Tuesday, November 8, 2011

The Short List - November 8, 2011

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Sunday, November 6, 2011

Mischaracterizing the Law of Drones


Adam Entous, Siobhan Gorman, and Julian Barnes’ reporting in the Wall Street Journal indicates that the United States views its covert drone campaign in Pakistan to be an armed conflict, governed by international humanitarian law. As I’ve argued elsewhere, the hostilities between the United States and various organized armed groups operating in Pakistan—and there are many such groups—are sufficiently intense to rise to the level of an armed conflict, triggering international humanitarian law. IHL provides a state with the authority to use force as a first resort against hostile civilians who directly participate in hostilities. The low-level foot soldiers of the various armed groups in Pakistan are such civilians directly participating in hostilities and they are lawful targets for as long as they are directly participating in hostilities.


Thus, Spencer Ackerman’s mischaracterizations aside, the fundamental question of who can be targeted is not one of policy but of law. Limiting drone targeting in Pakistan to high-level leadership was an implicit indication that the United States was invoking a state’s inherit right of self-defense. The expansion in targeting to include low-level fighters indicates a recognition on the part of the United States that it is engaged in one (perhaps several) armed conflicts in Pakistan. It is within the framework of armed conflict that the United States finds the authority to target a broader set of individuals and not just those whose killing is necessary to disrupt an imminent armed attack—the requirements for a state to use force in self-defense. Notably, the refusal to expand the use of drones in Yemen to include low-level fighters may suggest that the United States does not believe it is engaged in an armed conflict in Yemen, a very interesting point unto itself.


Moreover, the criticism that Ackerman levels—“CIA Drones Kill Large Groups Without Knowing Who They Are”—is misplaced and wrongheaded. Under neither self-defense nor the law of armed conflict is it necessary for the CIA to know who it is targeting. Under self-defense it may be useful for a state to know who it is targeting to be assured that it has made out the requirements of self-defense, but it is not required. Under the law of armed conflict, however, this criticism becomes ridiculous. In a non-international armed conflict, one that takes place between a state and a non-state actor, targetability turns on whether the target is directly participating in hostilities. As for the laundryman in Ackerman’s hypothetical, he is collateral damage. Whether his death renders the use of force unlawful depends on whether, from a prospective view, his death (and those like him) is disproportionate to the military advantage gained by killing the target. 


There is plenty to question about the U.S. drone campaign in Pakistan and elsewhere without confusing paradigms or leveling critiques that make no sense. 


Wednesday, November 2, 2011

The Short List - November 2, 2011

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Tuesday, November 1, 2011

After Iraq, Iraq v. Iran

I tend to agree with Walt's assessment that U.S. withdrawal from Iraq may actually undermine, as opposed to bolster, Iran's position vis-a-vis Iraq:

Ever since 2003, the U.S. presence in Iraq has reinforced cooperation between Iran and some significant portions of Iraq's Shiite community, and especially those elements (such as Muktada al Sadr's Mahdi Army) who really wanted the United States to get out. But once we withdraw, then it is far from obvious that the bulk of Iraqis -- including most Iraqi leaders -- will want to become a satrap for Iran. It's true that the Sunni-Shiite divide provides Iran with some avenues of influence in Iraq society, but there's also the enduring division between Arabs and Persians and Iraq's overriding interest in not allowing Iran to become a hegemonic power in the Gulf region. Let's not forget that the two countries fought a brutal and costly war for most of the 1980s, and plenty of Iraqi and Iranian Shiites killed each other during that conflict.

