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International Criminal Court Prosecutor Opens Probe into Afghanistan NATO Actions:

The Wall Street Journal reports today that the prosecutor's office of the International Criminal Court has begun opening investigations into allegations of war crimes and crimes against humanity by NATO forces, including US forces, in Afghanistan. The report said that the prosecutor said that it was also probing alleged violations by the Taliban. (Joe Lauria, "Court Orders Probe of Afghanistan Attacks," WSJ, September 10, 2009.)

The prosecutor said forces of the North Atlantic Treaty Organization — which include U.S. servicemen — could potentially become the target of an ICC prosecution, as the alleged crimes would have been committed in Afghanistan, which has joined the war-crimes court. However, every nation has the right to try its own citizens for the alleged crimes, and the ICC can step in only after determining a national court was unable or unwilling to pursue the case.

Luis Moreno-Ocampo, the ICC prosecutor, said in remarks Wednesday that:

The ICC's preliminary inquiry is "very complex," Mr. Ocampo said. The court is trying to assess allegations of crimes including "massive attacks," collateral damage and torture, he said, adding that his investigators were getting information from human-rights groups in Afghanistan and from the Afghan government.

Anyone following the news from Afghanistan has a good idea of what the NATO actions in question are:

Mr. Ocampo's remarks come after NATO forces this week acknowledged that civilians were among the dozens killed in an airstrike on two hijacked fuel trucks. They were struck by U.S. warplanes after being called in by German ground command.

The killings were the latest in a series of U.S. airstrikes that have inadvertently killed Afghan civilians, U.S. officials say.

Leave aside the obvious political questions of the position this puts the Obama administration in, with regards to its oft-stated goal of getting more cooperative with, if not actually joining, the ICC. The more important legal question is what kinds of violations of the laws of war would be at issue? Moreno-Ocampo gave some indication in his remarks (emphasis added):

Mr. Ocampo said that under certain circumstances, so-called collateral damage — the inadvertent killing of civilians in a military strike — could be prosecuted as a war crime. "It's very complicated," Mr. Ocampo said. "War crimes are under my jurisdiction. I cannot say more now because we are just collecting information."

That Ocampo would address directly as an issue, up-front, the prosecution of excessive but inadvertent collateral damage as such - inadvertent killing - as a war crime, rather than intentional, categorical violations of the laws of war such as the direct targeting of civilians, raises the legal stakes very considerably ....

(Update: At Opinio Juris, see my co-blogger Kevin Jon Heller's clarification and update to a couple of these issues, including that this is merely "collecting information" and is not the formal opening of an investigation. Also that a couple of the laws of war violations I mention, found in Protocol I, are not actually crimes under the ICC Rome Statute. Thanks, Kevin.)

(show)

JerryT (mail):
It's interesting to note that they're also probing the actions of the Taliban. Wonder what they'd do with a conviction of Taliban forces?

Big, bad joke.
9.10.2009 9:53pm
Bob from Ohio (mail):
Drones work in the Hague too.
9.10.2009 10:03pm
Soronel Haetir (mail):

In other words, it was not merely a factual problem, it was a lack of legal standards on which to proceed with individual criminal liability. I fail to
see what has changed that would convince the prosecutor that he has any better set of legal standards now.


Sounds like Moreno-Ocampo, is merely trying to stay relevant by going after Western targets rather than the usual unresponsive African fare. I hope the US treats this with as much contempt as the past ICC targets have.
9.10.2009 10:24pm
Tim Nuccio (mail) (www):

I hope the US treats this with as much contempt as the past ICC targets have.


You can bet that will be the case. The US will never submit itself to some international kangaroo court.
9.10.2009 10:27pm
Angus:
Unfortunately, it looks like the U.S. is a victim of its own past here. The United States pushed war trials after WWII despite critics claiming that such international courts had no real legal jurisdiction, and claiming that many of the charges of "war crimes" were vague, particularly given the large number of regular military figures convicted not of involvement in the holocaust or massacres, but of vague things like "crimes against peace" and "waging wars of aggression."

I am not equating U.S. efforts in Afghanistan with the Nazis. But it is contradictory for the U.S. to favor international criminal courts in some military conflicts, but not in others. The Allies would have been better off just punishing the Nazis and saying it was for revenge than inventing new and odd categories of war crimes that could be used against them later.
9.10.2009 10:31pm
Soronel Haetir (mail):
Angus,

I doubt you would find many folks at the VC who think Nuremburg was a good idea. Churchill had the right of it when he brought up the idea of just shooting the folks we didn't like.
9.10.2009 10:39pm
byomtov (mail):
I doubt you would find many folks at the VC who think Nuremburg was a good idea.

Well, here's one who thinks it was a good idea.
9.10.2009 10:48pm
Oren:


I doubt you would find many folks at the VC who think Nuremburg was a good idea.

Nuremburg served the invaluable purpose of documenting the horrors of Nazi Germany.
9.10.2009 11:11pm
GatoRat:
Angus, your equivocations notwithstanding, to even suggest a vague moral equivalence between the actions of NATO forces and NAZIs is deeply offensive and profoundly ignorant. Even if no military targets were attacked in this incident in Afghanistan, it is still a very far cry from the actions of the defendants at Nuremberg.
9.10.2009 11:22pm
Soronel Haetir (mail):
Oren,

I don't see that the one depends on the other. Just because victor's justice is richly deserved doesn't mean you should set up a model that can be used against the winners of future conflicts.

