re: "Will R2P become NMP"

Cdr Salamander at the Naval Institute Blog ("a venue for thoughtful, vigorous debate on naval and security policy") generated some decent lessons-learned while the civil war, er, revolution, er, "humanitarian intervention" was still going on.


Money quote(s):


"The Battle of Tripoli will work itself out, as will the conflict over time. We can pick it apart then in reasoned hindsight. There are other things a few levels out at the POL/MIL level that are a lot clearer and worth discussing."


As it did. The Law of Unintended Consequences, however, has not been suspended.


"Something that came out at the beginning; “Responsibility to Protect” known by the shorter, R2P. The concept has been embraced by decision makers such as US Ambassador to the UN Susan Rice. A form of “Humanitarian Imperialism” – it is something that over the last few months we have heard less of. The reasons are clear; Libya still isn’t worth the bones of a Pomeranian Grenadier, and both sides are responsible for the deaths of untold numbers of civilians. So much was heard early that we were there to “protect civilians,” but time has shown that some civilians are more important than others. There is no appetite anywhere for Western boots on the ground to execute “R2P” in Libya’s cities. As long as African migrants are kept in Africa and the oil flows – NATO will be more than willing to move from R2P to NMP – Not My Problem. Few really believed that was the reason for intervention anyway – at least the serious." (Bold typeface added for emphasis. - CAA.)


R2P is just as scary a prospective "international norm" as anything else to have come down the pike in recent years. Yet, the more it becomes part of "international law," the less likely it will become anything more than what it is now: a figleaf for use when intervention is in support of some other, less noble-sounding, national interest.


Recall that once "genocide" became a crime under international law (and a treaty was widely signed that obligated states to act to prevent/stop it) all kinds of lawyering and tap-dancing ensued to call what were clearly ongoing programs of genocide from what they obviously were, just to avoid having to actually do anything about it.


"When sustainable logistics and baseline C4ISR are defined as “unique capabilities” – then the facts of NATO non-USA military capacity should be very clear."


Essentially, what are (with a straight face) termed the military capabilities of most (if not all) of our NATO allies amount, in an international sense, to the niche capabilities of our own various state National Guard entities. They provide often useful specialties, but can't function in combat unless they're embedded within a larger, coalition, deployment. Assumed (but un-said) is that the U.S. will always be there to provide the larger context and support.


"(T)he essential effectiveness and efficiency of the CV/S/N once again has been proven. Land based air has its place – but any distance makes the ability to provide persistent effects from the air over the battlespace prohibitively expensive compared to a carrier off shore."


CAA has, for years and in different venues, held that one of the essential characteristics of a superpower in the modern-to-current era are the ability to develop, deploy, and maintain global force projection capabilities. Since World War II and the dawn of the nuclear age, that has meant the following: inter-continental ballistic missiles (ICBM) of the nuclear variety (may be ground or sea-based) and the aircraft carrier battle group.


(Experience has caused me to add expeditionary ground forces but let's not go down that particular rabbit hole today.)


If you've got an aircraft carrier (and the screening and support forces it requires to successfully deploy), you can project air power just about anywhere excepting the far interiors of Central Asia and Antarctica.


"Whatever happens in Libya will happen. No one outside a few fringe-types will light a candle for the Gadaffi family of thugs. They have been a blight on the planet for decades. What happens next will be up to the Libyan people. We should all wish them luck and hope that something positive can come out of this."


Hat tip to The Phibian at Cdr Salamander ("Proactively “From the Sea”; leveraging the littoral best practices for a paradigm breaking six-sigma best business case to synergize a consistent design in the global commons, rightsizing the core values supporting our mission statement via the 5-vector model through cultural diversity.").

8/23

re: "Surrendering to the Drones"

Jens David Ohlin at the LieberCode ("The Lieber Code was the first codification of the international laws of war.") looks at the legality of drone-launched missile attacks.

Money quote(s):

"Although technically the United States has a “capture or kill” program, the drones are often used for targeted killing operations. True, they are also used for surveillance, which might precede an operation to capture a suspected terrorist, but the drone strikes we are concerned about involve the deliberate killing of suspected terrorists.

One of the comments during the panel discussion was quite elegantly phrased: You can’t surrender to a drone." (Emphasis in original text. - CAA.)

The (bolded) comment reveals as much about the confusion between the law enforcement and warfare models of, problem-solving as it highlights an assumed drawback of using drones in counter-terrorism.

