought back the three murderers to Detroit where the Sr. de Tonty had them under guard until he received news from the Miamis, to whom he had taken care, to make known the amends, which it was proposed to make to them. He hopes that they will be satisfied with this action and will accept as a complete reparation the presents which the tribes of Detroit, and the French also, are preparing to make them, and that this disturbance may be suppressed by this means. I hope so, too; but I shall not be able to get any news about it until next spring.

As regards the Iroquois, if they move in this matter, I shall find means to settle it with them, as they will not fail to bring their complaints to me before taking any action.
This (Lt.) Sr. Etienne de Bragelongue, was primarily an engineering type (his dad was an engineer, but also the 3rd ranking general officer in the French cavalry corps). Etienne was the aide-major du fort at Fort Chambly (primarily engineering and logistics), the major "FOB" for the Colonial Marines, on the Richelieu near Montreal) - later a capitaine of one of the Marine companies stationed at Chambly. He married and had one daughter who died young. Before his marriage, he managed another daughter by one woman and possibly a son by another woman. The son died without any issue. The daughter went on to marry and carried on the Bragelongue (Bragelonne - Viscount of, by Dumas, is based on another French branch of this family) line in North America - she has to have thousands of descendants.

How the "Rule of Law" went in 1717 on the Miami.

Cheers

Mike

PS: Bob, I agree with you. FULL STOP
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Old 05-11-2011   #31
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Default I like this guy!

and here on our own SWJ:
http://smallwarsjournal.com/blog/201...f-killing-bin/

...could not have said it better myself...except the article should have closed with "Inter arma silent leges: in time of war the law is silent" (law = rule of law of course)
IMO we are seeing how our politicians can get into trouble at the strategic level by mixing ROL and LOW. Can anyone give me an example of how our militray generals get into trouble at the strategic level mixing the two?
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Old 05-11-2011   #32
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Default How could one argue with ....

a Marine named "Butch" ?

I read it and also thought it was a good article covering the basics that a rifleman should know (I'd skip the Latin "jus in bello" - right in war):

Quote:
The law pertaining to the conduct of hostilities (jus in bello), which has developed since antiquity and includes certain provisions of the modern Geneva and Hague conventions, permits the sanctioned killing of an opponent in an armed conflict, regardless of whether he is armed at the moment he is engaged. So long as the opponent meets the minimum criteria to be regarded as a combatant (even an unlawful combatant), he may be engaged with deadly force, even if he is separated from his weapon. He may be killed while sleeping, eating, taking a shower, cleaning his weapon, meditating, or standing on his head. It is his status as an enemy combatant, not his activity at the moment of engagement, which is dispositive.
So, good job, Butch

--------------------------
As to the question (mostly outside of my ballpark):

Quote:
Can anyone give me an example of how our military generals get into trouble at the strategic level mixing the two?
The Phoenix program (and SVN Pacification in general) opened itself up to criticism, as one factor, by treating VCI cadres as "civilians" (RoL) - unless they were themselves armed or accompanied by armed troops (LoW). Thus, if those VCI "civilians" were killed in the course of an operation, a "war crimes" charge was already halfway home. Of course, Phoenix (a mix of "Title 10" and "Title 50") was not a purely military program - so it is not a prime example in answer to your question.

Regards

Mike
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Old 05-11-2011   #33
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Default Killing or capturing the rat ....

er.., rather the mouse.

From HuffPost:

Quote:
SHODDY RAT REMOVAL IN DIRKSEN CAFETERIA: WHERE'S THE HOPE AND CHANGE?

Amanda Terkel was on the Hill today for, you know, reporting and stuff. While there, she witnessed just what has become of pest control in the NOBAMA administration. Amanda writes in: "There was a mouse in the Dirksen dining room today! We noticed it running around by our table and very quickly picked our handbags off the ground. One guy wasn't paying attention and the mouse nearly ran right over his feet, until everyone started to making yelping noises. I was about to take a picture of it (for Twitter) until a guy came over, stomped on it, killed it and then scooped it up and took it away. Everyone was so grossed out."

Capitol officials say the mouse was given a burial in a toilet in accordance with its religious custom, however there is no documentation of it. Also, there is a rumor that Glenn Greenwald is finalizing a scathing rebuke of the operation, maintaining that the mouse should have been captured.
And so it goes in Wonderland.

Cheers

Mike
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Old 05-12-2011   #34
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Mike,

While none (well, at least the majority of the world) would lament OBL being killed, but questions that are being raised in Pakistan and by co religionists in India, is that how far can the US writ (US President's authorisation) legally apply beyond its frontiers as per international law?