History is written by the winners and all that.
9.10.2009 11:34pm
Monty:
They were struck by U.S. warplanes after being called in by German ground command.

Based on the theories discussed, I'm not really clear how liability attaches to the US personal who carried out the strike. If the orders from German ground command were clear, and they carried out those orders to the letter, what would be the hook to extend liability? Seems like all the liability you have raised would only attach to the person ordering the strike...
9.10.2009 11:52pm
Soronel Haetir (mail):
Monty,

"I was just following orders" doesn't work anymore, or so we are told.
9.10.2009 11:58pm
LongCat:

"I was just following orders" doesn't work anymore, or so we are told.


You may want to double check that rule, chief. Soldiers don't have strict liability. Yet.
9.11.2009 12:19am
Soronel Haetir (mail):
Give it some time. We'll get there somehow.
9.11.2009 12:43am
PeteP:
F the ICC, that incompetent bunch of left wing liberal wanna-be faggots.
9.11.2009 12:51am
PeteP:
Tim - "You can bet that will be the case. The US will never submit itself to some international kangaroo court."

You apparently did not pay attention to our recent election.
9.11.2009 12:52am
Relic:
Soronel Haetir- ""I was just following orders" doesn't work anymore, or so we are told."

Doesn't really apply here, unless you know of some way that supersonic (or even regular) bombers can identify if the targets their hitting are civilian or military. Also, bad analogy, since the Nazis were deliberately killing civilians, not killing them accidentally while attacking a military target.
9.11.2009 1:19am
Relic:
Sorry "they're" not "their".
9.11.2009 1:20am
Ricardo (mail):
It's interesting to note that they're also probing the actions of the Taliban. Wonder what they'd do with a conviction of Taliban forces?

It gives NATO a reason to actively pursue these Taliban targets and gives them legal cover for detaining them, even if the Afghan government doesn't like it. I'd just as soon see some of these guys taken out in a drone strike but if it is safe and possible to apprehend them, there's good reason to do so.
9.11.2009 1:39am
Litigator-London:
Although it is regrettably entirely possible that "the US will never submit itself to some international kangaroo court", the fact remains that most of the USA's NATO allies have ratified the relevant convention and are ultimately subject to the ICC jurisdiction.

Therefore, unless the USA wishes to conduct its overseas military actions entirely on its own with self-evident taxation consequences (how much of the US Federal deficit is down to the Bush Administration's initiation of the GWOT?), then it must needs have regard to ICC jurisprudence in respect of the limitations that places on its allies.

Secondly, if the presence of foreign military in Afghanistan is justifiable at all, it is not as a "war" but as a "police operation" with the aim of ultimately bring law, order, and a measure of good public administration to Afghanistan. The indiscriminate use of artillery or air power in "police" operations is perhaps the single biggest factor working against obtaining support from the general population - and this kind of operation cannot succeed unless the battle of hearts and minds is won.

Having heard General McCrystal at work on an extended investigation into conditions on the ground accompanied by BBC veteran correspondent John Simpson, I believe the new US Commander understands the gravity of the problem created what some gung ho idiots dismiss as "collateral damage". It's about time too that was more generally understood.

It will be no bad thing to see the German authorities investigate whether there was any dereliction of duty in the calling in of the recent air strike and if that is properly done, the ICC will then have no role to play in that matter. In other words the back stop of the ICC serves to discourage cover-ups of military excesses - not necessarily a bad thing at all.
9.11.2009 1:41am
Relic:
To Litigator-London

There is no evidence to suggest that the use of artillery or air strikes in Afghanistan is "indiscriminate". If you have evidence to suggest this is the case, let's hear it, but I doubt you do.
9.11.2009 2:07am
zywotkowitz (mail):
I'm sure that NATO can find their way of out this somehow.

There is a gentleman's agreement that the ultra-demanding interpretations of international laws and conventions that are favored by the ICC and academics apply only to one particular country.
9.11.2009 2:10am
Soronel Haetir (mail):
And here the Germans were probably feeling good that they actually got to call in an air-strike at all. This investigation will teach them not to get silly ideas like that again.
9.11.2009 2:15am
Relic:
I don't think the U.S. is covered in the ICC's jurisdiction anyway.
9.11.2009 2:18am
Tim Nuccio (mail) (www):

Tim - "You can bet that will be the case. The US will never submit itself to some international kangaroo court."

You apparently did not pay attention to our recent election.


I was there, and I voted. And I can think of few things that'd piss off the American people enough to revolt more than ceding sovereignty to some international entity.
9.11.2009 2:23am
DNJ:
Angus,

The difference between Nuremberg and the ICC is that the acts prosecuted at Nuremberg, unlike those that can prosecuted at the ICC, were not criminal at the time they were committed. Thus the objection to Nuremberg does not apply to the ICC.

Monty: The defence of following orders didn't work for the Nazis, so I don't see why it should work for US/NATO forces.

Litigator-London: I quite agree.
9.11.2009 2:36am
Ricardo (mail):
The defence of following orders didn't work for the Nazis, so I don't see why it should work for US/NATO forces.

Following orders is not a defense when the orders are clearly illegal. Orders to shoot a POW in the head or to rape and pillage a particular town are clearly illegal and those are the kinds of orders that got Nazi soldiers in trouble.

