International law and drone strikes

by Chris Bertram on June 8, 2012

This post is really a bleg, aimed at the international lawyers out there. I’ve been looking into the legal basis for US drone strikes in Pakistan, Yemen and Somalia, strikes that on some estimates have caused over a thousand civilian deaths. As far as I can see, the strikes need to pass the regular tests of discriminating between combatants and non-combatants and not causing disproportionate “collateral damage”. They also need to get past the UN Charter’s ban on using force against the territorial integrity of other states. This article by Jack Goldsmith claims there are two ways to do this (1) by getting consent from the “victim state” and (2) by properly invoking the right of self-defence re the non-state actors concerned and claiming truly that the victim state is “unwilling or unable” to deal with the threat posed.

The United States in its drone campaign appears to be relying on self-defence and this “unwilling or unable” test. This strikes me as deeply problematic on two grounds. The first is that the Caroline test, that necessity of self-defence be “instant, overwhelming, leaving no choice of means, and no moment of deliberation” seems not to be met. But I suppose the United States could claim that it is simply continuing a campaign of self-defence that began after September 11th 2001 and has continued since. (Could that really justify extending “self-defence” to take in new sovereign territories?) The second reason is that it looks to me as if the doctrine the United States is relying upon would also have justified “targeted assassinations” by other states on US soil at various times against individuals or groups planning or engaged in actions against those states, whom the US was unwilling to suporess. So, for example, both Cuba and Nicaragua in the past and maybe Iran today could invoke a similar doctrine with as much justification. Say it ain’t so?

{ 230 comments }

1

Daragh McDowell 06.08.12 at 11:30 am

Not an International Law specialist, but as an IR specialist generally I think the US claims for the legality of the drone program are incredibly tendentious, for the reasons you outline above. In particular, the fact that the US is making the definition of ‘enemy combatant’ contiguous with ‘military age male’ when assessing the effects of strikes undermines the 9/11 justification.

2

chris 06.08.12 at 11:43 am

When the superpower does it, that means that it is not illegal.

Someone may be able to come up with a fancier justification, but that’s the real reason. The UN is actually systematically rigged so that it can’t oppose the Great (i.e. veto) Powers, and outside that institution, who wants to bell the cat?

3

Katherine 06.08.12 at 11:45 am

The problem with the law on acting in self-defence is that the US has already flaunted it with impunity vis a vis the invasion of Iraq (and arguable, Afghanistan). They will no doubt claim that the law on self-defence has moved on, since their claim that they could act in self defence pre-emptively has stood the test of international law – i.e. they got away with it.

That’s the trouble with international law – it’s not like domestic law. It’s much more fluid and underdeveloped and much much more dependent on the relative strengths of the participants, both militarily and politically. The new stuff especially comes out of customary law – i.e. state practice – i.e. do something enough as if you had the right to do it and if no one stops you – ta da! It’s more complicated than that of course, but that gives you a flavour.

4

john 06.08.12 at 11:49 am

When does the second come into play? Pakistan?

Because the Yemeni government almost assuredly consents (read: is bought off). And I’m not sure there is a Somali government to consent. And we all know about Pakistan.

Not to mention, my issues with drone strikes are less about IL (guess what, Pakistan should do something about Waziristan even if we all agree drone strikes as practiced are wrong/illegal) and more about international humanitarian law, given the collateral damage.

5

Barry Freed 06.08.12 at 11:52 am

Scott Horton who writes the excellent No Comment column at Harper’s specializes in international law with a focus on human rights law and law of armed conflict but he’s only written two posts on the topic since the recent revelations published in the NY times.

It’s a wonder Boston wasn’t crawling with SAS assassination squads in the 70s and 80s.

6

Daragh McDowell 06.08.12 at 12:03 pm

Barry Freed @5 – on the Boston thing, its not necessarily that surprising. After all Provos were considerably more ‘porous’ to the UK security services which gained a greater ability to influence their strategic direction and eliminate key personnel as a result. While its a bit too far through the looking glass for my tastes, there are non-crazy analysts of the IRA who have raised an eyebrow at the frequency with which Martin McGuinness’ internal foes ran into ‘random’ roadblocks in West Belfast.

7

Watson Ladd 06.08.12 at 12:09 pm

My impression was that Pakistan hadn’t actually banned the US from its airspace in response. Also, what groups are mounting military operations against Iran from within the US? Arguably Flame and Stuxnet are both within the lines of the usual spy v. spy dickery states come to expect from each other and don’t go to war over.

By the way, Holder gave a speech on the legality of the drones, and the Lawfare blog has a bunch of informative posts by actual lawyers and links to speechs by people who work important places about what they see as the legality of these strikes. Volok Conspiracy also covers the legal issues quite a bit?

Katherine: I don’t see how Afghanistan is stretching self-defense. Going to war because people you attacked have a safe haven abroad has long been done: Pershing in 1915 invades Mexico because Pancho Villa burned down a town in New Mexico. I agree with you that Iraq may have been illegal.

8

William Timberman 06.08.12 at 12:21 pm

Orlando Letelier. Did Pinochet have US government permission? One suspects he did, but I don’t suppose that even Kissinger would have testified for him at the Hague. So I’d say that the precedent for foreign governments conducting assassinations on US soil is already well-established. When we like you, though, it’s apparently okay. (I don’t remember us bombing Santiago at the time.)

9

Chris Bertram 06.08.12 at 12:23 pm

OK some updating:

Watson … yes I’ve been looking through the Lawfare blog, which is where I came across the piece I link to above by Jack Goldsmith.

Glenn Greenwald on twitter sends me a couple of links:

http://www.forbes.com/sites/gregorymcneal/2012/06/06/is-the-u-s-setting-precedents-in-its-drone-wars/

and

http://abcnews.go.com/blogs/politics/2012/05/why-libya-and-not-syria-and-drones-killing-innocents-todays-qs-for-os-wh-52912/

via the first, a link to Kevin Jon Heller at Opinio Juris, specifically on the “unwilling or unable” test

http://opiniojuris.org/2011/09/17/the-unwilling-or-unable-standard-for-self-defense-against-non-state-actors/

and Goldsmith again

http://www.lawfareblog.com/2011/09/thoughts-on-the-latest-round-of-johnson-v-koh/

For my money, Heller is the more convincing.

Also, a message via email:

“your hypothetical might be made more direct by asking the question whether the US would have fair grounds for complaint if the Cuban government took out Luis Posada Carriles and a bunch of military age young men with a bomb in Florida.”

10

ezra abrams 06.08.12 at 12:32 pm

Quote: “strikes that on some estimates have caused over a thousand civilian deaths”
whoose estimates ?
Where does a 1,000 deaths fit in the range of estimates
anyway, how reliable are such estimates ?

On another note, the lib blogosphere (libblog) is all atwitter about drone strikes – 100s of pieces , ranging from incoherent denunciations (counterpunch) to thoughtfull analyses (greenwald)
But there is a problem: A majority of Americans not only don’t care that much, they don’t even agree with us – they are in favor of drones !( (evidence for this is that Obama and his team clearly cooperated with Times)
so, if we actually want to do something, as opposed to write denunciations and make ourselves feel morally superior, we have to convince others of our point of view.
I’m not sure how this works – I suspect most Americans have as much respect for International law as they do for fleas, but its a small start.
One idea would be to start off acknowleding that there are evil people out there that want to kill our schoolkids (Arafat – hooray for the guy who blew up the schoolbus).
Just because we have done bad things (drones) doesn’t excuse retaliation in kind (does it )
A second step would be to offer solutions; instead of whining about international law, how about some practical steps that obama can take (beyond stopping drones strikes and killing innocent civilians)

PS: As some of you may know, Dr Drew Faust, historian and president of Harvard, has recently welcomed Dr Kissinger back to campus. I live in Newton MA, about 6 miles as the crow flies from Harvard Sq, and I’ve been trying to find a saturday to go down and hand out leaflets denouncing Dr Faust; quixotic, but it would make me feel better.

11

Matt 06.08.12 at 12:37 pm

There’s been discussion on the Balkanization blog for several years on this:

http://balkin.blogspot.com/search?q=Drones

This book (based on a conference I had a very small part in) also addresses many of the issues at length, both moral and legal:

http://www.amazon.com/Targeted-Killings-Morality-Asymmetrical-World/dp/0199646481/ref=sr_1_1?s=books&ie=UTF8&qid=1339158746&sr=1-1

As John briefly notes above, there are different sorts of law involved- it matters if the government involved agrees to the operations (as has often been the case), but that doesn’t mean that the law of armed conflict doesn’t apply. Most of the military lawyers (and a good deal of the civilians ones) I’ve talked to, though, think that the normal law of armed conflict rules are being followed. Whether they are right is something I don’t have an informed opinion about.

12

Chris Bertram 06.08.12 at 12:37 pm

The 1000+ figure:

“The London-based Bureau of Investigative Journalism estimates up to 830 civilians, including many women and children, might have been killed by drone attacks in Pakistan, 138 in Yemen and 57 in Somalia. Hundreds more have been injured.”

http://www.guardian.co.uk/world/2012/jun/05/al-qaida-drone-attacks-too-broad?newsfeed=true

13

Daragh McDowell 06.08.12 at 12:38 pm

@ezra – Not sure any of that was Chris’ goal. The brief was originally – are these strikes legal or illegal? That’s a whole helluva lot different from ‘moral or immoral’ or even ‘likely to motivate non-blogosphere liberals politically.’

14

Watson Ladd 06.08.12 at 12:41 pm

Luis Posada Carriles is iirc retired. So let’s assume that’s not the case to make it a live hypo. My best guess is the US would complain, but probably not much. Cuba probably wouldn’t claim credit publically, and would privately explain that they did this only because they had evidence he was a continued threat that the US was ignoring. It is after all what happened with regards to the Caroline, only no one got hurt!

15

Marc 06.08.12 at 12:43 pm

Presumably the prior Bush policy of extensive airstrikes is morally superior.

16

Katherine 06.08.12 at 12:47 pm

Watson Ladd, the invasion was certainly illegal, by any reasonable analysis of the international law of conflict at the time.

As for Afghanistan, see the definition of allowable force in cases of self defence that was posted: “instant, overwhelming, leaving no choice of means, and no moment of deliberation”. As I said, it’s arguable. Would you argue that the US has no other way of getting to Bin Laden and Al Qaeda than to invade Afghanistan? Reasonable people have disagreed on this, with the arguments going to and fro on the ability/willingness of the rulers of Afghanistan at the time to handover the perps. Personally, I am undecided on the legality point, but I think it was certainly a stupid and immoral invasion.

And the fact that something happened in Mexico in 1915 is not evidence that what was done was legal, or that it has anything to do with the law now, or 10 years ago, or even necessarily in 1915.

17

Katherine 06.08.12 at 12:47 pm

In the first paragraph, I mean the invasion of Iraq of course.

18

Marc 06.08.12 at 12:54 pm

…Which I bring up because the question itself is not terribly well posed. Drone strikes are clearly legal in some circumstances, or at least as legal as anything else in a war. (I’m sure that we’ll have people objecting to them on some grounds even when used in battles, but that’s how it goes.) If a nation objects to them, it’s an act of war. But the act of objecting is political and practical, not some matter of abstract logic.

In terms of targeting, if you’re targeting senior leaders of AQ, which is conducting battlefield operations against the US, they’re also clearly within bounds – because they are being justified as being part of a war. The line for civilian casualties depends on how the targeting is designed, but drones are clearly better on that score than bombing raids, artillery, commando raids, or other acts of warfare. If you think that the US shouldn’t be in Afghanistan, that’s a different thing than fixating on a tactic used in the war. So to what extent are you actually talking about drones, the buzzword of the Greenwald crew, and to what extent are you actually talking whether the US conducts attacks like this at all in any form?

19

Katherine 06.08.12 at 12:59 pm

Argh, sincere apologies for dragging off topic with Iraq/Afghanistan diversion.

20

john b 06.08.12 at 1:06 pm

A fellow named Dr Faust has just arranged a meeting with Henry Kissinger? This aligns with some of my long-held suspicions.

21

David Kaib 06.08.12 at 1:17 pm

The difficulty with the claim that the American people support this is that there is a good deal of dissembling and secrecy surrounding these attacks. The rest of the world does not take US government claims that all military age males in the vicinity are combatants, for example, but the US media takes it for granted. This means the charade is for domestic consumption. My best guess is because many people aren’t so supportive that they don’t mind the risk of innocent causalities.

It might be better to say that when both major political parties and the bulk of the media treat drone strikes as a necessity, and most people don’t hear any arguments against them and what is actually being done is completely distorted, people won’t object. But that is a rather different thing than suggesting that this is happening because the American people want it to happen.

22

Marc 06.08.12 at 1:17 pm

@8: I was thinking about the same case. Since it was prosecuted as a crime, however, I sort of doubt the idea that the US approved of it.

http://en.wikipedia.org/wiki/Orlando_Letelier

23

Bob 06.08.12 at 1:28 pm

This Boston Review article, “What Would Augustine Do? — The President, Drones, and Just War Theory,” hems and haws and doesn’t really make any conclusions, but it highlights some of the questions, and it has several useful citations and links.

http://www.bostonreview.net/BR37.3/david_luban_obama_drones_just_war_theory.php

.

24

Marc 06.08.12 at 1:33 pm

25

William Timberman 06.08.12 at 1:35 pm

Marc, given the history of the Kissinger-Pinochet axis, and the machinations leading to the death of Allende, I suspect that the trials were a) for show, and b) guaranteed the designated patsies a relatively short prison term in advance of proceedings. Cynical of me, I know….

26

SN 06.08.12 at 1:36 pm

The drone program in Yemen is with the government’s consent. So it’s like all the other instances of US intervention in local affairs with the government consent. It is not a violation of sovereignty, it’s a violation of human rights. But it doesn’t fall under the international law issues you mention.

The drone program in Afghanistan is in the field of war.

The drone program in Pakistan is connected to the Afghan war.

Those are some international law wrinkles. I’m sure there are many more. (Note: I categorically oppose the drone program–so I’m not defending it. I’m just briefly mentioning a few other things that will have to go into the argument.)

27

Jose 06.08.12 at 1:56 pm

@Watson,

My best guess is the US would complain, but probably not much.

Let me get this straight. If Cuba killed Carriles with a drone or other means, and in the process produced substantial “collateral damage”, you believe the US government would complain, but probably not much?

Seriously, what are you smoking?

28

rea 06.08.12 at 1:57 pm

A background point that is of some relevance in discussing this: there appears to be two distinct drone programs. One involves targeted killing of individuals. This is the program that Obama controls personally, and it’s the one for which the claim has been made that there have been no collateral civilian casualties. The other involves tactical support of US and allied troops. A lot of the drone use in Afghanistan and Pakistan falls into the second catagory.

For example, Greenwald linked a while back to a story about a drone attack on a village in Pakistan, in which (according to reporters’ interviews with villagers) drone attacks caught a group of Taliban fighters assembling to cross the border to attack US troops. 23 Taliban fighters and 6 local civilians were killed. That kind of attack is probbly not being micromanaged from the White House; it also involves somewhat different legal considerations than (hypothetically) taking out a village far from ongoing fighting to get an al Qaeda leader.

29

Watson Ladd 06.08.12 at 2:20 pm

Katherine, you are systemically conflating self-defense with preemption. The right of a state to retaliate via war has no endpoint: once hostilities have been initiated, the aggrieved state may demand any terms of surrender except territorial transfer. (But border disputes may be settled) The question of necessity applies only to preemption.

Orlando Letelier is not a good point. Remember peaceful dissent is not the same as killing people. Arguing that because the US prosecuted people criminally they took the stand that this murder was not okay does not mean that the death of bin Laden, with appropriately reversed parties, would be opposed.

One interesting historical precedent is the Lillehammer affair. An informant mistakenly fingered a waiter as the head of the terrorists responsible for the Munich Olympic massacre. Israel paid money in compensation, and Norway dropped the matter, even though Norway would have been willing to arrest anyone Mossad fingered.

30

Phil 06.08.12 at 2:22 pm

Brief note before reading Chris’s links: “self-defence” *and* “unwilling or unable” fails if either leg fails, and ISTM that the self-defence leg depends on Caroline principles, which manifestly don’t apply at this stage. Bush & co never relied on Caroline, but their defence was that it was legal for the Commander-in-Chief to do whatever needed to be done for the good of the nation, and the laws binding all those other nations be damned – it was essentially the Krikkit model of international law. In terms of more conventional understandings of international law I’d say that the Obama administration is stuffed.

31

Marc 06.08.12 at 2:27 pm

@25: Under Nixon I’d agree. But Carter won the presidency in 1976, and given his politics there was no love lost between him and Pinochet.

32

Watson Ladd 06.08.12 at 2:27 pm

Jose, what else could they do? They already hate Cuba, and would be unwilling to go to war over less then ten dead people. This is particularly true if he was a terrorist. Remember, the legal underpinning of the drone program is crucial to continued diplomatic support for it.

33

Katherine 06.08.12 at 2:29 pm

Watson Ladd – we’ve got ourselves mixed up over terminology, the mix-up being my fault.

When I was talking about pre-emptive self-defence being the justification by the US for Iraq, and that justification being bogus, I meant where the act being pre-empted is not obviously imminent.