(Of course, one man's bug is another man's feature.)

"The idea that a suspected terrorist cannot surrender to a drone suggests, somehow, that the appropriate course of action is to send in troops who could potentially accept the surrender of the targets and capture them rather than kill them. This argument deserves a little more scrutiny.

It is important to distinguish between the duty to accept surrender and the duty to afford the enemy the opportunity to surrender. These are two different normative requirements, under both the laws of war and the morality of warfare. Everyone agrees that a soldier cannot kill an enemy combatant who effectively communicates his desire to surrender to the opposing soldier. In fact, declaring that “no quarter will be given” (i.e. refusing to accept surrenders) is both a violation of international humanitarian law and a war crime generating individual criminal responsibility.

However, that’s entirely different from the duty to offer the enemy the opportunity to surrender." (Emphasis in original text. - CAA.)

What "Everyone agrees" to (see above) isn't necessarily so under wartime conditions. A bright guy like Prof. Ohlin can probably cite a half-dozen circumstances where a combatant on the battlefield is not obligated to accept a surrender, no matter how clear the "I surrender" message is communicated.

"(Y)ou can’t surrender to a drone, but you also can’t surrender to an F-16 or a stealth bomber or any other form of aircraft that fires weapons from a distance. That doesn’t necessarily suggest that the proposed norm is incorrect, but it does suggest that it is highly revisionary and would require wholesale revision to current practices of modern warfare. Although such a view would not necessarily be fatal to a moral requirement for warfare, I do believe it is fatal to a legal requirement that is necessarily based on customary international law (and requisite state practice)."

This is where Prof. Ohlin cuts to the meat of this question. Combatants (lawful or otherwise) coming under long-range or stand-off fire have few surrender options available to them, whether that fire is artillery, rocket, bomber, or drone-launched.

"Many of the asserted objections to targeted killings turn out not to be objections to drones per se but actually to the strategic use of air power generally.

As it happens, though, the recent technological advancements associated with air power (and smart bombs) make these weapons more discriminating than they have ever been in the past. A missile fired by a drone or F-16 today might ironically be more discriminating than an artillery shell fired a decade ago (or a missile fired today by a less technologically advanced country). Furthermore, within the category of air power, a drone operator has more real-time high resolution images of his target than a fighter pilot, who in many cases is dropping a bomb on a set of defined coordinates regardless of who happens to be in the building at that time."

A more suspicious sort, such as CAA, might see discussions like this as just the first feelers of an attempt to get civilized powers to voluntarily relinquish one of the more effective forms of military power currently available to them.

12/6

re: "Congress’s Constitutional Power to Establish National War Policy in Violation of International Law – A (Belated) Response to Professors.... "

John Dehn at Opinio Juris ("a forum for informed discussion and lively debate about international law and international relations") summarized the play-by-play on some international law back-and-forth.

Money quote(s):

"Opinio Juris hosted an excellent discussion of an important new book, International Law in the U.S. Supreme Court, a well-edited collection of essays about the Supreme Court’s approach to international law. Professor David Golove’s contribution asserting that post-9/11 Supreme Court “War on Terror” decisions are consistent with what he called our “Just War constitutional tradition” drew significant attention. In Professor Golove’s view, both the President and Congress are constitutionally required to comply with at least some international laws of war. Professor Andrew Kent critiqued the essay here, arguing that Golove’s claims, particularly those involving Congress, are inconsistent with Supreme Court precedent recognizing Congress’s power to set national policy in violation of international law.
I agree with Golove’s assertion that the executive branch must generally comply with any applicable international laws of war. Like Professor Kent, I am quite circumspect of the claim that Congress must as well. Harlan Cohen responded to Professor Kent’s post, suggesting that Professor Golove and Professor William Dodge (one of the book’s editors) may believe that all nations, including ours, are “absolutely bound” by certain rules of international law, those that the well-known (to the Framers and to academics) and influential Eighteenth Century international law commentator Emmerich de Vattel categorized “voluntary law.” " (Emphasis in original text. - CAA.)

There's actually no such thing as "international law."

Don't get me wrong; there is a body of customary, traditional, and treaty-based law (for values of "law") comprising a body of specialized knowledge which is generally termed "international law." But that "law" doesn't even come close to passing the common sense tests that would make it equivalent to other forms of actual law.