By contrast, an airstrike order against two hijacked fuel trucks..., that doesn't even come close to being clearly illegal. Those trucks could be used to kill hundreds or thousands of innocent people or may conceal military hardware that will be used to kill innocent people. Regardless, it is never a soldier's job to know why he is being ordered to do something: it's his job to follow through based on the training he has received.
9.11.2009 3:07am
martinned (mail) (www):
Hide the children!!! Those evil judges are coming for us!!!!

O, wait:


What, then, would the OTP prosecute? I imagine it would focus on the Taliban's intentional crimes against civilians, which have been very well documented by those terrorist-loving NGOs Human Rights Watch and Amnesty International; similar crimes committed by Afghani government officials who used to be warlords; and — perhaps — the systematic torture committed by US and NATO soldiers at Bagram and elsewhere in Afghanistan. Prosecutions in the final category would obviously be very politically charged, but they would also be richly deserved.
9.11.2009 8:12am
Hannibal Lector:
I think Senor Moreno-Ocampo is on the right track here. But first he needs to investigate the far more serious, pervasive, well-documented acts of the Taliban in Afghanistan that are beyond any question war crimes.

I suggest that he and all other members of the ICC who are interested in the issue of war crimes committed in Afghanistan set up a headquarters in Helmand province with the stated aim of investigating Taliban war crimes.
9.11.2009 8:31am
Bama 1L:
In the discussion above, I'm not sure why people are treating a request for air support as an "order" in the sense of a superior's lawful command that a subordinate is bound to obey. I don't know the details of command structures in Afghanistan, but it's just not conceivable that a German ground commander could issue orders to an American aviator. That is not how it works even in the Marine Corps (which has organic aviation assets). Rather, the ground commander would have requested the aid of air support, which would have eventually resulted in an order from an air headquarters to a pilot to strike a particular target in accordance with the needs of the ground unit, the rules of engagement, force preservation principles, etc.
9.11.2009 8:46am
Anderson (mail):
That Ocampo would address directly as an issue, up-front, the prosecution of excessive but inadvertent collateral damage as such - inadvertent killing - as a war crime, rather than intentional, categorical violations of the laws of war such as the direct targeting of civilians

The quote from the article, please note, is not clear who's defining "collateral damage" as "inadvertent killing":

Mr. Ocampo said that under certain circumstances, so-called collateral damage — the inadvertent killing of civilians in a military strike — could be prosecuted as a war crime.

Is that the reporter's parenthetical, or Ocampo's?

That said, collateral damage *can* be intentional killing. If we bomb a bridge in downtown Dresden, knowing that our munitions will burn down the surrounding area and the civilians therein, then we are intentionally acting so as to kill civilians, even if killing civilians is not our purpose.

Try machine-gunning a crowd of people because your ex is amongst them, and then explaining to the cops that you didn't *intend* to kill the bystanders. You might get "willful and wanton" rather than "intentional," but I daresay the willful and wanton killing of civilians is a war crime, generally speaking.

the acts prosecuted at Nuremberg, unlike those that can prosecuted at the ICC, were not criminal at the time they were committed

I'm not at all sure that's correct. Starting a war of aggression was a principal charge, and I believe there were treaties prohibiting that act.

Leaving aside the obvious, that if the Holocaust was not a crime, then nothing is a crime.
9.11.2009 9:04am
Anderson (mail):
(I should add that I don't know whether the specific incident w/ the fuel trucks appears to've been a war crime or not, tho an investigation seems wise. We are not going to defeat the Taliban by asserting our right to kill whomever, whenever, however -- didn't work for the Russians, won't for us.)
9.11.2009 9:19am
Angus:
I'm not at all sure that's correct. Starting a war of aggression was a principal charge, and I believe there were treaties prohibiting that act.
However, the Axis powers had refused to sign many of those treaties. The United States and the Allies insisted, however, that since most advanced nations had signed the treaties they were binding on all nations, including those who had not signed. In other words, the ICC's claims of authority over U.S. military actions are a result of American arguments in favor of the International post-WWII trials. It's now come back to bite us in the butt.
9.11.2009 9:44am
Anderson (mail):
Germany signed Kellogg-Briand in 1928, and I believe was a signatory to the Hague Conventions as well.
9.11.2009 9:47am
Angus:
If Kellogg-Briand was enforceable (and there was no enforcement mechanism in it), pretty much every country on Earth including the United States is guilty of war crimes.
9.11.2009 9:54am
Bob from Ohio (mail):

Try machine-gunning a crowd of people because your ex is amongst them, and then explaining to the cops that you didn't *intend* to kill the bystanders. You might get "willful and wanton" rather than "intentional," but I daresay the willful and wanton killing of civilians is a war crime, generally speaking.


I think a civilian "machine-gunning a crowd of people" is illegal despite the motivation or target.

A war is different. Or don't you agree?
9.11.2009 10:15am
The Drill SGT:

That said, collateral damage *can* be intentional killing. If we bomb a bridge in downtown Dresden, knowing that our munitions will burn down the surrounding area and the civilians therein, then we are intentionally acting so as to kill civilians, even if killing civilians is not our purpose.


That is just flat wrong.

Killing civilians in wartime is not, in and of itself, a war crime. What is a war crime according to the Laws of Land Warfare, and documented in Army Field Manual 27-10, THE LAW OF LAND WARFARE is:

d. Firing on localities which are undefended and without military significance.

