Reuter’s reports on a speech given by Philip Alston at the UN, criticizing the US for its drone attacks or, at a minimum, for not being forthcoming on its drone attacks. Professor Alston (a friend of mine and well known to many VC professor-readers as an NYU law professor) is the UN special rapporteur on extrajudicial execution. (I would be curious to see video of the speech if anyone knew of a link; I found the Reuter’s description a little breathless.)
The United States must demonstrate that it is not randomly killing people in violation of international law through its use of unmanned drones on the Afghan border, a U.N. rights investigator said on Tuesday.
Philip Alston, a U.N. special rapporteur on extrajudicial, summary or arbitrary executions, also said the U.S. refusal to respond to U.N. concerns that the use of pilotless drones might result in illegal executions was an “untenable” position.
Alston, who is appointed by the U.N. Human Rights Council, said his concern over drones, or predators, had grown in the past few months as the U.S. military prominently used the weapons in the rugged border area between Afghanistan and Pakistan where fighting against insurgents has been heavy.
“What we need is for the United States to be more up front and say, ‘OK we’re prepared to discuss some aspects of this program,’” the Australian law professor told reporters.
“Otherwise you have the really problematic bottom line, which is that the Central Intelligence Agency is running a program that is killing significant numbers of people and there is absolutely no accountability in terms of the relevant international laws,” he said.
As regular readers know, I think the Predator targeted killing program is perfectly legal; on the other hand, the unwillingness of either the Bush or, now, Obama administrations to state plainly the legal basis on which they believe it operates is a serious legal policy mistake. What the administration needs to do is instruct Legal Adviser Harold Koh to give a speech that re-affirms the views taken by the US in the 1989 speech by then-Legal Adviser Abraham Sofaer.
It is a bad idea for the USG to do what it appears inclined to do (not just the Obama administration, but the Bush and Clinton administrations, too) and assert that the Predators are targeting combatants in an armed conflict, end of discussion. From conversations I’ve had with various officials and ex-officials, and what little one can glean from the (foolishly, very foolishly) practically non-existent US opinio juris, the view seems to have been, and continues to be, that this is the narrowest and therefore most careful grounds on which to assert the legality of the actions.
Alas, no. For the critics of targeted killing, for one to assert the right to target combatants, there must be a cognizable armed conflict under IHL – and it is not clear to many of the critics that Pakistan, rather than Afghanistan, counts. And for the critics, Yemen or Somalia will definitely not count. USG officials and ex-officials also seem to assume that because Congress authorized the AUMF, that act of jus ad bellum is sufficient to create an armed conflict with a non-state actor as a matter of jus in bello; critics will dispute that the former creates the latter and that it can run geographically wherever a “combatant” AQ operative happens to be, rather than a zone of substantial fighting.
Assuming arguendo that is so, then, according to the critics, you flunk having an armed conflict. If you flunk having an armed conflict, then status as a combatant is irrelevant. Any killing would then have to satisfy international human rights laws – also assuming, arguendo, for example, that the ICCPR were regarded as applying extraterritorially, as the critics do. In the US view up to now, it does not – but it is very far from clear that the Obama administration will stick by that, though one hopes it has figured out the consequences for its Predator program if it does not.
The only real way for the administration to maintain what, in my view is a legally defensible, strategically vital, and indeed humanitarian measure – the alternative, note, is not “no fighting,” it is the Pakistani army fighting via artillery barrage, not a Hellfire missile – is to re-affirm the Sofaer position, which so far as I know the US has never formally dropped in any case, and assert self-defense irrespective of a state of IHL armed conflict.
According to the Reuter’s account, the US responded by telling the
Human Rights Council in June that it has an extensive legal framework to respond to unlawful killings. It also objected to Alston’s criticism, saying the U.N. investigator did not have the mandate to cover military and intelligence.
Alston wants to know the legal basis on which the United States is operating the drones, precautions it is taking to ensure these weapons are used strictly for purposes consistent with international humanitarian law, and what mechanisms are in place to review the use of the weapons.
“The response of the United States is simply untenable,” Alston said.
“And that (U.S. response) is that the Human Rights Council, and the General Assembly by definition, have no role in relation to killings that take place in relation to an armed conflict,” he said. “That would remove a great majority of issues that come before (the United Nations) right now.”
I don’t agree that the US position is untenable, nor do I think that the HRC or General Assembly has a role to play in killings “in relation to an armed conflict.” Yes, the General Assembly or, for that matter, the Human Rights Council can opine on whatever they like – as they already do – and I understand if that is what was meant.
But the other possible meaning here is that the US has some legal obligation either to engage with that process or provide it with information or cooperate with it in some way with respect to killing in relation to an armed conflict. In that regard, I see no obligation on the part of the US to take part, and think the Obama administration quite within its plain legal prerogatives. There is, rather, an entire body of treaties of the laws of war and its conduct, none of which involves the General Assembly or the Human Rights Council, that regulate killing in relation to an armed conflict.
But note, as well, that the US Department of State’s response that the special rapporteur’s mandate does not extend to these matters is, so far as one can tell from public information, identical to the position taken by the Bush administration.
Martinned says:
This is exactly the kind of issue that made me so intrigued by the recent suggestion by the Israeli government that the laws of war are in need of rewriting.
I don’t think this kind of programme can reasonably be defended under art. 51 Charter, the article on self-defense. States defend themselves against other states, and against other actors with some measure of international legal personality such as (non-state) belligerents, not against individuals.
If, for example, an individual in Pakistan forms a threat against the US, international law requires Pakistan to do something about this, allowing the US only to exert diplomatic pressure on Pakistan. If the US wants to do more than that, it has to explain how the action by this individual is somehow an act of war by the state of Pakistan against the US. This is possible, for example in case of state-sponsored terrorism, but not easy.
Instead, it would be nice of the laws of war somehow reflected the realities of war in the 21st century more than they currently do. They still seem to be written with World War II in mind. However, the problem is how to do that while avoiding a free-for-all. Not everything anyone wants to do should automatically be legal just because they invoke the Global War on Terror.
October 28, 2009, 10:12 pmreadery says:
would it help satisfy the critics if the drone pilot takes care to pilot the planes only while wearing a fancy military uniform and within hearing of a live fife and drum band?
October 28, 2009, 10:18 pmTen Four says:
Clinton launched about 80 Tomahawk cruise missiles at targets in Afghanistan and Sudan (the famous pharmaceutical factory)in 1997, in response to bombings of US embassies in Africa.
One perhaps relevant characteristic of these strikes is that cruise missile flight times are much longer, potentially hours, so that intelligence is necessarily less current than for Predator strikes which usually have “eyes on” intelligence (albeit by camera) at the time of launch, which is only seconds before impact.
So, were the Clinton strikes illegal? War crimes?
October 28, 2009, 10:45 pmThe Unbeliever says:
Am I the only person who saw “UN” and “predator program” in the headline, and immediately thought that it referred to an internal corruption cleanup?
October 28, 2009, 10:46 pmBC says:
Every time something like this happens it convinces me that much more that we would do ourselves a great service by giving the United Nations three months to relocate its headquarters off U.S. soil before bulldozing all 18 acres of the site and salting the soil there.
The appropriate response to people like Phillip Alston is, approximately, “It’s cute that you think we care what you think. Get stuffed.”
October 28, 2009, 10:47 pmMartinned says:
They were not war crimes but maybe they were illegal, depending on whether the embassy attacks could be attributed to the Sudanese and Afghani governments somehow. Giving aid and comfort to Bin Laden and his friends might just be enough to scrape by.