"After reading Professor Golove’s contribution to the book, Professor Ramsey’s response, and Professor Dodge’s related essay, I think there may be confusion regarding the obligatory nature of what Vattel denominated “voluntary law” and its relationship to both the contemporary laws of war and the war powers of Congress.

I believe Congress possesses the constitutional power (in conjunction with the executive, when necessary) to establish national war policy contrary to relevant international law so long as it does not violate the text of the Constitution. To the extent that Professor Golove’s unpublished research may have uncovered “longstanding understandings in Congress” that it must follow certain international laws of war, I suspect those understandings to be based in morality or wise policy, not necessarily constitutional law. Golove has to date given only scant evidence of what seems an elegant argument in favor of granting constitutional status to any such congressional understandings.

I agree that there are (and were) rules of international law that nations were believed “absolutely bound” to observe. They included what Vattel denominated the “perfect rights” of nations. Perfect rights were those “accompanied by the right of compelling those who refuse to fulfill the correspondent obligation” through armed force. However, the absolute “bindingness” of these rules existed only in international law." (Bold typeface added for emphasis. - CAA.)

There are some issues (more than some, but bear with me) with this perspective on the "bindingness" of international law.

For one thing, the perspective is astonishingly narrow in scope.

What we in the West call "international law" is a body of artifacts whose only relevance is within the larger context of the post-Westphalian international system. It is the height of civilizational and cultural chauvanism to suppose that it is truly global in application.

"(A) national policy, even one properly established under domestic law, may permit a violation of international law. But it cannot excuse that violation from the perspective of international law. In such cases, the policy is lawful in the domestic (municipal) legal system, but remains a violation of international law.

In my view, the key question is not whether the U.S. has ‘the power but not the right’ (to paraphrase Louis Henkin) to violate international law; it does. The key question is: which branch(es) of the U.S. government may constitutionally establish national policy contrary to international law? My research leads me to believe that in most contexts, including war, Congress does. In some very narrow circumstances it has been (and may still be) the executive alone." (Emphasis in original text. - CAA.)

The thing about violations of international law which are legal within a domestic legal system is the limited scope for enforcement. Who or what gets to enforce "international law" within another sovereign state and using what means or mechanisms?

"(T)he bulk of the contemporary international law of war (both jus ad bellum and jus in bello or international humanitarian law (IHL)) consists of customary and conventional constraints on conduct the natural law-based law of nations permitted. Therefore, contemporary IHL is not properly equated with Vattel’s “voluntary” law, which is law evidenced in or derived from natural law principles, generally observed for its utility, and obligatory on civilized states through their presumed (rather than express or implied) consent.

Vattel identifies three other categories of international law, (1) necessary, (2) customary and (3) conventional. Only necessary law, which consisted of the direct application of natural law to nations, was immutable or absolute. Vattel classified the other three types, including voluntary law, as composing the “positive law of nations” because “they proceed from the will of nations.” It defies logic to say that any species positive law cannot be altered at the will of the same nations that establish it." (Emphasis in original text. - CAA.)

"(T)o the extent that any rules in the contemporary law of war might be properly categorized “voluntary” law, the Constitution expressly assigns Congress the power to derogate from or abrogate such law. Importantly, this includes the power to infringe the “perfect rights” of other nations. Nothing in the constitutional text expressly requires Congress to exercise its powers to declare war or grant letters of marque (or reprisal, see below) in a manner consistent with relevant international law. This is why the Court did not, in its early decisions, review a congressionally established general or partial war for compliance with the law of nations."

The OJ article included a nice quote from Chief Justice Marshall (Talbot v. Seeman) to back up that last claim:

“The whole powers of war being, by the constitution of the United
States, vested in congress, the acts of that body can alone be resorted to as our guides in this enquiry [into whether France was properly deemed an enemy].” (emphasis added)

"Of course, none of these observations directly addresses Golove’s claim: that Congress believed itself to be limited by the law of nations when exercising its powers, and that this sense of obligation had a constitutional dimension or basis. There are, quite obviously, many reasons why members of Congress or Congress as a body might have boisterously made such claims. Chief among them would be to claim the legitimacy of law for proposed or adopted legislation infringing the perfect rights of other nations. Given the widely accepted origins of the natural law, some might also have felt morally obligated to observe it in spite of having constitutional discretion not to do so."

(9/6)

re: "Trying to beat Palestine on a technicality"

Joshua Keating at PASSPORT ("A Blog By The Editors Of Foreign Policy") makes a crucial distinction that, in our overly legalistic and litigious society, is lost on many.