In the case above, the bridge is clearly a target, the government controlling Dresden must know it is a target. It has military significance. Allowing people to live near the bridge is their problem. If we bomb the bridge, using weapons appropriate for the target, (meaning with high explosives, not incendiaries for example) there is no war crime on our part even if we kill civilians or even miss the bridge.

In fact, the government controlling Dresden can itself be guilty of war crimes if it moves human shields into the bridge area hoping to deter attack. Likewise, positioning military target in population centers can be a war crime if it is done to shield them from attack, causing risk to civilians.

The same applies to the fuel tankers. They were militarily valuable, obviously. The Taliban forces stole them, they had military value to both sides. We were within our rights to retake or destroy them using appropriate means. The fact that civilians were mixed in with Taliban forces at the fuel tanker location is unfortunate, but does not change the calculus or create a crime. It was the Taliban that had the duty to separate civilians from valid targets in areas they control, not NATO forces. Nobody thus far has shown that NATO forces even knew that these people were "civilians" rather than Taliban fighters or Taliban porters carrying off fuel (both valid personnel targets as well)

- valid target
- reasonable weapon choice
- unfortunate PR
- but not a war crime
9.11.2009 10:25am
Bob from Ohio (mail):

I should add that I don't know whether the specific incident w/ the fuel trucks appears to've been a war crime or not, tho an investigation seems wise.


And we are looking into it. Like we always do.

I don't know why this Ocampo character should do so as well.
9.11.2009 10:26am
Angus:
A war is different. Or don't you agree?
Is it moral/legal to bomb and destroy an entire apartment building in Iraq or Afghanistan to kill a leading insurgent and his bodyguards, even if it kills, say, 30 innocent people inside and nearby as well? Would it be moral/legal if the U.S. had the ability to go in on the ground and save the 30 innocents, though at more risk to U.S. soldiers? Does increasing innocent civilian casualties to reduce U.S. military casualties help or hinder the U.S. mission in Iraq and Afghanistan? How many innocent civilian lives are worth sacrificing to save one U.S. soldier? These are legitimate questions that need serious discussion, but too many conservatives knee-jerk and say "don't criticize our troops" while too many liberals knee-jerk and say "any collateral damage is a war crime."

Though I will say that I find the "scr-w the pansies" and "kill 'em all" mentality to be the more disturbing knee-jerk position.
9.11.2009 10:37am
Blue:
Angus, the short answer is yes, it is legal. The responsibility for usaing civilians as shields rests with the person who is employing that tactic, not the military attempting to kill them. The war criminal is the terrorist, not the military.

It's staggering how many intelligent people can fail to understand this point.
9.11.2009 11:01am
The Drill SGT:
Angus,

for the record, despite my post above it, your questions about collateral damage are valid. Any commander must balance risk to civilians and risk to troops and target value/method of attack.

PR does matter, I stand behind the idea that a pr disaster is not the same as a war crime.
9.11.2009 11:01am
martinned (mail) (www):

Killing civilians in wartime is not, in and of itself, a war crime.

No, but intentionally killing them is, and that's what we're talking about here. Things like Dresden and Coventry are now illegal. Instead of reading the Army Field Manual, you may want to read a survey of the actual law in the field, such as the ICJ's advisory opinion on the use of nuclear weapons. (Conclusion: nuclear weapons are almost always illegal, because they have an unacceptably high likelihood, or rather: certainty, of civilian casualties.)
9.11.2009 11:06am
martinned (mail) (www):
Just to add to my previous comment: Human shields situation may be an exception to the normal rule. I'm not sure.
9.11.2009 11:08am
Anderson (mail):
Any commander must balance risk to civilians and risk to troops and target value/method of attack.

Right -- proportionality. Unavoidably taking out a few houses may not be a war crime, depending on the target; burning down half the city to get one bridge probably is a war crime, particularly where other methods are available.

That said, I was vague about the difference b/t "intentional killing" and "war crime" above; Drill SGT took me to be equating the two, which I did not mean to do.
9.11.2009 11:32am
ShelbyC:

No, but intentionally killing them is, and that's what we're talking about here.


Intentionally targeting them is. Destroying a military target knowing civilians will be killed is not.
9.11.2009 12:14pm
Bob from Ohio (mail):
martinned, the Army Field Manual is the "actual law" because it is the policy of the United States, which in reality makes international law. The ICJ is a mere debating society in service of another debating society, the UN General Assembly.
9.11.2009 12:17pm
The Drill SGT:
Anderson and Angus,

when I was talking about:

Any commander must balance risk to civilians and risk to troops and target value/method of attack.


It was in the context of winning hearts and minds. Not about arbitrariliy limiting a level of violence for some noble reason.

You can't fire bomb a bridge legitimately IMHO. Though I guess in the case of WWII Dresden (which I as not specificly addessing earlier, just a generic Dresden), one could make the case that, given the inaccuracies of bomb sights, a case could be made for rubbling the roads leading to the bridge rather than striking the bridge.

note in my example, I said HE on the bridge was legit, even if you have to drop a lot and it misses. I dont think the bridge target gives me the right to drop fire bombs. So blowing up half a city to get the bridge might not be a war crime if you used HE and had the CEP of WWII bombing missions.

War is about applying disproportionate force. There is a saying that goes:


Few operations have failed by having too many troops, and few demolitions have failed by having too many explosives



However, Today's smart bombs make it much easier to argue that something was avoidable
9.11.2009 12:17pm
martinned (mail) (www):

the Army Field Manual is the "actual law" because it is the policy of the United States, which in reality makes international law.

