"Pal", I'll leave that on the shelf where it belongs.from sw
So disregard my question....
No regards
Mike
Yes, I will gladly do this ....
"Pal", I'll leave that on the shelf where it belongs.from sw
So disregard my question....
No regards
Mike
Pardon my ignorance but,
As a civilian with limited knowledge of USAF doctrine and international law I'm having trouble understanding where the argument comes from on the Bin Laden apologist side. I was under the impression that as the leader of an organization who had formally declared war on the US, Bin Laden was a legitimate target of any military action that did not violate the Geneva Convention. Does this mean that they would consider it illegal for a spec ops squad to take out any enemy commander in times of war unless you give the poor bastard a chance to surrender? I appreciate your patience in advance.
Mike,
Too busy to read through all your great material at the moment, but I am having a hard time stomaching the so called moral/ethical debate on killing a mass murderer. This guy told the world he would never be captured alive (expectation he'll resist in any possible), and there were rumors he would always wear a suicide vest (doubt he actually had the conviction to do that), so any reasonable operator should assume that his hands are not up in the air and clearly exposing his palms he may be trying detonate a suicide vest or reach for a weapon based on his own rhetoric.
Then you have the greater good argument (maybe not a viable legal argument, but clearly one based on common sense), which is if he was captured we could reasonably expect his followers to try to take numerous hostages and demand his release.
The UN is pushing garbage as usual and after being a lukewarm supporter for years, maybe it is time we greatly reduce our funding to the UN. They don't stand up against real evil in the world, but will attempt to generate legal action and other punishment (indirectly) against the U.S. because we put up with their crap, while our enemies tell them where to get off. We're making ourselves a soft target for the UN, and it is time we toughen our stance.
Any clown that wants to come to the rescue of UBL under the guise of rule of law doesn't need to be a position where he has a credible voice in influencing American policy. As soon as we find the leads to his associates I hope the helicopters and SOF roll to kill them off also. We don't need lawyers at this point, we need leadership that recognizes we're at war and takes the appropriate action. We would have lost WWII if we followed the rules we're supposed to follow now.
Happy to outline this
Your first sentence correctly summarizes the USG legal position as it has been formally presented. Some Obama administration personnel get off that message because they have trouble seeing anything but a "law enforcement" image (i.e., force is limited to defense of self or others in response to a hostile act or threat).from An Outsider (hey, Canucks aren't outsiders to me)
I was under the impression that as the leader of an organization who had formally declared war on the US, Bin Laden was a legitimate target of any military action that did not violate the Geneva Convention. Does this mean that they would consider it illegal for a spec ops squad to take out any enemy commander in times of war unless you give the poor bastard a chance to surrender?
The answer to your second sentence (and question) is "yes"; many folks take the position that response to Transnational Violent Non-State Actors (such as AQ) must be via "law enforcement" rules (capture primary, with kill reserved only for defense of self or others).
The second position is very prevalent in Academia and in many EU countries. An example in US Academia is Mary Ellen O’Connell, the Robert and Marion Short Chair in Law and Research Professor of International Dispute Resolution - Kroc Institute. She is a Vice President at the American Society of International Law and the author of author of The Choice of Law Against Terrorism, 4 J. NAT. SEC. L. & POL’Y 2010. Full pdf at One-Click Download.
Actually, she and I agree on the bolded sentence; except Ms O'Connell has a very limited view of "armed conflict conditions". This is just one example of why, in law, you can't agree automatically to what looks like a good principle. By their works, you will know them.Abstract:
The Obama administration has continued to apply the wartime paradigm first developed by the Bush administration after 9/11 to respond to terrorism. In cases of trials before military commissions, indefinite detention, and targeted killing, the U.S. has continued to claim wartime privileges even with respect to persons and situations far from any battlefield. This article argues that both administrations have made a basic error in the choice of law. Wartime privileges may be claimed when armed conflict conditions prevail as defined by international law. These privileges are not triggered by declarations or policy preferences.
As to OBL, The Death of bin Laden as a Turning Point, by Mary Ellen O'Connell (4 May 2011) - good statement of her position (contrary to mine). Also read the comments to her article - views at Opinio Juris vary. Her update is summed here, More from O’Connell on bin Laden Killing as Peacetime Use of Force, by Roger Alford (5 May 2011):
No, no, Ms O'Connell - not correct at all; but you believe in what you say. I believe in what I say.The use of lethal force is governed by two types of international law: the law of peace and the law of armed conflict. In peace, international law supports national legal systems when it comes to the resort to force. National systems restrict the use of force to law enforcement authorities — the police, or in special circumstances, the military (I argue here that the SEALs, who are military, kept their use of force at law enforcement levels). Unauthorized persons may resort to force in self-defense if necessary to save a life immediately. Otherwise, using force is considered a crime under international law.
