Author Archives: Jessica Poarch

The Task Force on US Drone Policy Releases its Report

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By Jessica Poarch Hernandez

This morning a panel of intelligence experts released “Recommendations and Report of The Task Force on US Drone Policy” which reviews the risk and benefits of current US drone policy.

The panel made the following eight recomendations:

  1. Conduct a rigorous strategic review and cost-benefit analysis of the role of lethal UAVs in targeted counterterrorism strikes to evaluate the impact of past UAV strikes on terrorist organizations, affected communities, public opinion, litigation, defense policy and government cooperation with allies and partner nations.
  2. Improve transparency in targeted UAV strikes: as a general principle, the United States should acknowledge the use of lethal force in foreign countries both to Congress and to the American public. While secrecy may be required before and during each strike, strikes generally should be acknowledged by the United States after the fact. The president should publicly release information on: the approximate number and general location of targeted UAV strikes; the number of individuals known to have been killed and their organizational affiliations; the number and identities of any civilians known to be killed, and the approximate number of strikes carried out by the military versus the CIA. The president should also order the preparation and public release of a detailed report explaining the legal basis under domestic and international law for the United States conducting targeted killings.
  3. Transfer general responsibility for carrying out lethal UAV strikes from the CIA to the military. While rare exceptions may be warranted, as a general principle, the military should be the entity responsible for the use of lethal force outside the United States, while the CIA should focus on intelligence collection and analysis.
  4. Develop more robust oversight and accountability mechanisms for targeted strikes outside of traditional battlefields. The president should, by executive order, create a nonpartisan, independent commission to review lethal UAV policy. Members of this independent commission should be selected with a view to ensuring credibility and diversity of background. The commission should not be directly involved in the pre-strike approval process, but should be tasked with reviewing the overall policy and approval process for the use of lethal UAV strikes (both military and CIA); unclassified versions of the commission’s reports to the president and Congress should be released publicly. Continue reading →

[Foreign Affairs] Don’t Buy the Cyberhype: How to Prevent Cyberwars From Becoming Real Ones

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by Jessica Poarch Hernandez

On 16 August, Foreign Affairs posted an article by Martin Libicki entitled “Don’t Buy the Cyberhype: How to Prevent Cyberwars From Becoming Real Ones” which I think is an interesting counterpoint to some of the other articles considered on this blog. Essentially, the article argues that instead of spending time worrying about how to respond to Cyberattacks, we should spend time discouraging and finding ways to prevent them. The author points out that, “Although the risk of a debilitating cyberattack is real, the perception of that risk is far greater than it actually is. No person has ever died from a cyberattack, and only one alleged cyberattack has ever crippled a piece of critical infrastructure, causing a series of local power outages in Brazil. In fact, a major cyberattack of the kind intelligence officials fear has not taken place in the 21 years since the Internet became accessible to the public.” He then argues that the responding to cyberattacks, especially with conventional warfare, risks escalating the conflict to the point of a war which nobody wanted. He concludes that, “The United States can best mitigate the risks of cyberwar by adopting technical and political measures to discourage cyberattacks before they happen.”

The author’s  conclusion, in my mind, is logical and, should we take his approach,I believe it would be a good use of our time and resources but I question the wisdom of discounting the “cyberhype” altogether. Now is the time to prepare and determine the rules for responding to major cyberattacks, both by cyber-means and kinetic means. If the unlikely happens we should have a response on hand that has been reasoned out before hand and prevents an unnecessary waste of time or resources. 

[NPR “The National Conversation”] AUMF: Reasserting the Role of Congress

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by Jessica Poarch Hernandez 

Debate over the future of the AUMF is surfacing in both public and private arenas. Recently, NPR and The Wilson Center hosted a panel discussion entitled “AUMF: Reasserting the Role of Congress” which featured Senator Bob Corker, Sarah Chayes, and Neal Katyal. The discussion, as the name implies, focused not on the constitutionality of the AUMF but on the balance of power associated with it. In fact, in her opening remarks, Jane Harman, the CEO of The Wilson Center, reminded the crowd that war powers are divided. Questions such as, “Is the AUMF necessary for the President to act,” “Is the AUMF too broad,” and “If the AUMF needs to be revised what needs to be replaced” were taken up.

There was not much of a debate, however. Ms. Chayes described it best when she told the audience that they had come for a heated panel and instead got a chorus. All of the panelist seemed to agree that the war powers, post-AUMF, are not being appropriately balanced between the Executive and Legislative branches and together called for Congress to take more “ownership” of the conflicts we are in. Where there was some disagreement was in the question of whether or not to revise or just completely repeal the AUMF. One suggestion that I found interesting was Senator Corker’s suggestion that the next AUMF be structured on a tier system that would give the President authority to act alone in certain instances but require him to get Congressional approval in others. This seems to directly track Jackson’s conception of Presidential Power in Youngstown which assessed the President’s power based on the actions of Congress. This was not the only solution offered by the panel. In any event, regardless of the chosen solution, the panel’s conclusion remains paramount – Congress must act.