Wait what??? How do you figure that? What's so international about the US Army Field manual, assuming it qualifies as "law". And on a related note: how do you figure that the Army Field Manual somehow trumps the Geneva Conventions?
9.11.2009 12:20pm
martinned (mail) (www):
@ShelbyC: I think the correct rule is somewhere inbetween. From page 257 of the aforementioned ICJ opinion (not ruling!):

78. The cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants; States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets.
9.11.2009 12:23pm
Soronel Haetir (mail):
Martin,

Because it is the only authority the US government is going to allow US soldiers* to face, at least until such time as the US loses a war decisively enough to be forced before some other tribunal.

*I am lumping all US forces here because I don't know whether the other military branches use a different manual with basically the same content or not. It would not surprise me at all if each branch produces their own duplicative manual.
9.11.2009 12:27pm
The Drill SGT:

*I am lumping all US forces here because I don't know whether the other military branches use a different manual with basically the same content or not. It would not surprise me at all if each branch produces their own duplicative manual.


I'm prejudiced, but I doubt that the Navy publishes a manual on the "Law of Land Warfare".

likewise, I know the Army does not have an FM on "Laws of the Sea"

all the services follow the lead of the Army in a number of areas, POW handling and interrogation is the best example.
9.11.2009 12:32pm
martinned (mail) (www):
@Soronel Haetir: Earlier this week, I already ended up discussing with Jon Roland whether international law is law or not. As long as the supremacy clause is still in the constitution, I'm going to have to insist the US army consider the rules of the Geneva conventions while making tactical decisions like the one at issue here. Theoretically, of course, the Field Manual(s) should outlaw at least what the Geneva Conventions also forbid, but I don't know enough about either to be able to check.
9.11.2009 12:34pm
Soronel Haetir (mail):
The Drill Sergeant,

Except that the Navy does in fact have land forces now. I don't know whether it is a good idea or not but there seems to have been a great deal of task mixing, especially so with SOCOM.

And that is completely discounting the USMC.
9.11.2009 12:36pm
Soronel Haetir (mail):
Martin,

I subscribe to a more cynical view, if no one is willing or able to enforce it, it is not law. Law is a neat concept but it is also both fickle and fragile.
9.11.2009 12:39pm
NickM (mail) (www):

States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets.


The only weapon capable of distinguishing anything in this fashion is a person (although sufficient AI might eventually be developed to have truly smart weapons).

In the meantime, that assertion, by ICJ judges, is either profoundly idiotic or profoundly monstrous.

Nick
9.11.2009 12:42pm
Angus:
Angus, the short answer is yes, it is legal. The responsibility for using civilians as shields rests with the person who is employing that tactic, not the military attempting to kill them. The war criminal is the terrorist, not the military.
So you wouldn't mind if the air National Guard wiped out your entire neighborhood to capture an escaped murderer, right? It's the murder's fault.

Despite what you and others thing, the U.S. is not the only country that goes into making international law. The U.S. can consider an action or tactic legal, others may not. I think discussions over what is or is not a war crime are worth having. Conservatives too often seem to think that chanting "USA, USA, USA" settles all debate.
9.11.2009 12:43pm
ShelbyC:

So you wouldn't mind if the air National Guard wiped out your entire neighborhood to capture an escaped murderer, right? It's the murder's fault.


Uh, I'd mind for a number of reasons, none of which involve the Air National Gaurd violating international law. Plenty of US laws broken in your scenario.
9.11.2009 12:48pm
ShelbyC:

I think the correct rule is somewhere inbetween. From page 257 of the aforementioned ICJ opinion (not ruling!):


Huh. To what extent do ICJ opinions constitute law binding on the US?
9.11.2009 12:56pm
Anderson (mail):
Here's a seasonable question:

If al-Qaeda had been an arm of the Taliban's military, and the 9/11 attacks had been carried out as an attack on America's financial and defense centers (WTC and Pentagon), not to mention their effect on morale, would they have been legitimate military attacks, or would they have been war crimes?

(For purposes of the hypo, you may disregard whether surprise attacks are war crimes by definition.)

N.b. that I am not pretending to know the answer to this question.
9.11.2009 1:01pm
Soronel Haetir (mail):

Huh. To what extent do ICJ opinions constitute law binding on the US?


To the extent that there is a group of states able to force compliance or to the extent that the US voluntarily complies. So for the moment to hardly any extent at all.
9.11.2009 1:03pm
martinned (mail) (www):

Huh. To what extent do ICJ opinions constitute law binding on the US?

They don't, which is why I explicitly indicated the fact that it was an advisory opinion. I quoted the opinion because I consider it a good summary of 100 years of treaties in the area of ius in bello, almost all of which are ratified by the US and therefore binding on them. It's equivalent to quoting a law review article by a famous scholar.


If al-Qaeda had been an arm of the Taliban's military, and the 9/11 attacks had been carried out as an attack on America's financial and defense centers (WTC and Pentagon), not to mention their effect on morale, would they have been legitimate military attacks, or would they have been war crimes?

Well, yes, like you said, surprise attacks/wars of aggression are war crimes per se. Apart from that, the Pentagon seems like a legit target, but I don't see how the WTC would be anything other than civilian.
9.11.2009 1:23pm
Bob from Ohio (mail):

Wait what??? How do you figure that? What's so international about the US Army Field manual, assuming it qualifies as "law". And on a related note: how do you figure that the Army Field Manual somehow trumps the Geneva Conventions?