October 28, 2009, 10:51 pmMartinned says:
…which wouldn’t change one iota about the laws of war. Why do you insist on shooting the messenger?
October 28, 2009, 10:53 pmCornellian says:
There’s really no job that can’t be improved by a fancy French title like “special rapporteur.”
October 28, 2009, 11:01 pmNeil C. Reinhardt says:
I AM a very knowledgeable and much more experienced than most my age are (much less those younger) 74 year old Agnostic Atheist Activist. (The “Agnostic Atheist Activist” bit is so others know I am not some religious robot who follows the Republican right around like some puppy dog.)
While Americans take great pains to try to NOT kill and/or injure the wrong people, those we are fighting INTENTIONALLY KILL non-combatant men as well a women, children and babies ALL OF THE TIME.
The Moslem fanatics have published their plans to take over the entire planet and establish a world wide Caliphate! When they do, they fully intend to install a Taliban form of rule!
IF I could, I would gather up ALL liberals and those like this UN yoyo and deposit them in the Taliban / Al Qaeda controlled areas of Pakistan / Afghanistan. Then I’d watch videos of them getting their illogical irrational & uninformed heads lopped off!
The Moslem Fanatics are in year 20 of there 100 year plan. They ARE ON SCHEDULE to accomplish their goals! And some IDIOTS are worried we might accidentally be killing a few wrong ones?!
HELLO? WE ARE IN A DAMN WAR OF SURVIVAL!
I get so sick and tired of Kool Aid Drinking OBOTS who would not know what either fact or the truth was if they were a sharp pointed cactus they sat on while naked acting like they have a clue.
When I read what most Liberals say, they remind of a Ronald Reagan (you know the guy who mostly won the Cold War) quote which went something like this:
“It is not our Liberal friends do not know anything, the problem is so much of what they know is wrong.”
October 28, 2009, 11:10 pmNeil C. Reinhardt says:
The LAWS of War ONLY count IF the GOOD guys WIN.
OR are you really so clueless you have not figured that out?
October 28, 2009, 11:15 pmNeil C. Reinhardt says:
The LAWS of War ONLY count IF the GOOD guys WIN.
OR are some of you really so clueless you have not figured this out?
October 28, 2009, 11:18 pmMartinned says:
@Neil C. Reinhardt: I’m glad to hear you’ve discovered how the caps lock key works. I think you’ll find, though, that people will generally take you a little bit more seriously if you don’t use it quite so much. Of course, not talking nonsense also helps, but let’s leave the snarky comments for another time.
October 28, 2009, 11:19 pmRicardo says:
That would probably apply more to Sudan than Afghanistan, which was then controlled by the Taliban who were not an internationally recognized government. I would imagine the laws of war get much murkier when you are dealing with a country like Afghanistan (in the 1990s) or Somalia today where much of the land area is in control of thugs and gangsters who are not recognized as being part of a legitimate government.
But then what does it mean to say the cruise missile strikes were “illegal” but not necessarily “war crimes”? Illegal according to whom? And what is the remedy for the legal violation? Sudan in theory could demand Clinton’s extradition to face murder charges before a Sudanese court but then, I don’t imagine very many (any?) countries would honor the extradition request.
October 28, 2009, 11:25 pmBC says:
That’s sort of my point. There is no such thing as “the laws of war”; rather, there are treaty obligations to which nations voluntarily adhere, and everything else is what Country A can force on Country B.
Accordingly, we should feel perfectly free to ignore the bleatings of self-important international bureaucrats who imagine, on the basis of some sort of tin badge issued them by their employer, that they carry a portfolio to investigate possible violations of “the law”. Though it would be better all the way around if we merely deported said bureaucrats en masse. Let them bleat on someone else’s soil, on someone else’s dime.
Target practice.
October 28, 2009, 11:43 pmMartinned says:
@Ricardo: Imho, a government that is not “internationally recognised”, but that is in effective control of the territory, or at least most of it, is capable of representing the state in situations like this. There is no such thing as recognition of governments, as opposed to states, though actual practice on this point is even murkier than the practice on the recognition of states. Alternatively, you can argue that the Taliban were a recognised belligerent in a civil war, and make them responsible for what they’re doing in the part of the country they control via that route.
As for your second point, not all violations of the laws of war are war crimes. War crimes are defined in art. 8(2) of the Rome Statute as follows:
I omitted the lists of specific provisions, which cover several pages, but the gist of it is that a breach of the laws of war is only a war crime if it is sufficiently grave. These drone attacks might be war, since art. 8(2)(a)(i), the very first point of the very first list, is “wilful killing” (presumably of a non-combattant). But I can see no point on any of the lists that would include what Clinton did, given that he did not intentionally target a purely civilian target.
October 28, 2009, 11:52 pmMartinned says:
If that is true, then what gives you the right to complain about how US soldiers are treated by the enemy?
October 28, 2009, 11:53 pmMartinned says:
The laws of war are obligations of states, for which the remedy is diplomatic. The obligation not to commit war crimes is an obligation of individuals, for which the remedy is a trip to The Hague. Clinton could not be extradited for a violation of the laws of war that did not rise to the level of war crimes, even if he did commit murder under Sudanese law. As president, he enjoys sovereign immunity for things he did in his official capacity (except, etc. etc.).
October 28, 2009, 11:56 pmOren says:
OK!
Can you
fantasizeexplain a scenario in which muslim fanatic overthrow the US government? Just so I understand how muslim fanaticism is going to threaten my survival in order to better prepare myself.Without US imprimatur, the UN would not be worth much.
I’m not (I think you trust) some raving neocon, but I really don’t have any respect for an institution that cannot maintain sovereignty over their own podium.
October 28, 2009, 11:57 pmMartinned says:
I do trust, but I’m not sure what this even means. I take it you’re using the word “sovereignty” in the non-legal sense. (Legally, only states have sovereignty.) But even then, do you mean that the UN is supposed to somehow divide its members into good guys and bad guys? How is it supposed to do that? The UN is its members. Were you thinking of something like this one:
Can you imagine the UN having a rule like this? Don’t get me wrong, the idea of a union of democratic countries might be worth considering, but it would be something radically different than what the UN is and is intended to be.
October 29, 2009, 12:09 amBrian Garst says:
Would not Al-Qaeda qualify as a non-state belligerent? Obviously if you ignore their connections and memberships, then anyone becomes an apparently untouchable individual. But that’s not what we’re dealing with here. We’re dealing with an international network of like-minded, declared enemies that have demonstrated a capacity to do real harm. If the laws of war can’t handle that, then they aren’t of any use.
October 29, 2009, 12:32 amJohn Moore says:
It is not nessary to posit an overthrow. The people in the WTC were killed by muslim fanatics without an overthrow.
So, yes, it is easy to come up with scenarios that threaten your survival. For example, biological warfare. This is currently considered the greatest serous terrorist threat – because it is getting easier and easier to do, and it wasn’t very hard to start with.
“Biological warfare experts” used to expound on how hard it was to make a biological weapon, and to weaponize pathogens.
You may have noticed they have shut up.
It is not necessary to “weaponize” a pathogen in order to use it to cause catastrophic results. It does not have to be:
*calibrated
*optimized for minimum collateral damage
*selected to not cause “blowback” of epidemic reaching one’s own population
*optimally efficient
It merely has to sicken and/or kill large numbers of the enemy. Period.
So yes, non-state actors – even very small groups – threaten your existence through the potential of epidemic biological weapons.
That.s one example….
