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: "Abdulhakim Mujahid Muhammad Charged with Murder not Terrorism"

Howie at The Jawa Report ("Sand people, get it?") had a Carlos Bledsoe update.

Money quote(s):

"Personally I ask why he was not declared an enemy of the state under the laws of war and shot as an irregular partisan under Geneva"


7/12

re: "The Pound of Flesh"

Richard Fernandez at Belmont Club examines where sub-state warfare is heading.

Money quote(s):

"Warfare is older than the modern state. When the Strategy Page described what it calls “vigilante warfare” by Israeli settlers on members of Hamas it might have been talking about a process of “going native”. In the Middle East the tradition of pre-Westphalian warfare is strong. Private war, from the action of clans against other clans to the sponsorship of belligerence by warlords never completely went out of style."

It took centuries for it to go "out of style" even in the Westphalian-style nation-states of Western Europe, where it never truly died out. Inter-state warfare is something of a historical curiousity really, sort of like jousting.

"One of the great innovations of the Westphalian system was that private individuals who had previously been responsible for visting retribution, were supposed to leave justice — and warfare — to the state. For as long as the population trusted the King (or the State) to punish criminals and protect them from foreign attack, private individuals were content to leave things in the hands of uniformed officialdom.

But a strange thing happened on the way to the 21st century: political correctness as imposed by a variety of lawyers, human rights activists and the like progressively reduced the power of the state to defend its population against external aggressors to the point where it failed to provide an adequate level of protection. When private individuals could no longer rely on uniformed officialdom to protect them, they did the natural thing. They took the matter of warfare back into their own hands."

The truly scarey thing isn't mentioned by Mr. Fernandez; what happens when political correctness so contrains Western law enforcement that Western citizenry again takes up torches, pitchforks, and hayrakes? We're likely to see this sooner in places like France, the Benelux, Nordic states, and British isles before here (but I could be wrong about that).

"(I)n doing away with the Westphalian system, political correctness unintentionally — or perhaps unthinkingly — undermined the Laws of War. The whole panoply of uniforms, ranks, discipline and obedience — so hated by pacifists — were all Westphalian mechanisms designed to ensure some kind of law and order on the battlefield. By taking the armies out of the game, the disciples of political correctness didn’t end war; they merely ended the old rules of war and returned the field to private warfare.

Maybe that isn’t too bad. If the 20th century is any gauge, Westphalian Armies did precious little to prevent widespread loss of life. Indeed World War 2, a Westphalian War, was the most devastating episode of belligerence in human history. For all its ugliness, one might argue that private war sheds less blood than the regular kind per unit of time. Unfortunately it also did away with that other Westphalian innovation, Victory. World War 2 for all its destructiveness had one great virtue. It ended. Today wars are far less destructive. The bad news is they never end.

Today warfare is no longer entirely a matter of soldiers fighting each other under the Geneva Convention. Instead, it every man for himself; it is the knife in the dark, the molotov cocktail thrown from the passing car and the IED along the road."

Modern armies operating under the Geneva Conventions as various international jurists would have them interpret it do suffer from systemic disadvantages. But the laws of warfare, as written, aren't actually intended to disadvantage those who follow them.

"It is what happens when vigilantes take a leaf out of Hamas’ book and start waging non-Westphalian warfare on the international agencies that should keep them up at night. The Strategy Page notes that nonstate actors have long had recourse to methods of intimidation denied to Westphalian states."

State actors have their own advantages, but they must be willing to exercise them.

"At the limit non-state actors can simply frighten the UN or the humanitarians into agreeing to their demands out of pure fear. The Canal Hotel bombing, directed by al-Qaeda in Iraq against the United Nations, killed a top UN bureaucrat and 22 others and ultimately led to the withdrawal of most UN staffers from Baghdad. The UN responded by declaring The World Humanitarian Day — they could have hardly taken a hard line against the private warfare directed against them."

This is why lots of people no longer view many international and "humanitarian" actors as being neutrals. There's a reason why the Colombians (IIRC) were able to rescue some long-held hostages by posing as members of an NGO whom the kidnappers believed to be neutral-in-their-favor.

10/31

re: "Was it legal to kill al-Awlaki?"

Neo-Neocon ("slowly but surely leaving the fold and becoming that dread thing: a neocon") is asking the right questions.

Money quote(s):

"Was it legal to kill al-Awlaki without due process, courtesy of drone?

