The Short List - March 3, 2011

• In Libya, what is fairly obviously a civil war, or armed conflict, continues to rage.  There are reports this morning that three Dutch airmen are being detained by pro-Qaddafi forces after they attempted to evacuate European citizens.  SecDef Gates was on the hill yesterday poking holes in some senators' plans to institute a no-fly zone over Libya.  Gates remarked, "Let’s just call a spade a spade. A no-fly zone begins with an attack on Libya to destroy the air defenses. That’s the way you do a no-fly zone. And then you can fly planes around the country and not worry about our guys being shot down. But that’s the way it starts."


• The Ohio State Senate passed a bill that will weaken public unions.  A new NBC/WSJ poll finds that 62% of Americans find it unacceptable to eliminate some employees' collective bargaining rights to cover deficits.  Meanwhile, the NFL's collective bargaining agreement is set to expire at 11:59pm tonight if an agreement is not reached and one seems unlikely.  


• President Obama has invited congressional leaders from both parties to meet at the White House with VP Biden to work on a budget deal for the remainder of this fiscal year.  Meanwhile the previously mentioned NBC/WSJ poll finds that 60% of Americans are concerned steep budget cuts will impact their family.


• The SEC has brought charges of insider trading against Rajat Gupta, the former of the McKinsey consulting group.


• China warns foreign reporters against reporting any anti-government protests, while Iran has completely dropped off the page in what I would consider an eeriely effective media blackout perpetrated by the government.

What Kind Of Day Has It Been

• More sustained clashes in Libya in which the popular forces, despite being subject to air strikes and artillery, repelled government forces. Two days of sustained clashes using heavy weapons serve as further evidence that unrest in Libya has now become an internal armed conflict. International intervention at this juncture would internationalize that armed conflict.


• A Kosovar shot-up a bus filled with U.S. Airmen at the Frankfurt, Germany airport, killing two.


• The federal government will not be shutdown--at least for another two weeks.


• Fox News is pushing Newt and Santorum to make a decision on 2012.


• The U.S. Supreme Court ruled in favor of the Westboro Baptist Church. The ruling is a strong vindication of the First Amendment. But one service family members will take little solace in as these repugnant individuals blame the deaths of soldiers on all manner of nonsense.

Haiti on Bourdain's No Reservations

I’m a big fan of Anthony Bourdain and No Reservations.  This past Monday he was in Haiti.  It was an inspired show, from a gesture of good will that turns sour to a personal recollection of the aftermath of the earthquake, every segment was devastating, infuriating, and hopeful.  It’s the conflict of all these emotions that makes the episode tough to watch.

After a night of reflection, what strikes me most is how the camera, the crew, Bourdain himself looked to find a lighter side to Haiti, and yet it was elusive.  On all the faces of the people you saw the look of defiance and strength, but not lightness.  In all the neighborhoods they passed you saw the cracks and rubble from January 2010’s earthquake.  I know their is laughter.  I’ve heard about it and I’ve seen it, but for an hour I saw destruction and strength and survival.

As Bourdain says, it’s easy to forget, to push the negative images out of our minds.  The simple thing is to develop Haiti fatigue, or Egypt fatigue, it’s just too simple to turn off the TV, to stop reading the articles, to stop caring.  Development is a long-term effort and Haiti wasn’t so developed before the earthquake, but the quake was a sucker punch laid on a staggering boxer.  Maybe the country is still a little punch drunk.  Much like No Reservations, this post doesn’t end on a happy note.  But the strength of the Haitian people is obvious to anyone who watches for five minutes.  Here’s to betting on that strength.

The Short List - March 2, 2011

• In Libya, Qaddafi's comments would be laughable if not for the death his delusional defiance has brought to his people.


• Pakistan's Minister of Minorities, Shahbaz Bhatti, the only Christian in the cabinet was killed outside his home today.  Early reports indicate Islamist militant groups may be responsible.  Minister Bhatti had been critical of Pakistan's blasphemy law.


• As the world's attention focuses on Libya and the Arab Spring, Ivory Coast's former president, Gbago, appears emboldened in his attempts to violently cling to power.


• Nobel laureate Muhammad Yunis has been removed as head of the Grameen Bank by the Bangladeshi government.


• Turkey's Prime Minister Recep Ergodan surprised many with his defiant remarks in Germany over the weekend.  The speech and indeed the recent calculus of Turkey would seem to indicate the country is looking East, having been spurned by the West, specifically the EU.