October 29, 2009, 12:59 amMartinned says:
To start with the latter: that’s the exact point I made (or tried to make) in my first comment above. I’m afraid the laws of war can’t really handle that. A belligerent is a party to a war, and if a belligerent is not a state, it must be a rebel movement like the Taliban. (If they count as one “movement” at all, which apparently isn’t entirely clear.) To the extent that Al-Qaeda are fighting in the war in Afghanistan, they’re a (part of a) belligerent. But whatever worldwide disagreement Al-Qaeda may have with the US, it’s not a war, and the laws of war do not apply to it.
October 29, 2009, 12:59 amTen Four says:
Here’s data on Predator strikes for the last few years in Pakistan, showing both civilian and Taliban/AQ casualties.
http://www.longwarjournal.org/multimedia/2009/10/updated_statistics_for_us_stri.php
The US goes to extraordinary effort – much beyond any treaty requirements – to limit collateral casualties. It might behoove the UN to worry instead about intentional attacks on clearly and entirely civilian targets – say pizza joints in Israel, or markets in Pakistan or Iraq.
The US makes a mistake to argue the finer points of international law with the UN. We lose the public relations war, even if we win the legal argument, by granting them standing to judge our behavior.
We need to remember that their real objectives are to damage and constrain the US in any way they can, and that this particular complaint is only a means to that end. As lawyers will, they start with that objective and use any tool that comes to hand. We should loudly, clearly and publicly tell then to buzz off.
October 29, 2009, 1:00 amJohn Moore says:
With the execption of our effete elite, Americans are far more concerned about the morality than the legality of these operations.
October 29, 2009, 1:33 amDan Simon says:
If that is true, then what gives you the right to complain about how US soldiers are treated by the enemy?
For Americans, that’d be the First Amendment.
If you mean, “what gives you the power to prevent US soldiers from being mistreated by the enemy”, the answer (again, for Americans) would be, “the US military”. Certainly not a bunch of grand pronouncements about “international law”–those are routinely snickered at by America’s enemies, most of whom horribly mistreat US soldiers (and civilians, for that matter) every chance they get, unless and until the US military stops them.
Don’t get me wrong, the idea of a union of democratic countries might be worth considering, but it would be something radically different than what the UN is and is intended to be.
Well, given what the UN is, something radically different would have good odds of being a substantial improvement. As for what it’s intended to be–well, that would depend on whose intentions are at issue, and would seem to matter a great deal less than what it actually is.
October 29, 2009, 1:46 amBC says:
I was unaware that the existence of enforceable “laws of war” is a precondition to my having and expressing an opinion about the treatment of American POWs.
I mean, honestly: if you need international bureaucrats waving sheafsful of papers at you in order to identify barbarism, you ought to be using the time you spend posting here seeking professional psychiatric help.
October 29, 2009, 1:50 amThe Unbeliever says:
Informally: they’re our soldiers, we get to be protective of them. Same reason we get to complain about their deployment and the length of their tours; it would sound silly if we expressed the same concern for, say, British or Chinese soldiers.
Not saying it’s a foundation for a universal code of human rights, or a serious system of morality; but at least tribalism is consistent and it scales well. (Arguably, it scales better than democracy, but that’s a whole other debate.)
Never assume the messenger is innocent.
October 29, 2009, 2:06 amlibertariansoldier says:
To enable the Special Rapporteur to better analyze the situation, I recommend he be moved to Kabul. There is a UN guesthouse just down the street from me that has some open space available after yesterday.
October 29, 2009, 2:13 amRicardo says:
OK, that makes sense. In legal discussions I’m used to the idea that “illegal” means “subject to criminal sanctions” while the more general “unlawful” simply means “contrary to law.” Maybe this is U.S. usage or maybe I’m wrong about the usage altogether.
So I gather that Clinton’s launching of cruise missiles into Sudan and Afghanistan may have been violations of the laws of war but since they were not war crimes they do not subject Clinton and others in the chain of command to individual criminal liability.
If that’s the case, I would say the laws of war simply do not reflect reality on the ground. It’s like how “trial by combat” was an option in England until Parliament formally abolished it in the early 19th century. The laws need to change or evolve or else risk being ignored and (as some of the commenters here are inclined) ridiculed.
October 29, 2009, 3:02 amVisitor Again says:
I found the Reuter’s description a little breathless.
I didn’t.
October 29, 2009, 3:46 amPersonFromPorlock says:
You may indeed be in the running for World’s Greatest Optimist.
October 29, 2009, 7:39 amMartinned says:
Is that because of the lack of powerful remedies, or for some other reason? The fact that many violations of international law have only diplomatic remedies is – for now – inherent in the system, and something that the US government, among others, is trying very hard to keep. This may change some day, but not any time soon, and if it does, it’ll be one step at a time. (Like the Schuman Declaration said: “Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity.”) Also, I’d like to point out forcefully how important it is to avoid the misconception, especially common among lawyers, that law isn’t really law unless you can sue over it. Some of the most important parts of the US constitution, including something as simple as the minimum age for congressmen and senators, have been entrusted to the legislature without recourse to the courts.
If, instead, you meant to say that the laws need to change in their substance, then I’d probably agree with you, as I already wrote above.
October 29, 2009, 8:00 amgeokstr says:
You really need to read more about what is happening in lots of countries around the world, particularly in Europe, where the UK and Scandinavia have effectively become or are fast becomming dhimmified without a shot being fired.
Lawfare is being used extensively even in this country to force acceptance of Sharia (so far under limited circumstances) in Muslim communities, insane concessions in the workplace and universities to accomodate their religion, etc. The mosques in this country are hotbeds of agitation for jihad.
Here is a great site to follow if you’d like to really learn what is going on:
October 29, 2009, 8:28 amJihad Watch
Richard Aubrey says:
It isn’t necessary to overthrow the US government, much less take over for the ummah to threaten our survival.
October 29, 2009, 8:40 amWe are a technologically interdependent nation. Massive deaths from disease can simply reduce us to enclaves. As one poster on another site put it, a nuke in a container ship means the end of seaborne commerce. Which means economic collapse. Or perhaps we’ll all be looking for “Little House on The Prarie” for hints.
egd says:
It seems you are.
Although I did see the story linked as “UN calls missile strikes ‘summary executions’” and immediately thought “hey, great, the UN is finally taking a harsh stand against Hamas and Hezbollah.”
How wrong I was.
October 29, 2009, 9:05 amGrigor says:
Didn’t Bin Laden issue what he called a “Declaration of War” against the US? It’s fine to say well, he’s not a recognized government so he can’t issue a REAL “Declaration of War” but hey, he chose the term, invoked the concept and the apparatus. Seems to me it’s not unreasonable for the US response to be “Welcome to the big leagues, boy.”
October 29, 2009, 9:39 amOren says:
And the members of the UN, by whatever process they have established, decided to allocate 15 minutes for each leader to address the General Assembly. They then failed utterly to even enforce this rule, proving to me that they lack even the most basic element of control over their own podium.
I’m not making a moral complaint about good guys and bad guys, I’m making a practical observation that even a totally neutral rule appears to be entirely toothless. On wonders then, how we can expect them to enforce anything at all.
October 29, 2009, 9:40 amAnderson says:
I wish we had the text of this wonderful Sofaer speech that actually went to the trouble of explaining how the Predator strikes are legal. Hearsay is not much of an argument.
Regardless of legality, however, the practical issue is whether the strikes help more than hurt. If killing 5 enemies recruits 50, that doesn’t seem effective. To say nothing of the risk of destabilizing Pakistan even further.
N.b. the Jane Mayer article recently (not online alas) where she details the accomplishments of the Predator program, but also its costs (nailing one biggie may take several tries, with dead noncombatants at several steps along the way).