The Army Field Manual has actual, real world effect. It is the official US Government policy.

Its not a glorified law review article from a "court" that has no enforcement arm.

But the larger point is that international law is what the US (and its allies) says it is, not some guys in Geneva sitting on the ICJ. De facto versures de jure, if you will.
9.11.2009 1:24pm
martinned (mail) (www):

I subscribe to a more cynical view, if no one is willing or able to enforce it, it is not law.

Yes, that's pretty much what Roland said. So I asked about the age minima written into the US constitution, and other parts of the constitution that are not reviewable in court. He argued that they are enforced by the electorate. I'm not sure if that's true, but even if it is, so are presumably the Geneva Conventions. (Do voters vote for politicians who argue for ignoring the GCs?) ...Anyway, after that there was some commenting about Hart and Austin, and then no one was getting anywhere and the thread was getting old...
9.11.2009 1:26pm
martinned (mail) (www):

The Army Field Manual has actual, real world effect. It is the official US Government policy.

OK, that makes it law. Now explain why it is international law, as you claimed in your 12:17pm comment.

FYI, the International Court of Justice, like the Permanent Court of Arbitration, the International Tribunal for Former Yugoslavia and the International Criminal Court, sits in The Hague, in the Peace Palace donated generously by Andrew Carnegie almost 100 years ago.
9.11.2009 1:29pm
Soronel Haetir (mail):
The Army Field Manual is international law because the US has both the will and ability to force compliance from others.

As for the age limit question, afaik it hasn't come up recently enough for me to give an answer. I don't think it would be a violation for example for a governor to appoint someone who doesn't meet the age requirement, but it is then up to the legislative body to decide whether to overlook the requirement.

Just as I believe that if Schwarzenegger somehow got on the ballot for POTUS and the electoral college voted for him and that Congress accepted that outcome there would be no judicial recourse. The only group(s) allowed to judge the natural born citizen clause would have spoken to the matter.
9.11.2009 1:50pm
martinned (mail) (www):

The Army Field Manual is international law because the US has both the will and ability to force compliance from others.

The rest of the world obeys the US Army Field Manual? Do these other countries know this? Or is it one of those "marxist without knowing it" type situations?


Just as I believe that if Schwarzenegger somehow got on the ballot for POTUS and the electoral college voted for him and that Congress accepted that outcome there would be no judicial recourse. The only group(s) allowed to judge the natural born citizen clause would have spoken to the matter.

Is that enough of a stick to make the age limit "law" by your definition? If so, why aren't the Geneva Conventions law by the same logic?
9.11.2009 1:57pm
The Drill SGT:

If al-Qaeda had been an arm of the Taliban's military, and the 9/11 attacks had been carried out as an attack on America's financial and defense centers (WTC and Pentagon), not to mention their effect on morale, would they have been legitimate military attacks, or would they have been war crimes


It would have been a surprise attack without a declaration of war. This is legal, but states employing this sort of tactic should not get upset if their capitals get turned into glassy craters.

as for the attacks themselves? Certainly the Pentagon attack would be legit.

You'd have to a much tougher case to make WRT the WTC. I tend to think those are more like fire bombing Dresden.

as for Flight 93 into say the White House? sure. military target and if some tourists in the park die, that would be collateral damage.

HOWEVER, I think that most any reading of the Hague Convention or the general Laws of Land Warfare would make the hijack of a commercial plane with the intent to kill the passengers in the attacks above would be a war crime.

Hijack of a USAF tanker, not a problem.

Leasing a plane from rent-jet and using your crew? no sweat.
9.11.2009 1:59pm
Soronel Haetir (mail):
Note that using these definitions I am perfectly happy calling internal criminal organization enforcement 'law' as well. It might not be blind or just but those traits aren't terribly relevant.
9.11.2009 2:00pm
ShelbyC:

HOWEVER, I think that most any reading of the Hague Convention or the general Laws of Land Warfare would make the hijack of a commercial plane with the intent to kill the passengers in the attacks above would be a war crime.

Hijack of a USAF tanker, not a problem.



Posing as non-combattants to do any hijacking, however, is a problem.
9.11.2009 2:04pm
martinned (mail) (www):

HOWEVER, I think that most any reading of the Hague Convention or the general Laws of Land Warfare would make the hijack of a commercial plane with the intent to kill the passengers in the attacks above would be a war crime.

Well, it would be a crime. Whether it would be a war crime is more tricky.
9.11.2009 2:05pm
The Drill SGT:

Is that enough of a stick to make the age limit "law" by your definition? If so, why aren't the Geneva Conventions law by the same logic?


as a simple soldier, I would make the distinction from my perspective that the GC is good theory, but the folks that could punish me, e.g. my commanders don't expect me to know it and understand the fancy phrases.

they do expect me to be familar with FM 27-10, which is not law, but rather tactical guidance.

They expect me to pay close attention to the yearly class the local JAG gives on the topic and the plastic card in my pocket. We take attendance and do make-ups. We keep records

I must obey the orders from the boss and he or his boss is ultimately is getting some legal advice from somebody who can read sentences. like my wife the JAG Colonel
9.11.2009 2:07pm
The Drill SGT:

Well, it would be a crime. Whether it would be a war crime is more tricky.


purposely taking civilans and killing them with malice and forethought is a war crime IMHO
9.11.2009 2:20pm
Anderson (mail):
purposely taking civilans and killing them with malice and forethought is a war crime IMHO

What if there was no practical way to crash the jets into the targets w/out the passengers' being on board?

