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Targeting the Voice of a Government

For purposes of the following discussion, please assume that there is a non-international armed conflict ongoing in Syria. Thus, international humanitarian law is operative.

Today, Syrian rebels attacked a pro-Assad TVstation, killing seven people including journalists and security guards. The pro-Assad TV station attacked, Ikhbariya, is apparently not a state-owned enterprise. Instead it is a privately owned media with a pro-government view point. Although not necessarily relevant, the ownership status of the station may be an important indicator of whether the station itself was a legitimate target.

The question of whether the station itself was a legitimate target is answered by whether it was a military objective. To be a military objective, an object must by its “nature, purpose, or use make an effective contribution to military action” and the destruction of that object “must offer a definite military advantage” at the time of the attack (See, e.g., Additional Protocol I). Those objects not meeting this definition—civilian objects—are not legitimate targets. Clear military objectives are things like anti-aircraft batteries, general headquarters, or tanks. Objectives that may or may not make “an effective contribution to military action” at a given moment include things like power stations that service civilian electrical grids or trains.

Television and radio stations sometimes fall into the category of objects that, although generally civilian in nature, also serve a military purpose, making them at times legitimate targets of attack. For example, during the NATO bombing of Serbia in 1999, NATO targeted a Serbian Radio and TV transmitter, killing several civilians, because it was integral to Serbian Command, Control, and Communications networks. The Office of the Prosecutor for the ICTY released a report on that and several other NATO attacks accused by Serbia of violating international humanitarian law. Said the Office of the Prosecutor:

[T]he attack appears to have been justified by NATO as part of a more general attack aimed at disrupting the FRY Command, Control and Communications network, the nerve centre and apparatus that keeps Milosevic in power, and also as an attempt to dismantle the FRY propaganda machinery. Insofar as the attack actually was aimed at disrupting the communications network, it was legally acceptable.

If, however, the attack was made because equal time was not provided for Western news broadcasts, that is, because the station was part of the propaganda machinery, the legal basis was more debatable. Disrupting government propaganda may help to undermine the morale of the population and the armed forces, but justifying an attack on a civilian facility on such grounds alone may not meet the "effective contribution to military action" and "definite military advantage" criteria required by the Additional Protocols .... The ICRC Commentary on the Additional Protocols interprets the expression "definite military advantage anticipated" to exclude "an attack which only offers potential or indeterminate advantages" and interprets the expression "concrete and direct" as intended to show that the advantage concerned should be substantial and relatively close rather than hardly perceptible and likely to appear only in the long term (ICRC Commentary on the Additional Protocols of 8 June 1977, para. 2209). While stopping such propaganda may serve to demoralize the Yugoslav population and undermine the government’s political support, it is unlikely that either of these purposes would offer the "concrete and direct" military advantage necessary to make them a legitimate military objective.

Notice that the Office of the Prosecutor took pains to discount the notion that a broadcast facility used strictly for the transmission of propaganda (or news) is a legitimate target, whatever impact it may have on the morale of opposition forces. However, the report also indicated that the use of a transmission facility, as in Rwanda, to incite violence may render that transmission facility a legitimate target.

The private nature of the Syrian television station attacked today means it is unlikely to comprise an element of Syrian C3 today. This is not to say it could not be used for C3 purposes in an ad hoc manner in the future if, say, regular Syrian C3 were degraded by a bombing campaign. However, the military objective test demands we examine the circumstance as they exist not as they could exist.

If that station does not form part of Syrian C3 then it is likely not a military objective. That said, if the station was being used by irregular pro-Assad forces to incite violence at the moment it was attacked, then it may have been a legitimate target. This reasoning seems to have guided the NATO bombing of a Libyan satellite transmitter last year but it is not without its detractors.

And what of the journalists? The journalists killed in today’s attack were almost certainly innocent civilians—as opposed to civilians directly participating in hostilities. Although IHL’s prohibition on attacking innocent civilians is strict, when civilians are killed as an incident to an attack on a military objective their killing does not violate IHL so long as their deaths were not in excess of the military advantage to be gained by destroying the military objective. Obviously, if the TV station was not a military objective in the first place then the killing of these journalists would in fact qualify as a war crime. 

Laws Should Address Problems & the Supreme's Shangri-La

The Bloomberg editorial board takes the Supreme Court to the woodshed over over the spurious Montana campaign law decision from earlier this week. And I couldn't agree more.  It's not secret I'm no fan of the Citizens United decision for a few reasons.  First, equating money with speech is ludicrous because one is inherently apportioned equitably across the populace, money is not.  Second, because more money in politics is almost certainly a recipe for corruption.  I mean, we didn't seen a subversive MP3 in Rep. William Jefferson's freezer or a library of banned literature in Ted Stevens' renovated home.