As Mayer’s article suggests, our Predator attacks are largely for want of anything better we can do — the result of our weakness, not our strength.
October 29, 2009, 9:43 amOren says:
I didn’t say my survival. I said our survival.
Drunk drivers kill >10,000 Americans a year, they threaten the survival of the individuals around them. They are not, however, in any circumstances, going to threaten the survival of the US government and the general structure of society.
That is, I do recognize an exceptional class of threats that would threat the survival of our civilization as a whole (chief among them at the moment is an energy collapse, large-scale nuclear war used to be at the top of the list) and accept that drastic measures might be taken to combat these threats. Terrorism, on the other hand, is at worse an irritant.
Considered by who? I hang out with plenty of PhDs in biology and related fields and they all seem to think that the best a terrorist would do is kill a few thousand and shut down the airports for a while.
In other words, very bad (approximately 9/11 bad) but not anywhere near the sort of bad that actually implicates the survival of the country.
October 29, 2009, 9:49 amTatterdemalian says:
“Can you fantasize a scenario in which muslim fanatic overthrow the US government? Just so I understand how muslim fanaticism is going to threaten my survival in order to better prepare myself.”
Sure.
1) Islamic extremists manage to destroy a port city in the continental US with a smuggled WMD (most likely nuclear). This is kind of a “when, not if” scenario.
2) US demands the world join them in a nuclear war against the Middle Eastern nations that funded and provided the technology for the attack.
3) NATO, Russia, and China say “No, we need their oil and they have not attacked us, so if you launch a nuclear attack against them we will launch our nuclear arsenals against you.”
4) The US either:
a) resigns itself to slowly being erased one city at a time,
October 29, 2009, 10:22 amb) submits to the will of the extremists nuking it,
c) fights back and finds out that it really can be wiped off the face of the planet.
ObeliskToucher says:
That’s so unlikely that the thought never entered my mind…
October 29, 2009, 10:38 amSarcastro says:
Russia might still nuke us, we really need to kill all of them as well! *ahem* I mean RUSSIA MIGHT END US ALLLL! THIS MEANS WE CAN’T HAVE ANY RESTRAINT, EVEN WITH OUR CAPS LOCKS!
October 29, 2009, 10:39 amAndrew Lale says:
Firstly, I agree with those commenters who would like to see a Free and Democratic alliance replace the UN, which is nothing but a talking shop for dictators and kleptocrats.
Secondly, I have not noticed in the discussions about the drone operations the fact that they take place over what is variously known as FATA (Federally Administered Tribal Area) or the NWFP (North West Frontier Province). The Pakistan government seems to have a fantastic legal switcheroo regarding the FATA: when the US or Britain or Canada chase enemy combatants across the Durand Line, the Pakistan government become extremely prissy about this bismirching of their territorial integrity; However, when it is presented to them in a diplomatic context that there are at least seven or eight very large, well-organised, well-funded private armies wandering around in the FATA, constantly attacking a neighboring state, the Pakistanis shrug their shoulders like French waiters, and say there is nothing they can (or will) do about it. When did the UN last debate this legal anomaly? Just wondering…
October 29, 2009, 10:49 amRichard Aubrey says:
Tatterdemalion (haven’t heard that for years).
Good fleshing out of Wretchard’s Three Conjectures.
There are two ways of dealing with the terrs. One is to kill them some way or another and the other isn’t.
October 29, 2009, 10:50 amThe details of the first are where we look at Predator strikes versus, say, commando raids to arrest them. That’s a Tom Clancy op, and will probably require substantial supporting fires to support the exfil, at least. Killing lots of people. Or conventional invasion so as to control the territory from which the terrs operate, and kill bunches of them in the process. If we’re looking to kill terrs with minimal collateral damage and casualties to ourselves, whacking them from the sky seems to be the best bet.
I’m curious why only the US generates new terr recruits from collateral damage. If it’s ten for one, the terrs just recruited one thousand new, highly motivated enemies in their bombing in Peshawar.
Or do the bereaved not get angry if it’s their coreligionists who offed their loved ones?
And I think it was the bereaved and outraged who, once circumstances allowed, got on board the Anbar Awakening and provided a good many of the local foot soldiers.
Read a letter from a Marine in Iraq who lamented his new commander’s insistence on disarming the local families. Two things happened. They had more people shooting at them and found fewer guys from out of town dead in alleys.
The next CO gave the locals their weapons back and things got calmer.
Can you think of any way to kill the terrs that somebody would not claim was illegal?
Me either.
Draw your own conclusions.
Oren says:
First off, no nation will ever give a terrorist a nuclear weapon. It’s suicide, and while there are nations that would send other people to die in suicide attack (homocide attacks, really), they aren’t themselves suicidal. You don’t get to rule a country with a nuclear article without having the requisite common sense to avoid your own destruction (kind of a self-selection process).
Even if we proceed under the absurd premise that a nuke falls into the hands of a terrorist, there are still larger problems with your understanding.
A nuclear bomb would not destroy a port city, it would destroy a port. A 100 KT device (the largest you could practically smuggle, even then it would be much larger refrigerator and 10 times heavier) has a maximum effective radius (1psi overpressure) of 3 miles. Here’s a map. Note that in the outer rings there would property damage but not excessive loss of life.
People have a crazy idea that a nuclear weapon must incinerate an entire city (perhaps they confuse nuclear with thermonuclear?). This just isn’t true.
Seems unlikely that there would be more than one nation involved, and even then it would be very obvious who, since nuclear weapons have a fairly unique fingerprint of long-lived decay products.
Finally, the US would not “demand” anything — we would strike back where the evidence points at those responsible.
Russia and China will not risk their own existence for someone else. They are not that altruistic. We would strike back, it would be fait accompli.
Oil would continue flowing of course, even in the case of a war. Again, nuclear weapons are not nearly as destructive as you seem to be fantasizing. Perhaps you should read up on the practical effects of nuclear weapons as documented by the various US agencies in charge of domestic preparedness?
(1) Nukes do not “erase” cities.
(2) Now the terrorists have an arsenal of hundreds of nuclear weapons?! For reference, China has ~500 nukes while France, India and Israel have <200 apiece. Pakistan has no more than 100.
First, you want me to believe that terrorists obtain a nuclear weapon. Fine, implausible but not totally impossible. Then you change the rules and now you want me to believe they have an arsenal on par with the major nuclear powers of the world?!
October 29, 2009, 10:51 amAndrew Lale says:
‘Regardless of legality, however, the practical issue is whether the strikes help more than hurt. If killing 5 enemies recruits 50, that doesn’t seem effective. To say nothing of the risk of destabilizing Pakistan even further.’
October 29, 2009, 10:59 amIf you read Ayaan Hirsi Alis book about her childhood, you would know that the islamists/wahhabists have been recruiting people via their simple set of lies for many decades, if not centuries. Why is it that Americans think that everything in the world revolves around them (and/or American foreign policy)? Can you not conceive of an ideology which preaches to a receptive audience a completely false but plausible worldview, and then gets them to go off and kill people on behalf of it? That says more about your lack of imagination than the actual world out there. If you actually think that stopping killing Al Qaeda and the Taliban will cause them to shrivel up and disappear you just haven’t been paying attention to the sequence of events.
Martinned says:
Well, yes, that is exactly unreasonable. You don’t become a state just by saying so. (Ask the Kurds in Turkey/Iraq/Iran about that one.) Unless Al-Qaeda is a belligerent, it does not have international legal personality, meaning that it cannot declare war.