Some will say “who cares? Good riddance.” But they are ignoring the importance of the issue and the possible danger of the precedent, while those who question the mission’s legality are asking a question that is necessary to confront: under what circumstances can a president order the liquidation of an American citizen (or possible former American citizen) without any courtroom procedure, even a military tribunal?"

Obviously, this question is only of interest to those 300,000 or so folks who happen to be U.S. citizens.

"Fighting international terrorism presents us with a different kind of war. That does not mean we can do whatever we want. But it does mean that the rules need developing and clarifying."

(10/1)

re: "Re: Who Was Awlaki"

Mario Loyola at The Corner takes it by the numbers.

Money quote(s):

"First, for purposes of combat actions such as the targeted killing of Awlaki, the battleground in our war against al-Qaeda is not “everywhere.” It is in those few countries that either willingly or unwillingly provide significant safe havens for al-Qaeda. Yemen is in the first rank of that group of countries, along with Pakistan, Afghanistan, and Somalia.

Second, legitimate al-Qaeda targets in each of those countries are subject to attack pursuant to Congress’s 2001 Authorization to Use Military Force after 9/11, which even Vice President Biden has deemed a constitutionally sufficient declaration of war. That disposes of the concern that the executive branch is operating without the imprimatur of Congress. And the president is at all times subject to a variety of laws that constrain his conduct as commander-in-chief. Just because this particular killing is not justiciable (on the facts known to us) does not mean that federal courts cannot hold the president to account for violations of U.S. law.

Finally, to the extent your reference to “checks and balances” goes to due process, our rules of engagement are informed by international law and fall within the regulatory powers of Congress. Nobody is alleging that the rules of engagement were not followed in this case. The Constitution’s due process guarantees for criminal defendants in a civil prosecution are meant to protect private citizens from the power of the state. They have never (at least not until recently) been understood to benefit combatants – U.S. citizens or otherwise — who have taken up arms against the state itself."

He (correctly) draws the following conclusion:

"An al-Qaeda convoy riding along a desert road in Yemen is a legitimate bombing target, period."

(9/30)

re: "War Crime! Taliban: Yes, We Murdered Brit. Scott McLaren (bumped)"

Rusty Shackleford, Ph.D. at The Jawa Report ("Sand people, get it?") enjoys moral clarity.

Money quote(s):

"Can you imagine the reaction from the European and American Left had this been a Taliban insurgent who was murdered at the hands of our soldiers? Not only would there be widespread protest, but our military would do the right thing and treat those responsible as criminals." (Emphasis in original text. - CAA.)

Our "right thing" and their (the Taliban's) "right thing" are two different.... things. Ours is based on a centuries of law of warfare which had quite different aims than that based on the koran.

"(T)here is a difference between us and them. We're the good guys. They are simply evil." (Emphasis in original text. - CAA.)

&

"They captured him alive and murdered him in cold blood.

I get the arguments for abandoning Afghanistan based on the notion that the country and its people are just so backwards that there is nothing that really can be done. I also get the argument that if we don't send at least another 100k troops more than Obama's "surge" then there's really no point. I think these are legitimate arguments."

re: "The Lawfulness of Killing Bin Laden"

Butch Bracknell at Small Wars Journal ("facilitates the exchange of information among practitioners, thought leaders, and students of Small Wars, in order to advance knowledge and capabilities in the field") lays out the legalities of schwacking UBL.

Money quote(s):

"Much has been made of the recent revelations that Osama bin Laden was unarmed at the moment he was killed by U.S. special operations forces in close quarters battle. Let us put this issue to rest with dispatch, once and for all: Killing bin Laden was not an extrajudicial execution, a murder, or a war crime. It was a combat engagement lawful under U.S. and international legal authority – full stop."

Mr. Bracknell takes some care explaining the self-defense and jus in bello rationales before continuing:

"Osama bin Laden was an enemy combatant – again, full stop. His status as a virtual enemy of the United States is grounded on several factors: his declaration of war (fatwa) by Al Qaeda, of which he was the nominal chief, against the United States; the Congressional Authorization for the Use of Military Force (AUMF) of September 18, 2001 (Public Law 107-40); and, most likely, declaration of a state of hostilities (essentially, a state of “war”) by the President against an opposing belligerent: Al Qaeda, its footsoldiers, and its leaders. The qualifier “most likely” indicates that if the President has, in fact, declared Al Qaeda to be a hostile, belligerent force, the designation probably would be classified and non-public. It is also superfluous, as Congress supplied the necessary authority in the AUMF to make combat actions against Al Qaeda lawful. They described a category of combatants who may be targeted by U.S. forces, and Osama bin Laden fell squarely into that category more precisely than any other person in the world. Targeting bin Laden was based on bin Laden simply being bin Laden: his conduct as he stared down the wrong end of an MP-5 was immaterial.

