The Rules - Engaging HVTs & OBL

[M-A Lagrange]

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

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

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

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

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

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

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

The conclusion is, as usual, very consensual:

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

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

[jmm99]

Marc:

from MAL

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As to her conclusion quoted by you:

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

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

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

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

Regards

Mike

[Levi]

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

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

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

[Bill Moore]

M-A Lagrange,

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

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

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

[Levi]

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

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

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

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

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

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

[jmm99]

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

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

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

Regards

Mike

[Levi]

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

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

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

Back in my lane.

[Fuchs]

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

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


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

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

[davidbfpo]

Levi,

Don't worry about posting on SWC, we all have opinions and information, IMHO only a few have "a chair at the table" on selected threads, like JMM here on this and a couple of other threads.

I have tried to keep up with this thread, but have some recurring doubts over the legality, legitimacy and effectiveness of killing high value targets (HVT). Whilst a foreign nation may not today pursue HVT in the USA, there are examples where other nations have seen targeting: Eichmann in Argentina and Litvinenko in the UK. Where will the USA stand if it happens within the USA?

In a separate thread on the killing of Anwar al-Awlaki, which touches upon the reaction, not the rules:http://council.smallwarsjournal.com/...ad.php?t=14261