(What about those militia weirdoes, who may or may not actually exist,
October 29, 2009, 11:00 amsomewhere out there in Montana. Can they declare war on the United States, too?)
Martinned says:
The General Assembly doesn’t enforce anything, except through diplomacy. All the real power in the UN is with the Security Council.
October 29, 2009, 11:01 amOren says:
Hence the General Assembly, and everything that comes out of it, is entirely meaningless. Words do not acquire meaning just by dint of their own utterance (as was pointed out above, ask the Kurds).
You might as well listen to the ravings of a crackpot on the street with “THE END IS NIGH” scrawled on cardboard. At least he’ll be grateful when you toss him $100 million.
October 29, 2009, 11:09 amMark Field says:
This (and similar responses by others) dodges the point. Any reasonable complaint implicitly or explicitly includes 2 factors: (1) a standard of conduct against which the actions are measured; and (2) a basis for applying that standard to the actor.
Now let’s go back to martinned’s question: in the absence of international law, on what basis do we complain if our soldiers are mistreated?
October 29, 2009, 11:09 amRichard Aubrey says:
A nuke-armed nation does not have to “give” a terrorist organization a weapon.
October 29, 2009, 11:23 amWe have had some scary events in the US, dating back at least to an unfused nuke dropped by a B52 off the coast of Spain to a plane crossing the US with real, as opposed to simulated nukes (hey, who can tell them apart. Simulated means looks like)hanging.
And we’re the US. We’re not Pakistan which is only barely a sovereign state, and we’re not Russia which used to own a lot of land on which nukes were stored and isn’t completely sure they have their count right.
And if Iran is sending its uranium off to be refined–I don’t think they will, finally–who can say that the fingerprint of what they get back will be dispositive.
What if the Russians simply ship back the requisite amount of stuff they have handy and closer to the rail yard?
With uncontrolled territories apparently increasing, or controlled by terrorists, the possibility of using some huge amount of oil money to build a bomb in inner Somalia, say, is going to be aided by the increased availability of the engineering answers.
Lastly, I suppose it’s a comfort to the folks in Scarsdale that the Port of New York may be destroyed but that they will only be irradiated and without various services for some time.
So what would be the legal view of putting a substantial commando raid on a bomb facility in Chad, or Somalia, or Venezuela? Or a massive air strike? Point is, we will be condemned no matter the circumstances. No matter what we are trying to accomplish, no matter the situation on the ground, and no matter how we do it. Worrying about lame legal arguments against doing something ought to be informed by knowing that somebody will come up with one no matter what we do, other than submit to being hit.
The point is that if a nuke goes off in a port, consequences follow, whether or not Westchester County is catastrophically involved as well.
One will be a call to strike back. Will Obama do that? Don’t know. The question is what the guys in question think. And if the guys in question either don’t mind going to their reward or are pretty sure they’ll be elsewhere when the retaliation hits, it won’t even matter to them what Obama does. Or if they think Obama won’t hit back, that will do just as well. Even if they’re proven wrong afterwards. A lot of people have been wrong, Hitler, the Kaiser, the Norks in 1950, and saying so afterwards does not erase the tragedy involved in proving them wrong.
Richard Aubrey says:
Mark Field.
October 29, 2009, 11:26 amSince they’re already mistreated, we get to complain anyway.
No law, lack of law, or complaints by diplomats will have our soldiers treated well.
Note the world-wide outrage over the fates of Menchaca and Tucker. (I know. “Who?”)
In fact, it doesn’t matter if we complain. It only matters if we catch the bastards who did it.
the_unbeliever says:
“Enforcing” and “diplomacy” don’t really go together. Enforcement is always an exercise in force or the threat of force. That force could be military (peacekeepers), economic (sanctions), resource based (blockades of specific material), or it could involve a forcible restriction of freedom (bans on travel or closing of borders).
Scratch the surface of any effective “diplomacy based enforcement”, and you’ll find the veiled threat of force that actually kept the other guy in line.
Translation: they’re the ones who tell the guys with guns where to go.
It’s ironic to see this admission that military force==real power, when discussing a set of fuzzy concepts like “international law” which pretend to hold power or legitimacy in itself. To mangle a quote: laws without enforcement are merely suggestions.
October 29, 2009, 11:27 amOren says:
The legal view would depend on what predicate act the host nation had taken. Duh.
I was assuming we have the linguistic sophistication to distinguish between OK, bad, very bad and civilization-destroying-bad. Yes, a nuclear attack on Manhattan will kill 20,000 Americans and greatly harm the nation. Are we so fragile that it will destroy our country and all the social structure in there? I think that’s highly unlikely.
October 29, 2009, 11:40 amThe Unbeliever says:
Again, informally: It’s tribalism. The standard is our own standard of conduct. The basis for applying it to outside actors is not an expectation of universality; it’s grounded in the belief that our standard is the correct standard, and anyone who does not act accordingly is acting improperly. At best, it makes them mere outsiders; at worst, it makes them barbarians (in the sense of differentiating between “civilized” persons and those “outside the civilized world”).
And again, I’m not saying tribalism is something you can codify into a universal standard. But it’s a very real force, generally more real than international legal constructs and paper treaties. My argument is that failures of international standards and definitions in coherentness, cohesiveness, effectiveness, or utility… does not negate any given country’s basis for complaining about the treatment of its citizens and soldiers.
October 29, 2009, 11:43 amAnderson says:
If you read Ayaan Hirsi Alis book about her childhood, you would know that the islamists/wahhabists have been recruiting people via their simple set of lies for many decades, if not centuries.
Okay.
Why is it that Americans think that everything in the world revolves around them (and/or American foreign policy)?
Hey, why is that?
Can you not conceive of an ideology which preaches to a receptive audience a completely false but plausible worldview, and then gets them to go off and kill people on behalf of it?
Did I suggest otherwise? Bush and Cheney have been fairly good at that themselves.
That says more about your lack of imagination than the actual world out there.
No, I think it says more about your lack of reading skills.
If you actually think that stopping killing Al Qaeda and the Taliban will cause them to shrivel up and disappear you just haven’t been paying attention to the sequence of events.
Good thing, then, that I didn’t write “stopping killing Al Qaeda will cause them to shrivel up and disappear.”
Al Qaeda can recruit a certain number of malcontents regardless. But that has no logical bearing on whether Predator strikes (1) increase that recruitment significantly, (2) contribute to Pakistan’s tilt towards Islamism, and perhaps most importantly (3) bias the population towards the Taliban et al. and thus make it easier for al-Qaeda and its allies to operate.
COIN relies on winning over the population, because as Mao (who knew whereof he spoke) said, the insurgent swims in the population like a fish in water. If the Predator strikes are simply picking off a Number Two guy here and there, while aiding the terrorists in securing support from the population, that’s potentially more harm than good.
Trouble is, as always, these things are difficult to quantify, despite the happy fun charts that make it all look easy. What metrics are there for “population support for al-Qaeda”? Can we invent a robotic flying pollster?
October 29, 2009, 11:45 amThomas B. says:
Very well written. You have some good points there :)
However, I need to point out that the targets that are being hit by this program are not individuals-they are either related to, or working with, various terrorist organizations, particularly the Taliban.
Taking the Taliban as an example: the Taliban are the governmental/military arm of the Pashtuns. Though they may not be a fully recognized state, they are clearly a large, organized group that controls a significant amount of land and resources, and they have declared that they will use these for the purpose of harming others.
Given those circumstances, they ARE a clear, visible threat to the US, and they are legitimate legal and moral targets for the Predator drones.