(Had the hijackers taken off w/out passengers, the hijack would've been apparent much earlier, and the planes would've been shot down.)

If still a crime, then terror bombing -- attacking enemy morale by killing/dehousing -- would seem to be a crime. Which certainly has implications for the RAF's conduct of its war vs. Germany, at the very least, to say nothing of Hiroshima and Nagasaki.
9.11.2009 2:31pm
Harry Eagar (mail):
'Churchill had the right of it when he brought up the idea of just shooting the folks we didn't like.'

That was Stalin, who suggested shooting the top 50,000 Germans (which would have been, roughly, everyone of military, party or civil rank colonel and above). Churchill treated it as a joke and Stalin didn't press.

This was one of the rare occasions when Stalin was on the side of actual justice.

First thing we need to do in the present instance is to denounce all forms of real or alleged international law that claim to supervise battlefield commanders in tactical operations. There will always be unnecessary casualties in war.

That is one good reason for not going to war except for the gravest reasons.

Second thing we do is withdraw from the Geneva conventions, which have never protected American GIs in Asia.

Let the world know we will fight the war and handle the POWs according to our own standards, and if they don't like that, they should make peace with us.

Since my reading of history is that our standards of battlefield conduct (when not directed at Indians) and our standards of treating POWs are the most generous and humane ever seen, it would be a propaganda coup in most of the world.
9.11.2009 2:33pm
Bob from Ohio (mail):
Geneva, Hague, what's the difference? If all those organizations disappeared tomorrow, no one would notice or care.

You are missing the point again.

International law is what the US says it is. It is US interpretations of treaties and conventions that matter.

If we choose to deviate from the interpretations of others in our actions, that is the practical end of the discussion.
9.11.2009 2:35pm
martinned (mail) (www):

purposely taking civilans and killing them with malice and forethought is a war crime IMHO

If committed by someone who, by however expansive definition, can be considered part of a belligerent's armed forces. I think Anderson posited that as one of his starting assumptions, but it bears repeating. Terrorist organisations are not armies. (Although I'm not sure about the IRA. They seem to have had the kind of internal organisation, regulations and command structure that sets apart terrorist organisations from armies.)

As for whether the Geneva Conventions are law: this is more a philosophical question than anything else. Normally, a soldier's standing orders, rules of engagement, etc. will be sufficient to make sure he or she complies with the laws of war. When they're not, the first place to complain is with the people who made the translation, not with the soldiers in the field. None of this means, though, that international law is not law. The US authorities, to my knowledge, do not consider compliance with the Geneva Conventions optional. In the GITMO cases, the Supreme Court cited and applied the GCs repeatedly. And if and when the US fail to comply with them, that will be condemned by the international community, and in some situations such a violation might lead to a case before the ICC. If that's not enough to make the Geneva Conventions "law", then large chunks of the Constitution aren't "law" either. (Scare quotes to indicate that this is not about my definition of law.)
9.11.2009 2:38pm
Anderson (mail):
'Churchill had the right of it when he brought up the idea of just shooting the folks we didn't like.'

That was Stalin, who suggested shooting the top 50,000 Germans (which would have been, roughly, everyone of military, party or civil rank colonel and above). Churchill treated it as a joke and Stalin didn't press.


You're mixing your anecdotes.

(1) At the Tehran conference, Stalin suggested shooting the 50,000 Germans, and Churchill got quite upset, esp. when FDR played along with Stalin; Churchill huffed off, and Stalin had to go bring him back to the room, putting on the Uncle Joe charm.

(2) Churchill did think that simply shooting the Nazi leaders would've been preferable to Nuremberg. Michael Burleigh notes the irony that around the same time as Tehran, Churchill was evidently "intiating plans for the summary execution of around a hundred leading Nazis who were to be declared international outlaws." (Third Reich 805.)
9.11.2009 4:35pm
Litigator-London:
Relic: There is a very great deal of evidence to suggest that there has been indiscriminate use of both artillery and air power in both Iraq and Afghanistan. Or perhaps you have not looked at the casualty figures.

There are some quite significant differences in the Rules of Engagement under which British forces operate in police actions and US doctrine - possibly because we have a longer history of living with the consequences of using military force "in support of the civil power" in insurgency situations. Unfortunately, in both Iraq and Afghanistan there has never been a sufficiency of "boots on the ground" and a consequent over reliance on both artillery and air power. One saw the same phenomenon in respect of IDF operations in Gaza or, going back in time, to the French tactics during the Algerian independence struggle.

And if there is one certain way of making an uncommitted civilian population into supporters of the insurgency you are trying to contain, it is allowing "collateral damage" from air power and artillery.
9.11.2009 4:51pm
martinned (mail) (www):

International law is what the US says it is.

If you look at it that way, the result is neither international, nor law.
9.11.2009 4:56pm
Anderson (mail):
International law is what the US says it is.

That attitude helps get Americans killed.
9.11.2009 5:03pm
Litigator-London:
Bob from Ohio: in terms of criminal conduct, international law is what the Court trying the prisoner at the bar of the Court says it is.