Money quote(s):

"(T)he impending U.N. General Assembly vote recognizing the Palestinian state will be illegitimate, as Palestine doesn't meet international law's minimum standards for nationhood"

That's not Mr. Keating's position, by the way; he's just re-stating another's argument.

"I don't think this is a particularly strong case for supporters of Israel to make. Montevideo is a rather quaint set of criteria with little actual relevance in the Calvinball world of contemporary sovereignty disputes. This is doubly true when it comes to U.N. recognition."

Calvinball? Rather fizbin.

"U.N. member states come into being not because they meet an objective standard for nationhood. As I've written before, if that were true, the Palestinian state would probably have been admitted long before South Sudan. Countries become member states after two-thirds of the General Assembly votes for them and the Security Council approves. It's a political process, not a legal one, and wishing it away with a technicality is unlikely to be effective." (Bold typeface added for emphasis. - CAA.)

Bear in mind also that, UN membership aside, what makes a nation-state is being a nation-state; nothing more, nothing less. Recognition by others, even the UN, is nice and all, but only dispositive if you thing the UN is some sort of world authority or something.

re: "Did the U.S. Stretch International Law In Order to Recognize Libyan Rebels?"

Julian Ku at Opinio Juris ("a forum for informed discussion and lively debate about international law and international relations") found someone to answer this question:

"The U.S. government has recently announced it will recognize the Benghazi authority as the “legitimate” government of Libya. But is it departing from international practice or the international law relating to statehood and recognition in order to do so?"

re: "The Daily Caller - The Libyan intervention is not wholly legal"

David Kopel at The Daily Caller is troubled by the legalities.

Money quote(s):

"Is President Obama’s war against the Libyan government legal? It is arguably compliant with modern international law, because it has been authorized by the United Nations Security Council. Nothing in international law, however, can change the United States Constitution’s procedures for when the United States can go to war — which require the consent of Congress."

Nothing in the U.N. Charter about it superseding the Constitution. I read it (the Charter) decades ago, and if it had said something like that I feel certain it surely would have stuck in my memory.

"(T)he Constitution gives Congress, not the president, the power “To declare War.” Some persons claim that the president’s commander-in-chief power includes unilateral authority to make war on his own initiative. The founders believed otherwise."

There is indeed a fuzzy bit of Constitutionality about the president's role as commander-in-chief and Congress' responsibility for declaring war. This is one of those areas that gets hashed out over time and there's often some back and forth over this stuff. That being said, it shouldn't be considered beneath the dignity of the commander-in-chief to comply with either the Constitution or at least the War Powers Act. Or so one might have thought.

"America’s first war in Libya — two centuries ago — complied with the Constitution. The Barbary pirates, who were supported by the government of Tripoli, seized American ships in the Mediterranean because the Americans would not pay protection money. While President Thomas Jefferson dispatched the American Navy to guard the ships, he asked Congress for permission to take further action. As his message to Congress acknowledged, authorization for offensive war is an “important function confided by the Constitution to the Legislature exclusively.”

Congress passed two separate authorizations for military force in 1801 and 1802."

Has anyone checked to see if one of those has, perhaps, gone unexpired all these two centuries now and might still be in force?

"Placing U.S. forces under a NATO command changes nothing. Even if the NATO Treaty could somehow authorize war, that treaty only requires nations to fight in response to an attack against the territory of a NATO member."

Considering that the commander of NATO is a U.S. Navy admiral (and a good guy, by all reports), this would be a rather thin fiction at best.

re: "You mean, now?"

Richard Fernandez at Belmont Club shared some observations on the disconnect between policy and practice.

Money quote(s):

"President Obama has failed to lay the legal groundwork for acts of targeted killing of “non-state enemies of the United States” and thereby risks impaling itself on the horns of a dilemma of his own making. By relying on “international humanitarian law” instead of asserting its own legal doctrine, the Obama administration will eventually find that it cannot defend the United States without condemning itself by the legal standard it has embraced."

Ouch.

"The really interesting thing about the administration’s increase in the use of targeted hits, its unwillingness to take custody of prisoners and indeed to hand them over to people like the Pakistani military; and indeed its declining ability to take any enemy combatant alive at all is that it is rooted not in what Anderson called Dick Cheney’s “brutish, simplistic” determination to defend America, but in President Obama’s desire to live up to the highest standards of International Humanitarian Law (IHL)."