Some crimes are so serious they are outlawed in international law, as well as national law, with the crime of terrorism is a prime example. As an international crime, states around the world have an obligation to suppress terrorism. But in suppressing even the most serious crimes, law enforcement agents must limit the amount of lethal force they use, and excessive force, even in anti-terrorism cases, has been ruled a violation of human rights law by both the European Court of Human Rights [ECHR] and the Inter-American Court.
The ECHR considered a case in 1995 with parallels to the bin Laden raid. In McCann v. The United Kingdom, the court found that members of the elite British SAS used excessive force when they killed IRA members in Gibraltar who were suspected of preparing a bombing. The court found that the operatives should have attempted to arrest the terrorists, instead of shooting them based on intelligence they possessed that the suspects were preparing to use explosives. If the suspects had resisted arrest or attempted to escape, authorities then would have had had the right to resort to lethal force.
This is the law that applied in bin Laden’s case. On May 2, no fighting was going on in Pakistan that would rise to the level of “armed conflict” as defined under international law; Pakistan had to suspend major military operations against militant groups in the country’s tribal areas after the floods of 2010. And despite what some commentators have argued, under international law there is no right to engage in cross-border military force based on the argument that a state is unable or unwilling to deal with the threat themselves. The correct choice of law, therefore, was peacetime law.
So, choice of law is the argument. What the law is under either choice is actually pretty clear to most folks who have studied it.
------------------------------
As to the Bear's research project (Title 50), also at Opinio Juris, Was the C.I.A. Director in Charge of the Bin Laden Operation? Apparently so. Does It Matter?, by John Dehn
He does not reach a firm conclusion - work still in progress. And, he noted the importance of our topic here; but alas, did not mention SWC:[Major John C. Dehn is an Assistant Professor in the Department of Law, US Military Academy, West Point, NY. He currently teaches International Law and Constitutional and Military Law. He is writing in his personal capacity and his views do not necessarily represent the views of the Department of Defense, the US Army, or the US Military Academy. The analysis presented here stems from his academic research of publicly available sources, not from protected operational information from, or actual involvement in, aspects of this or any other military operation.]
He also cites and quotes some specific Title 50 text.The OBL operation is an example of an evolving and unique relationship between the military and the CIA that is, in my humble opinion, under-examined and under-theorized both with respect to the international and domestic legal frameworks and as an element of civil-military relations. Over at Lawfare, a recent post by Bobby Chesney raises intelligence oversight issues about the OBL operation, which seems to me only one aspect of the necessary constitutional/domestic legal analysis. Ben Wittes solicited Mary Ellen O’Connell — twice – for her views on the international legal framework applicable to the operation. Her post below seems to present an implausible view of the attack as a law-enforcement operation. Assuming it is best characterized as a military operation conducted to IHL standards, as Kevin and Michael both seem to agree, may the C.I.A. lawfully oversee it?
--------------------------------
Ah, the riddle question (as originally stated with emphasis added):
Please note and renote "as used in the AUMF".from sw
Could you throw up the definitions of "lawful combatant" and and "unlawful combatant" as used in the AUMF?
Let's look (text in Wiki). Gee, "combatant" ain't in the 2001 AUMF. How about that ?
The question often is a debating question - leading to "ain't in the 2001 AUMF; thence, can't be in the rules of situations covered by the 2001 AUMF; hence, you are guilty of war crimes."
Now, there is a link up between the 2001 AUMF (no combatant definitions)and the 2007 Navy Handbook (definitions) - 5.4.1.1 Lawful Enemy Combatants and 5.4.1.2 Unlawful Enemy Combatants. Gee, how could I have missed those sections. Oh, I didn't miss them - I just gave the cites to them, in The Rules - Engaging HVTs & OBL (the OP):
How mean of me to miss the evening feeding.5.4.1 Combatants
Combatants are persons engaged in hostilities during an armed conflict. Combatants can be lawful or unlawful.
The term “enemy combatant” refers to a person engaged in hostilities against the United States or its coalition partners during an armed conflict. The term “enemy combatant” also includes both “lawful enemy combatants” and “unlawful enemy combatants.”
and:
8.2.1 Lawful Combatants
Lawful combatants (see paragraph 5.4.1.1) are subject to attack at anytime during hostilities unless they are hors de combat (see paragraph 8.2.3).
8.2.2 Unlawful Combatants
Unlawful combatants (see paragraph 5.4.1.2) who are members of forces or parties declared hostile by competent authority are subject to attack at anytime during hostilities unless they are hors de combat (see paragraph 8.2.3).