The issue of self-defence is still relevant in the case of Afghanistan, since it was not Afghanistan itself that attacked the US, and thus could not be retaliated against. I suppose some people were arguing that Afghanistan/the Taliban are synonymous with Al Qaeda/Bin Laden, but that is nonsense. The only justification for attacking Afghanistan, the state, was that the US needed to defend itself from further attacks from Al Qaeda. The case either way is arguable.

Anyway, this is a off topic distraction from the issue of drones.

34

Phil 06.08.12 at 2:44 pm

On the other hand, if we assume that a state of war exists between the US *and al-Qaeda*, then we can slide right past /Caroline/ and go straight to “unwilling and unable”. I can’t begin to see how that could be the case, but IANAL. The Obama administration seems to rely on that idea, propped up with a bit of Bush-style presidential-exceptionalism-within-American-exceptionalism.

35

matth 06.08.12 at 3:09 pm

“So, for example, both Cuba and Nicaragua in the past and maybe Iran today could invoke a similar doctrine with as much justification. Say it ain’t so?”

I see this sort of argument a lot in conversations about how international law applies to post-9/11 U.S. “wars,” but I’m not sure what it means. Assuming the U.S. was behind Stuxnet, etc., I would have thought Iran had a clear self-defense rationale for military retaliation. So Iran could launch drone strikes against the CIA or something without without violating international law.

But wouldn’t the U.S. just retaliate in turn? In other words, the fact that Iran’s initial attack was lawful self-defense under international law doesn’t deprive the U.S. of its legal right to defend itself. (Perhaps there is some doctrine of international law of which I’m unaware that dictates a different result?)

The U.S. government probably considers the threat of retaliation more significant as a restraint on Iran than international law. Because the U.S. doesn’t rely on international law norms against aggression to prevent aggression against it, the U.S. doesn’t have much incentive to see strong anti-aggression norms develop, and it doesn’t really care if rationales it uses to support the use of force could theoretically be asserted against it.

36

Data Tutashkhia 06.08.12 at 3:14 pm

That’s right, they do it because they can, as matth said. And that’s all there is to it.

37

Tom West 06.08.12 at 3:17 pm

I believe the justification for the drone strikes from the left has less to do with “they were all terrorists” and more to do weighing the 1,000 lives lost in drone strikes against the hundreds of thousands of lives lost in the inevitable US retaliation in the event of a successful terror attack.

Of course this justification depends on what you think the odds are of a successful large-scale terror attack in the absence of drone strikes. Or if in fact, whether the odds are less at all.

38

hartal 06.08.12 at 3:29 pm

But then India would surely have the right to use drones against Lakshar-e-Taiba and the groups which have killed Indian diplomats in Afghanistan towards the end of stifling Indian presence there. At the very least the Pakistan has been unwilling to act consistently and decisively. Isn’t the world better off with the US and NATO taking military action than the Indian state? And what role did the US play in building up ISI and its unofficial offshoots with billions of dollars of aid over the decades?

39

js. 06.08.12 at 3:43 pm

The drone program in Yemen is with the government’s consent.

I was wondering about this too. But doesn’t it matter that this consent is not publicly relied on, nor even publicly acknowledged? I thought this was maybe why CB was focusing on the “unable or unwilling” defense.

40

hartal 06.08.12 at 3:56 pm

41

hartal 06.08.12 at 4:15 pm

http://www.opendemocracy.net/paul-rogers/america-india-pakistan-china-next-game

The last link I gave takes you to the second page of the article; the first page is worth reading as is the piece above.

42

James 06.08.12 at 4:15 pm

The wikileak documents suggest that Pakistan has given consent to US actions on their soil.

The irony of International Laws on war is that the enforcement of the laws ultimately rests on the ability and willingness to go to war with the offender.

43

Chris Bertram 06.08.12 at 4:23 pm

_I thought this was maybe why CB was focusing on the “unable or unwilling” defense._

CB is focused on this because it is official US government doctrine as articulated by National Security Adviser John Brennan

http://www.whitehouse.gov/the-press-office/2011/09/16/remarks-john-o-brennan-strengthening-our-security-adhering-our-values-an

and because it figures prominently in the defence of the targeted killing policy by Jack Goldsmith in the link in the OP. To cite Goldsmith:

bq. And they [targeted killings] are consistent with the U.N. Charter’s ban on using force “against the territorial integrity or political independence of any state” only if the targeted nation consents or the United States properly acts in self-defense. There are reports that Yemen consented to the strike on Awlaki. But even if it did not, the strike would still have been consistent with the Charter to the extent that Yemen was “unwilling or unable” to suppress the threat he posed. This standard is not settled in international law, but it is sufficiently grounded in law and practice that no American president charged with keeping the country safe could refuse to exercise international self-defense rights when presented with a concrete security threat in this situation. The “unwilling or unable” standard was almost certainly the one the United States relied on in the Osama bin Laden raid inside Pakistan.

44

hartal 06.08.12 at 4:23 pm

Yet the civilian Pakistani government seems set on soon disallowing Predator strikes from its territory, which may be one important reason Obama is presently escalating drone attacks. Of course re-election pressures may be another factor; one of the more perplexing aspects of US electoral politics is how little bump Obama enjoyed for the raid on Osama’s compound. One suspects that were he not a foreign-born Muslim, Obama would have been crowned President-for-life or at least four terms, a la FDR.

45

NomadUK 06.08.12 at 4:30 pm

@8: I was thinking about the same case. Since it was prosecuted as a crime, however, I sort of doubt the idea that the US approved of it.

I’d been deliberately avoiding even looking at this thread because I knew the kind of utter shite it was going to attract, and inane statements like this just confirm that I was right.

46

geo 06.08.12 at 4:37 pm

There seems to be some slippage between “retaliation” and “self-defense.” Self-defense means “necessary to prevent imminent armed attack.” Even then, the matter must immediately be referred to the Security Council for resolution, and its directions obeyed. The idea that the US is acting in self-defense with current drone strikes within any plausible interpretation of international law is absurd. As usual, we do what we do because we want to and we can.

“Retaliation” is not a right in international law. If one has suffered aggression but cannot show clearly that further aggression is imminent, then one must appeal to the Security Council. Period.

47

Chris Bertram 06.08.12 at 4:48 pm

geo: I _think_ that the idea is that once self-defence has triggered hostilities, you can just carry on indefinitely. I agree that that’s absurd, but the thought would be that the US is acting pursuant to a war of self-defence that began in 2001 and treats new operations in new territorial jurisdictions as simply an extension of that. Here’s David Rodin from his
_War and Self-Defense_ (p. 112)

bq. In international law … the test of necessity is applied only to the commencement of the conflict, not throughout the war. A state fighting a legitimate defensive war is not required in law to cease hostilities when it has vindicated its rights. It may prosecute its war to final victory even after the point at which this is no longer necessary to reverse or frustrate the unlawful use of force which provided the justification for the war.

Frightening stuff, especially in the context of a “war” against non-state actors.

48

ben in el cajon 06.08.12 at 5:10 pm

Here is a great opportunity for another choose your own adventure post.

You’re the new President of the United States, and an advisor enters the Oval Office to help you decide what to do next to resolve the real or perceived threat of terrorist violence against the US or it’s interests.

You get to define the interests of the US, calculate the risks to American lives and property, and then determine strategy, from carpet bombing or invading Pakistan to withdrawing troops from everywhere and ending all support for Israel and Saudi Arabia in order to successfully negotiate a peace with Al Qaida.

You could ask Pakistan to arrest suspected threats and wait, or you could ask Interpol for help, or you could drastically increase security at all points of entry to the US (after all, this morning’s wait to cross the boarder from Mexico to the US in San Ysidro is under three hours).

All options, of course, will bring risks and consequences. Oh, and no time machines, so you cannot go back to 2000 and elect Gore, even though there was no difference between the US parties.

Does anyone have the expertise and time to write this? I’d love to play and learn.

49

SN 06.08.12 at 5:11 pm

Here’s apparently how the administration may perceive drone strikes:

http://www.thedailybeast.com/articles/2012/06/08/daniel-klaidman-on-the-mind-of-a-drone-strike-operator.html

There is some very bizarre psychology going on there, since everything known about the targets is of course through intelligence, which may be faulty, etc. They may give the illusion of picking out specific irregular combatants, which then gives the illusion that it is ‘concern for terrorists’ which spawns objections, rather than concern for civilians.

50

Andrew F. 06.08.12 at 5:12 pm

I’m not sure why the second reason you offer is a reason to suppose the air strikes in Yemen/Somalia/Pakistan are illegal. That an action isn’t one we would approve of isn’t an argument that the action is illegal (unless you had some type of natural law theory in your pocket, I suppose).

As to the Caroline test… It’s an outdated formulation of customary int’l law that has long since been rendered archaic by technology and practice, in my humble opinion. A government that always and strictly adhered to such a formulation, in today’s world, would in a number of cases breach its sovereign responsibility to provide security, from which the “inherent right of self-defense” flows.

While it’s possible to torture the language of the test into an interpretation that fits with the exigencies of today’s world and the actual customary practice of governments, I think it should be discarded as unhelpful.

That leaves open for question whether, on the basis of self-defense understood sans Caroline, the strikes are legal.

51

hartal 06.08.12 at 5:33 pm

So Geo is claiming that no one is under imminent threat from the Haqqani network, al Qaeda, and Lakshar-e-Taibi? Or is it just American citizens who are not under imminent attack unlike secularists, feminists, diplomats, aid workers, and magistrates in Afghanistan, Pakistan and India?

52

geo 06.08.12 at 5:35 pm

Thanks, Chris, for the quote. I wonder how that author defines “legitimate defensive war”? As I understand it, the Security Council has to authorize and supervise ongoing military intervention. Since 1948, wars are no longer supposed to be private affairs — a commitment not made lightly. (Or perhaps it was, alas.) Of course I recognize that the UN Charter is, thanks to longstanding great power indifference and even contempt, practically a dead letter. But still, we’re talking about international law …

53

geo 06.08.12 at 5:42 pm

hartal: There is a difference between coordinated international police action and military intervention. The former is supposed to be applied to international criminal activity by non-state actors. When only police forces are used, states coordinate among themselves; when military forces are used, they are coordinated by the Security Council.

I suspect you’re going to answer, in one fashion or another, that it’s a lawless world. Indeed it is, and that’s not entirely the fault of the overwhelmingly dominant (for the last sixty-five years) military and economic superpower. But it’s a good deal our fault.

54

hartal 06.08.12 at 5:47 pm

So yes we seem to agree that many innocent people are in imminent danger of attacks from the groups that the US and NATO are targeting.

And again the action that the US and NATO are taking is preferable for obvious reasons to the justified actions that the Indian government could take.

The US and NATO should be worried that the Indian government will not think that they are acting decisively enough against groups which the Pakistani government has proven unwilling to dissolve.

55

Marc 06.08.12 at 5:48 pm

@45: There was an assassination of a Chilean dissident in 1976, in the US, by agents of the Pinochet regime. The Carter administration, which came into power in the 1976 election, hated the Pinochet regime and prosecuted the people in question. The fact that a prior administration liked Pinochet doesn’t change this. And, as noted here, it’s not likely that any US administration would be enthusiastic about having foreign governments killing people here. (They’d have been a lot more likely to, say, deport the person in question.)

56

James 06.08.12 at 5:59 pm

geo @51 “As I understand it, the Security Council has to authorize and supervise ongoing military intervention.”

I am not sure this is correct. When the US signs treaties, the authority of the treaty can never exceed the authority of the US constitution (under US law) without a constitutional amendment (this is settled US law). War powers are pretty thoroughly spelled out in the constitution.

57

Niall McAuley 06.08.12 at 6:03 pm

When you (Chris) say the strikes need to pass the regular tests of discriminating between combatants and non-combatants and not causing disproportionate “collateral damage”. you mean they need to do that to be legal, right?

Because actually, the US doesn’t need to care if they are legal or not.

See “Iraq War, The”.

58

mpowell 06.08.12 at 6:16 pm

You may be right about the illegality of drone strikes, but I don’t think your example with Cuba and Nicaragua proves very much. It may be perfectly legal by the standard of international law for a foreign country to go to war with the United States, but it would be absurd to expect in any case that the United States government (or most of it’s people) would be anything but outraged over the situation. I don’t think any country would be any different. And if you’re not waging war on the government itself, but conducting assassinations of private persons, the government still isn’t going to be very happy about it. If they agreed that those persons were guilty of crimes they would have just already arrested them. The whole example is just silly. Conducting military operations in another country against the will of that country’s government is always going to piss them off. That clearly doesn’t determine the legality of the action, though.

59

Phil 06.08.12 at 6:48 pm

Chris – is the argument then that, once a Caroline self-defence justification has been made out, the war that’s been embarked on as a result is ipso facto defensive and can continue indefinitely without any further need for justification? That would be an incredibly strained reading of the law. The Caroline case was all about resorting to war in a situation characterised by surprise and unforeseen necessity; once those conditions have ceased to exist, you’re surely in a different situation as far as justifying military force is concerned.

I think there’s some very profitable equivocation going on between “self-defence” (as in, somebody’s attacking us, we’ve got to do something, waging war is something) and Caroline “self-defence” (as in, somebody’s attacking us, waging war is the *only* thing we can do because of reasons A, B and C).

60

geo 06.08.12 at 6:49 pm

James @55: Treaties are binding when ratified by the Senate. There is not and has never been any constitutional question about the duty of the United States to obey the UN Charter. Treaties are intended to limit sovereign power. That is their whole purpose.

61

James 06.08.12 at 7:29 pm

Geo @59. Your statements are correct with a very important exception. The US Government cannot legaly abdicate any power or right spelled out in the US Constitution.

“Reid v. Covert, 354 U.S. 1 (1957), was a landmark United States Supreme Court case in which the Court ruled that the Constitution supersedes international treaties ratified by the United States Senate. “
http://en.wikipedia.org/wiki/Reid_v._Covert

As pertaining to drones and war, the laws judging the legality of US actions in war derive first from the US Constitution and then any ratified international treaties.

62

Dissent 06.08.12 at 7:47 pm

James @60 What are you talking about? What part of the constitution are you referring to? What does this statement even mean: “the laws judging the legality of US actions in war derive first from the US Constitution”?

Reid v. Covert says simply that the United States may not gut the constitutional rights of its citizens through treaties. That’s pretty straightforward and makes a lot of sense.

What you seem to be arguing is that the United States possess certain (implied) powers under the Constitution that it cannot sign away. Is that your argument? And if so, what do you have to back it up?

63

geo 06.08.12 at 7:48 pm

James: That precedent looks completely inapplicable to me. What it says is that the rights of citizens, as spelled out in the Constitution, can’t be overridden by the Senate in agreeing to a treaty. But a treaty in which the Senate commits itself to limitations on its warmaking prerogatives in exchange for similar limitations by other states is another matter altogether. No citizen’s rights are involved.

Again, the very nature of a treaty — any treaty — is an agreement by a state to be bound by certain rules and procedures, and in this sense to accept a limit on its sovereign prerogatives.

64

Bruce Wilder 06.08.12 at 8:25 pm

In the OP, Chris Bertram has identified two legs of what should be a three-legged stool, of legal justification and legitimacy: 1.) responsible discrimination between civilians and non-civilians, in conformity with the traditional law of war, as codified in treaties; 2.) the U.N. charter and respect for the sovereignty of other states. The third leg of the stool would be what James @60 identifies: conformity with a state’s own constitutional process, in the case of the U.S., the U.S. Constitution, and related statutory law and governing process.

Leg number 1 has always been a weak reed. The concept of some respect for civilian lives and innocence is a lovely idea, but honored more in the breach than in the details of historic practice of war.

Leg number 2 is a bit stronger, but, as other commenters have noted, is pretty much a dead letter, when any Great Power is acting in circumstances in which it is not effectively opposed another Great Power. When we hang George W. Bush for the invasion of Iraq, a clear and unambiguous war crime of the highest order, then the law of war and the U.N. charter will mean something.

The last leg of the stool, though, points directly at the exposed foundation stone, that reveals what all the legs are resting on: the false claim that there is, or can be, a “war on terror”, or a war against any diffuse non-state actor.

Intellectually, this is a problem of false categorization. If you accept as an axiom that there is a “war on terror” or even a “war on Al Qaeda”, and not simply a problem of violent criminal conspiracy, then you’ve passed through the looking glass into an impossible wonderland of contradictions and distorted notions of expedience.

Discrimination between civilians and non-civilians? Here on planet earth, they are all civilians, even the deliberately intended targets. That someone, somewhere intends violence doesn’t make them soldiers in any belligerent’s army.

U.N. charter and state sovereignty? If the U.S. is at war, with a state — and that’s the only kind of non-metaphoric war that can exist — then the laws of war apply. Otherwise — and this is otherwise — not.

And, finally, U.S. constitutional process: the U.S. President is a caesar in a genuine emergency, but more than a decade later, the crazy is old, real old.