• Volkswagen has bought a stake in SGL Carbon, a German firm that produces carbon fiber chassis for vehicles.  The move, coupled with SGL's existing relationship with BMW, suggests that carbon fiber may play a big role in the cars of the future.

What Kind Of Day Has It Been

• An eventful one. Libya's counterattacks have apparently stalled. Italy is sending a humanitarian relief mission to Libya. Libya was suspended from the UNHCR. A No-Fly Zone appears likelier.


• Gov. Scott Walker seems to be losing the public opinion war in Wisconsin.


• Crude is over $100 per barrel on NYMEX. Brent is over $116.


• The House passed a two week stop-gap to avoid a shutdown of the federal government.


• Bob Woodward, pot.

Libya: Case Study in Armed Conflict Determinations

Over the weekend a number of outlets reported that the U.N. Security Council had referred the situation in Libya to the International Criminal Court for an investigation of war crimes. In fact, the Security Council resolution merely refers the entirety of the situation in Libya since February 15, 2011 to the ICC for investigation. Characterizing the events in Libya as war crimes, however, raises the question of whether the events in Libya constitute an armed conflict—a war crime can only occur when the laws of war apply; the laws of war apply only when an armed conflict exists. If the events in Libya do now constitute an armed conflict the existence of that armed conflict then raises the question of when that armed conflict began. The Security Council’s referral to the ICC provides an opportunity for a new forum to address the question of the existence of an armed conflict and refine that question’s contours.

The most oft cited definition of an armed conflict was laid out by the International Criminal Tribunal for the Former Yugoslavia (ICTY) in Prosecutor v. Tadic. There, the ICTY determined that a non-international armed conflict exists where there is “protracted armed violence between governmental authorities and organized armed groups.” The ICTY further refined this definition into a two prong test that examines the organization of the parties engaged in a putative armed conflict and the intensity of the hostilities between the parties. The overarching goal of this test is to distinguish the existence of an armed conflict—to which the law of armed conflict attaches—from a riot or other internal disturbance.

In the case of an internal disturbance, the state’s use of force is limited only by its internal domestic laws and human rights norms. In the case of an internal armed conflict, the state is subject to the customary international law of non-international armed conflict as well as Common Article 3 and, potentially, Additional Protocol II. However, the existence of an armed conflict also authorizes the state to resort to force in a manner normally inconsistent with its relationship with its population.

Thus, the Libyan regime’s resort to force against its population may violate human rights norms without being war crimes because no armed conflict exists. Similarly, the use of force may not be a war crime because the use of force falls within the permissible bounds of resort to force within an armed conflict. Or the regime’s use of force may be both violative of human rights norms and violative of the limitations imposed by the law of armed conflict if one exists—and, therefore, constitute war crimes.

In the case of Libya, what began as an apparently unorganized uprising two weeks ago has become a more consolidated rebellion. The popular forces have formed governance committees, established a hierarchy of control, begun training and equipping their forces with weapons captured from the government, those forces have even donned military garb. These are all factors the ICTY looked to determine whether any particular armed band was sufficiently organized to constitute a party to an armed conflict.

At the same time, the violence between the popular forces and the government appears to be sufficiently intense to constitute an armed conflict. The government has resorted to the use of its regular armed forces and weapons such as military aircraft and artillery against the popular forces. Popular forces are similarly using artillery and anti-aircraft weapons in their fight against the government. The popular forces have fortified the towns and cities that they have taken control of, posting sentries and controlling the highways, and using these fortifications to repel assaults launched by the government.

It appears, then, that an armed conflict is now ongoing between the government of Libya and the popular forces. However, it is also apparent that the organizational facets and the use of military tactics on the part of the popular forces are of more recent vintage than the beginning of the uprising. Until the middle of last week, there was no evident hierarchy of control for the popular forces, the popular forces were only lightly armed until they liberated military bases and had military units defect to their forces.

The Short List - March 1, 2011

• Libya seems headed for civil war, as Qaddafi loyalists fail to break the rebel line.  Qaddafi gave an interview to ABC News,  where he was either delusional or a great liar.(video)  Hugo Chavez will not condemn Gaddafi's action and says the U.S. is plotting to invade North Africa for oil.


• Protests continue in Yemen and Oman.


• China's environmental minister gave an unusually direct warning on the dangers of unchecked economic growth on the environment.


• The FBI is using private spies in Afghanistan and Pakistan, while the CIA's black sites program could face a new legal action in Africa.


• The GAO reports overlap in government programs costs billions of dollars.


• Germany's Defense Minister has resigned amid a plagiarism scandal.  He's not the only one facing plagiarism charges.