The Indochina war offers an obvious historical analogy. One of the reasons the United States fought there for so long was the familiar domino theory -- the dubious idea that a communist victory in Vietnam would trigger a cascade of falling dominos and undermine the entire US position in Asia (and possibly elsewhere). But when the United States finally got out, the exact opposite thing happened: none of our other Asian allies abandoned us and China and Vietnam had a rapid falling-out that led to war between the two communist states in 1979. And over time, of course, China abandoned Maoism and Vietnam grew more and more interested in better relations with America. And let's not forget that fourteen years after Saigon fell, it was the Soviet Union that ended up on the ash-heap of history. Once we stopped pouring troops and bombs into Indochina, in short, our strategic position began to improve and we could focus on the more serious aspects of Cold War competition.
In short, if you really think Iran is a threat to dominate the Gulf region, and if you also believe that states tend to balance against threatening powers instead of band-wagoning with them, then you should also expect the U.S. withdrawal from Iraq to encourage more regional powers--including Iraq--to take actions to limit Iranian power and influence. And that might also include being a bit more favorably inclined toward the United States, despite all the other things we do that tick off people in that part of the world. That could be why we're getting a positive response to these new initiatives, and that's why getting out of Iraq may actually bolster our overall strategic position.

Putting aside the historical analogy, the notion that Iran will continue to dominate Iraq and the wider Gulf upon U.S. withdrawal seems misplaced. First, as Walt notes, Iranian strength will likely inspire balancing on the part of Iran's neighbors. Second, for historical and cultural reasons, Iraq is more likely to align with its Arab neighbors (who will engage in balancing) than to band-wagon with Persian Iran, despite the fact that the majority of Iraqis are, like the vast majority of Iranians, Shiite.



The Short List - November 1, 2011

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Domestic

Monday, October 31, 2011

What Kind Of Day Has It Been

International

Domestic

Friday, October 28, 2011

The Short List - October 28, 2011

International

Domestic

Wednesday, October 26, 2011

The Short List - October 26, 2011

International

Domestic

Monday, October 24, 2011

What Kind Of Day Has It Been

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Domestic

The Short List - October 24, 2011

International
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Friday, October 21, 2011

The Short List - October 21, 2011

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Thursday, October 20, 2011

The Killing of Qaddafi, War Crime

Al-Jazeera English has obtained video showing Qaddafi alive at the time of his capture. Qaddafi is clearly disoriented and bleeding from his head. Although this blog--and this Editor in particular--has been consistently supportive of the NTC and NATO's involvement in the Libyan revolution, that Qaddafi was killed shortly after strikes this Editor as a war crime. 

As Article 3 Common to the Geneva Conventions of 1949 states:
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) 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.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.

(emphasis added). Qaddafi was apparently killed after he was rendered hors de combat by both capture and, apparently, injury. That is murder--and likely a war crime. His body was then taken to Misurata and dragged through its streets. That is mutilation--and also likely a war crime. 


It is important to remember that this sort of conflict--a civil war--is exactly the type of conflict in the minds of the drafters when they wrote Common Article 3. It is important to remember it is triggered when there is an armed conflict in the territory of a High Contracting Party; it does not matter that the NTC is only a nascent government and not a well-established state, nor does it matter that the NTC was not the government of Libya when Libya ratified the Geneva Conventions. They are bound by it under the law of state succession. Moreover, the Geneva Conventions are jus cogens and would apply even if Libya weren't a High Contracting Party. 


UPDATE: A colleague points out that we do not know whether Qaddafi was killed after that footage or whether he succumb to his wounds. This is an excellent point. If he merely succumb to his wounds, then there was no murder. However, mutilation still stands.

The Short List - October 20, 2011

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Wednesday, October 19, 2011

What Kind Of Day Has It Been

International

Domestic

The Short List - October 19, 2011

International




Domestic

Tuesday, October 18, 2011

What Kind Of Day Has It Been

International

Domestic

Live Blogging the GOP Debate

Ben and I will be live blogging the Western Republican Presidential Debate tonight at 8pm ET.  Check back in then to see what we think of what the candidates think.


The Short List - October 18, 2011

International

Domestic

Monday, October 17, 2011

What Kind Of Day Has It Been

International

Domestic

The Short List - October 17, 2011

International

Domestic

Friday, October 14, 2011

The Short List - October 14, 2011

International
Domestic