Whoever is interested in learning something can follow my leads from the AUMF (methodology in a prior post) and come up with the answers.
Regards
Mike
Hi Bill,
Thanks for the kind words ("great materials").
I tune out others' moral and ethical debate about what should have been done to Bin Laden. My own moral and ethical beliefs about that were formed within the two weeks after 9/11 - since then I've had no internal debate. The limits imposed by my beliefs are well outside of any legal constraints that are likely to be developed.
I do react when I hear the term "assassination" used (as on CNN last nite by Piers Morgan) and allowed to stand without refutation. I conclude that few have read Hays Parks memo on "assassinations" (Peacetime) vs "targeted killing" (Wartime).
Amen on this:
The rules in the Navy Handbook are not that much different from the rules of WWII ETO, taught to me when I was about 8 by this guy (war is hell; but it should be subject to a code):from Bill Moore
As soon as we find the leads to his associates I hope the helicopters and SOF roll to kill them off also. We don't need lawyers at this point, we need leadership that recognizes we're at war and takes the appropriate action. We would have lost WWII if we followed the rules we're supposed to follow now.
Then, I got a little close to his personal experiences (the non-funny ones). So, he gave me his copy of his unit history (a little bit here) and told me to read it. Which I did; and still do - learning about many brave and honorable men.
Of course, they fought the Wehrmacht and Waffen SS, regular forces in conventional warfare. But, I believe those WWII rules can be applied to unconventional warfare against irregular forces - making appropriate adjustments for the lack of reciprocity and commission of war crimes by those irregular components. Following a code is for our long term benefit; but that code cannot be a self-imposed suicide pact.
My conclusion (and perhaps I'm Pollyanna) is that we have the legal rules (the wartime rules) and the capabilities to engage successfully under those rules. The real issue is whether there is a will to engage under those rules.
But first, I think that a lot of people have to learn what wartime rules mean. We have forgotten how to wage a war under those rules.
Nice to see you posting in one of my threads - keep busy, you old Dinosaur.
Regards
Mike
thanks jmm99 for the detailed response
It seems to me from reading Ms. McConnell's article that her argument for engaging OBL under the rules of law enforcement appears to be that he was away from a "battle zone". That seems to be a dangerous precedent to be setting in terms of international law relevant to transnational terrorism. This is saying that armed insurgencies or terrorist groups can, at will, change the set of rules under which they can be engaged by the state actors they fight simply by changing locations or hiding for a while. This would only reinforce the tactical advantage insurgent and terrorist groups have in hit-and-run tactics and erode the strategic advantage government has in having the rule of law on their side.
Why should non-state actors be immune from fighting under the rules of warfare when they openly declare war on states? Since they have no scruples in breaking both the rules of war and civilian law, why should we bend over backwards to grant them legal immunity from reciprocity after murdering thousands of innocent civilians? To limit our rules of engagement so as to increase the enemy's advantage is, in my view, not only misguided political correctness, it is counterproductive to our counter-terrorism efforts.
On a related note, this is making waves this morning:
http://www.express.co.uk/posts/view/...d-were-unarmed
This really caught my attention. If a combatant is unarmed and in a private residence, but intel indicates that he is likely armed and once inside the compound the squad encounters small arms fire, is it really that surprising that transnational terrorists would be considered armed and dangerous and that the SEALs would react accordingly? Furthermore, if they were going in shooting all that moved (as a lot of liberal commentators seem to insinuate), why would they shoot one of OBL's wife in the leg? What that tells me is that even in the heat of a firefight, they were very professional in trying to keep collateral damage to a minimum.According to the defence official’s account, the first Seal team came under small-arms fire from a guest house as they entered the compound. The commandos returned fire, killing Bin Laden’s courier Ahmed al-Kuwaiti and the courier’s wife, who died in the crossfire.
The Seals were never fired on again. As they entered the main residence, they saw a man standing in the dark with one hand behind his back. Fearing he was hiding a weapon, they shot and killed the lone man, who turned out to be unarmed. However, as they moved through the house, they noticed several stashes of weapons. The team then climbed a staircase, where they ran into one of Bin Laden’s sons rushing down. They killed the son, who was also unarmed.
On the third floor, the Seals threw open the door to Bin Laden’s bedroom. One of his wives rushed towards the commando in the door, who shot her in the leg. Without hesitation, the same commando turned his gun on Bin Laden, standing in what appeared to be pyjamas, and fired two quick shots, one to the chest and one to the head.
Just some thoughts. Feel free to let me know if I'm talking out of my ass
(and the name is not so much meant to be about my nationality as my status as a civilian)
Mr Winthrop,
I'll not post in response to your latest post; nor will I post in response to any other post you make at SWC.