It shouldn’t be just the legal niceties that trouble us. Constitutional process to constrain decision-making is what forces us to deliberate and to make rational, calculated collective choices, respect the feedback of results and consequences, and trouble ourselves with conflicting claims and proportionality, when employing the awesome power of the fully organized state. That Iran or Cuba could use symmetric justifications in tit-for-tat misses the real problem, because the justifications are just rationalizations for what Power does when it can. The real problem is the breakdown of constraints on Power, which are necessary to ensure that Power acts at least somewhat rationally and in response to deliberation. When Power is unconstrained, “good intentions” seem enough, and people in power, or acting at the behest of Power, forget to even reason about practical means and ends and consequences, embodied in moral principles or pragmatic precepts.

The whole idea of a law of war, of a U.N. governing international relations, or a constitution for a republic, rest on long experience with the consequences of unconstrained, and expedient power, which discards reason as inexpedient.

We’re inviting anarchy and the dislocation of all international relations, in the wake of declining U.S. power, chucking all the soft power claims, even as the hard power behind them erodes like a sand castle facing an incoming tide.

65

LFC 06.08.12 at 8:26 pm

CB @43
small correction: Brennan is adviser for counterterrorism, not natl sec adviser.

James @60: unfortunately the Wikipedia article on Reid v Covert is not good. I’m not saying it’s wrong, it’s just so cryptic and badly written that it’s not very helpful.

66

LFC 06.08.12 at 8:32 pm

Ok, hadn’t seen 61 and 62, which I think are probably right.

67

geo 06.08.12 at 8:34 pm

Bruce @63: The whole idea of a law of war, of a U.N. governing international relations, or a constitution for a republic, rest on long experience with the consequences of unconstrained, and expedient power, which discards reason as inexpedient.

We’re inviting anarchy and the dislocation of all international relations, in the wake of declining U.S. power, chucking all the soft power claims, even as the hard power behind them erodes like a sand castle facing an incoming tide.

This should be tattoed on the foreheads of all those smug “realists” at the Times, New Republic, Atlantic, Foreign Affairs, etc, etc.

68

Ben Around 06.08.12 at 8:47 pm

Dear Smart People,

There is no basis, legal or otherwise, for these strikes. Except that we want to and we can.

If you knock down any baldface lie, a new one will take its place. The same way a child never runs out of reasons to avoid nap time. The twentieth reason is no better and no worse than the 19 before it or the ones after it.

International law is not for nations and despite anyone’s feelings, nobody will ever be held to account for terrorizing civilians.

69

Data Tutashkhia 06.08.12 at 8:51 pm

We’re inviting anarchy and the dislocation of all international relations, in the wake of declining U.S. power, chucking all the soft power claims, even as the hard power behind them erodes like a sand castle facing an incoming tide.

Well, think about it this way: when you feel you’re declining but still stronger than everybody else, this might be exactly the right time to attack. A chance, maybe the last chance, to change the dynamics.

70

Hartal 06.08.12 at 9:18 pm

79percent of civilian casualties in Afghanistan died at the hands of non government forces according to the UN

71

Bruce Wilder 06.08.12 at 9:27 pm

Data Tutashkhia @ 67: “. . . this might be exactly the right time to attack. A chance, maybe the last chance, to change the dynamics.”

I don’t doubt that some people might “think” along the lines Data suggests, but, to me, that sounds vaguely like the debased authortarian “reasoning”, which drove Japan to attack Pearl Harbor. As a strategy, it doesn’t make any sense, whatsoever.

I read David Kaiser’s new post, immediately after making my comment. He says much better much of what I was trying to get at.
http://historyunfolding.blogspot.com/2012/06/international-anarchy.html

72

Bruce Wilder 06.08.12 at 9:39 pm

It might seem a bit tangential to the drone strike issue, but the way charges under the law of war are laid against some of those captured and labeled as Al Qaeda operatives, back before we just blew them up from afar, seem to me to be indicative and revealing of the debasement of reasoning entailed.

The Wikipedia article on Omar Khadr reports that he was charged with murder, for his participation in a firefight against U.S. forces.
http://en.wikipedia.org/wiki/Omar_Khadr
It is quite the twisted logic, which says “its a war” but the “lawful targets” do not have the right to fight back.

Of course, now we have technology that seems for the moment at least to take away the target’s practical ability to fight back, as well as relieving our forces from any risk of the awkward questions that might arise, when they capture, say, a teenage boy. Now, we just murder the teenage boy, and deny that he was the target; he was collateral damage, but not collateral damage, because he was killed and Obama defines all males of military age, who are killed, as “militants”, ex post, all without the embarrassment of judicial proceedings of any kind.

It is kind of marvelous, in its way.

73

Theophylact 06.08.12 at 9:49 pm

john b @ #20: Dr. Drew Gilpin Faust is a “fellow” only in the academic sense of the term.

74

ckc (not kc) 06.08.12 at 10:17 pm

…technology that seems for the moment at least to take away the target’s practical ability to fight back

…if you’re tatooing things (for future reference), this might be a good one

75

Colin Danby 06.08.12 at 10:19 pm

Imagine, to take a closer parallel, that the Cuban government had sent an airplane to bomb Orlando Bosch’s house in Miami in the mid-1960s. I doubt the U.S. government would have let the matter drop.

And it seems easy to justify the murders of Orlando Letelier and Ronni Moffitt under the criteria the Obama administration has set out for its killings. The southern cone dictatorships had a well worked-out doctrine to the effect that all lefties were communists, and all communists were mortal threats.

76

hartal 06.08.12 at 11:02 pm

But not all commies are in fact mortal threats; the same can’t be said of the Haqqani network and Lakshar-e-Taibi.

77

Colin Danby 06.08.12 at 11:27 pm

This is too obvious to belabor, but the question, Hartal, is how “in fact” is arrived at — especially when you’re killing an individual. It gets murkier when the process of deciding is secret.

78

hartal 06.08.12 at 11:36 pm

How is night distinguished from day–the twilight makes demarcation difficult. Yet there is night and day. And there is a distinction between the monstrous forces that NATO is presently attacking and the trade unionists, independent socialists and communist party activists that the Southern Cone dictatorships declared a mortal threat, incarcerated and tortured. Even if you look at the anti-government armed insurgents in, say, El Salvador or Guatemala, they accounted for perhaps ten percent of civilian casualties. Anti-government forces account for about eighty percent of civilian casualties in Afghanistan, according to UN sources.
As for what I am saying being too obvious to belabor, do you really think people here have as much as read Ahmed Rashid, Tariq Ali, Pervez Hoodbhoy or the on-line newspaper Dawn?
I really get the sense that people know very little what they are talking about.

79

Colin Danby 06.08.12 at 11:58 pm

There are two different points, here, Hartal, which you are failing to distinguish.

(1) Whether you and I can agree on the relative threats of different people or organizations, based on what we know and can find out. Possibly we can. But that’s irrelevant.

(2) The conditions under which you give governments the power to kill people in secrecy and without judicial review.

And re “monstrous forces,” take a look at the writings of Fred Schwarz on communism (http://www.schwarzreport.org/index.php/resources/you-can-trust-the-communists-to-be-communists/chapter-5-techniques-for-seizing-power), or J. Edgar Hoover’s _Masters of Deceit_. Schwarz was, if memory serves, influential in Latin America. He makes a strong argument that communism is inherently violent, even when it uses non-violent tactics, and that it is playing for the largest stakes imaginable. You and I may agree in finding him unpersuasive, but it’s not a silly or crazy argument: it has a clear logic and ample documentation. It persuaded a great many people. So you can’t duck the problem by saying that you happen not to agree with it.

80

hartal 06.09.12 at 12:01 am

“He makes a strong argument that communism is inherently violent, even when it uses non-violent tactics,”
A strong argument, you say.

81

geo 06.09.12 at 12:16 am

Hartal @76: I really get the sense that people know very little what they are talking about.

I really get the sense that you have very little idea what the rule of law is. Lynching a guilty person is no less a crime than lynching an innocent one. Beating a guilty person in police custody is no less a crime than beating an innocent one. Giving false evidence against a guilty person is no less a crime than against an innocent one. Killing guilty people without due process is no less a crime than killing innocent ones.

82

hartal 06.09.12 at 12:31 am

The fact that you think what you are saying serves as a blanket condemnation of the military actions against the Haqqani network and Lakshar-e-Taibi is my point.

83

geo 06.09.12 at 1:13 am

Sorry, could you explain?

84

gordon 06.09.12 at 1:18 am

Phil (at 34) “…if we assume that a state of war exists between the US and al-Qaeda…”. But how can the US go to “war” with something that isn’t a State? See Bruce Wilder at 63.

Hartal (at 50 and 74) worries that somebody might be trying to kill him. Maybe somebody is, but if so, killing them preemptively is more analagous to what happened to Trayvon Martin than what happened to Osama.

Geo (at 52) raises the issue of criminal action. Assuming that hijacking aircraft and flying them deliberately into buildings is illegal in the US, I’m strongly inclined to agree that treating what happened on 11 Sept. ’01 as criminal is the appropriate thing to do.

Data Tutashkhia (at 67) – that is very like the situation the Imperial German General Staff thought it was in in 1914.

85

hartal 06.09.12 at 1:30 am

Colin Danby worries that Obama would leave us speechless in the face of extra-judicial killings of non-violent communist or leftist dissidents seeking refuge or asylum in the US. Geo has offered his analogies to lynching and custodial beatings; gordon exhumes the body of Trayvon Martin to discuss military actions thousands of miles away against terrorist networks.
I, for one, am not very impressed with these points. Perhaps others are. People will draw their own conclusions.

86

Kevin 06.09.12 at 1:39 am

Hartal, you seem to be suggesting that there can be no underlying normative or conceptual issues that allow for comparisons between things like lynchings, custodial beatings, and recent racially motivated murders (on the one hand) and things like military actions and terrorism on the other hand. This is silly. But maybe you think that normative and conceptual questions are silly. Which is silly.

87

heckblazer 06.09.12 at 1:47 am

I believe Hartal’s point is that the Haqqani network and Lakshar-e-Taibi operate closer to an armed guerrilla group than a criminal conspiracy. I would add that guerrillas, terrorists and criminals sometimes aren’t easily distinguishable. I’d point to Colombia and Mexico for examples. In the former you have FARC, a revolutionary group that engages in terrorism and funds it’s long-running guerrilla war with drug trafficking. In the latter you have Los Zetas, a drug smuggling cartel that uses brutal violence and terrorism and is so well armed and organized that the army has to come in to relieve overwhelmed police.

88

Tom Hurka 06.09.12 at 1:59 am

What’s the legal status of the Caroline test? IIRC Walzer argued that if you accept it you have to condemn Israel’s pre-emptive strike in 1967. Is that a universal legal opinion?

The Caroline test is an extremely restrictive one that was devised by a US Secretary of State because it suited US interests at the time, i.e. to stop British/Canadian attacks on US citizens who were actively assisting Canadian rebels operating from the US side of the border. It was not — surprise, surprise — enunciated as a pure disinterested matter of principle.

89

mattski 06.09.12 at 2:07 am

Marc @54 For a possibly dispiriting walk through the weeds of the US intelligence apparatus in the 70’s see Gaeton Fonzi’s, The Last Investigation. A vivid demonstration of how UN-monolithic “the US Gov’t” can be. Chapter 40 is devoted to Letelier.

90

gordon 06.09.12 at 2:08 am

Renumbering has now rendered all my careful comment-number references (at 84) wrong. Well, I’ll just Keep Calm And Carry On…

http://en.wikipedia.org/wiki/Keep_Calm_and_Carry_On

91

js. 06.09.12 at 7:04 am

hartal:

do you really think people here have as much as read Ahmed Rashid, Tariq Ali, Pervez Hoodbhoy or the on-line newspaper Dawn?

Umm, people here have not read Tariq Ali? (Anyway, I was wondering: don’t you tend to be fairly way-left when it’s not a question of India-Pakistan relations? Not trying to be ad hominem, just wondering. Come from those parts myself.)

92

Phil 06.09.12 at 8:08 am

Phil (at 34) “…if we assume that a state of war exists between the US and al-Qaeda…”. But how can the US go to “war” with something that isn’t a State? See Bruce Wilder at 63.

Gordon – I’m with you (and Bruce) on this one; I was just trying to unravel how Obama & co could justify what they do as legal without recourse to overt Bush-era presidentialism. “Call it a war, justify the declaration of war on Caroline grounds, then call it a justified war and shift the debate over to the ‘how’ questions” seems to fit, sadly.

Tom – I think the point about the Caroline test isn’t how it was arrived at but the fact that it’s there; it’s the current state of international law wrt pre-emptive self-defence. Which doesn’t mean it’s secured any convictions, of course.

93

Jim Rose 06.09.12 at 9:05 am

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• n cs f ths vws s pwrlssnss nd lntn: lftsts hv n pwr nd mst dn’t xpct t xrcs pwr, vr.

• Th Lft rfss t dntfy wth thr fllw ctzns, rgrdng ny hnt f ptrtc flng s pltclly ncrrct. Thr prpsls sm t hv bn dvlpd wth n cncrn fr ffctvnss nd n sns f rgncy.

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• Thr lntn s rdcl. Hw ls s thr th nwllngnss f ppl wh, ftr ll, lv hr, nd whs chldrn nd grndchldrn lv hr, t jn n srs dbt bt hw t prtct th cntry gnst ftr trrrst ttcks?

94

Data Tutashkhia 06.09.12 at 9:06 am

Hartal, do you really believe that extremism brought to life by bombing villages (not to mention, with the help of the CIA) can be stopped by bombing more villages?

Logically, it seems, to stop this imminent threat your way, you should advocate killing, at least, all military age males in South Afghanistan and North Pakistan. …but you almost do, don’t you?

95

Chris Bertram 06.09.12 at 9:22 am

The OP asked specific questions about the international law doctrines used by the US to justify drone strikes, whether those doctrines stand up, do indeed justify what they purport to justify, and whether, if generalized, those doctrines wouldn’t have implications that the US government would reject if relied upon by other states.

Jim Rose you have used this as an excuse to attitudinize about “the left”. Since you have a history of thread derailment, consider yourself banned.

96

Chris Bertram 06.09.12 at 9:25 am

Phil, way upthread @59. Yes, I think that’s what the argument is supposed to be, and I agree with you.

97

An American Anthropologist in Germany 06.09.12 at 9:38 am

The anthropologist Talal Asad makes an argument, in the Cambridge Review of International Affairs, that the difference between terrorism and what states routinely do in “just war” depends on the claim that in the latter civilians are not *deliberately* targeted. But in fact civilians are routinely and deliberately targeted by states in modern warfare (and he gives several examples), which is regarded as being ok in international law so long as doing so is “absolutely necessary,” “proportionate” and in pursuit of an important strategic objective. But this is virtually true by definition in modern warfare. And any case where violence against civilians exceeds, in retrospect, necessity and proportionality, can always be attributed to bad apples among the lower ranks or innocent error at the level of commanders. He furthermore suggests that what is labeled “terrorism” can also just as easily be seen as meeting these criteria. In practice the distinction between terrorism and just war comes down, in practice, to a distinction between states and non-state actors, with the strategic objectives of the former treated as legitimate by definition, and the latter never so. Whether his argument is convincing will come down to the details of the examples he cites, and not merely the form of the argument that I have outlined (which, without the examples, may come across as a sophistical). The journal has made the article available for free download here: http://www.tandfonline.com/doi/abs/10.1080/09557570902956580

98

Stephen 06.09.12 at 1:31 pm

Watson Ladd @29: you wrote “once hostilities have been initiated, the aggrieved state may demand any terms of surrender except territorial transfer. (But border disputes may be settled) “.

Some questions, if I may. First, what’s the legal basis for this, and from what date? There are quite a few wars in the last century that did seem to end in territorial transfer; even in this, if you count the South Ossetian conflict.

Second, how much wiggle room is there in the concept of “border dispute”? Wars do often occur between states with common borders. You could argue that, say, the transfer of Alsace-Lorraine from France to Germany merely settled a border dispute, though many French didn’t seem to see it that way.

Third, does this mean that if, say, the Argentines feel themselves the aggrieved party in the Falklands/Malvinas dispute, and succeed in occupying those islands, they cannot legally demand their transfer to Argentine sovereignty since there is no common border involved? (Not that such an issue would much bother the Argentines, of course.)

99

Stephen 06.09.12 at 1:50 pm

Darragh McDowell @ 6:

I think you will find several non-crazy people have noted that IRA men who disagreed with Adams and McGuinness tended to run into things very much more lethal than British roadblocks. The Loughgall martyrs, for a start. Some would regard that as a form of drone-free targeted assassination (with unintentional civilian casualties). Compare and contrast with current drone warfare …

But even those who argue that Sinn Fein/PIRA have become a wholly-owned subsidiary of MI5 would hesitate to claim they were so in the 70s or 80s. Surely the reason there were no SAS killings in Boston was that, to be effective, they would have to have targeted US civilians who supported the IRA: and though the US government and people are fairly relaxed about Americans killing foreigners, they very strongly disapprove of the reverse.

100

LFC 06.09.12 at 3:14 pm

Ben Around @68, who insultingly addresses his comment to “Dear Smart People”:
despite anyone’s feelings, nobody [sic] will ever [sic] be held to account for terrorizing civilians

Google “Charles Taylor + Sierra Leone”

Google “Cambodia + Khmer Rouge + tribunal”

Google “Rwanda + tribunal”

Google “truth and reconciliation commissions”

101

geo 06.09.12 at 3:51 pm

LFC @100: I suspect Ben meant: “No American politician will ever be held to account for terrorizing civilians.” Wouldn’t you agree?