More to the point in the Montana case, the state has experienced that too much money leads to corruption:

Montana begged to differ. Based on its history, which included the wholesale purchase of the state’s Legislature and political class by mine owners more than a century ago, Montana restricted corporate spending in elections. It did so not because the state abhors free speech, but because it required a bulwark against corporate corruption that had subverted the state’s laws and threatened the well-being of its citizens.

But the Supreme Court didn't much care for this rationale. Money equaled speech after Citizens United, but as the Bloomberg editorial continues:

In Citizens United, the majority... compounded this error by patting itself on the back for at last bringing clarity and coherence to the nation’s muddled campaign finance regime. “A campaign finance system that pairs corporate independent expenditures with effective disclosure has not existed before today,” Justice Kennedy crowed. This is a pitiful statement. No such system existed when Kennedy wrote it. And the prospect of ensuring effective disclosure has only grown more dubious since... Republican leaders - - including House Speaker John Boehner and Senate Minority Leader Mitch McConnell, both of whom vowed support for campaign finance disclosure in recent years -- are blocking it. Thus Kennedy has not only been wrong about disclosure in the past and present, he may continue to be so well into the future.Such errors are not incidental to Citizens United. They are central to it. If political money corrupts, then there are countervailing interests to weigh against the potent claims of free speech. If powerful interests -- including foreign interests -- are free not only to influence elections, but also to do so secretly, then the Shangri-La of free speech conjured by Citizens United, in which the myriad sources of finance are fully disclosed, exists purely in the imaginations of five men in black robes.

Quite right.  Of course there are those that will argue that the legislation passed by Montana was in response to an event over a century ago and that we can't legislate against a problem that doesn't exist anymore, especially if it violates what some consider "free speech." 

Though many of those same folks, who support the Citizens United decision and the free speech they feel it defends aren't up in arms about legislation that would restrict a citizen's ability to vote to solve a voter fraud problem that doesn't exist.

Medicaid Does Make People Healthier

Planet Money, a special program on NPR, had an episode last week exploring the research recently released by Katherine Baicker, a health economist at Harvard.  Her research has begun to lay to rest at least one argument against expanding Medicaid, but it's also called into question an oft cited rationale people use when they are to expand Medicaid.  You can listen to the whole thing here (which also goes into the methodology of the research), but here are some of the key takeaways:

• Across a similar socio-economic level, people on Medicaid reported better health than people not on Medicaid (reliant on faith-based, charitable, emergency room, i.e. non-government based healthcare).
• Respondents on Medicaid were 40% less likely to go into debt collection.  Basically, we see positive spillover benefits from Medicaid coverage.  People don't rack up a lot of medical debt, so they have less debt overall so they are much more likely to be able to service the debt they have and not slip into collection.
• Respondents indicated feeling more healthy within a month of being on Medicaid, even though it took many of them much longer to really engage with the system.  Basically, without the threat of catastrophic health costs hanging over their heads people instantly felt better, less stressed.

All of these are positive things.  But there are a couple caveats to note.  First, this is based on survey results, credit reports, and various other non-biological data (though the study does include some health records).  The researchers have actually taken blood samples from many of the people surveyed and when those results get released you could have definitive medical evidence of improved healthcare outcomes for people on Medicaid.  The second caveat is perhaps a bigger issue:

• The group on Medicaid actually spent 25% more on procedures than the group not on Medicaid during the first year of the program.

One of the biggest economic rationales for expanding Medicaid is that it will pay for itself.  As people have access to preventive care the overall cost would come down and the expansion would pay for itself.  In the first year of research this didn't prove to be true.  

I would speculate (and I acknowledge it's speculation) that you might be see a binge effect.  People have gone from famine to feast and as they see primary care doctors, those doctors find problems that may have been ignored for a long time.  And the research indicates that most of procedures undergone by Medicaid recipients were scheduled, which would support my speculation.  The researchers are still tracking this group and will report out year two results soon.  I wouldn't be surprised to find that in year two the costs of the Medicaid group drop substantially as people level off into a steady, healthy state.

For now, Baicker says rather eloquently, we have two definitive pieces of information.  One, people on Medicaid have better health outcomes.  Two, having people on Medicaid is more expensive (so far).  So policy makers have to make the cost-benefit analysis for themselves.  What's the value of a healthier populace?  Does it exceed the cost?  I think you all know where I come down on this, but I'm sure there are those that would disagree.