Thus if a US citizen with or forerly with, say, the CIA, finds himself arrested at Heathrow Airport in the UK and is brought before the Central Criminal Court charged with (heaven forfend) the torture of say a British Muslim at, say, Bagram air base, the Court will apply its understanding of UK legislation implementing the provisions of the Convention Against Torture and not what Messrs Addington, Bybee, Yoo et al may have opined, and the Jury will be instructed accordingly.

Which is why it is not quite true that international law is of no concern to the USA or its citizens.

Unless, of course, you expect that the USA would then invade the UK to rescue the prisoner from the UK authorities.
9.11.2009 5:31pm
Relic:
Litigator-London:

You have no evidence, then. High casualty figures are not proof of indiscriminate anything. There proof that there's been some fighting and lots of people died. High civilians casualty figures wouldn't be proof, either, since the Taliban hides among civilians and has been noted for keeping civilians from evacuating areas that are about to be bombed to drag up bad PR.

Even if both groups WERE high, it would not be proof of indiscriminate use of artillery or air strikes. Both of these have to be targeted explicitly, so neither can be used without forethought. A person calling in either on a civilian only area is guilty of a war crime, but again, you have no evidence to suggest that is the case.
9.11.2009 6:26pm
martinned (mail) (www):

You have no evidence, then.

Hence the investigation.
9.11.2009 8:03pm
Bob from Ohio (mail):

If you look at it that way, the result is neither international, nor law.


Wisdom finally.


Litigator-London, even a Labor Home Secretary would never approve the arrest. They wouldn't even try an old man from a second rate country like Chile, let alone a former US official. Even if it did happen, he'd be on a plane back to the US within 72 hours. Keep dreaming though.



That attitude helps get Americans killed.


Name one.
9.11.2009 9:22pm
Oren:

Unless, of course, you expect that the USA would then invade the UK to rescue the prisoner from the UK authorities.

Hardly seems necessary given the defunct status of the Royal Navy...
9.11.2009 9:49pm
Relic:
martinned:

On what grounds was the investigation opened then?
9.11.2009 9:56pm
Angus:
Name one.
That kind of vicious arrogance is the reason that so many abroad hate the United States and why we are such a target for terrorists. Extreme arrogance has brought down great empires before, and will do so again and again in the future.
9.11.2009 10:23pm
Litigator-London:
There is every good reason for the USA (and indeed the whole civilized world) to be outraged by the criminal actions of terrorists. The mistake made by the Bush Administration was to equate the necessary international police action as a "war". The classic jurisprudence is that one cannot have a war other than against a state. Insofar as it is a state, Afghanistan is now a friendly country and US, NATO and other forces are there in support of the government of that country - a case of the military acting in aid of the civil power.

The point I am trying to make is that in such circumstances one is not at war and actions which may be justifiable under the laws of war will be inappropriate - especially if the purpose of the presence of the military is to restore (or event to introduce for the first time) order and the rule of law.

If the purpose of the presence of the military force is to detach the general population from the terrorists or the insurgents then alienating that civil population with the use of air power and artillery is not only arguably unlawful but also counter-productive and essentially stupid.

Imagine an Afghan bridegroom at a village wedding. There is a targeted insurgent among the guests. Action is taken which unfortunately kills the bride, her father and mother and other relatives of both families. Result - 15-20 young men who join the insurgents in pursuit of a blood feud.

The difficulty for the commanders is abstaining from the use of the available artillery/air power even if that means one's own men will take more causalties - but I'm afraid that is what "peace enforcement" is all about. Lots of boots on the ground and minimum use of force.
9.12.2009 2:15am
Ricardo (mail):
What if there was no practical way to crash the jets into the targets w/out the passengers' being on board?

In this case, we are still dealing with non-uniformed members of a foreign military force, e.g. spies or saboteurs. Under domestic U.S. law, they certainly could be detained and convicted of any number of crimes and be dealt severe punishment just as German spies and saboteurs were treated during WWII [I'll leave aside the contentious issue of whether a civilian or military court has authority to try them]. Depending on the sentence, they would not be entitled to be held in a POW camp with Geneve privileges but would instead be held in a regular prison with other criminals or executed.

Even if a legitimate state was behind the WTC attack, it is a tactic associated with total war. If you can attack commercial office buildings that happen to house firms that underwrite and trade financial securities that seems like a license to attack anyone for any reason.
9.12.2009 9:01am
Litigator-London:
I agree with Ricardo. Aside the issue of an act as part of total war between states, whether the hijackers were or claimed to be members or supporters of (i) Al Quaida (ii) the Palestine Liberation Organisation (iii) the Irish Republican Army (iv) the Basque ETA or (v) the former Irgun would be irrelevant: those involved, ought to be arraigned and tried before the ordinary criminal jurisdictions and dealt with according to the ordinary criminal law. Any claims to be acting for political reasons could only be relevant to sentence depending on the approach of the jurisdiction to motive.

In a democracy it is assumed that those who argue for a new political order or a change to the law can do so by legitimate democratic means. The whole point about insurgency is that those who resort to criminal acts against the constituted authority are liable to be tried under the criminal law of that authority.

Only if the insurgency succeeds, do they become heads of government or memorialised as martyrs in the "liberation struggle".

It is worth pointing out that had the participants in the Boston Tea Party been before a British Court today their actions would have come within the aggravated sentencing provisions of our Terrorism Acts (destruction of property to advance a political agenda).
9.12.2009 11:19am

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