102

Watson Ladd 06.09.12 at 3:58 pm

Stephen, I believe that the current legal status of the territories in Israel shows that annexation, even as a result of a defensive war, is no longer legitimate. Certainly there are pronouncements to this effect in international law. The Falklands are inhabited by British subjects: their dispossession would be illegitimate no matter how justified Argentina was in seeking British surrender. This is far beyond anything I can claim to have special knowledge of. The date would be 1945, with the movement of the Polish border.

Bruce, if al-Queda operatives wore fixed signs of their membership, had a command structure, etc. then murder charges would never be filed. A soldier can commit murder in a time of war: he could kill a prisoner of war, or a civilian that is clearly a civilian etc. All war means is soldiers get to kill other soldiers, and no one holds it against them. Indeed, the charges being filed are not about killing US soldiers, but about doing so without wearing a uniform.

Al-Queda is constantly committing very, very, grave war crimes by obscuring the civilian/soldier distinction. We’ve had arguments about this before on CT, but bottom line is that if you cannot distinguish between civilian and soldier, avoiding civilian casualties becomes a lot harder.

Phil: Caroline applied to preemption not self-defense. Chris I think makes a big mistake by saying that self-defense should be limited. Let’s say we have a state that constantly takes ships hostage and ransoms them. Most countries are okay with this, but one upstart isn’t and decides to pound them into dust until they abandon piracy forever, after a ship is seized. It’s difficult to say this action is morally illegitimate, and it certainly is considered a very valid war. (Barbary War: US vs. the Barbary states in the Mediterranean, way back in the 18th century)

American Anthropologist: Once we set aside intention, vehicular homicide and manslaughter look like murder. Any work in moral philosophy that starts off setting aside little things like intention is going against a lot of moral distinctions we have. But do you really believe WWII was just as nasty as princely wars in which armies marched out onto the field and shot at each other at prearranged times?

103

Antoni Jaume 06.09.12 at 4:15 pm

Watson Ladd 06.09.12 at 3:58 pm

«The Falklands are inhabited by British subjects: their dispossession would be illegitimate no matter how justified Argentina was in seeking British surrender. »

They may choose between remaining there as British citizen in Argentina, adopt argentinean citizenship, o going back to UK, or anywhere else on Earth. Why should it be different than with British residents in India? Or Hong Kong?

104

Data Tutashkhia 06.09.12 at 4:31 pm

Al-Queda is constantly committing very, very, grave war crimes by obscuring the civilian/soldier distinction.

Yup. Just like the minutemen or, recently, partisans in Belarus. The only way to stop them from committing these very, very, grave war crimes was to burn down hundreds of villages, together with all their inhabitants.

105

LFC 06.09.12 at 6:46 pm

geo @101
LFC …: I suspect Ben meant: “No American politician will ever be held to account for terrorizing civilians.” Wouldn’t you agree?

It’s obvious that no US President is going to be tried for anything before an intl tribunal given the current setup of, and distribution of power within, the intl system. I don’t think that Obama deserves to be tried, though I disagree with some of his actions, eg extensive use of drones.

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novakant 06.09.12 at 7:22 pm

It’s obvious that no US President is going to be tried for anything before an intl tribunal given the current setup of, and distribution of power within, the intl system.

That’s the point though, the question raised in the OP is purely academic, it doesn’t make any difference if anybody finds Obama guilty or not guilty (neither does the more obvious guilt of Bush, Blair, Rumsfeld et al). International law is enforced only when the ruling powers have an interest in doing so or are indifferent. There is no equality before the law, no impartiality and no consistency whatsoever in it’s application.

International law is a hypocritical travesty at best, a convenient tool for imperialistic power politics at worst.

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Antoni Jaume 06.09.12 at 7:32 pm

novakant 06.09.12 at 7:22 pm

International law is a hypocritical travesty at best, a convenient tool for imperialistic power politics at worst.

So was ordinary law not so long ago. And it would not surprise me that it’s still the present in a lot of place on earth.

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Stephen 06.09.12 at 7:33 pm

Watson Ladd @102: if I’ve understood you correctly, 1945 is the date after which in international law (not clear by which law) annexation of territory as in the westward displacement of the Polish borders (west and east) became illegal.

That leaves us with post-1945, off the top of my head, the Korean war, the Chinese annexation of Tibet, the Kashmir war between India and Pakistan, the Turkish invasion of Cyprus, the Israeli occupation of various territories, the North Vietnamese invasion of the South, the Moroccan invasion of the former Spanish Sahara, the Indian invasions of Hyderabad and of Goa, the Georgian war: all of which seem to me to have ended in territories being annexed. There may have been others. Were all of these annexations illegal? If so, what does illegality signify?

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Stephen 06.09.12 at 7:36 pm

Antoni Jaume @103

It is news to me that either India or Hong Kong ever had populations that considered themselves 100% British, or that either were invaded, or that such invasions would have been justified if the populations had been 100% British. Please clarify.

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leederick 06.09.12 at 8:11 pm

“A soldier can commit murder in a time of war: he could kill a prisoner of war, or a civilian that is clearly a civilian etc. All war means is soldiers get to kill other soldiers, and no one holds it against them. Indeed, the charges being filed are not about killing US soldiers, but about doing so without wearing a uniform.”

There’s a basic right to kill in self-defence or in the defence of others.

Soldiers have the additional right to kill other soldiers, and can kill civilians in error or if this is necessary and proportional to military aims, even if this isn’t in self-defence. But there’s no reason why civilians put in harms way by those actions can’t defend themselves.

Surely you can see how it’s perverse to say soldiers can go to someone’s village, start a firefight, grenade and bomb it; and civilians aren’t entitled to do anything to protect themselves but cross their fingers and hope there isn’t an error, or that their deaths aren’t going to be necessary and proportional. It is entirely reasonable to kill someone whose actions are threatening your life.

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Watson Ladd 06.09.12 at 8:36 pm

leederick, surely you can see it is perverse to expect soldiers to not kill civilians when those civilians can kill them for firing at soldiers they are nearby! Article 3, clause 1 of the Fourth Geneva Convention states: “Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.” Protocol I, article 37 prohibits perfidy, defined as “Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence”

I didn’t make up these rules: persons who appear to be civilians who then take advantage of their status to attack soldiers are guilty of war crimes. Your argument seems to be that this ignores the right to kill in defense of others. But if you want to fight to defend the soldiers, why not join them?

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PJW 06.09.12 at 9:24 pm

Obama addressed some of these issues — just war, civilian casualties — in his Nobel Peace Prize speech, which Carlin Romano (America the Philosophical) mentioned on Book TV a few moments ago and which recalled for me the conversation taking place in this thread. I was also reminded of this thread while reading an article in The New Yorker on language in which the author quoted George Orwell from his Politics and the English Languagewherein Orwell said that much political language was “designed to make lies sound truthful and murder respectable.”

A link to Obama’s nobel speech:
http://www.msnbc.msn.com/id/34360743/ns/politics-white_house/t/full-text-obamas-nobel-peace-prize-speech/

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leederick 06.09.12 at 10:29 pm

“I didn’t make up these rules: persons who appear to be civilians who then take advantage of their status to attack soldiers are guilty of war crimes. Your argument seems to be that this ignores the right to kill in defense of others.”

It isn’t. There’s a clear difference between soldiers who dress in civilian clothes in order to commit perdify, and actual civilians who kill in self defence. Article 37 bans the first but not the second.

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GiT 06.09.12 at 10:53 pm

@44

“one of the more perplexing aspects of US electoral politics is how little bump Obama enjoyed for the raid on Osama’s compound. One suspects that were he not a foreign-born Muslim, Obama would have been crowned President-for-life or at least four terms, a la FDR.”

Issue ownership theory. Give it a whirl.

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Antoni Jaume 06.09.12 at 11:11 pm

Stephen 06.09.12 at 7:36 pm
Antoni Jaume @103

«It is news to me that either India or Hong Kong ever had populations that considered themselves 100% British, or that either were invaded, or that such invasions would have been justified if the populations had been 100% British. Please clarify.»

Some of the inhabitants of the Raj were British that installed there, some possibly for longer than in the Falklands, then the UK had to relinquish the Raj it did not take their opinion as binding. And the same was certainly true in Hong Kong. As for the invasion, well they had had not expelled all the previous inhabitants, so they were already there. Which in my opinion means the British had more legitimacy to remain. It is not as in the Diego Garcia case.

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Watson Ladd 06.10.12 at 1:04 am

leederick, the question comes down to privileged vs. unprivileged combatant. Since Omar Khadr was in an occupied territory he wasn’t a privileged combatant: section (4) applies only in unoccupied territory an army is invading, and if you don’t have time to put on a distinctive sign. At a minimum he isn’t a prisoner of war. You are also being quite mendacious about what happened: the US forces were searching houses, and then the occupants of one house opened fire on the troops.

So what are soldiers supposed to do in your view after the civilians start defending themselves? It seems that this runs the risk of any soldier in an area with ongoing combat fearing that at any moment a civilian might attack him, hardly conducive to ensuring protection of civilian populations.

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john b 06.10.12 at 7:00 am

Theophylact: indeed, hence my rather contrived phrasing.

Watson: it’s unlikely that there are any British subjects on the Falkland Islands. With a civilian population of 3,000 people predominantly born on the islands, the chances that any of them were born before 1949 in India, Pakistan or Ireland and subsequently failed to acquire either British citizenship, citizenship of their country of birth, or citizenship of any other country, are somewhat remote. There are, on the other hand, about 4,000 British citizens (Falklanders, expats and military personnel).

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Andrew F. 06.10.12 at 12:18 pm

It is worth noting that the application of the Caroline test was contested even in the affair of its creation, with the British insisting that the attack on the Caroline met the criteria of the test.

My view of a strongly literal reading of the Caroline test @50 is not a fringe view, but even an acceptance of the test seems to place US air strikes in Pakistan squarely on the legal side of the line.

I assume the following as facts:

(1) The US is in a state of war, of military conflict, with the organizations of al Qaeda and its affiliates, and, in connection therewith, the Taliban and its affiliates;
(2) Military assets of al Qaeda and the Taliban are being used, or will be used, in the course of the ongoing conflict with the United States;
(3) The Pakistani government is unable or unwilling to prevent the Taliban and al Qaeda, and affiliates, from basing, building, and transporting such assets in Pakistan;
(4) Air strikes in Pakistan are upon military assets operated by or for al Qaeda and/or the Taliban, and/or affiliates.

One may argue with some or all of those assumptions, of course. But once one accepts those assumptions as true, it becomes difficult to argue that the strikes are unlawful (leaving aside the question of whether they satisfy the requirements of proportionality). “Self-defense” against a hostile organization in the course of a military conflict – whether that organization is recognized as a state or not is immaterial – does not mean waiting for that organization’s assets to be minutes or hours from being employed in violence before taking action. Nor does it require – if those assets happen to be in neutral territory – waiting for those assets to cross a border en route to be used. “Self-defense” against a hostile organization in the course of conflict means neutralizing the ability of that organization to wage war – and that entails the destruction of its military assets, wherever they are located.

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William Timberman 06.10.12 at 2:27 pm

Details, details, Andrew. Even if what you say were beyond dispute — which it isn’t — I don’t think it would be of much use in defending the indefensible. And make no mistake, that’s the task you’ve set yourself here. We’re being governed by psychopaths who think that bombing wedding parties by remote control from halfway around the world is a) effective, and b) legally defensible. The rest is just the lipstick on the pig.

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An American Anthropologist in Germany 06.10.12 at 3:05 pm

Watson Ladd @102:

Talal Asad’s argument isn’t that civilians are only accidentally killed by states, and deliberately killed by terrorists. He is saying that they are deliberately killed by both states (in the context of “just war”) and by so-called terrorists. His argument does not turn on a “murder vs. vehicular homicide” distinction, in other words.

The difference between so-called terrorists and states engaging in “just war” (in practice, the US and its allies and client states) is that the *deliberate* killings of civilians carried out by the latter are *always* portrayed as proportionate and necessary to some legitimate strategic end. But those called terrorists are also pursuing strategic ends. The only difference is that their ends are not regarded as legitimate by the Superpower.

As I said in the previous comment, whether Asad’s argument is persuasive or not will depend on what we make of his examples. But it cannot be rebutted simply by reference to the ideological claim that terrorists “deliberately” target civilians (which is true), but that states do not (which is false).

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geo 06.10.12 at 3:40 pm

Andrew F: You haven’t addressed the question of how one can be (legally) at war with a non-state organization. The short answer is: one can’t. But the main problem with your answer is that you ignore the obligations of the United States under the UN Charter. That is what the US government did in Korea, Vietnam, and Iraq, beyond token, unpersuasive (to the rest of the world) rationalizations. This is a large part of why the UN is ineffective and international law is, as observed above, a bad joke.

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Data Tutashkhia 06.10.12 at 3:54 pm

Demonization of the Afghan jihadis and their Arab friends should be especially awkward (if not outright comical) in relation to their recent glorification, in the 1980s. Often literally the same individuals, acting exactly the same way. But somehow hardly anyone seems to be able to see any humor in it. How very Orwellian.

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john b 06.10.12 at 5:25 pm

Rambo III is one of the most hilarious versions of this; recommended to all comers.

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Colin Danby 06.10.12 at 6:07 pm

Yep. 118 is tautologous, in that “state of war” is definitionally the suspension of legal due process for whomever you’re at war with.

Note also the wording “and in connection therewith … and its affiliates.” By that reasoning anyone in the world who is deemed by a couple of intelligence analysts (in secrecy) to be connected or affiliated is a legitimate target for killing, along with anyone near them. Connection and affiliation are the essence of this kind of campaign precisely because there is no central command and control you can knock out, no national capital to seize: it is all about people with lateral connections to each other.

Again, I note the logical and rhetorical parallel with cold-war anticommunism as implemented in Operation Condor or Central American death squads: “war” as the core justificatory claim, secret intelligence assessments, and heavy reliance on “connection” and “affiliate” to justify killing a wide range of people.

I get the argument that there are evil people in the world who will kill if they are not killed first, which is what Obama relies on heavily (thanks PJW for posting that link, I had forgotten how Agambenesque the speech is). But if you’re gong to go with that, you need to acknowledge that you’ve created a state of *permanent* exception to law: there is no definable end to this particular “war,” and since “wars” like this can apparently be started by mere executive decision, any President can wake up any morning, decide a war is on, and begin killing people on the advice of intelligence analysts. What Andrew F and Eric Holder are doing is post hoc window dressing.

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ben in el cajon 06.10.12 at 6:38 pm

In today’s issue of the Los Angeles Times you’ll find a story about Sgt. 1st Class Walter Taylor, who is faced with a trial for killing a civilian motorist after a bomb explosion hit his patrol.
1) Given that there seems to be no way to legally apprehend an Al Qaida member in Pakistan, what are the options? It may be that drone strikes cause fewer civilian casualties than ground troops, cerainly less than occupation or large scale bombing campaigns.
2) The US certainly doesn’t believe that soldiers can indiscriminately kill civilians.

I’ve been thinking about this problem since the earlier thread. The most legal, moral answer to the possibility of Al Qaida terrorist attacks seems to be to do nothing but wait for them and try to minimize the damage. I’m not a good enough person to be comfortable with that option.

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Data Tutashkhia 06.10.12 at 6:51 pm

The most legal, moral answer to the possibility of Al Qaida terrorist attacks seems to be to do nothing but wait for them and try to minimize the damage.

No, that’s not the best answer. The best answer would be to do something. Something completely different. That would remove the rationale for terrorist attacks.

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hartal 06.10.12 at 7:00 pm

“By that reasoning anyone in the world who is deemed by a couple of intelligence analysts (in secrecy) to be connected or affiliated is a legitimate target for killing, along with anyone near them.”
Yet before we get to your slippery slope argument, let’s be clear: What the groups NATO is targeting have done is not secret and whom President Obama is targeting is not secret. These attacks were not commenced due to an arbitrary executive decision; it was the consequence of horrific actions taken by these groups, and the long-standing failure to rein them in.

Panetta has openly said that the drone attacks are aimed at al Qaeda and the Haqqani offshoot of the Taliban groups that the ISI has supported and that the Pakistani government has proven unwilling to counter. More action should be taken against Lakshar-e-Taibi; it seems that at present only the leader has been targeted for rightful assassination. Leaders, by the way, have been successfully assassinated. I still remember Tariq Ali immediately trying to deflect attention away from the ISI after the Mumbai massacre by suggesting that India look to its own Muslims. What a terrible thing to say.

These groups have attacked the civilian government of Afghanistan and killed secularists, feminists, magistrates, journalists, and aid workers.

If the Pakistani civilian government and ISI had acted appropriately both in terms of police action and political strategy, this would not be happening. Obama is absolutely correct about this. US imperialism built up their capacities over decades; finally Obama is cleaning up the mess that US imperialism created. It can be hoped that the financial pressure that he is putting on Pakistan will lead to proper action by the civilian government and the ISI, so that there will be no need for drone attacks. If people are outraged by the drone attacks, why is their attention not directed at the duplicity of the civilian Pakistani government and secret services? It’s within their power to stop them.

