Monthly Archives: July 2012

Red Cross Rules Syria is in Civil War

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by Jessica Poarch

The following excerpt/quote is from an article that appeared in the TheGuardian.com on July 15, 2012 titled: Bashar al-Assad cold face prosecution as Red Cross rules Syria is in civil war – Declaration signals that Geneva-based organisation regards all civilians and detainees as protected under international law

“The ICRC ruling marks a significant moment in the Syrian uprising, which during the past year has changed from a series of anti-regime protests into a full-blown insurrection. It had previously said that localised states of civil war existed in Homs, Hama and Idlib. The ICRC is considered to be a guardian of the Geneva convention, which prescribes the rules of warfare. The declaration signals that the Geneva-based organisation regards all civilians and detainees as protected under international law.

Alexis Heeb, an ICRC spokesman in Geneva, said: “Now there are many places in Syria that fulfil requirements to be a called a non-international armed conflict, and the situation is fluid and constantly evolving.

‘What matters is that humanitarian law applies across the country, and that means civilians and those no longer taking part in the conflict are protected.’

Read the full story HERE  [http://www.guardian.co.uk/world/2012/jul/15/syria-civil-war-red-cross?cid=nlc-dailybrief-daily_news_brief-link4-20120716]

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Geoffrey Corn Responds to Mark Mazzetti, The Drone Zone

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by Travis Normand

The following article appeared today over at LawfareBlog.com and contains Prof. Geoffrey Corn’s response to Mark Mazzetti’s recent article (The Drone Zone).   Mazzetti is a national-security correspondent for The [NY] Times and is currently writing a book about the C.I.A. since 9/11.

If you haven’t visted LawfareBlog.com, I highly recommend that you do.  It is one of the best, if not the best, sites covering all things related to the LOAC and National Security Law.  Some of the best and most knowledgeable people in this field regularly contribute at LawfareBlog.com and you are sure to enjoy it.

 

GEOFFREY CORN RESPONDS TO MARK MAZZETTI, THE DRONE ZONE

By Kenneth Anderson
Monday, July 9, 2012 at 5:04 PM

Geoffrey Corn, professor of law at South Texas College of Law and former JAG officer and chief of the law of war branch of the international law division of the US Army, sends in the following comment on Ken Anderson’s earlier post on Mark Mazzetti’s New York Times Magazine article, “The Drone Zone.”  Our thanks to Geoff for the contribution:

[Prof. Geoff Corn’s Response:]

It seems especially troubling that anyone would suggest that stand-off warfare somehow negates the moral challenges associated with decisions that result in the taking of human life. In fact, it is quite possible that these type of targeting modalities produce unique moral challenges for the warrior. Underestimating the impact of having to set in motion kinetic weapons that kill others is unfortunate and misleading. Death and killing are an inevitable consequence of armed hostilities. While it is tempting to suggest that stand-off capabilities make this process easier for the warrior, the fact remains that moral individuals have to make those incredibly difficult decisions and have to live with the consequences of their actions.

There’s a certain moral clarity in close combat, to be sure, where one is personally at risk – exigency provides an often clear and unambiguous moral framework for the trigger puller, kill or be killed.  But that’s not the ideal kind of moral clarity; the ideal moral clarity allows for deliberation – and that deliberation is served by lowering personal risk to oneself and one’s forces and having time.  In other words, there’s another kind of moral clarity where the trigger puller – or the commander giving the order – is not at risk, does not have to consider the bare necessity of self-survival or the survival of those under one’s command, and can think harder about the strategic and tactical, moral and legal, reasons for pulling the trigger. It makes the moral decision harder, not easier, and perhaps not as clear as that of personal risk – but it is the kind of deliberative decision-making that drones (sometimes at least) allow us and which we should prefer, all things equal.

It therefore seems to me that stand-off warfare involves its own set of complex moral challenges for the warrior. For example, the process of going to work in the morning, engaging enemy belligerent targets with deadly force, and leaving that evening to return to the normalcy of the home and family place the warrior in an environment of conflicting contexts unlike any of his or her peers in the battle-space.  (Those who endured the two years of low intensity confrontations with the Panamanian Defense Forces in the late 1980s had a small taste of this, living in Panama with their families in the same place where they routinely conducted operations to defend U.S. facilities against the PDF.)

It is a mistake to assume killing, even in war, is easy. It is not. Indeed, the challenge of training warriors to kill on order has been a major focus of military training. As Telford Taylor noted, “war does not provide a license to kill; it creates a duty to kill.” I doubt that duty is easier to reconcile with moral instincts for a stand-off drone operator than a pilot engaged in close air support.