Tactical Situation and Legal Situation
Hello Toronto,
As to the tactical situation, I think the facts will keep changing for the simple fact that the media's sources are X steps removed from the original sources, the Seal operators. Of course, we are unlikely to see their after-action reports themselves; but, a week or two from now, may find us with firmer facts - or with a huge media circus as to what the facts "are" (with parsing of the word "are"
Comments about tactics should be reserved to them "that's been there, done that" - e.g, Bill Moore and Polarbear1605 just in this immediate thread; but there is a Bn or so here at SWC that have dealt with residential buildings in one way or the other.
As to the legal situation, let's take the Express story as a hypothetical (leaving out the wife, which needlessly complicates the story; and leaving open the possibility that the final double tap came from two operators, not a material fact anyway):
Legally, this is about the same situation that I set as a hypothetical one week ago in another thread here, Basic hypothetical and (to include Astan or Pstan), A follow-up. Various comments to those posts also apply here.[1]... the first Seal team came under small-arms fire from a guest house as they entered the compound. The commandos returned fire, killing Bin Laden’s courier Ahmed al-Kuwaiti and the courier’s wife, who died in the crossfire.
[2] The Seals were never fired on again. As they entered the main residence, they saw a man standing in the dark with one hand behind his back. Fearing he was hiding a weapon, they shot and killed the lone man, who turned out to be unarmed. However, as they moved through the house, they noticed several stashes of weapons. The team then climbed a staircase, where they ran into one of Bin Laden’s sons rushing down. They killed the son, who was also unarmed.
[3] On the third floor, the Seals threw open the door to Bin Laden’s bedroom. ... the ... commando turned his gun on Bin Laden, standing in what appeared to be pyjamas, and fired two quick shots, one to the chest and one to the head.
Going through the three parts of the legal situation:
1. "...came under small-arms fire". Not material under broad rules[*], though it provides two reasons to shoot. The wife's death introduces the issue of "collateral damage" (a term I dislike, but that is what is used). That gets into another set of rules.
2. "The Seals were never fired on again" - not material to a declared hostile force situation, though I suppose one might say that male + nearby arms = a hostile threat. The key factual issue in a declared hostile force situation is positive ID (PID). The AQ guys don't wear uniforms and are among civilians trying to look like civilians. Which is one factor as to why more civilians have been killed since WWII than combatants.
3. OBL is a PID and can be killed unless he manages to surrender before he is shot. No requirement exists that an attacker make surrender offers.
The foregoing is a simplistic explanation. Life is more complex even under "broad rules" of war. More "restrictive rules" make life even more complex for the attacker.
-------------
[*] Working Definitions
I use "rules" generically, including Laws of War (LoW; aka Laws of Armed Conflict, International Humanitarian Law; including various conventions and some state practices), Rules of Engagement (ROEs, includes Standing Rules of Engagement, SROEs, developed by US JCS), Rules for Use of Force (RUFs; including SRUFs), Rules for Escalation of Force (EOF).
I am using "broad rules" as shorthand for US Wartime rules (Hague + 1949 Geneva + US additions), where kill is allowed if either set of facts exist:
1. The target presents a hostile act or hostile threat and is killed in the defense of self or others; OR
2. The target is positively ID'd as a member of an armed force declared to be hostile - whether the target is then armed or otherwise hostile is not material;
and, where, the burden of making non-combatants and civilians safe is placed on the defenders of the targeted location, not on the attackers.
The rights of the attacker are limited by more "restrictive rules", as in the 2009 San Remo ROE Handbook, which I have to discuss at some point; along with some points asserted by Ms O'Connell in her more formal 2010 article.
For example, the burden of protecting non-combatants and civilians in a building could be cast on the attacker; the declared hostile force rule could be removed; and the target would have to directly participate in hostilities.
In short, under "restrictive rules", the Seal going into the OBL residence might have fewer rights in his favor than I do under Michigan law if I am confronted by a home invader.
Regards
Mike
Last edited by jmm99; 05-06-2011 at 06:36 PM.
So, what happened to
?Originally Posted by jmm99
Well thank you for showing exactly how you misinterpreted my "as originally stated with emphasis added" question. Takes a big man to admit that. Because as I "note and renote [sic] "as used in the AUMF", i still don't know how (deleted by Moderator) I suggested you "Gee, how could I have missed those sections." Further, by attempting to assign an argument which I have not made: ("The question often is a debating question - leading to "ain't in the 2001 AUMF; thence, can't be in the rules of situations covered by the 2001 AUMF; hence, you are guilty of war crimes.") (deleted by Moderator).
Last edited by davidbfpo; 05-06-2011 at 02:48 PM. Reason: Moderator at work
Posting Permissions
Bookmarks