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LFC 06.10.12 at 7:00 pm

geo @121:
The UN can’t prevent the US or other powerful states from doing what they’ve decided to do, but it’s been quite effective in some other respects; eg, UN peacekeeping missions, or missions which the UN has assisted, have helped to end or tamp down civil conflicts in the last several decades by, among other things, monitoring and enforcing cease fires, helping demobilize combatants, etc. See eg here. It’s easy enough to catalog the UN’s failures and weaknesses, including some peacekeeping missions, but on the whole UN peacekeeping saves lives, as do UN development assistance, public health, disaster relief, and other programs.

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leederick 06.10.12 at 7:03 pm

“leederick, the question comes down to privileged vs. unprivileged combatant.”

No, it doesn’t, there are two questions. The first question is whether someone is a combatant and has committed a warlike act as opposed to ordinary self defence. The second is whether if they they are a combatant they are privileged or unprivileged.

The first question is easy to answer in some cases. If there’s a military convoy not engaged in any offense action which you spray with machine gun fire – that’s pretty clearly a warlike act. But if you don’t personally instigate any offensive action, but instead respond after you are put at risk by the actions of others, things are murkier.

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ben in el cajon 06.10.12 at 7:12 pm

Data, when you suggest doing something different that would remove the rational for attacks, I can think of two courses of action. Obviously the first thing to do is withdraw all American forces from Afghanistan. To remove Al Qaida’s rational for attacks, however, the US would also need to remove all forces from the Arabian peninsula and sever ties with Israel. Is there any other way to negotiate a sensation of strikes against the US? Is this what you mean?

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LFC 06.10.12 at 7:19 pm

hartal @127
Yes, but as you know this whole issue cannot be separated from Pakistan’s longstanding and continuing mistrust and fear (perhaps somewhat irrational, but it exists nonetheless) of India. A main reason the ISI continues to tolerate and/or support certain militant groups using the Afghanistan/Pakistan border regions as a base is that ISI thinks it needs these groups to further its (perceived) interests in Afghanistan esp. after 2014. Panetta’s recent call for India to take a more active role in Afghanistan (eg in training Afghan police), plus his continued expressions of impatience (coupled with veiled threats) re Pakistan’s lack of action on the ‘safe havens’, suggest that the US does not think that the Pakistan govt and ISI will change their approach. Thus while it may be true that “if the Pakistani civilian government and ISI had acted appropriately both in terms of police action and political strategy, this [drone attacks] would not be happening,” the reason they haven’t “acted appropriately” has to do in significant part with the India-Pakistan rut that they seem unable to break out of or think beyond, occasional friendly gestures betw the two countries notwithstanding. This is why concerted efforts to improve India-Pakistan relations and solve the Kashmir issue should have been an integral part of the US/NATO strategy for an acceptable outcome in Afghanistan.

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Data Tutashkhia 06.10.12 at 7:33 pm

@130, this is all purely hypothetical, just like your suggestion ‘to do nothing’. What’s the point of discussing the details of something that is not going to happen anyway.

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hartal 06.10.12 at 7:44 pm

Changing the Kashmiri dynamics which have changed since Pakistan’s failed response to the earthquake in 2005 won’t stop rogue elements from seeking strategic depth in Afghanistan through the Taliban, a strategy which has led only to the Taliban having strategic depth in Pakistan. And that is the point. The Pakistani government and military have proven themselves quite capable of reining in the Haqqani network and its brother in arms Lakshar-e-Taibi. From a review of Rashid’s recent book: “It is all very well for the jehadis to hide out in enclaves in the wilds of Waziristan and mount guerrilla operations against innocent civilians and guilty military targets, but as the swift Pakistani reaction (documented by Rashid) showed when the jihadis reached Swat or Buner, a hundred kilometres from Islamabad as the missile flies, or tried insurrection from within the Lal Masjid in the heart of Islamabad, the Pakistani state came into its own to protect the essential interests of the classes who have captured the Pakistani state as soon as these came under dire threat. “
That is the point. So now pressure is being put on Pakistan to do what has proven capable of doing. Afghanistan must be given the freedom to develop its own diversity in unity. A sovereign Afghanistan will seek stronger diplomatic and economic relations with India.

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Emily 06.10.12 at 7:44 pm

@126 @130
The Age is today reporting Australia has gone from one of the most hated countries in Indonesia to one of the most loved thanks to an AusAid counterterrorism initiative to build Islamic schools for Indonesian schoolage children: http://m.theage.com.au/national/hated-aussies-now-loved-20120610-204gi.html

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ben in el cajon 06.10.12 at 8:03 pm

@132 Well, this thread seems to have established that the drone strikes are illegal. Most posters on the thread argue that the US is doing the indefensible. I’m wondering what other options there are. If drone strikes in Pakistan are illegal, then all use of force would be. So, assuming the US has a legitimate interest in not having terrorist strikes, what should it do instead? What would be an effective alternative?

You could argue that the US is overly afraid of attacks and that Americans should suck it up and live with risk. I’m sympathetic to that argument, to a point.

I suspect that illegal drone attacks are the least evil use of force option available at this time. I think at this time the Gore idea of treating the problem as a law enforcement issue is unworkable because of past US idiocy. I don’t think the US can negotiate its way out of the conflicts either.

So, I have two reasons for asking. First, as an American, I should probably try to influence the nation to stop drone attacks, so it would be better to have an argument to do so.

Second, I enjoy thinking about moral issues and strategy, and doing so more fun in a conversation.

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Colin Danby 06.10.12 at 8:15 pm

Hartal I did not present a slippery slope argument, I presented an *equivalence* argument. Your reasoning and rhetoric, and the current administration’s, closely parallel cold war anticommunism in its more murderous forms.

The secrecy point is simple: the assessment of *who* is sufficiently connected or affiliated to merit killing is being made secretly, without publicity, or, obviously, any opportunity for appeal by the people chosen. (And given the secrecy of the whole operation, your confident assertion about precisely which “groups” are targeted is bunk.) You don’t like to acknowledge the fact that *individuals* are being chosen for killing. You prefer to talk about “groups.” I remember talking to (generally intelligent and humane) people in the 1980s who were convinced that Roberto D’Aubuisson was doing the Lord’s work in El Salvador — sure, it was messy, but these groups, these networks, just had to be put out of business. Discussion of particular victims bored them. I have had similar conversations with right-wing Chileans. Your “cleaning up” is a very serviceable metaphor for these occasions. No real individuals here, nope, just some cleanin’ up to do.

The larger point, which you also cannot directly confront, is quis custodiet ipsos custodes, who assesses the assessors. Your argument boils down to saying that (what you believe to be) the current administration’s assessment of the threat has your very enthusiastic assent. You have no way of stepping back and asking what standards apply to assessments, made in secrecy by an executive and without judicial process, to designate individuals for killing.

People have little idea how partial, rushed, and flimsy “intelligence” usually is, and how readily it is driven by what higher-ups want to hear.

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Data Tutashkhia 06.10.12 at 8:53 pm

Those “groups” are something like heads of the Hydra. They exist for a reason. Sure, shooting missiles from drones (or whatever) into villages associated with this particular group is a strong disincentive for people to be a part of it. But they get pissed off even more, and, while this particular group may indeed disappear, instead a couple of new, and nastier, groups will emerge. And you’ll end up remembering your old good Haqqani network with nostalgia.

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Hartal 06.10.12 at 9:38 pm

In fact individuals are being targeted individuals who are the well recognized leaders of al Q, the H network and Let and the jehadis with them. Intelligence has been most often correct about their whereabouts. But of course these are operations which the Pak military could do better. Perhaps you have been too busy with your tendentious account of the Cold War to notice that this is exactly what Panetta and Ahmed Rashid are saying

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Watson Ladd 06.10.12 at 11:44 pm

Colin, in World War II several Axis leaders were targeted for assassination. Yamamoto got shot down over Papua New Guinea, Heydrich got blow up, etc. All of these were targeting individuals, as obviously is every time a group is targeted.

And guess what: It doesn’t matter. Individuals who are members of al-Queda are killable because they are members, just like anyone who signs up for the army can be targeted by an enemy army. I think we are all aware that eliminating al-Queda means killing individuals.

El Salvadorian rebels knew they could be killed by the state forces, and likewise dealt death to all in the army they opposed. The issue is with the civilians who were killed.

john b, I wasn’t aware that the UK had finally become a republic with citizens instead of a monarchy with subjects.

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hartal 06.10.12 at 11:54 pm

You’re missing what is so deeply objectionable about Danby’s posts. He compares Obama to Roberto D’Aubuission. Not only did the latter not consult the equivalent of a State Department and the Pentagon and compose a short kill list which is all but public, Roberto D’Aubuission also killed six Jesuit priests. Danby’s reasoning leaves us unable to distinguish been Archbishop Romero and Abu Yahya Al-Libi and the leader of Lakshar-e-Taibi.

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rf 06.11.12 at 12:32 am

Hartal, the ‘Haqqani network’ is not going to be destroyed by US drone attacks or any other Obama policy. Afghanistan is not going to ‘develop its own diversity in unity’ and ‘seek stronger diplomatic and economic relations with India’. Ahmed Rashid and Tariq Ali are not the only commentators on the region.
It’s clear that targeted killings have proven to be a quite effective tactic against Al Qaeda, but with domestic groups that have actual support bases it is nearly useless. When the great US/ ‘Haqqani network’ peace deal comes, I look forward to you arguing why the US Midwest is now once again in mortal danger.

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hartal 06.11.12 at 12:55 am

The US Midwest in mortal danger? Yes from Romney whom some CT’ers find similar enough to Obama, the American D’ Aubussion according to one hyperventilating commentator here, not to participate in the upcoming electoral contest.
At any rate, I thought that I had made it clear that the destruction of the Haqqani network had to be the task of the Pakistani military; and that is exactly what Obama is putting pressure on it to do. He has said that he would be willing to end it once the Pakistani military stopped outsourcing the war to the US and and showed the same resolve it did in Swat. It is indeed tragic that the raid on Osama’s compound could not be trusted to the Pakistani military, but Obama is trying to change this.
Afghanistan has already pursued closer diplomatic and economic ties with India; there are already talks with those Taliban who are willing to live in a multicultural country. And Rashid and Ali are not on the same page, as you seem to suggest; though what your point is not clear to me.

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rf 06.11.12 at 1:25 am

No I wasn’t suggesting Rashid and Ali are on the same page.
But, and I”m sorry if this question is ignorant, your response seems to imply that (1) Obama is putting pressure on the Pakistani military to destroy the ‘Haqqani network’, which would then allow (2) ‘closer diplomatic and economic ties with India’ and possibly (3) ‘talks with those Taliban who are willing to live in a multicultural country’.
Why would Pakistan do this? And is this a realistic endpoint? Also, do you see the military action in SWAT as a success?

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Colin Danby 06.11.12 at 1:36 am

WL yer WWII examples are under a formal declaration of war. The point about Al-Q is not only that there’s no formal declaration of war, but that there is no formal membership or hierarchical command and control. The Obama administration designates any adult male killed in a drone strike as a combatant. This is not a very rigorous standard.

H those distinctions aren’t gonna do the work you want them to. D’Aubuisson was a major in Salvadoran Army intelligence through 1979 (his death squad activity dates from the mid-70s) and retained close connections to the army after 1979. I’m sure there were meetings and consultations and dossiers passed around a table. He publicized many of his victims in advance. Incidentally, the November 1989 murders of the six priests were by the regular army. (Operation Condor was also highly bureaucratic: http://www.derechos.org/nizkor/doc/condor/calloni.html.)

Still awaiting a more interesting distinction than the fact that you think the victims of one bureaucratic killing-program deserved to die, but not the victims of the other.

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hartal 06.11.12 at 1:46 am

Sorry that is not interesting enough to you. Yes Archbishop Romero did not deserve to die, and the same can’t be said of the leaders of the H network and LeT. It’s an unbelievable insult to the memory of Romero for you to suggest that the line between him and Hafiz Mohammed Saeed is indiscernible. Such a line is easily drawn through rational public discussion, and is immediately obvious to any rational leftist. Which implies one of two things.
As for the question of why Pakistan would live with a neighboring state that is not in a vassal status–it will be forced to do so through military and economic pressure.

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rf 06.11.12 at 1:54 am

The United States under Obama will exert such influence over the Pakistani state, military and ISI that they will knowingly turn Afghanistan into an Indian client state? In a year? I think you’re overstating Pakistani ‘influence’ in Afghanistan, let alone their intentions.

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Emily 06.11.12 at 2:12 am

hartal, various individuals are being killed by the drones, presumably under secret US Presidential order (I’d guess the General’s etc have some influence here – but if it’s secret there’s not a lot of way of telling who and how). I haven’t followed the issue closely, but your statement that “Such a line is easily drawn through rational public discussion, and is immediately obvious to any rational leftist” is evidently untrue when, so far as I am aware, there is no public discussion to speak of about whom the Presidential drone targets ought to be.

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geo 06.11.12 at 2:16 am

LFC @128: Yes, you’re right, the UN has indeed done much good. I only meant that its effectiveness has been greatly reduced by great power indifference and manipulation.

ben @135: I think at this time the Gore idea of treating the problem as a law enforcement issue is unworkable because of past US idiocy.

Ben, I found your comment refreshingly honest and open-minded. But why is it too late to begin, at last, to do the right thing: to admit all that past idiocy (and criminality) and go to the Security Council with evidence that jihadi activity in Pakistan is a threat to US security and request that the SC direct Pakistan to suppress that activity, or else face international sanctions, possibly amounting to military intervention? Of course that would be utterly inconceivable: to propose that the United States submit to international authority seems like treason to Republicans, who are generally insane, and political suicide to Democrats, who are generally spineless. But that just shows us our political course: to take on Republican insanity and Democratic spinelessness, rather than simply accepting them as natural features of the situation and trying to strategize around them.

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geo 06.11.12 at 2:27 am

Hartal @146: Archbishop Romero did not deserve to die, and the same can’t be said of the leaders of the H network and LeT

Can’t you get it through your head that it is not your right, or the President’s, to act on judgments like this without due process?

150

hartal 06.11.12 at 2:38 am

It would have put too great burden on US troops to insist that they capture Osama alive so that he could be put on trial. That would have put their lives at risk for no purpose. Like the leaders whom NATO is targeting, Osama did not hide from the atrocities that he committed. He declared war, and had no right to expect, and surely did not expect, anything other than a violent response. The same goes for those on Obama’s assassination list, which is hardly secret.

151

Colin Danby 06.11.12 at 3:06 am

“insult to the memory of Romero for you to suggest that the line between him and Hafiz Mohammed Saeed is indiscernible”

I’ve made no statement of that kind nor anything logically entailing it. FWIW I knew Ignacio Martin-Baro, one of the Jesuits killed in 1989, and several other victims of political killings in Central America, to which I devoted a decade of work. I rather doubt any of them would be happy about having their memories enlisted by you in support of state killing without due process.

152

John Quiggin 06.11.12 at 3:14 am

“The same goes for those on Obama’s assassination list, which is hardly secret.”

Link?

Even the names of US citizens on the “No Fly” and “Secondary Screening” lists are secret. I’m pretty confident I was on the “Secondary Screening” list for a while, for no good reason, and am now off, without any particular reason for removal.

153

hartal 06.11.12 at 3:32 am

It’s obvious that the assassination list features the leaders of the al Qaeda, the H network and and LeT. And it’s probable that some of the intelligence has come from some within the ISI. Which may mean that the US does not have good intelligence on the Afghani groups that are hitting NATO convoys and carrying out horrific suicide bombings. There is a reason to fear that signature strikes could go terribly wrong.
Yet it’s absurd that we demand that the US military can only take action against admitted terrorists on the condition that they take them alive and allow them their day in court.
It is also my belief that those invoking international law for the protection of the H network and LeT are here only seeking an excuse to save their tax dollars by a hasty withdrawal from Afghanistan because they could care less about the destruction and reaction that the forces that US imperialism created with the ISI visits and would continue to visit on innocent people throughout the region.
It’s the US responsibility to do what it can to destroy what it paid to create and what its aid was used to strengthen.
So far, the civilian government and military in Pakistan have been too willing to outsource the counter-insurgency to the US. Obama himself wants out. All the attention is on the drones, not on the immense and unprecedented financial pressure that Obama is putting on Pakistan to take action itself.

154

Sebastian 06.11.12 at 4:03 am

I think you’re trying to say that it is obvious that certain people are on the list (ie high level AQ members). The problem is that there may well be lots of other people on the list, and because it is secret we can’t really judge if that is appropriate.

155

John Quiggin 06.11.12 at 4:09 am

“It’s obvious that the assassination list features the leaders of the al Qaeda, the H network and and LeT.”

Even on a generous interpretation of the term “leaders”, that can’t amount to more than a few dozen people.

And it’s already on the public record that
(i) targets include people of unknown identity whose behavior, as observed from drones, is considered an indicator of terrorist activity.
(ii) ex post, any male of military age killed by a drone is considered to have been a legitimate target

So, why don’t you try again with your specification of who may be on the kill list.