How stand-off warfare will impact the nature of armed hostilities is obviously an important and complex issue. Let’s not lose sight of the fact, however, that in the end it still requires us to call upon members of our society – individuals with exceptional moral and ethical instincts – to “pull a trigger.” I don’t think attenuation from the target makes that decision any easier.  It may in fact make it harder.

http://www.lawfareblog.com/2012/07/geoffrey-corn-responds-to-the-kas-post-on-mark-mazzettis-the-drone-zone/

The NFL and the LOAC (Following Illegal Orders)

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by Travis Normand

Let me start by saying that this is an unusual post in that it has as much to do with football (NFL) as it does the LOAC.

While driving to work today, I was listening to a local sports radio station. One of the shows hosts, Nick Wright, brought up for discussion some comments that were apparently made the day before by Ted Johnson concerning “following orders in the NFL.”  While I can’t seem to find Ted Johnson’s comments, I did find the following quote from the shows website. It was found on the page that  displays the topics to be discussed during a particular show (and at what time).

 8:45 am – What do you make of what Ted Johnson said yesterday about following orders in the NFL?

Link

While searching for Ted Johnson’s comments, I found a couple of articles on the subject of “following orders” as a defense in relation to the New Orleans’ Saints (NFL) bounty program/scandal.  The following is from an article written by Mike Florio on July 7, 2012:

Lost at times in the analysis of the Saints alleged bounty program is the rigid, almost military hierarchy that brings structure to the inherent chaos of football.

Coaches give orders, and players follow orders.

In this case, with former Saints defensive coordinator Gregg Williams implementing a system that he reportedly used in at least two of the other cities where he coached, what options did his players have?  And so, at the June 18 appeal hearing, NFLPA outside counsel Jeffrey Kessler argued that the players “simply followed what their supervisors directed them to do.”

Link

The shows hosts went on to discuss the subject of how NFL players either follow the orders of their coaches or find themselves “blackballed” within the league.  The hosts discussed the culpability of the players (who claim to be simply following orders) in relation to the coaches who were actually giving the orders.  In referencing other comments (i.e. Ted Johnson) they discussed the idea of players being less culpable in regards to the bounty program due to the fact that they were just following orders.

Anyone familiar with the LOAC knows that a soldier’s excuse of “I was simply following orders” is not a defense to a crime.  In other words, a member of the military typically must follow the orders of a superior officer or face the consequences.  On the other hand, if a commanding officer issues an illegal order, the soldier receiving that order has a duty to not follow it.  If the soldier chooses to follow the illegal order, then the soldier is just as culpable for the resulting harm caused.  Further, “I was just following orders” is not a defense to the crime they have committed.  Fair or not, that is the law.

To understand the difference between an illegal and legal order, without turning this into a course on the LOAC, I will over simplify the explanation here.  In its simplest form, a commanding officer who orders his troops to engage an opposing army on the battlefield, is giving a legal order.  An example of this would be a commander ordering his troops to engage in a battle that is before them on the battlefield.  However, an illegal order would be this same officer ordering his troops to attack a small village that he knew had no army, no defenses, that posed no threat, was full of only civilians, and gave him no military advantage of any kind.

In terms of the NFL, I would imagine an illegal order would be for a coach to direct a player to commit an act that was against the rules of the game, especially when the act is aimed at purposefully causing injury to an opposing player.  A legal order would be one that was within the rules of the game, was for the purpose of winning the game, and advancing your teams strategic goals.

Under this framework, you can see that something such as a bounty program would easily be considered an illegal order.  Therefore, if the world of NFL football is so similar to the military, I would expect the rules to be somewhat similar as well.  In other words, when a coach issued the (illegal) order to hit another player for the purpose of causing injury, the player receiving the order had a duty to not follow that order (regardless of the consequences for doing so).

Following an illegal order puts the player in as culpable a situation as the coach and/or the NFL itself.

I am not in favor of drawing parallels between the military and athletes (at least not to this extreme), but if you are going to draw such a comparison and then try to use “I was just following orders” as a defense, you need to know what you are talking about.  After all, if the body that adjudicates the issue buys into the theory that  “the NFL is a lot like the military,” then they should reject your defense of “following orders” as insufficient.

Read more on this topic here:  Dave Gilbert posted a similar opinion on July 8, 2012 [Saints Players Were Just Following Orders? That’s No Excuse – WeGotThisCovered.com].  While his comments do not include any reference to the LOAC, his views seem to be fairly in-line with what I have said here.