Pakistan harbours terrorists and of that there is no doubt. And Pakistan, as a rule, denies their existence. Therefore, maybe the manner in which the US sorted out OBL is the only answer.

Therefore, my query as to what is the legal position on this?
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Old 05-12-2011   #35
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Default Obligations of the "Neutral Nation"

The legal positions (definitely plural) are described in Pakistan's Sovereignty and the Killing of Osama Bin Laden, by Ashley S. Deeks, referenced in my post #21 above.

My own analysis starts with a first proposition that India, Pstan, Astan and the US are all 1949 Geneva states; have not accepted 1977 AP I and AP II in toto; and accept the Hague regulations. My second proposition is that a 1949 Geneva nation may engage in an armed conflict with a non-state actor (a "Power" in the conflict, which has an option to accept and apply 1949 Geneva under Common Article 2 and generally will come under Common Article 3).

The third proposition is that the Hague regulations impose duties on a neutral state, Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land. The Hague, 18 October 1907:

Quote:
Art. 2. Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral Power.

Art. 3. Belligerents are likewise forbidden to:

(a) Erect on the territory of a neutral Power a wireless telegraphy station or other apparatus forthe purpose of communicating with belligerent forces on land or sea

(b) Use any installation of this kind established by them before the war on the territory of a neutral Power for purely military purposes, and which has not been opened for the service of public messages.

Art. 4. Corps of combatants cannot be formed nor recruiting agencies opened on the territory of a neutral Power to assist the belligerents.

Art. 5. A neutral Power must not allow any of the acts referred to in Articles 2 to 4 to occur on its territory.
From that obligation of the neutral Power, follows the conclusion found in our FM 27-10, The Law of Land Warfare:

Quote:
520. Effect of Failure to Prevent Violation of Neutrality by Belligerent Troops

Should the neutral State be unable, or fail for any reason, to prevent violations of its neutrality by the troops of one belligerent entering or passing through its territory, the other belligerent may be justified in attacking the enemy forces on this territory.
Of course, simply because you have a hunting license does not mean you should kill everything in the forest.

The real question is not legality, but the likely response - diplomatic protest vice nuclear warhead.

Regards

Mike
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Old 05-13-2011   #36
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Well said, Mike. Sometimes the legal part can be quite simple. Nearly ten years of inability or unwillingness on the part of Pakistan to deal with AQ led to this result.
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Old 05-13-2011   #37
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Default New legal resource

Although directly aimed at "capture-detention" situations, this "e-book", The Emerging Law of Detention 2.0: The Guantánamo Habeas Cases as Lawmaking, also "informs" our HVT topic, as well as "kill or capture" missions in general. Pdf download of entire book.

Regards

Mike
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Old 05-13-2011   #38
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Mike.

Thanks.

It was helpful.
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Old 05-14-2011   #39
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Default This Week at War: Send in the Lawyers?

The question at the head of Bob Haddick's SWJ column today.

Damned straight ! Fire mission !:



I'll fire the touchhole to blast forth the Lima Bravo Sierra - or, as pictured, the Lima Foxtrot Sierra.

Seriously, I question any suggestion that AG Holder and LA Koh should embark on a lengthy defense of the legal justification for the OBL mission and result. Both of them, before they moved from the private sector to the Obama administration, were dead set against primary reliance on using the Laws of War against "terrs". At some point, they will get wobbly knees.

Ken Anderson, Should John Brennan or Eric Holder Simply Have Quoted Harold Koh?, and UN Special Rapporteurs Demand Information to Justify OBL Killing, and What Holder Should Have Said and Koh Should Say (long version); and John Bellinger, Bin Laden Killing: the Legal Basis (very short version) do a vastly better job because they are writing what they have written before.

Bob asks another question: "The SEALs did their job. Will the lawyers now do theirs?" The jobs are not remotely comparable. That being said, the small legal contingent at SWC is trying. Is our readership getting it ? I can't tell without feedback.

Regards

Mike

Last edited by jmm99; 05-14-2011 at 02:22 AM.
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Old 05-14-2011   #40
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Quote:
Originally Posted by jmm99 View Post
Seriously, I question any suggestion that AG Holder and LA Koh should embark on a lengthy defense of the legal justification for the OBL mission and result...At some point, they will get wobbly knees.
...very much agree with that...
Quote:
Is our readership getting it ? I can't tell without feedback.
... think I do -- and I very much appreciate the effort that goes into it.
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