156

hartal 06.11.12 at 4:26 am

The people on the kill list are there as a result of ISI, State Dept and Pentagon intelligence. According to Patrick Cockburn, the ISI are turning in the Pakistani Taliban who have crossed certain boundaries in Afghanistan. There are targeted individuals due to their self-proclaimed leadership positions in al Q, the H network, or LeT; the signature strikes are targeted on unidentified individuals who have been observed to carry out terrorist actions for said groups.
The most recent problem came from following an unidentified terrorist into a civilian home, and it seems that drone attacks on civilian residences will henceforth be prohibited. This is of course the right thing to do, though no one should doubt that this prohibition will likely result in the escape of terrorists who will kill Afghani government officials, NATO troops, aid workers or innocent civilians.
There are those who say that Obama is carrying out the drone strikes for electoral purposes, but then why is he putting so much pressure on the Pakistani government to carry out the military actions itself?

157

John Quiggin 06.11.12 at 5:14 am

Can you define “observed to carry out terrorist actions for said groups”? How does it differ, for example, from “observed to give material support to terrorism”?

This is a genuine question, not rhetorical. I have a reasonably clear idea, thanks to US legal cases, of what kinds of actions might be regarded as legal proof of “material support for terrorism”. Clearly “observed to carry out terrorist actions” has a lower standard of proof. I assume that the required actions constitute more than “material support”, but I have no idea where the line is drawn. Do you?

As an example, suppose someone is seen driving a car in which a listed target is a passenger, and then seen driving the same car alone. Can they be targeted under current rules? I don’t know. Do you? Do you think they should be?

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hartal 06.11.12 at 5:47 am

The example given in the NYT focuses on unknown individuals with a known terrorist in vehicle loaded with weapons headed towards some installation. In such a case the order for a drone attack could be given though the identity of everyone in that vehicle would not be known. How likely would it be that an innocent victim would have been allowed on such a vehicle?
I understand that the Nation, geo, Danby and others would like American troops to apprehend those in the vehicle and make sure that they all enjoy due process in a proper trial. Even Charles Krauthamer is attacking the drone program in the name of due process.
To put it simply: I think their insistence comes across as silly, and quite possibly an excuse to escape US responsibility in the region or, in Krauthamer’s case, to discredit Obama for the sake of a Republican victory.

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John Quiggin 06.11.12 at 6:00 am

Hartal, there’s no point in picking easy cases (OBL, heavily armed and about to launch an attack in person), and saying they are included. The question at issue is where the line is drawn between targets and non-targets.

To repeat my question: What about the case where the vehicle isn’t loaded with weapons, and the driver is returning having dropped off the “known terrorist”? Do you know whether s/he is a legitimate target? Only a target if male and of military age? If you know, I’d be grateful for an answer and supporting evidence. If you don’t know, do you think killing such a person is appropriate, or are you prepared to trust those in charge on such matters?

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hartal 06.11.12 at 6:21 am

I am not prepared to so distrust President Obama as to deprive him of the use of drones to stop terrorist atrocities that the Pakistani military failed to prevent (or to allow Romney to be President because I find Obama equivalent to Roberto D’Aubussion and thus even worse than Mitt Romney who pilloried Obama last election cycle for his pledge to hit terrorist targets within Pakistan that Pakistan was unable or unwilling to hit). Not at this point given the Pakistani civilian government’s and military’s (in)actions. It seems that Obama will not fail to strike even if he does not know the names of all the military age males in the company of a known terrorist in possession of weapons. The point is that a well-known terrorist is highly unlikely to let someone into his inner circle who does not share his violent objectives.
Could, or rather have, innocent people be killed? Yes. But a failure to strike will likely result in even more carnage. Would it be better to have troops on the ground to carry out counter-insurgency? Yes. But that is what Obama is urging the Pakistani military to replace drone attacks with. Obama is also correct to put maximum financial pressure on Pakistan to have the ISI destroy LeT. See Headley ISI Chicago

161

Data Tutashkhia 06.11.12 at 6:33 am

vehicle loaded with weapons … in possession of weapons

In those parts a vehicle loaded with weapons is no more sinister than a vehicle loaded with cheese.

162

Chris Bertram 06.11.12 at 6:44 am

_The people on the kill list are there as a result of ISI, State Dept and Pentagon intelligence. _

As a result of the Guantanamo experience, we have some useful information about how good that intelligence is likely to be, and what proportion of alleged “bad guys” will turn out to be not bad at all. Given the likely proportion of false positives, hartal, how happy are you about raining death from the sky?

163

John Quiggin 06.11.12 at 7:14 am

OK, that’s clear enough, hartal. You’re prepared to trust Obama, and presumably his successors[1], to choose who to kill and when to kill them. You don’t need to know what criteria they will use – it’s sufficient that you believe that the President will act in the interests of protecting the US from terrorism.

And in particular, if the ISI, or the secret police force of some Arab dictatorship fingers someone as a terrorist, it’s OK to kill them and anyone of military age who comes into contact with them. This presumably applies to anyone who deals with these indirectly identified terrorists, up to a degree of remoteness wisely determined by the President.

By the way, why the exclusive focus on Pakistan? The US is using strike drones in at least six countries, and has undertaken abductions from many more, including democratic allies. The existing rules appear to allow an almost unlimited extension of the use of drones, potentially covering any case where a national government is unwilling to hand over someone the US regards as a terrorist.

fn1. Or do you have a proposed rule under which Democrats have a veto?

164

StopForcedMarriage 06.11.12 at 7:39 am

Hartal,
The invocation of international law is even worse here–they don’t care about young women forced into marriage to cousins from back in the “pind.” Nor do they care about Shia, Hindus, and Christians killed by Pak-gov’t funded militants in Pakistan. They are only gabbing about an anti-West show, not a pro-human rights one. Why do the drone-deaths count more than the Shai family I have had killed by Salafi bombings in Paksistan? I am so over the whole “pro-human rights org’s” (with a few exceptions), they prefer crazy old Muslim male extremists over young women who want a normal life that violates their “multi-cultural” fantasy. Screw their hijabi-loving fantasies.

165

hartal 06.11.12 at 8:00 am

If I remember the Cole and Lobel book correctly, the majority of those suffering infinite detention at Guantanamo were indeed innocent, and turned in to American authorities for bounties. They were then deprived due process and many of them were tortured. The intelligence relied on for the kill list probably originates with the ISI (not people looking for a payout) and is then evaluated by the Pentagon and the State Department. The intelligence is then confirmed by visual evidence. The UN has made clear that the vast majority of civilian deaths has not resulted from US drones or NATO actions; and now that the US has pledged not to hit any civilian residence, the chances of the killing of innocents has been reduced.
What’s surprising is that neither John nor Chris even consider the number of horrific deaths that would result from the actions of the terrorists whom they will not allow Obama to kill.
I find Chris’ question immature as it would be so easy to flip: how happy are you with the terrorist killings in Afghanistan, Pakistan and India you would allow by depriving Obama from killing the leaders of and jehadis associated with such monstrous groups as LeT, the H network and al Qaeda?
Again Obama has made it clear that he will desist from the drone attacks once the Pakistani military generalizes the resolve it showed in Swat; and again he is putting unprecedented pressure on the Pakistani govt to do so. Do the Obama critics here think that is a bad thing too?

166

John Quiggin 06.11.12 at 9:44 am

With marginal changes, StopForcedMarriage would read exactly like a “decent left” case for the invasion of Iraq.

167

John Quiggin 06.11.12 at 9:46 am

“Again Obama has made it clear that he will desist from the drone attacks once the Pakistani military generalizes the resolve it showed in Swat;”

Can you give a cite for this? And how does it square with the expansion of drone attacks in many other countries?

168

Katherine 06.11.12 at 11:11 am

The intelligence relied on for the kill list probably originates with the ISI (not people looking for a payout)

Not necessarily so. Please to see:

http://www.guardian.co.uk/commentisfree/2012/jun/02/drone-age-obama-pakistan

which was posted in the previous drone thread by Faustusnotes.

169

Niall McAuley 06.11.12 at 11:39 am

hartal writes @165: neither John nor Chris even consider the number of horrific deaths that would result from the actions of the terrorists whom they will not allow Obama to kill.

Ok, let’s consider that. What do you think that number is, and why?

170

rf 06.11.12 at 12:28 pm

“Again Obama has made it clear that he will desist from the drone attacks once the Pakistani military generalizes the resolve it showed in Swat; and again he is putting unprecedented pressure on the Pakistani govt to do so. Do the Obama critics here think that is a bad thing too?”

Yes. I would have thought that any serious attempt by the Pakistani military, (which I don’t believe is forthcoming),to wage war on Afghan and Pakistani Pashtuns would help undermine the Pakistani state. It would be ludicrous to risk destabilising Pakistan for some poorly thought out aspiration in Afghanistan. It also ignores the fact that the major terrorist threat towards the West does not come from rural Pashtuns, but from urban groups in Punjab areas with links to the Pakistani diaspora.
So it seems more likely the drone war is being used to (1) Destroy Al Qaeda and (2) weaken the forces fighting NATO and the central government so as to strengthen the US position in any future peace deal.

171

john b 06.11.12 at 12:44 pm

john b, I wasn’t aware that the UK had finally become a republic with citizens instead of a monarchy with subjects.

I’m not sure what your point here might be, but UK nationals have been citizens rather than subjects since 1949. The UK became a democracy when male and female voting ages were equalised in the late 1920s; I believe the same “not unjustly disenfranchising a large proportion of nominal citizens” criterion was reached by the USA in the mid-1960s.

172

wrynn 06.11.12 at 1:15 pm

hartal@165: “Fight them there or fight them here” isn’t any less specious now than when Bush used it, and that kind of fear-mongering doesn’t speak well about anybody who tries to defend current policy with it. It has yet to be demonstrated to anyone’s satisfaction that killing an perpetually-self-promoting string of #2s does anything to reduce the actual substantial risks of terrorism against The Homeland, and its specter is too politically useful (and the situation far too complicated) to assume that we’re just going to finish killing all the Really Bad Guys Honest and then mind our own business. Sorry, just… no. Ugh.

173

rf 06.11.12 at 1:21 pm

“The intelligence relied on for the kill list probably originates with the ISI (not people looking for a payout)”

Adding on to Katherine’s link, if you go through The Bureau of Investigative Journalisms database on the drone war, it can help clarify the extent to which the ISI is colluding and the military/state endorsing the targeted killing campaign, for example:

“Ob266 – March 13 2012
Two senior commanders of a Taliban faction were among up to eight people killed in a CIA strike on South Waziristan. The men – part of a group commanded by Maulvi Nazir – died in an attack on their vehicle….Although Nazir’s group fights in the insurgency in Afghanistan, it has maintained a six year ceasefire with Pakistan’s forces inside Waziristan, making it highly unlikely that Islamabad would have endorsed the strike.”

http://www.thebureauinvestigates.com/2012/01/11/obama-2012-strikes/

174

Data Tutashkhia 06.11.12 at 1:35 pm

From the guardian link: The informant has a calculation to make: is it safer to place a GPS tag on the car of a truly dangerous terrorist, or to call down death on a Nobody (with the beginnings of a beard), reporting that he is a militant?

Cool, where can I get one of those GPS tags? It would be stupid, however, to waste it on “a Nobody”, when there are always so many people (like that pretty-girl-next-door’s boyfriend, who totally doesn’t deserve her) we want to call down death on.

175

Phil 06.11.12 at 2:25 pm

John B – actually there aren’t any British subjects left. The British Nationality Act 1981 that did away with ‘subject’ status, replacing it with (I think) seven gradations of British citizen, the lowest of which essentially entitled you to a piece of paper with “British citizen (entitled to a piece of paper with ‘British citizen’ printed on it)” printed on it. Falkland Islanders were one of the groups in that lowermost category until the unpleasantness the following year, after which it was discovered that they should have been in a much higher bracket all along.

All of which made it rather annoying when Charter 88 came along seven years later and started demanding citizenship instead of subjecthood.

176

LFC 06.11.12 at 2:52 pm

hartal:
All the attention is on the drones, not on the immense and unprecedented financial pressure that Obama is putting on Pakistan to take action itself.

Could you give a link for this, which you have mentioned several times (or is one supposed to google “Headley ISI Chicago”)?
Also, how does this pressure compare to the continuing (I’m pretty sure) govt-to-govt US military aid to Pakistan? Also don’t forget Kerry-Lugar-Berman (substantial non-mil aid package over five years, supposed to support education, development etc, most of which has not been disbursed, but it is a US law on the books — how does it factor in?).

177

LFC 06.11.12 at 2:53 pm

Also, what evidence is there that the “immense” financial pressure is working?

178

ajay 06.11.12 at 2:58 pm

175: three actually: “British citizen”, “BDT citizen”, “British Overseas citizen”. The Falklanders were classed as BDT citizens and then reclassed as British citizens in 1983, after it transpired that the Argentinians had seen the change as meaning “go ahead and invade the Falklands, we won’t mind”. Them aside, BOCs were former colonial citizens (born in, say, India before independence and did not become Indian citizens in 1947) and BDTs are current colonials. BOCs and BDTCs don’t have right of residence in the UK.

179

geo 06.11.12 at 4:55 pm

Hartal @158: I understand that the Nation, geo, Danby and others would like American troops to apprehend those in the vehicle and make sure that they all enjoy due process in a proper trial.

Can’t speak for the others, but this is my idea of due process, from #148, just a few comments above yours: “go to the Security Council with evidence that jihadi activity in Pakistan is a threat to US security and request that the SC direct Pakistan to suppress that activity, or else face international sanctions, possibly amounting to military intervention.” The drone strikes violate due process in many ways: they flout the authority of the Security Council, which is standard great-power practice and which has made the world a far more dangerous place ; but beyond that, they flout the authority of the courts, specifically the special FISA court, that is supposed to approve targeted assassinations. Not a word so far, you notice, about the rights of the jihadis.

And of course, even if all proper authorizations were obtained and the drone strikes were legal, there is the matter of collateral damage.

JQ @166: With all due disrespect to the “decent left,” I think this comment is a bit hard on them.

180

hartal 06.11.12 at 6:00 pm

Work week, so will be very quick.
US has authorization under international law to strike al Qaeda. Congress, I assume, has also authorized use of force against al Q. President Obama must have authorization to strike those terrorizing NATO troops in Afghanistan. Pakistan has proven unable or unwilling to hit the Haqqani network operating within its borders. Yet Pakistan has not gone to the Security Council complaining of US strikes within its borders; in fact most of them have been carried out with cooperation of the Pakistani military.
Should there be troops on the ground to capture the terrorists? Yes, that would bolster intelligence (should the Pakistani state also respond with a real development program for FATA–of course!). But that is for Pakistan to do. It won’t, or hasn’t yet. It fears backlash in urban areas, and does not care for the most part what the Haqqani network does in Afghanistan (or India through LeT) as long that promises to give it strategic depth there. The situation is intolerable. The world cannot afford a Haqqani controlled Taliban to seize control of Afghanistan or support of LeT. That would be a true human rights monstrosity–you know, stoning of women, surgery without anasthesia, arbitrary courts.
I really doubt the sincerity of the human rights warriors here.

181

geo 06.11.12 at 6:31 pm

Hartal, that is so lame that I’m not going to bother answering. Others may wish to.

182

hartal 06.11.12 at 6:50 pm

“so lame”
There are 600 million people in the world with disabilities today–lameness, deafness, blindness, for example. Their exercise of their capabilities should figure prominently in the human rights agenda of which you fancy yourself a brave spokesperson. Denigrating someone on grounds of lameness is not helpful.

183

geo 06.11.12 at 7:01 pm

Apologies to the 600 million. They have an eloquent spokesman in Hartal!

184

Stephen 06.11.12 at 9:05 pm

geo @148 and 179: you suggest the US should “go to the Security Council with evidence that jihadi activity in Pakistan is a threat to US security and request that the SC direct Pakistan to suppress that activity, or else face international sanctions, possibly amounting to military intervention? Of course that would be utterly inconceivable: to propose that the United States submit to international authority seems like treason to Republicans, who are generally insane, and political suicide to Democrats, who are generally spineless. But that just shows us our political course: to take on Republican insanity and Democratic spinelessness, rather than simply accepting them as natural features of the situation and trying to strategize around them.”

Transpose this to the situation in Boston in the 1970s to 90s: do you think the UK should have “gone to the Security Council with evidence that IRA activity in Boston is a threat to UK security [which by any criteria it was] and request that the SC direct the USA to suppress that activity, or else face international sanctions, possibly amounting to military intervention?”

I think the obstacles might have been more than “Republican insanity and Democratic spinelessness”.

185

Adrian Kelleher 06.11.12 at 9:38 pm

Jesus. IRA arms smugglers in the US were the focus of ceaseless FBI attention. As regards Norad and Sinn Féin fundraising, that went on in Northern Ireland as indeed it did in London as well.

186

Tim Wilkinson 06.11.12 at 9:52 pm

US has authorization under international law to strike al Qaeda

You seem very sure; have you checked?

187

geo 06.11.12 at 11:10 pm

Stephen: yes, of course that’s what the UK should have done. What would have happened? A veto by the US. But in that case, the world (above all, the US population, which has much more control over the US government than the rest of the world does, though that’s not saying much) would be unmistakably put on notice that the US is not willing to abide by international law.