October 29, 2009, 11:47 amRichard Aubrey says:
Oren. Note the premise. “uncontrolled territory” The predicate act the nation in question had hypothetically taken is to not have a clue what’s going on there. Nothing active, and, given their resources and any low-level rebellion going on, they can’t even be said to be deliberately negligent. They had no clue or, if they did, no way to do anything about it. Perhaps someplace on the Andean Ridge controlled by FARC or the narcos where no national writ runs except on maps.
The point about destroying a port versus the port and five hundred square miles of hinterland is silly.
October 29, 2009, 11:48 amNeither one would destroy the nation. That wasn’t the point.
The point is two-fold. One is, even if only the port is destroyed, what is our response? And the results and response to our response?
The second is, what does this to do seaborne commerce?
Anderson says:
Cf. one of Rumsfeld’s occasional moments of clarity:
Today, we lack metrics to know if we are winning or losing the global war on terror. Are we capturing, killing or deterring and dissuading more terrorists every day than the madrassas and the radical clerics are recruiting, training and deploying against us?
Does the US need to fashion a broad, integrated plan to stop the next generation of terrorists? The US is putting relatively little effort into a long-range plan, but we are putting a great deal of effort into trying to stop terrorists. The cost-benefit ratio is against us! Our cost is billions against the terrorists’ costs of millions.
That was Oct. 16, 2003. Six years later, do we have answers to his questions?
(The tragedy of Rumsfeld is perhaps concisely illustrated by the genuine intellect and wisdom in this memo, compared with the “To:” list:
Gen. Dick Myers
Paul Wolfowitz
Gen. Pete Pace
Doug Feith
What a waste of time *that* was. Rumsfeld with the sense to pick worthwhile subordinates might have been a different story.)
October 29, 2009, 11:51 amAnderson says:
(Sorry, stupid blogging software omitted italics — the graf beginning “Does the U.S.” is also from Rumsfeld’s memo.)
October 29, 2009, 11:52 amSarcastro says:
I know the moment I got bigger than my dad, I stopped obeying rules! It was only force that keeps children in line!
October 29, 2009, 11:52 amTMLutas says:
I wouldn’t mind guff from diplomats and international groups if it were proportional to our sins versus our enemies’ sins. The thing is that they are not. What these people are engaging in is lawfare.
I’m surprised that we haven’t had a lawfare illegalization act yet to combat this sort of nonsense. Groups that disproportionately criticize the US’ actions vis a vis their enemies deserve defunding and stripping of recognition. If it is in the US’ national interests, these individuals and organizations can be given 1 year waivers by the US President.
One cannot shut up people. We are still a free society. But for us to fund them or even to pretend that they are not doing what they are doing, acting as legal belligerants, is just too much. Let us be honest about what is going on.
October 29, 2009, 12:08 pmdirc says:
Mr. Anderson assumes that most of the critics of the US Predator program are acting in good faith, and just want the US to reassure them that we are acting within international legal standards (as he believes we are). I am skeptical about this assumption.
Most of the critics are, in my opinion, opposed to the Predator program only because it is effective, not because they care that it may be illegal. The basis for my opinion is the observation that the UN has never stirred itself to ask Hamas or Hezbollah to justify their indiscriminate barrages of missiles aimed at targets in Israel. Nor do I recall the UN asking Iraq to justify its bombardment of Iranian cities during the Iran-Iraq war. The leveling of Grozny by Russia during the Chechin wars also went unremarked. What was the international legal basis for those actions? Where was the debate? There was none, because the actors do not respond to criticism.
I’m all for restating the basis for our policy, but I doubt that it will have any effect on the critics.
October 29, 2009, 12:21 pmMartinned says:
Well, entirely meaningless is a bit much. It depends on who’s talking, and who supports the person who is talking. A GA resolution that is adopted, say, 170-20 with the US and much of the western world on the losing side is much less significant than a resolution adopted 86-84 with those same countries winning.
Similarly, this rapporteur, whose connection to the General Assembly runs through two resolutions (the GA resolution creating the Human Rights Council and the HRC resolution creating the rapporteurship) doesn’t matter very much, until the big diplomatic players speak out in his support.
October 29, 2009, 12:26 pmSarcastro says:
A thin-skinned US is the clear path to diplomatic power!
October 29, 2009, 12:28 pmdirc says:
@Sarcastro
I was able to stop a burglar from entering my house by convincing him that he had no legal standing to be there. Force was completely unnecessary!
October 29, 2009, 12:28 pmBlue says:
“But whatever worldwide disagreement Al-Qaeda may have with the US, it’s not a war, and the laws of war do not apply to it.”
I agree with this, Martin, but I don’t think you’ve thought through what it means.
For instance, it means that the Geneva Conventions have no applicability to our treatment of Al Qaeda prisoners. That’s a position I basically hold.
October 29, 2009, 12:28 pmAnderson says:
The basis for my opinion is the observation that the UN has never stirred itself to ask Hamas or Hezbollah to justify their indiscriminate barrages of missiles aimed at targets in Israel.
Of course, it’s also the case that neither Hamas nor Hezbollah is (1) a member of the UN or (2) much inclined to listen to critics.
What’s odd to me is that anyone would take Hamas as a role model.
October 29, 2009, 12:29 pmMartinned says:
No. Military power is an entirely separate question. The UN Charter gives the General Assembly the power to adopt resolutions that have no legal force whatsoever, while the Security Council has the legal authority to adopt sanctions, freeze terrorists’ bank accounts, create international tribunals, and, yes, authorise military interventions. By design, all the legal power lies with the Security Council. That is not proof of the irrelevance of international law, that is international law at work.
October 29, 2009, 12:30 pmSodlier of Fortune says:
Already happened on November 4, 2008.
October 29, 2009, 12:32 pmMartinned says:
Yes! And while we’re at it, why not enact a Frivolous Lawsuit Illegalization Act as well?
October 29, 2009, 12:34 pmMartinned says:
I have thought through what that means. It means that most Al Qaeda prisoners have to be treated as civilians under the Geneva Conventions. (The Geneva Conventions say a great deal about the treatment of civilians.) Imho, the key question is whether an “Al Qaeda prisoner” is a prisoner because he was caught on or near the battlefield, in which case he is a combattant, or elsewhere, in which case he is a civilian terrorist and should get the McVeigh treatment.
October 29, 2009, 12:37 pmAnderson says:
We get a better acronym with the Frivolous Lawsuit Elimination Act, more descriptive of the scope of the problem addressed.
October 29, 2009, 12:42 pmMark Field says:
You’ve identified the standard (part 1), but you haven’t explained why the others should comply with that standard (part 2). In fact, “tribalism” pretty much offers an excuse why they need NOT comply: “my tribe doesn’t do it that way”.
October 29, 2009, 12:45 pmRichard Aubrey says:
Martinned. McVeigh was executed. Euros down with that?
October 29, 2009, 12:46 pmMartinned says:
Not this Euro, but that’s a discussion for another time. Point is, they didn’t declare him an enemy of the state and lock him up in some law-free black hole indefinitely.
October 29, 2009, 12:57 pmOren says:
Interesting. I hadn’t thought of that.
I’m glad we agree because, in my mind, existential threats are a totally different category.
I think it’s exquisitely sensitive to the particular facts. If the nuke was stolen from the Russian arsenal, for example, I wouldn’t think bombing Moscow would be productive — quite the opposite, it would only further decrease their ability to control their stockpile.
Short term panic and large uptick in transit prices, long term it moves on to an alternative port and prices stabilize roughly where they were.
Commerce (and civilization as a general matter) is just not that fragile.