That would the the Law of Unintended Consequences in operation.

Remember: you can't do just one thing.

&

"The problem goes back to the inability of political leadership to declare war and name an enemy. America is at war yet not at war. It is fighting an enemy, but none are named. It is fighting a something which respects no rules by applying the full protection of the Constitution to enemy combatants. And the predictable result of these contradictions is that it is tying itself into philosophical knots."

re: "Some people will be unhappy"

Helen at EU Referendum ("To discuss issues relating to the UK's position in Europe and the world") remarks on the peculiarities of Spanish judges.

Money quote(s):

"Spanish judges, in particular Judge Baltasar Garzón, like to see themselves as the representatives of international law; the people who, in their wisdom, decide who is and who is not to be prosecuted for breaking that rather nebulous concept. Curiously enough, they are all Americans, Israelis with the odd other pro-American Westerner thrown in."

&

"Are there no crimes in Spain that its courts can go around pretending they are in a position to try everybody else?As Ed Morrissey points out, some time has elapsed since Spain had ruled any part of the Americas and a fine mess they left behind, too."

re: "Time to act like a state"

Tom Mahnken at FP's Shadow Government ("Notes from the loyal opposition") discusses the problem of Somali pirates.

Money quote(s):

"Piracy has grown in the waters bordering the Horn of Africa because states have failed to act like states and leaders have failed to lead. Whether military force is permitted as a response to piracy is, as my lawyer friends say, settled law. International law has recognized pirates as outlaws who may be killed on sight since the Roman Empire."

"The Obama administration's reaction to piracy in general, and the seizure of the ship in particular, betrays muddled thinking about the nature of the threat posed by piracy and the proper response to it. At least implicitly, the Obama administration appears to be treating pirates as if they were insurgents. Criminals (including pirates) represent a challenge of an altogether different sort. Whereas a mixture of political and ideological motivations drives insurgents to violence, it is the search for profit that fuels criminality."

&

"What the United States and those who wish to join us need to do is to drive up, rapidly and decisively, the cost of engaging in piracy. The successful operation to free Captain Richard Phillips from Somali pirates is a good start, but it is just a start. More will be needed to remove this threat to the global commons. Specifically, President Obama should give on-scene commanders permission to shoot pirates on sight. He should also authorize punitive strikes against the bases from which Somali pirates operate. Such actions, over the course of days or weeks, should be sufficient to drive the pirates off the seas."

re: "Guantanamo"

David Warren of DavidWarrenOnline ("ESSAYS ON OUR TIMES ") explains why we intern terrorists.

Money quote(s):

"(I)n principle, some inmates may have been captured by mistake, and in practice military tribunals were proceeding, in which guilt had yet to be formally established. Such trials have been suspended for 120 days"

"Guantanamo was selected, by the Bush administration, to intern terrorists, because no better solution could be found. The military commissions were created, ditto. Under actual international and American law, the inmates have no certain rights whatever: they were not proper soldiers, and therefore not legitimate prisoners of war under the Geneva Conventions. They may thank their stars they were not shot upon capture."

There's still time. After all, they're still war criminals.

"As people understood, in the shadow of the World Trade Center, and as they still understand in Afghanistan and Iraq, we are dealing with monstrous enemies -- with people who not only kill our allied soldiers, but kill defenceless non-combatants gratuitously; who employ terror, to impose tyranny. The insistence on fine points of juridical etiquette in the heat of battle would be insane. But insisting on it later in the calm of a prison camp betrays only a failure of perspective.

It is right of the law to prohibit torture. It is right in almost every circumstance to obey the law (and accept the consequences in any other). There will, however, always be tight corners where "the law is a ass," and to pretend this were never the case is to assume a disingenuous posture. Moreover, as when Guantanamo opened, there are circumstances in which no existing law has been written or can be applied, and yet the principle of retribution remains: that the innocent will be vindicated, that the guilty will be punished."

&

"To set any of the Guantanamo inmates free, on some jurisprudential technicality, is to smear one's hands with the blood of their victims when they return to their trade. This is not a hypothetical proposition: for while the numbers are disputed, a proportion of "low risk" inmates already freed from Guantanamo have returned to action."

That proportion is already known to be at least ten percent. Which would be a pretty darn low "recidivism" rate for ordinary criminals but is unacceptable for terrorists bent on mass murder.