Something or someone, sooner or later, has to force the great powers to abide by international law or we’re in for a colossally destructive, conceivably terminal war. I understand that you, hartal, and many other people of good will believe that attacking immediate, or intermediate, sources of danger to American citizens is too important a matter to wait until the governments of the great powers can be brought to heel by their populations and a measure of law-enforcement authority can be restored to the United Nations. But I think that unless we address the lawlessness of the great powers, both internationally and domestically, we’ll stumble from one crisis to another until we stumble into a civilization-imperilling war.

188

Andrew F. 06.12.12 at 12:02 am

Well, a few things. There are legitimate questions being raised here with respect to the efficacy of the strikes, and with respect to the transparency of the rules of engagement/targeting process. But neither of those items has any bearing on whether the strikes are legally permissible under int’l law. The law of war may be satisfied as well by a secretive dictator who plots his strikes without explanation as by the most transparent forms of direct democracy. Nor does int’l law require that the strikes be prudent, though it imposes an outer limit via proportionality and certain exclusions.

It is also worth noting that the standard of proportionality is necessarily vague, as the military value of a thing is so heavily context-dependent. A driver drops off a known terrorist leader – is the driver a legitimate target after the leader has left the vehicle? There are a large number of factors that would come into play, too many for proportionality to determine all answers in advance of the facts. That also makes many – nearly all – targeting decisions here extremely difficult to judge from the outside, not knowing all the facts.

189

Ben 06.12.12 at 1:02 pm

Hi Chris,

This is a bit complicated so you might want to check out this article or this article or my blog generally (I often write about self-defense, IHL, and drones).

In brief, however, there are a number of moving pieces. First, there are two bodies of international law governing use of force: 1. jus ad bellum; 2. jus in bello/IHRL. Jus ad bellum governs the lawfulness of a state’s resort to force–this is what Jack is talking about when he’s referring to self-defense or state consent; notably, the other lawful justification for resort to force is when it is authorized under Chapter VII of the U.N. Charter by the Security Council.

Jus in bello governs the conduct of hostilities during an armed conflict; it is governed by IHL or the law of armed conflict. It is only triggered when an armed conflict exists–that is, a state may only be subject to the obligations of IHL or vested with IHL’s authority to use force if an armed conflict is ongoing. Whether an armed conflict between a state and a non-state actor is ongoing depends on the intensity of the hostilities and the organization of the non-state actor. If an armed conflict does not exist (because, for instance, the non-state actor is disorganized or the hostilities between the state and non-state actor resemble more a riot or banditry), then any force is subject to International Human Rights Law.

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Ben 06.12.12 at 1:03 pm

Oh, one more thing, the proportionality standard exists in both IHL (jus in bello) and self-defence (jus ad bellum) but they are different proportionality standards. Often even international lawyers make this mistake.

191

hartal 06.12.12 at 3:45 pm

Does anyone know of any work in media studies that compares how Pakistani television encourages a feeling of sharp pain when the country is attacked from the outside but (at least according to Pervez Hoodbhoy) remains almost indifferent when militants slaughter ordinary people, policemen and soldiers? What is the nature of the media in Pakistan? I don’t think this topic is taken up in either Ahmed Rashid’s recent book (I read Descent into Chaos years ago) or Stephen Cohen’s recent ed. book.
The drone attacks seem to have picked up when NATO had been successfully negotiating alternate supply routes to Afghanistan through the Central Asian Republics and thus no longer needed to open up movement through Pakistan again (why else would Panetta speak panegyrically about drones from a military institute in Delhi?) Negotiations with Pakistan seem to have broken down.

192

ajay 06.12.12 at 3:57 pm

Denigrating someone on grounds of lameness is not helpful.

Saying an argument is “lame” is not denigrating people who are lame, any more than calling someone “deaf to reason” is denigrating people who are deaf, or saying that an accident was “crippling” is denigrating people who are crippled. It’s descriptive.

193

Stephen 06.12.12 at 9:02 pm

Adrian @ 185
Nobody doubts that some elements of the US security forces did what they could to stop IRA arms being sent from the US to Ireland. Nobody on the receiving end doubts that, nevertheless, a substantial amount was not stopped and did kill a fair few people, mostly innocent, in the UK. Likewise, nobody doubts substantial sums of money from the US reached the IRA, not for benevolent purposes.

Now go through that substituting Pakistan for US, and so forth. Jesus, indeed.

194

Stephen 06.12.12 at 9:09 pm

Geo @ 187.
Ah, an idealist, welcome with sympathy. Sure, the UK could have requested the Security Council to take action against the US, just as the US could have requested the SC to take action against Pakistan. Effective result of either: zero.

And the UK could have started targeted assassinations in Boston, justifiable but highly counter-productive. And the US is running targeted assassinations in Pakistan …

On the whole I prefer positive-result, non-counterproductive blackmail and bribery of leaders of one’s enemies.

195

rf 06.12.12 at 9:42 pm

Hartal, theres a chapter on the Afghan media in the new book ‘Under the Drones’. I havent got that far yet but it might be useful, if only for the bibliography.
Also, Alex Strick van Linschoten and Felix Kuehn live in and write on Afghanistan and the borderlands (I think they set up the Afghan wire service) and speak Dari and Pashtu, so they might be some use if you were interested. I’m sure they would respond to an email looking for info

196

geo 06.13.12 at 4:38 am

Stephen: Effective result of either: zero.

Possible effective result, after many iterations, of attempted intimidation of other great, or even non-great but nuclear-armed, powers: end of civilization.

197

hartal 06.13.12 at 5:05 am

Geo, how can NATO not have the right to strike al Q and the H network which after all proudly blew up the US embassy in Kabul. Does Obama not have the responsibility to protect NATO troops? Does he not have the right to chase down those who organize suicide bombings to wherever they will retreat?
Obama should not have the right to put anyone on the kill list who is not leading or working in an organization that he has been given the authorization to strike.
The Yemeni and Somali govt may not have the capacity to strike al Q and Pakistan does not have sovereign control over FATA and has proven unwilling to act (it has struck other groups in FATA who may pose a greater internal threat). In fact it seems that the Pakistan military has not wanted to risk the repercussions of striking the H network and has actively cooperated with the US in striking it.

As someone mentioned above, there are serious criticisms in terms of the quality of intelligence on which the President orders drone attacks, the killing of innocents, and the possible counter-productiveness of drone strikes in terms of the strength of the terrorist organization.

There is also the possibility that the drone attacks have so incapacitated leadership that al Q is having trouble organizing big impactful coordinated strikes and that the killing of many more innocents has been prevented by the killing of those in leadership role in al Q, the H network and LeT. It’s also possible that Obama has no other option in the
NATO fight with the H network. Perhaps we cannot take Panetta at his word, but no one has argued that.

198

Niall McAuley 06.13.12 at 8:57 am

hartal writes: Obama should not have the right to put anyone on the kill list who is not leading or working in an organization that he has been given the authorization to strike.

Good.

Now if Obama should not have that right, what system do you propose to make sure he doesn’t do what he should have no right to do?

Because right now, it seems he has the power to put anyone on that list, including you or me, and we have no way to know before the anvil drops on us.

On another tack, would you be happy with Dubya keeping a secret kill-list of enemies? Nixon?

Mitt Romney?

199

Tim Wilkinson 06.13.12 at 10:47 am

Whether or not geo is correct to attribute some (transcendent?) ‘good will’ to the inventively credulous, Andrew F and the rest are certainly putting on a spectacular reality-defying display here.

Apparently AF’s latest suggestion (@188) is that since we don’t have a clue what is really going on, for all we know there might be some secret justification for the US sending out their flying killer robots to rain death on an assortment of distant countries. And ‘for all we know there might be’ obviously licenses the presumption that ‘there is’. FFS.

I agree that we don’t have a clue what these people are up to (these people being JSOC – an unholy merger of the CIA’s covert action capability with special forces units; see link below).

But we do know something about the GWoT, starting (for it hardly seems a good idea to simply ignore this out of fear of name-calling) with the 9-11 commission being ‘set up to fail’ for whatever reason, and continuing through a succession of bald lies about Iraq along with the fixing of intelligence around policy. FFS.

We know that dissenters from GWoT mythology have been hounded and victimised (and one must assume that other potential dissenters and whistleblowers have noticed this too).

We know that there has been extensive use of provocateurs and useful idiots in the attempt to find a continued threat in the US homeland, and btw I would add there has not been a single clear, credible case of a viable post-9-11 terrorist plot linked to ‘al-Qaeda’ or followers of UBL or whatever they are supposed to be.

We know about the recursive process of torturing people until they (a) confess to being terrorists and (b) provide some names of other ‘terrorists’. We have good reason to think that documents have been fabricated and planted in Iraq.

It is clear enough that the whole edifice has the support of a wide constituency of the most powerful who welcome the free hand it provides for domestic repression and foreign adventurism and who, we might observe if we had an ounce of sense, will thus back up whatever propaganda is put out without being troubled by such jejune concerns as truth, justice or body counts.

We know that embedded journalists cannot report impartially, while the unembedded kind get shot (by accident or while being ‘rescued’ if they are white and Western, in some cases quite openly if not). We have good evidence that official US accounts of civilian casualties are routinely understated to the point of fraud, and that any adult male is likely to be classified as an ‘enemy combatant’ or whatever this week’s weaselly formula may be. We know that NATO spokespersons make ludicrous and obviously untrue statements about their attitude to civilian casualties (‘we will never knowingly risk a civilian life’ – Col. Mark Wenham, speaking for ISAF).

We are in a position to observe that most of the stories put out are totally uncheckable by any but a very few individuals whose identities are secret, especially the more dramatic episodes like the killing of UBL which left not a trace. We know that there is a history of false claims being made to justify military action (Taliban refusal to apprehend 9-11 perpetrator; Iraqi WMD; Saddam terror sponsorship; a genocidal Gaddafi, complete with rape squads, solely responsible for the ceasefire failing almost as soon as NATO announced it would never work; a Libyan opposition unaided by NATO; in the case of Gulf 1, I’d personally add to the false incubator-smashing story the green light given to Saddam). We know in particular that there have been a succession of spurious connections made (Taliban-‘AQ’, Saddam-‘AQ’, Uncle Tom Cobbley-‘AQ’), in order to eke out the warmongering power of the 9-11 legend.

Further, the known history of the CIA in particular, and in general US military action both covert and acknowledged, includes a steady stream of very nasty and dirty tricks (‘trump cards’ as Godson senior would call them) across the globe, involving massive civilian casualties and even (if declassified documents are anything to go by) stuff like Operation Northwoods which was apparently signed off and ready to go until JFK vetoed it. We also know that such tricks are (of course) concealed, denied and lied about unless and until, and only to the extent that, they happen to be rumbled, or (more often) everyone involved is dead or long-retired and the whole thing can be treated as happening in some mythical ‘bad old days’.

We know too (assuming we have been paying attention – and if we haven’t, then what, we might ask, the fuck are we doing advertising our dismal opinions) that the US and in particular the CIA has a history of playing games in the strategically important ME-NAfrica-CAsia region. We’ve seen it allying itself with various arabs and Islamists and then abruptly switching or vice versa, or contrariwise, or not, until no-one has a clue what is going on (Saddam, Gadaffi, UBL and the rest of ‘the database’ or ‘al-Qaeda’, protection-racket occupation of Saudi Arabia and Kuwait). On a smaller scale, too, various other kinds of skullduggery such as using madrassas in the ‘stans as ops bases since the 90s.

And of course none of this was honestly reported to the US citizenry, because (a) it was obviously too sneaky to be made public, and (b) they wouldn’t understand. And of course this meant that all kinds of cover stories and explanations had to be made up and publicised with every appearance of truthfulness. To be clear: telling convincing lies to the general public is standard practice where this kind of thing is concerned, and the CIA are expert at it, and regard it as wholly justified because whatever rampage they may be on is always aimed at the summum bonum, the National Security Interest of the United States of America. Even if they can’t quite remember the exact connection, they wouldn’t be doing it if it weren’t – and in any case, protecting the freedom of action, reputation and budget of the Central Intelligence Agency of the United States of America is itself a vital component of the National Interest.

So the straw-clutchers and benders-over -backwards will excuse me if I decline to sup from the firehose of bullshit they seem to guzzle on with such relish, and conclude that there is little reason to take at face value any official account about the GWoT.

Even accepting only the most blindingly obvious half or quarter of the points made above is enough to establish that tales from the GWoT are untrustworthy, which is my point – so wholesale rejections only please; no sniping around the edges.

And even if for some reason you suppose Obama to be especially squeamish about satisfying the various pro-conflict constituencies he is nominally in command of, there is little reason to suppose that he isn’t helpfully provided with deniability by being kept off (i.e. not gratuitously added to) various ‘need-to-know’ lists, and there is every reason to suppose that those like the CIA who are in a position to tell him whatever they like, will tell him whatever they like.)

Since I think we may expect the mighty US propaganda machine to make the best case for its actions, there is also little reason to suppose they are keeping back some killer facts which would cast their actions in a better light. So, for the avoidance of doubt, Andrew F’s appeal to unspecified, merely possible justifications is not only nowhere near good enough, but almost certainly incorrect, every bit as much as impressionistic waffle about ‘terrorists’ and similar labels, or for that matter manifestly made-up things like Hartal’s supposed ‘authorisation’ under international law to ‘strike at al-Qaeda’.

I’m reluctant to start fielding more of Hartal’s bandying about of cartoonish branding concepts like ‘AQ’ and ‘the H network’ when he has ignored the previous challenge to substantiate his fantasy about ‘authorisation to strike AQ’. But mention of the US embassy in Kabul being bombed by pissed off locals is pretty rich as a casus belli – this is ten years in, and what the fuck are the US doing there anyway? You cannot bomb the crap out of somewhere, invade, occupy, go round killing people left right and centre and then when someone has the temerity to fight back with hand-held weapons and, er, suicide vests, claim that fact as justification for more of the same (and possibly even – it’s not made clear – as retrospective justification for what’s gone before). Well, you can, clearly, but if there were such as thing as the rule of international law, you wouldn’t be able to get away with it.

FFS. Total lack of connection with the actual meaning of what is being said. Bombers..hunting down…cannot allow… Repetition of rote formulas, parroting of the most tenuous arguments, and ultimately all based on unquestioning trust of professional liars and cheats of exactly the same kind that have been doing unspeakably horrible shit of exactly the same kind, in exactly the same way, for the past half century and more.

BTW some information about the legal position: see http://crookedtimber.org/2011/09/08/the-war-on-terror-an-old-psychohistorical-fable/#comment-377106 for the CFR’s own assessment of how tenuous the US’s own domestic ‘authorization for the use of military force’ is, and the need to make a break from the fons et origo of the GWoT, 9-11, and provide a more free-floating authorisation for whatever these fucking lunatics choose to do next.)

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LFC 06.13.12 at 3:18 pm

TW
the US embassy in Kabul being bombed by pissed off locals is pretty rich as a casus belli

There have been several attacks on populated buildings in Kabul iirc (embassy, a fancy hotel, etc) and why assume that these are all exclusively the work of ‘local’ Taliban (as opposed to eg Haqqani network based in the Pakistan/Afghanistan border regions). Your picture falsely suggests a conflict fought within a hermetically sealed ‘national’ space when in fact there is a porous border betw Afghanistan and Pakistan over which various armed individuals and groups move with relative ease. Or are we supposed to assume that the existence of a porous border is an ISAF/NATO/CIA lie?

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Niall McAuley 06.13.12 at 3:52 pm

Porous borders are clearly not a lie: tens of thousands of armed individuals have entered Afghanistan from the US , for example.

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geo 06.13.12 at 4:22 pm

TW @199: Thanks, Tim, that was an extraordinarily cogent, eloquent, and informative comment.

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LFC 06.13.12 at 4:59 pm

@201
tens of thousands of armed individuals have entered Afghanistan from the US, for example

which obviously occurred for no reason other than the desire of “these fucking lunatics” (TW) to kill people.

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Niall McAuley 06.13.12 at 7:53 pm

A bit harsh, LFC, I think it’s clear that Bush & Co. were more concerned with looking tough and getting re-elected than killing Afghans. Oh, and there was some Bin Laden guy, but they truly were not that concerned about him, he was not a priority.

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hartal 06.14.12 at 12:11 am

“But mention of the US embassy in Kabul being bombed by pissed off locals is pretty rich as a casus belli – this is ten years in, and what the fuck are the US doing there anyway?”

Locals! Good point, LET! Tim seems to think that ISI war by proxy in Afghanistan and ISI support of LeT are CIA/BJP fabrications. Maybe he may still believe that the Mumbai massacre was carried out by India’s oppressed Muslims. Tariq Ali raised the possibility after all. Perhaps Tim is confident that everything will be alright if everyone just leaves Pakistan alone to achieve whatever strategic depth it wants in Afghanistan. In Tim’s histrionic anti-imperialist monomania: only an imperialist running dog would say that the world has had enough of Jalaluddin Haqqani, Gulbuddin Hekmatyar and Mullah Omar–brave fighters for the freedom of the Pashtun people and Afghanistan too. Their atrocities must be CIA lies too–right, Tim. Or like the Wicked Witch (it couldn’t be the West of course but of the East) will they dissolve once NATO, the only source of evil in the world today, leaves? Tim shouts: only a mental drone of the CIA would believe otherwise.