Overall I found this discussion to be a refreshing and practical discourse on a complicated issue.

Listen to the discussion here. 

OUPBlog: Drone Killings

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by Jessica Poarch Hernandez

The OUPBlog recently posted a piece by Sascha-Dominik Bachmann entitled Drone Killings. Adapted from an article published in the Journal of Conflict and Security Law, this post argues that  the use of drone technology “has direct implications for the morality of armed conflict and combat” because it puts too much distance between the shooter and the target. He then goes on to argue that the U.S. Government should reevaluate its use of Drone Technology and concern itself more with the broad issue of collateral damage.

Read the post here.

Issue Guide: The Domestic Surveillance Debate

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by Jessica Poarch

The Council on Foreign Relations recently published an Issue Guide for the on-going debate surrounding the NSA’s surveillance policies. It provides links to articles detailing the arguments on both sides of the issue along with back ground information and primary sources.

The Guide begins: “Media reports of the Obama administration’s domestic surveillance activities have provided new grist for the debate over privacy and national security. The White House and many lawmakers from both parties have defended the counterterrorism programs–many of which were greatly enhanced after the September 11, 2001 attacks–as effective, legal, and limited. Opponents have decried some of the activities, like the National Security Agency’s so-called PRISM program that mines troves of data related to U.S. citizens, as government overreach. The following materials provide background and analysis on the debate. …”

To continue reading click here.

Finding the LOAC in Syria: 2 reports from the IRIN on the Syrian Rebels and IHL (LOAC)

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by Jessica Poarch

Last July the ICRC ruled that Syria was in a civil war bringing the conflict under the LOAC.* On 13 May, IRIN, a humanitarian news source sponsored by the UN, published two stories looking at how the Syrian rebels view the Laws of War. The first story, “Syrian rebels on IHL: In their own words,” is a collection of statements by different sections of the rebel fighters on their views on the rules applicable to the conflict. The statements are a telling collection of varying views that clearly exhibit the lack of uniformity in leadership and mission of the rebel fighters. The opinions range from that of a former Colonel of the Syrian Army now commanding a unit of the Free Syrian Army who has been educated on the principles of LOAC and feels that respecting the law is what separates the rebels from the Syrian government to a member of an Islamist group who only subscribes to the Shariah and fain no respect for international laws such as the LOAC.

The second story, “Sometimes you cannot apply the rules – Syrian rebels and IHL” is an analysis of the statements made by the rebels in the larger context of the rules governing the rebel fighters. This article uses the statements of the fighters regarding their views of the LOAC to show which sources of IHL rules they (the rebels) respect–International Law, in some cases, but mostly Islamic law. The article then goes on to explain the systemic issues faced by the rebel leaders in getting their troops to adhere to the rules.

The general conclusion that can be gleaned from these two articles is that there is no clear, agreed upon set of rules being followed by the rebel forces. Although there are groups who are attempting to educate fighters on the Laws of War, the lack of unified leadership is making the success of the process slow.

* For more detail see my July 18, 2012 post, HERE.

Invisible Armies: A book and interactive timeline

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by Jessica Poarch
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NIAC style warfare -armed conflict that is not between two governments with uniformed soldiers – has been around since ancient times. In his new book, Invisible Armies: An Epic History of Guerrilla Warfare from Ancient Times to the Present, Max Boot attempted to write a “one-stop destination…for the general reading public interested [in the subject of guerrilla warfare]*.” He begins the book by discussing the origins of guerrilla warfare and ends with current conflicts.* 

For more information on the book and an overview of the text visit the Council on Foreign Relation’s website.

Also on the CFR’s website is an interesting interactive timeline/ tracker that shows conflicts from 1775-2012. Here the reader can sort by Region, Country or Outcome to explore conflict through the centuries.

*Page xxi of Invisible Armies: An Epic History of Guerrilla Warfare from Ancient Times to the Present by Max Boot

Ownership of “International Humanitarian Law”

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by Jessica Poarch

Who should be responsible for the stewardship of IHL (LOAC)? In his article published in the Winter 2013 Issue of the International Judicial Monitor, Richard J. Goldstone (First Chief Prosecutor for the ICTY) explains, “Until recent decades [IHL was] owned and fashioned by the military. They did not fall within the remit of civilian authorities. That ownership appears to have become lost and it has somehow, perhaps unwittingly, been ceded to civilian governments and to non-governmental organizations, both domestic and global. Today, this development appears to be taken very much for granted. This is unfortunate. We should examine the reason for this shift, ask whether a movement back would not be timely, sensible, and very much in the interests of the military establishment and, indeed, governments and their citizens.”