Let’s Talk About War (Armed Conflict)

So, last week I briefly responded to Spencer Ackerman’s Danger Room post on Secretary of Defense Panetta’s concession that the United States is engaged in a war (armed conflict) in Pakistan. This week, Ackerman jumps on the idea of a U.S. war in Pakistan and argues, given that there have been more drone strikes in Yemen than in Pakistan this year then: “Surely, if America is at war in Pakistan, it’s at war in Yemen, too.”

That’s a persuasive a fortiori argument in the abstract, in this moment in time, with that antiquated terminology: war.

“War” is antiquated? Indeed it is. Once upon a time, before World War II, “war” as a legal state existed. But war was essentially a legal status invoked by states and, because war had been outlawed—and because it is a choice of law mechanism imposing certain responsibilities on states—it was often not invoked even when states were quite clearly at war (in a colloquial sense). In this era, states would engage in extraordinary amounts of hostilities over a prolonged period using their regular armed force and refuses to concede what was plain: they were at war. In turn, captured soldiers were denied prisoner of war status; laws respecting neutrality were ignored; civilians were denied the protections of war that the legal status of war affords them.

In the wake of World War II, the drafters of the Geneva Conventions of 1949 set about to rebuild the edifice of the laws of war in a way that they could not be avoided in such a pretextual way. Thus, the drafters chose—and the world acceded to—the notion that international humanitarian law would be invoked when an armed conflict occurs. And this idea, the occurrence of an armed conflict, would be determined objectively without reference to whether the states involved declared themselves to be at war. The drafters also differentiated between armed conflicts of an international character (those taking place between states) and armed conflicts not of an international character (those taking place between a state and a non-state actor or among non-state actors). The International Criminal Tribunal for Yugoslavia famously fleshed out these notion in its “Decisionon the Defence Motion for Interlocutory Appeal on Jurisdiction” otherwise knownas Tadic.

International armed conflicts exist whenever states resort to force against each other. But Tadic teaches us that the existence of a non-international armed conflict is determined with reference to the organization of the non-state actor and the intensity of the violence between the parties. Tadic and further ICTY determinations, as well as the authoritative commentary to the 1949 Conventions provide guidance for measuring relative organization and intensity of hostilities to determine an armed conflict’s existence. Relevant factors include geographic scope and duration of hostilities, whether military-type weaponry is used, whether the non-state actors are hierarchically organized, whether they are responsive to some sort of command, whether a governmental force (if involved) uses its regular armed forces as opposed to its police force, and more.

Importantly, Tadic also makes clear that the geographic and temporal scope of an armed conflict are not limited the immediate time and vicinity of armed clashes. Instead, if a non-international armed conflict exists, it exists throughout the state(s) in which it is occurring. And, it exists until “a peaceful settlement is achieved.”

And that brings us back to Ackerman’s quote. Despite Panetta’s statement, a real analysis of whether the United States is engaged in an armed conflict in Pakistan requires a Tadic analysis. Fortunately, such an analysis has been done and it concluded that, at least by 2010, and at least with respect to hostilities between the United States and Tehrik-e-Taliban Pakistan, the United States was indeed engaged in an armed conflict. For the sake of argument, let us assume that hostilities between the TTP and the United States are ongoing. If that’s true then, no “peaceful settlement [has been] achieved.” Thus, an armed conflict is ongoing in Pakistan.

But that does not mean an armed conflict is necessarily ongoing in Yemen. Although more drone strikes may have occurred so far this year in Yemen than in Pakistan, we would still have to conduct an independent analysis of the intensity of the hostilities between the United States and non-state actors in Yemen to determine whether an armed conflict exists. If, for example, 23 drone strikes in Yemen represent insufficiently intense hostilities between the United States and a non-state actor in Yemen, then there is no armed conflict in Yemen. And, although there have been fewer strikes in Pakistan, because there was an armed conflict in Pakistan previously and there has been no peaceful settlement, an armed conflict in Pakistan between the United States and a non-state actor persists!

This raises an ancillary point: What about the violence occurring between the state of Yemen (or Pakistan) and non-state actors in Yemen (or Pakistan) and what about the United States’s role in that violence? If that violence rises to the level of an armed conflict (and if those actors are sufficiently organized), then an armed conflict exists between the state and the non-state actors. U.S. use of force in that armed conflict constitutes an intervention in that armed conflict, and places the United States in an armed conflict. Depending on whether the United States is using force in support of or against the territorial state in question, dictates the nature of the United States’s armed conflict. For example, use of force against AQAP on Yemen’s behalf places the United States in a non-international armed conflict with AQAP so long as Yemen and AQAP are engaged in an armed conflict.