October 29, 2009, 1:14 pmSarcastro says:
dirc got me with that most subtle of verbal stilettos, the analogy:
See, because people in the UN insulting the US is just like someone stealing your stuff through force!
Thus it is proven that force is the only way to get people to do what you want.
Also, I hope Sodlier of Fortune keeps posting. With some practice he can almost be as awesome as “straight up racism” guy!
October 29, 2009, 2:45 pmNeil C. Reinhardt says:
POOR MARTINNED,
1. I use Caps to emnphise the words I want to . If you do not like it, TOUGH!
Next, your very uninformed comment about my “talking nonsense also helps”
only proves how very ignorant of the facts you are. You probaby think you know everything there is to know about every thing there is when the facts prove you are naive child who has NO clue!
ANY intelligent, rational and truly informed person knows what I said about the Moslem Brotherhood “et al”
intent to take over the entire world is a damn FACT!
I am sure there were Jews running around Germany in the early 1930′s who said the same about those who were trying to warn them of Hitler’s intentions were talking nonsense.
They, just like YOU
were WRONG!
So go try something new it is called learning. Instead of dashing off posts and proving how much you do not know, go some in-depth research.
IF you will do a SUFFICENT amount of research, you find I am TOTALLY CORRECT about the danger we face.
———-
As far as any rules of war.
The Japs sure as hell did not follow them! It was around 17 times safer to be fighting them in the jungles than to be their POW!
Neither Al Quada or the Taliban follow any rules of war.
SO WAKE UP and come into the REAL world!
October 29, 2009, 3:15 pmMartinned says:
@Neil C. Reinhardt: Netiquette.
October 29, 2009, 3:23 pmJohn Moore says:
Considered by the USG, who uses it’s own experts (members of the National Academies, who do research as the National Research Council, and who trump your “plenty of PhD’s”). Furthermore, it is well known (well, by most, if not yourself and your friends) that biological technology is becoming more powerful at a Moore’s law rate, much cheaper, and widely available (there are now hobbyists doing genetic engineering of micro-organisms in their garages). If terrorists select a suitable, highly contagious pathogen, the “thousand people at the airports” becomes a terribly optimistic scenario. For example, the SARS epidemic was just barely contained. What if the terrs got a bunch of SARS agent and broadcast it widely? What if they take H1N1 and, using genetic engineering, make it more virulent? I suspect your friends are the great grandchildren of the scientists who said heavier than air aircraft would never fly.
More optimistic nonsense. A scenario defeating this has already been posited. Furthermore, it is not necessarily suicidal if it isn’t trackable, and finally there is no master-of-the-universe deciding that rulers of countries with dangerous weapons will not behave suicidally (would you trust Hitler, at the end, to not nuke the world, given a chance)?
Note that this is total nonsense unless it is an air burst, because of the large amount of radioactive fallout.
Note further that the terror effect (remember terrorism) of such an attack would have catastrophic consequences on commerce, and radical consequences on living and governing patterns. It isn’t the city that got nuked that’s the problem, it’s all the other cities that might be next, and the people working/living in/around them.
You are the only one positing that it is necessary for terrorists to be able to destroy our country and all of our social structure before we take them seriously.
Some of the rest of us believe that the role of national defense starts well before countering threats of total destruction.
Meanwhile, after shrugging ofrf the dangers of nuclear proliferation and bioterror, you scare us to death with your own expectation of what will cause that utter destruction with “chief among them at the moment is an energy collapse”!
ROFLMAO
October 29, 2009, 3:38 pmNeil C. Reinhardt says:
Someone was talking about our complaining about how American Soldiers are treated.
Well, Oh So Clueless One, our soldiers fighting Al Quada and the Taliban save a bullet for themselves rather than be captured by them. They would rather kill themselves than to be tortured, made a media show of an then beheaded.
SO SCREW ANY RULES of war as long as we are at war with them!
That said, when we DO capture them, WE give them medical aid, a safe place to live, a bed, their Koran, and 3 meals a day.
WHO WOULD YOU RATHER BE CAPTURED BY?
Them or Us?
October 29, 2009, 3:40 pmPLR says:
Apologies if this repeats what others have said.
I quite agree.
See, this is where the practicing lawyers, who have to answer to their malpractice carrier, and the bloviators in the blogosphere and Boalt Hall, part ways. We all recognize that, even in our transparent society, there are some facts associated with the AfPak operations which are not publicly known to us, because our government withholds them. That withholding may occur for perfectly good reasons, or nefarious reasons, or some combination thereof depending on your level of trust in The Matrix.
Yet Anderson is able to conclude that the program as conducted is not only legal (presumably under all laws and treaties applicable to the U.S. and the theater of operations), but that indeed it is perfectly legal.
I suppose Steven Bradbury is still available for retractions of perfectly good legal authority, if the need should arise.
October 29, 2009, 3:44 pmOren says:
There are serious agency problems there with their experts.
From what I’ve seen, it’s linear, not exponential growth. The prices don’t really drop that fast because there are few economies of scale.
Look at the price of cryoEM/NMR/SaXS setups over time. The data absolutely rule out an exponentially decreasing price.
Can you explain how fallout is going to contribute to the collapse of the US government and the invasion of the Muslim horde?
No, I’m all for taking them quite seriously. Quite seriously, on the other hand, does not mean “on the level of existential threat”.
I thought it was clearly understood that a country faces many (concurrent) problems to be solved and that not each problem is exactly equal in the severity of the threat posed.
Sure. I’m all for predator strikes and general counterterrorism work. Israel seems to be doing a fine job keeping their territory intact.
It’s good that you would concede this point to my argument — not every ‘national defense’ interest is one that implicates our survival.
October 29, 2009, 4:18 pmAnderson says:
Yet Anderson is able to conclude that the program as conducted is not only legal (presumably under all laws and treaties applicable to the U.S. and the theater of operations), but that indeed it is perfectly legal.
One certainly does not get the impression that any facts would change his mind on that conclusion. Because, you know, some guy gave a speech once.
October 29, 2009, 4:27 pmTen Four says:
Blue: “But whatever worldwide disagreement Al-Qaeda may have with the US, it’s not a war, and the laws of war do not apply to it.”I agree with this, Martin, but I don’t think you’ve thought through what it means.For instance, it means that the Geneva Conventions have no applicability to our treatment of Al Qaeda prisoners. That’s a position I basically hold.
Martinned says: I have thought through what that means. It means that most Al Qaeda prisoners have to be treated as civilians under the Geneva Conventions.
Another option is to treat them essentially as pirates – shoot on sight or hang if captured (which by the way would be the optimum solution off the Somali coast). Ten years of civilian trials and appeals is … wrong.
October 29, 2009, 4:36 pmGrigor says:
Did somebody leave the back door open?
October 29, 2009, 4:39 pmRowe says:
Using the citation in Prof. Anderson’s SSRN draft paper, I found the Sofaer
October 29, 2009, 4:55 pmarticle at the Library of Congress, Federal Research Division.
See Volume 126, October 1989, pages 89-123:
Military Law Review 1989.
Blue says:
“I have thought through what that means. It means that most Al Qaeda prisoners have to be treated as civilians under the Geneva Conventions. (The Geneva Conventions say a great deal about the treatment of civilians.)”
If that’s your conclusion, Martin, then you really haven’t thought about it. Your position would give terrorists greater legal protections than properly organized military soldiers.
October 29, 2009, 5:21 pmSarcastro says:
We need to have a policy of killing everyone who wants to destroy America, cause there is a small chance they get their hands on nuclear/biological/antimatierical materials to do it!