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Tim Wilkinson 06.14.12 at 11:06 am

geo: thanks!

LFC: Locals, yes. Welcome to geopolitics. ‘Porous’ (i.e. drawn on a map of the Himalayas, probably by some distinctly non-local chap in a frock coat) borders, yes.

Also, a tip: quoting out of context is one thing, though it works better if the original text is not located a few paragraphs higher up on the same page. But inventing your own’ context’ in which to insert an unrelated three-word phrase is pushing it a bit. I know you wanted to draw attention to my oh-so-discrediting use of sexual fuckwords, but there’s no need to be a cloaca about it.

hartal: where’s this international authorisation to strike The ‘Base then?

I haven’t expressed any of the sentiments you impute to me. I do, though, welcome the transition to a more sensible and honest discussion of what is really going on over there. Now you’ve gone into the specifics of the situation as your researches lead you to see it, ‘Al Qaeda’ seems to have evaporated into thin air.

I should probably add that you don’t seem to be tying your justification for something-or-other very closely to any consideration of international law.

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Andrew F. 06.14.12 at 1:57 pm

Tim, hasn’t the justification for the US war against AQ been stated throughout the thread? AQ launched an attack which triggered the right of the US to engage in war in self-defense. This was a justification widely acknowledged by the int’l community, and moreover one agreed to by most of the int’l community.

That conflict is ongoing.

From my perspective, I still have not read a strong argument that US strikes in Pakistan/Yemen/Somalia are illegal. A proportionality argument could, possibly, be raised against certain individual incidents, but even if such arguments were, they would not invalidate the entire campaign.

As to the secrecy of targeting decisions, this isn’t a new feature of modern warfare. International law doesn’t require each and every strike in a war to be submitted to an indepedent tribunal for justification after the fact – much less justification before the fact.

If there were some persuasive evidence that the war has been expanded beyond AQ and those affiliated with it, I think there’d be a stronger prudential case for concern. But there is no such evidence. Quite the contrary, the US has focused its efforts on these organizations even when its attention might better be placed on other national security challenges.

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LFC 06.14.12 at 4:54 pm

Tim @206
An out-of-context quote is a quote which distorts the (intended) meaning of the person being quoted. People can make up their own minds about whether I distorted your meaning.

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geo 06.14.12 at 5:00 pm

Andrew F.: for the umpteenth time, Al Qaeda committed a crime, not an act of war. States commit acts of war; individuals or organizations commit crimes. Crimes are properly dealt with by police action, internationally coordinated if necessary. Acts of war are properly dealt with — ie, by states that (unlike the US) care about international law — by recourse to the Security Council (continuing recourse, not obtaining a blank check).

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LFC 06.14.12 at 5:01 pm

P.s. Ok, I see on re-reading that there may be a problem. Your “these f****** lunatics” refers to US decision-makers, not individual soldiers. My comment in 203, given the way it’s set up, could be seen to blur this distinction and to imply that you were referring to ordinary soldiers, which you weren’t. That wasn’t my intent, but I see it could be read that way. I should have been more careful.

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LFC 06.14.12 at 5:17 pm

1) My 210 is directed to TW.
2) geo: the conventional approaches to defining an ‘act of war’ may leave something to be desired. One handbook of int’l law defines war as a condition of armed hostility betw states, placing civil wars under the category of ‘non-international armed conflict’. Only by what might be regarded as these verbal ploys can one arrive at the conclusion that non-state organizations can never commit ‘acts of war’.

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geo 06.14.12 at 5:50 pm

LFC: Are you suggesting that Al Qaeda is engaged in a civil war within the United States? What Al Qaeda did in the US was a crime, not an imminent invasion that needed to be repelled with instant force, leaving no time for recourse to the Security Council.

Give it up: the US is a lawless state. True, it’s a lawless world; so let’s talk about how to make it a law-abiding one. Pretty high on the to-do list would be to get the US to pay some attention to its obligations under international law.

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hartal 06.14.12 at 6:19 pm

geo,
You speak as if there is no difference between strikes against al-Qaeda or Haqqani’s forces and the invasion and occupation of Iraq or waterboarding, under international law.
But while the latter represents an assault on international law, the former is at least more ambiguous. Why are you so sure that Security Council resolutions that govern the operations of the International Security Assistance Force in Afghanistan–for example resolution 917 adopted in March 2010 – do not permit targeted killings provided they are used against individuals who are directly involved in combat?

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hartal 06.14.12 at 6:31 pm

not 917 but resolution 1917

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geo 06.14.12 at 7:01 pm

Hartal: Why are you so sure that Security Council resolutions that govern the operations of the International Security Assistance Force in Afghanistan—for example resolution 917 adopted in March 2010 – do not permit targeted killings provided they are used against individuals who are directly involved in combat?

Resolution 1917 makes no mention of force except for: 1) condemning the Taliban for IEDs and violence against civilians; and 2) calling on the invading forces to continue (sic) their efforts to avoid and investigate civilian casualties. In any case, your question is an odd one. Why should the burden of proof be on opponents, rather than on a global superpower that has a habit of using force illegally and wants to use it again in a specific situation? Shouldn’t it, out of a decent respect for the opinions of mankind, seek explicit authorization for morally controversial tactics, either from international authority or from its own courts?

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hartal 06.14.12 at 7:07 pm

I believe–yes, I believe, I am not certain– that Resolution 1917 reauthorizes previous Security Council resolutions that permitted targeted killings provided they are used against individuals who are directly involved in combat. And the reauthorization is given for explicit reasons in 1917–the barbaric and horrific actions of al Q and the Taliban (esp, Leon Panetta would doubtless emphasize, those manipulated by Jalaluddin Haqqani) cannot be allowed.

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tomslee 06.14.12 at 7:16 pm

I’d almost left this thread for good, but Tim W’s comment #199 makes me glad I stuck around. I second geo #202.

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geo 06.14.12 at 7:25 pm

hartal: targeted killings provided they are used against individuals who are directly involved in combat

No issue of any kind arises from targeting “individuals who are directly involved in combat” — “combat” is just another name for “armed hostilities” or “battle.” And no issue arises either from targeting (properly identified) combat personnel outside of combat, in their bases. The issue arises from the US habit of killing alleged combat personnel with civilians around, as well as from killing alleged combat personnel who turn out to be nothing of the sort, and also from calling anyone who happens to have been killed “individuals who are directly involved in combat” just to cover the US’s ass.

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hartal 06.14.12 at 7:33 pm

Yes, I am concerned about the killing of civilians and the calling of anyone who happens to be killed “individuals who are direct servants of Imperialism”–whether they be feminists, secularists, aid workers, or diplomats.
I am very concerned about it. I also liked the Buddhist statues blown up those who would like to take power again. I would not want to go through surgery without anesthesia. Or hand over a country the size of France to those who would allow every and any Islamic terrorist organization to operate freely.

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Stephen 06.14.12 at 9:11 pm

geo@209: “Al Qaeda committed a crime, not an act of war. States commit acts of war; individuals or organizations commit crimes. Crimes are properly dealt with by police action, internationally coordinated if necessary.”

By extension, the IRA over the past decades committed crimes, not acts of war, to be dealt with by police action.

Oddly, the IRA did not entirely agree with that: just before the Good Friday agreement, nationalist parts of northern Ireland were full of IRA posters reading “Release Our Prisoners Of War”. And as part of the agreement, people from both sides convicted of crimes were released. Hmmm.

And to take up an earlier theme which seems to have been neglected: if I as a private citizen kill someone (except in self-defence), or bribe or blackmail someone, I obviously commit a criminal offence. If the UK State kills IRA members (except in self-defence) I think you would regard that as criminal, no? Likewise bribery and blackmail?

But in fact the troubles in NI were brought, if not to a complete end, at least to something enormously better than before, by UK bribery and blackmail of prominent IRA people who could be made to welcome peace, to the point where they informed on IRA people who would never agree to peace,and let them go heroically into British ambushes that could plausibly be described as self-defence.

So that now almost nobody in NI is ever killed by terrorists, bombing has almost entirely stopped, the frontier towers and the roadblocks and routine searches and barriers round town centers have vanished, and almost everybody thinks this is an enormous improvement.

Which would not have happened anything like as soon as it did without bribery, blackmail, and killing of betrayed irreconcilables. All of which, if I have understood you rightly, should never have happened. The IRA should have been dealt with by police action according to the law, right?

This is not entirely irrelevant to the drone strike thread. If you believe that in the Pakistan/Yemen/wherever case the US government should act strictly according to the criminal law, shouldn’t all other governments, always?

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Andrew F. 06.15.12 at 12:05 am

Geo, why do you suppose int’l law requires that the acts of AQ on 9/11 be considered crimes not triggering the right of self-defense? The UNSC called them threats to int’l peace and security, and explicitly affirmed the right of the US to self-defense, in res 1368 immediately following the attacks. NATO, among other organizations, also recognized the attacks as rising to the level of an armed conflict, not simply a crime. That doesn’t mean that they can’t also be considered crimes, as in fact they are. But that an act is a crime does not insulate the criminal, or organization responsible for the criminal acts, from a military response if self-defense justifies it.

The fact that AQ is not recognized as a govt, either de facto or de jure, does not insulate them from a military response. The right of self-defense applies regardless of the status of the organization from which the threat emanates.

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geo 06.15.12 at 2:49 am

Andrew: gimme a break, willya?

The full text of Security Council resolution 1368 (2001) reads as follows:
“The Security Council,
“Reaffirming the principles and purposes of the Charter of the United Nations,
“Determined to combat by all means threats to international peace and security caused by terrorist acts,
“Recognizing the inherent right of individual or collective self-defence in accordance with the Charter,
“1. Unequivocally condemns in the strongest terms the horrifying terrorist attacks which took place on 11 September 2001 in New York, Washington (D.C.) and Pennsylvania and regards such acts, like any act of international terrorism, as a threat to international peace and security;
“2. Expresses its deepest sympathy and condolences to the victims and their families and to the People and Government of the United States of America;
“3. Calls on all States to work together urgently to bring to justice the perpetrators, organizers and sponsors of these terrorist attacks and stresses that those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of these acts will be held accountable;
“4. Calls also on the international community to redouble their efforts to prevent and suppress terrorist acts including by increased cooperation and full implementation of the relevant international anti-terrorist conventions and Security Council resolutions, in particular resolution 1269 of 19 October 1999;
“5. Expresses its readiness to take all necessary steps to respond “

The “relevant anti-terrorism conventions” etc. mean international police action. “Recognizing the inherent right of individual or collective self-defence in accordance with the Charter” is the purest boilerplate, found in virtually all SC resolutions. In any case, the Charter calls on all states to refer all threats to “international peace and security” to the Security Council for mediation or the authorization of force.

The right of self-defense applies regardless of the status of the organization from which the threat emanates

For the umpteenth time: the “right of self-defense” holds when a threat of armed attack is imminent and extends only to the repelling of such an attack. When armed attack is no longer imminent, the authority of the Security Council to settle the dispute, with armed force if necessary, prevails. If you want to read into Resolution 1368 an authorization of a ten-year, half-trillion dollar invasion by an army of several hundred thousand men and state of the art weaponry, you clearly have a future (or a past) in the US State Department.

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Salient 06.15.12 at 6:41 am

The invocation of international law is even worse here—they don’t care about young women forced into marriage to cousins from back in the “pind.” Nor do they care about Shia, Hindus, and Christians killed by Pak-gov’t funded militants in Pakistan.

We’re not especially good at preventing these sorts of things from happening by military intervention.

It’s like, you realize your bike chain is damaging the gears, so you grab a wrench and disassemble the frame and squirt all the parts down with WD-40.

Someone notices you and asks, “why are you doing that?” After lying a few times just trying to get them off your back, you say, “I’m addressing some serious problems with what the chain is doing to the topshift gear. See this, where it has been grinding? Not only is that horrible ongoing damage, it’s evidence that at any time this chain could snap, sending the rider into a catastrophic midstreet collision.”

The person has been listening, a bit impatiently. “But if you really are interested in fixing the chain problem, this seems like an awful way to go about it. Not to mention the WD-40 in this quantity must have been very expensive, and all it’s likely to do is rot the tires and plastic brake grips, increasing your risk.”

“Urgent times call for urgent measures. You don’t seem very worried about the chain snapping. I suppose you’d rather see the accident happen.”

“No, that’s not it. Uh, I don’t even know how to ask this any other way. Why is this the solution you’re pursuing? Most of it seems barely relevant to the problems you claim to want to address. So… why dissemble the whole thing into hundreds of pieces? And… for the love of Moloch, why did you soak it all in WD-40?”

“Shock and awe. “

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Andrew F. 06.15.12 at 10:37 am

Geo, no, the explicit recognition of the right of self-defense in this context is not “mere boilerplate.” Nor is it standard language attached to every resolution.

As to what the right of self-defense entails, it does not mean repelling an ongoing or imminent attack and then waiting for the SC to act or for another imminent attack. If hostilities between two organizations are ongoing, then (1) self-defense requires that one neutralize the hostile organization’s ability to wage war, and (2) attacks may proceed, confined by the law of armed conflict, until the other organization surrenders or is destroyed, or the SC takes sufficient action to ensure security and restore peace.

I think many people conceive of self-defense in the international conext as we do in the individual context, but that’s an extremely limited analogy. In the individual context, in most developed countries, you may repel an individual who attempts to break into your home to kill you, but you may not, if he flees, break into his home and kill him. In the international context, matters are different: a nation may respond to an attempted invasion not simply by successfully defending, but by attacking the invader in his home as well. This difference is due in part to the fact that int’l law is a self-help system, particularly in national security matters, and due in part to the nature of conflict between organized entities. So too does “imminence” have a different meaning in the sphere of national self-defense than it does in most law regarding individual self-defense. A nation mobilizing its forces to attack poses an imminent threat, and the threatened nation can strike first under int’l law; a man buying a gun to kill someone isn’t yet posing an imminent threat to the intended target, such that the target would be justified in striking first.

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geo 06.15.12 at 4:11 pm

Andrew: int’l law is a self-help system, particularly in national security matters

I think you’re entirely wrong about this. I don’t think you quite realize that war was outlawed by the United Nations Charter. Disputes between nations were thenceforth to be settled by the UN, with the use of force arbitrated by the Security Council. It was quite a solemn enactment: the acknowledgment by a chastened world that the last global war had killed off a distressingly large proportion of the species, and that, in view of recent advances in weaponry, the next one might very well finish the job. It was universally recognized that old doctrines of national interest and national sovereignty were obviously inadequate and had to go, at least when it came to interstate conflict.

Of course the great powers very soon made clear that they had no intention of abiding by the spirit of this new dispensation, so it is now nearly a dead letter. But since the US still claims to be a law-abiding nation — in fact, the very incarnation of respect for law — it seems worthwhile pointing out its hypocrisy whenever the subject comes up. It also seems worthwhile reminding the populations of the world — the ones in danger of being incinerated if our reversion to great-power hegemony and international anarchy has the anticipated result — that their interest lies in holding their governments to a restraining legal regime already in place, which is after all easier than trying to get those governments to agree to one de novo.

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Data Tutashkhia 06.16.12 at 8:29 am

Yeah. As the Underground Man said: the world to go to hell or me to skip the tea? I say, let the world go to hell, but I should always have my tea.

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Andrew F. 06.16.12 at 1:25 pm

Geo, when the UNSC is silent, a nation need not refrain from acting in self-defense. The UNSC has recognized the right of the US to self-defense in the matter at various points, has not condemned the US for engaging in self-defense, and has not otherwise acted. In international law, IF the UNSC acts, AND IF that action is sufficient to the needs of a nation’s self-defense, THEN the nation has a legal obligation to stand down. That has not been the case here.

Instead there has been a continuing conflict, in which the UNSC has not intervened, and as such US actions within the law of armed conflict are legal.

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Niall McAuley 06.16.12 at 6:13 pm

Andrew., the US has an absolute veto over the actions of the UNSC: the UNSC cannot say boo to the US, even as the US tramples international law.

But in international law, hanging by the neck until dead is still the precedent for starting wars of aggression, and that’s still the sentence awaiting George W.

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Stephen 06.16.12 at 7:38 pm

Niall McAuley

“But in international law, hanging by the neck until dead is still the precedent for starting wars of aggression, and that’s still the sentence awaiting George W.”

Awaiting also, I suppose, if even posthumously at least one of national leaders in the Korean, multiple Vietnamese, and Indo-Pakistani and Israeli-Arab and Libyan-Chad and Somali-Ethiopian and Eritern-Ethiopian and Sino-Indian and Sino-Tibetan and Armenian-Azerbaijani and Georgian-Russian and Falklands and Congolese wars, I’m sure I’ve forgotten a few. Not to mention Mr G Adams.

I do appreciate that none of these involved the infinitely evil Republican Party.

Look, either your precedent has been completely abandoned long ago or both parties in these wars were conducting wars of self-defence. Which?

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Andrew F. 06.17.12 at 10:16 am

Niall, yes, the US has a veto on the UNSC. That’s part of international law too.

But the US hasn’t had to exercise that veto in the case of Afghanistan, or Pakistan. And I’m curious to know what exactly anyone thinks the UN could do to resolve the conflict.

In any event, I enjoyed the post and the ensuing discussion.

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