Notice that this implicates another point Ackerman made in his piece:

Katherine Zimmerman, an analyst at the American Enterprise Institute, doesn’t believe all this fighting adds up to the US being at war in Yemen, although she admits it’s “understandable” why others might hold that view. She sees the difference between the Pakistan war and the Yemen conflict as one of partnership, and intent. “It’s slightly different because of the local cooperation. The effort in FATA [Pakistan's Federally Administered Tribal Areas] are more heavily driven by Americans,” Zimmerman tells Danger Room. “In Yemen, we’re essentially acting as a stop gap until Yemenis can take full responsibility. We’ve got a very willing partner in Yemen. We’re working on making it an able partner.”

Sort of. So, Zimmerman is right that whether we are operating in concert with the local government is important. But whether the Pakistani government is actively or passively cooperating with the United States is irrelevant—at least to an analysis whether there exists an armed conflict. Zimmerman’s point might be directed to questions of jus ad bellum as opposed to jus in bello. In that case, she might be suggesting that in Pakistan the United States is relying on self-defense whereas in Yemen the United States is relying on state consent. Regardless, whether those actions—given the consent or not of the territorial state—rise to the level of an armed conflict is a wholly separate question.  

War in Pakistan, You Say?

Over at Danger Room, Spencer Ackerman blogsthat Defense Secretary Panetta today admitted that the United States isfighting a war in Pakistan. As Ackerman notes, this is hardly revelatory—by 2010, I was arguing that U.S. use of force in Northwest Pakistan rose to thelevel of an armed conflict, at least against Tehrik-e-Taliban Pakistan.

Ackerman states this, however:

In case you’re wondering, there aren’t many legal implications or obligations prompted by Panetta’s admission. The 2001 Authorization to Use Military Force, the legal wellspring of the war on terrorism, clearly authorizes attacking the perpetrator organization of 9/11 unbounded by geographic limits. Besides that, the short document is vague enough to fly a Predator through. There is little upside and much risk for any politician arguing it’s time to end the 9/11 Era. To paraphrase Oliver Wendell Holmes, the life of the war has not been law; it has been politics.

His butchering Holmes aside, Ackerman is correct—but not for the reasons he thinks. The fact is, the existence of an armed conflict, irrespective of the AUMF, does have legal implications for the United States. More importantly, whether an armed conflict exists is a question of fact determined by the intensity of hostilities and the degree to which the parties are organized. If the conflagration in question exceeds this so-called Tadic threshold, then an armed conflict exists. And, if an armed conflict exists, then international humanitarian law—otherwise known as the law of armed conflict or the law of war—is triggered, giving rise to very particular legal implications and obligations. Noticeably absent from this analysis is whether a state has declared itself to be at war.

More importantly, Ackerman’s characterization of the AUMF as being territorially boundless is at least controversial. The Bush and Obama administrations have certainly treated the AUMF as such but they’re practice is hardly the final word. IHL clearly recognizes territorial bounds to armed conflict. In inter-state conflict, the geographic limits are defined by the law of neutrality. In intra-state armed conflict, the geographic scope of the armed conflict is limited to the state(s) in which, under Tadic, the armed conflict exists. Thus, an armed conflict in Pakistan is limited to Pakistan, meaning that a member of the TTP—one party to the armed conflict in Pakistan—who happens to be walking around Iran, say, would not be subject to use of force in the same way he would if he were walking around South Waziristan.

Invest Now to Grow Later

The economy isn't in good shape these days really just about anywhere in the world.  This global economic doom and gloom, though, has created a rather Un-Greek opportunity for the United States.  In an op-ed piece former Treasury Secretary, Larry Summers lays out the situation very succinctly:

 In real terms, the world is prepared to pay the U.S. more than 100 basis points to store its money for five years and more than 50 basis points for 10 years. Maturities would have to reach more than 20 years before the interest rates on indexed bonds becomes positive.

Basically, the U.S. can sell bonds, the market will buy, and we'll pay less than the face value to service that bond for over 20 years.  In other words this is free money.  So what could we do with this money?  Well Matt Yglesias brings up the issue of aging water infrastructure in the nation's capitol where the average water main is 77 years old.  This sort of infrastructure investment will be necessary at some point, and that point, after 77 years, is probably sooner rather then later.  Much like healthcare, it's cheaper to maintain the health of our infrastructure then to pay to replace it after a calamity.  Back to Sec. Summer, he notes: 

Any rational chief financial officer in the private sector would see this as a moment to extend debt maturities and lock in low rates – exactly the opposite of what central banks are doing.

In other words, we're missing our moment, because we've become afraid of debt.  But we aren't Greece and while we have some systemic debt issues we must address, I'm comfortable in suggesting we're still going to want roads, bridge, and running water.  Why not lock in a ridiculously low rate to make that investment now?