This is a very practicable plan, and can only end in awesome.
October 29, 2009, 5:22 pmdirc says:
@Sarcastro
Where in my verbal analogy did I say that anyone in the UN was insulting us? I was merely contrasting your own position that mocked the use of force by mocking the use of rules.
Children respond to rules. Criminals, terrorists and nation states, not so much.
October 29, 2009, 5:29 pmMartinned says:
Then do something about the way judicial review works in the US. Personally, I don’t see why it is necessary to allow convicted felons to petition for habeas review at all, except that apparently the original trial + direct appeal isn’t reliable enough.
As for the pirates, whatever may have been the law in centuries past, currently any captured pirates have to be tried in (ordinary) criminal court or released.
No it doesn’t. “Properly organised military soldiers” may not be tried for crimes committed prior to their detention. They may not be questioned, except for their name, rank and serial number. The list goes on and on: POWs have many rights that criminals do not.
Under the current law, the US have to choose: are these so-called “unlawful enemy combattants”, assuming they are actually captured on or near the battlefield, POWs or civilian criminals. I’m OK with creating an inbetween category, as long as a reasonable balance is struck between the interests of the detaining power and the rights of the detainees.
October 29, 2009, 5:31 pmAnderson says:
Rowe ROCKS! Thanks!
October 29, 2009, 5:38 pmRyan Waxx says:
You’re right! Because the U.N. makes sure our captured soldiers aren’t beheaded….
Doesn’t it?
October 29, 2009, 5:38 pmSarcastro says:
[with your statement so limited, dirc, I am afraid I must agree with you. The UN is pretty useless when it comes to criminal states and terrorists. But with those to whom rules matter, it is still a cause for optimism]
October 29, 2009, 5:44 pmRyan Waxx says:
Well, I’ll tell you what’s odd to me. If the U.N. and its treaties are only to be applied to its members, as you seem to take for granted, then it’s a police force that only arrests people who agree to be arrested (or it would be, if it had the bite to go with its bark). And people like you seem to think that’s going to work. That’s VERY odd.
What’s even odder is that you can apparently escape censure simply by being an organization instead of a nation… and people like you don’t see that as a problem that needs changing.
There’s odd, and then there’s ODD.
October 29, 2009, 5:47 pmjames says:
How much of the discussion of legality is due to the fact that the United States is one of the few nations that is not a signatory to the sum total of all the Protocols of the Geneva Conventions. Specifically the US has not signed/ratified the Protocols that would most likely cover terrorism. Could some of the UN legalize be the result of a mistaken impression that the international law in question was ratified by the United States?
October 29, 2009, 6:36 pmRyan Waxx says:
James:
I doubt the “mistaken impression” is much of a mistake on the part of the people who want to push the impression.
October 29, 2009, 6:50 pmLeo Marvin says:
After this thread, I won’t sleep peacefully again until Obama OK’s a Predator hit on Tom Clancy.
October 29, 2009, 7:00 pmRichard Aubrey says:
Oren
“alternative port”???
Which alternative port volunteers to be the next sacrifice?
Right. None.
Now, of course, we aren’t the only enemies of the jihadists. Will the reluctance to let ships in be restricted to the US?
October 29, 2009, 7:21 pmFat Man says:
Pathetic.
October 29, 2009, 8:51 pmJack says:
Ahh, that’s better.
UNITED NATIONS (Reuters) –The Taliban must demonstrate that it is not randomly killing people in violation of international law through its use of suicide bombers in Afghanistan, a U.N. rights investigator said on Tuesday.
October 29, 2009, 9:48 pmPhilip Alston, a U.N. special rapporteur on extrajudicial, summary or arbitrary executions, also said the Taliban refusal to respond to U.N. concerns that the use of suicide bombers might result in illegal executions was an “untenable” position.
Alston, who is appointed by the U.N. Human Rights Council, said his concern over suicide bombers had grown in the past few months as the Taliban used the weapons in the cities and towns of Afghanistan disrupting the election and preventing people from going about their everyday lives.
“What we need is for the Taliban to be more up front and say, ‘OK we’re prepared to discuss some aspects of this program,’” the Australian law professor told reporters.
“Otherwise you have the really problematic bottom line, which is that the Taliban is running a program that is killing significant numbers of people and there is absolutely no accountability in terms of the relevant international laws,” he said.
Critics say attacks using IEDs and suicide bombers have resulted in unnecessary civilian deaths.
During a speech to the U.N. General Assembly earlier on Tuesday, Alston stepped up pressure for the Islamists to answer questions he first raised in June about the suicide bombers. He said the Taliban could well be using the bombers legally, but the Taliban needed to be more open about the program.
The Taliban told the Human Rights Council in June that it has an extensive legal framework to respond to unlawful killings. It also objected to Alston’s criticism, saying the U.N. investigator did not have the mandate to investigate religious matters.
Alston wants to know the legal basis on which the Taliban is operating the suicide bombers, precautions it is taking to ensure these weapons are used strictly for purposes consistent with international humanitarian law, and what mechanisms are in place to review the use of the weapons.
“The response of the Taliban is simply untenable,” Alston said.
“And that (Taliban response) is that the Human Rights Council, and the General Assembly by definition, have no role in relation to killings that take place in relation to an armed conflict,” he said. “That would remove a great majority of issues that come before (the United Nations) right now.”
Richard Aubrey says:
Jack. I think Ahnold had the same message in a recent veto.
October 29, 2009, 10:07 pmMore Importantly... says:
Yawn. We’re not randomly killing people.
October 30, 2009, 10:22 amRichard Aubrey says:
More importantly,
That’s a point. Who gets the international respect?
October 30, 2009, 11:35 amMaybe we’ve been doing this all wrong.
John Moore says:
NRC experts are mostly not government employees – they are distinguished scientists and engineers who are elected to membership in the National Academies. As such, they are usually pretty good.
Who cares? It’s irrelevant to bioterrorism. Look at the exponential increase in DNA sequencing speed and the parallel exponential cost. The same applies to DNA synthesis. Both are highly relevant to bioterrorism.
That’s your straw man excuse. Since nobody is claiming such a thing, why mention it?
October 30, 2009, 10:12 pmNeil C. Reinhardt says:
Here all, LEARN,
A Great story by a guy who was captured by the TALIBAN.
Http://www.theatheistconservative.com/
October 30, 2009, 10:55 pmNeil C. Reinhardt says:
MORE EDUCATION to prove you do NOT need Weapons of Mass Destruction to TAKE OVER THE WORLD!
http://www.jihadwatch.org/…/america-as-the-last-man-standing.html
November 1, 2009, 2:44 amNathanael says:
“the Predator targeted killing program is perfectly legal;”
Under whose law?
I would submit that the law of Pakistan controls in Pakistan, and the law of Afghanistan controls in Afghanistan. If it violates either of these sets of laws — which you are not an expert on! — then it likely constitutes US government officials murdering civilians of the respective country. Under international law that is sufficent grounds for either country to declare war on the United States, which is one way to be “illegal under international law”.
Now, Afghanistan has “legally” invited us in as war allies, which makes the Predator drone attacks acts of war authorized by the Afghan government. Fine.
So if Pakistan hasn’t invited the US in as *war allies* — when will you analyze the legality of the Predator killing strikes under *Pakistani law*? Because that controls.
November 1, 2009, 2:44 pmJohn Moore says:
The relevance of Pakistani law should be called into question when Pakistan is unable or unwilling to enforce that law in wide areas of its territory – which are the areas where the Predators operate.
November 1, 2009, 2:53 pm