Once designated a hostile enemy combatant, there are only two ways a combatant can be exempted from lawful targeting: by manifesting a clear and unequivocal intent to surrender, and by becoming wounded or otherwise incapacitated and incapable of resistance (hors d’combat). There is no evidence bin Laden was wounded prior to administration of the lethal force which ended his life. Moreover, U.S. forces engaged in armed conflict are under no obligation to give an enemy combatant a chance to surrender; the enemy combatant must practically force his surrender on the U.S. force by manifesting it clearly, timely, and in a manner which enables U.S. forces to discontinue the use of lethal force. At this instant, a shield of legal protection descends around him, and U.S. forces are obligated to treat him humanely and consistent with the laws of armed conflict pertaining to detainees. Until the shield is present, triggered by manifest surrender, it is absent. Without the shield that only he could initiate through his surrenderous conduct, bin Laden remained a legitimate target and was treated so by the assaulting U.S. force.

Bin Laden’s death was a triumph for the American intelligence community and the armed forces and provides, at long last, some solace to the victims of 9/11 and Al Qaeda’s other terroristic acts. His death will likely prove to be a strategic gain, and it eliminates a continuing threat to Americans at home and her citizens and forces abroad. It also was completely sanctioned under U.S. and international law."

Bottom line: it was a righteous shoot.

re: "Lawfare v. Warfare: Bin Laden family uses a little “Alinsky” on US and Obama"

McQ at Blackfive ("the paratrooper of love") gets this exactly right.

Money quote(s):

"The death of bin Laden is being described in some quarters as an “extrajudicial killing”. In fact, bin Laden was always considered to be an “unlawful combatant” by us and as such had no such protections. In warfare, the targeted killing of an enemy, in this case unlawful combatant, is quite legal.

So what you are seeing here are competing premises, one saying terrorism is simply a criminal act and therefore terrorists must be treated as common criminals would be treated as well as afforded various rights because of that status. The other says they are enemies who have declared war on the US, committed numerous acts of war and, in accordance with the Geneva Conventions, are “unlawful combatants” and enemies whose targeted killing is an accepted practice of warfare.

Lawfare vs. warfare.

I think we’ve been pretty clear since the beginning, with the AUMF (which the Obama administration ironically used as the legal basis for its raid into Pakistan), that we’re at war (and yes, I also accept the AUMF as a declaration of war) what we consider these terrorists.

Second guessing by all the world’s hand wringers should simply be ignored. This is not a criminal matter. It is a military matter and it was executed as such. The lesson it teaches other terrorists who’ve declared war on “the Great Satan” is we are relentless and remorseless. Those are two good messages to send."

re: "Day 38 Iranian Revolutiion: Iraq Forces Storm Iranian Opposition Camp"

Pamela at Atlas Shrugs relayed some disturbing news about an attack on some GC "Protected Persons" in Iraq.

This touches on the honor of our country and our commitment to honoring the laws of war.

re: "Outrage"

Fetiche Nouvelle (Duyen Ky) at Eternity Road raises a number of excellent objections to media coverage of our pirate prisoner.

Money quote(s):

""Suspect" -- ? Either he was a member of the pirate crew or he wasn't -- and if he wasn't, what was he doing on their little jaunt, and negotiating with the U.S. Navy on the pirates' behalf?"

"And some idiot of a "civil rights lawyer" is claiming that America violated the "laws of warfare," on top of everything else? We're not at war with the Somali pirates! They're not a sovereign nation! No laws, no conventions, and no courtesies apply to people who sail into international waters, raid commercial shipping, take hostages, and threaten to kill them if their demands aren't met!"

&

"(I)f a federal judge had decreed this young viper to be a juvenile, the worst that could have happened to him would be a couple of years in a reform school -- after which he'd be a legal permanent resident of the United States!

I had to convince a consular official that I was fleeing from political persecution and that I had no intentions of subverting the government of the United States by subterfuge or violence."