Goldstone’s article begins by explaining the history of IHL.  However, his article takes a curious turn towards the U.S.’s involvement with the international tribunal that is setup to prosecute war crimes and the Rome Statute (the Treaty that established the International Criminal Court (ICC)).

Goldstone explains that, although the U.S. has been very involved in aiding the international courts, it has refused to ratify the Rome Statute for fear that allowing U.S. citizens to fall under the jurisdiction of an International Tribunal would result in politically motivated prosecutions.

The author concludes: “In the result the ICC has jurisdiction to investigate and prosecute the nationals of any state for war crimes allegedly committed in the territory of one of the 121 nations that have to date ratified the Rome Statute. As remote as it might be, I would suggest that if a United States citizen were to be charged by the Court it would be highly embarrassing for his or her government and especially the military. Such a situation could be avoided if the United States military authorities were to regain ownership of humanitarian law. The most urgent and direct way of accomplishing this is for Congress to enact legislation that makes the core international war crimes defined in the Rome Treaty crimes under the domestic law of the United States. It would then be for the military judicial authorities to police those laws and investigate any of its own members who are alleged to have violated them. That would effectively oust the jurisdiction of the ICC.”

I find the author’s suggestion rather interesting.  U.S. Military personnel fall under the jurisdiction of the Uniform Code of Military Justice (UCMJ), which, if my understanding is correct, provides for the prosecution of war crimes. This suggest to me that the U.S. Military does have “ownership” of War Crimes prosecution in the U.S. and no additional legal framework is required to “oust” the jurisdiction of the ICC.

War Crimes prosecution is a delicate issue; if left completely up to the military it runs the risk of becoming victor’s justice but if shifted completely into the jurisdiction of the international tribunals, States must cede a certain level of sovereignty to that entity. It seems to me that this is not something the U.S. is willing to do regardless of if there is a domestic legal system in place that would prevent the ICC from gaining jurisdiction of a U.S. citizen.

* * * * *

*A discussion of War Crimes under the Rome Statue:  See Section 1 of “War Crime under the Rome Statute of the International Criminal Court, with a Special Focus on the Negotiations on the Elements of Crimes” by Knut Dormann.

*For more details about prosecuting War Crimes under the UCMJ please visit http://www.au.af.mil/au/awc/awcgate/awc-law.htm#warcrimes. There you will find multiple resources on the issue of War Crimes and Crimes Against Humanity.

[OUPblog] Killing journalists in wartime: a legal analysis

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by Jessica Poarch

Have you ever sat back and thought about how many different groups of people are on the ground in the middle of an armed conflict? Lots but the Law of Armed Conflict recognizes only three – civilians, combatants, and medical personnel.

One example of this principle can be seen through Sandesh Sivakumaran’s recent post to the Oxford University Press’s Blog analyzing how the LOAC applies to journalist reporting from an armed conflict. In his post, Mr. Sivakumaran correctly points out that unless they are members of the armed forces, journalist are treated as civilians. Therefore, they can not lawfully be the object of attack and must be considered when determining the proportionality of an attack.

[Article Review] The Perilous Position of the Laws of War

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by Jessica Poarch

In his article published in Harvard Law School’s National Security Journal, Charles Kels argues that the debate surrounding the application of the LOAC to the war against al-Qaeda and targeted killings often crosses the paradigm boundary between jus ad bellum (the law governing the use of force) and jus in bello (the laws in war) to the detriment of LOAC’s fundamental aim, the protection of humanity.

He concludes, “LOAC is apolitical. Adherence to it does not legitimize an unlawful resort to force, just as its violation—unless systematic—does not automatically render one’s cause unjust. The answer for those who object to U.S. targeted killing and indefinite detention is not to apply a peace paradigm that would invalidate LOAC and undercut the belligerent immunity of soldiers, but to direct their arguments to the political leadership regarding the decision to use force in the first place. Attacking LOAC for its perceived leniency and demanding the “pristine purity” of HRL in military operations is actually quite dangerous and counterproductive from a humanitarian perspective, because there remains the distinct possibility that the alternative to LOAC is not HRL but “lawlessness.” While there are certainly examples of armies that have acquitted themselves quite well in law enforcement roles—and while most nations do not subscribe to the strict U.S. delineation between military and police forces—the vast bulk of history indicates that in the context of armed hostilities, LOAC is by far the best case scenario, not the worst.”

In my opinion the article is worth reading. For starters, it provides a good reminder of the fundamental debate surrounding the application of the LOAC to America’s use of force against terrorist organizations. The author spends sometime at the beginning of the article detailing the history of the Geneva Conventions and the types of armed conflicts. He then outlines the current debate and the places where they trip the line between the two paradigms of International Law. Most importantly, however, this article adds an outlook not often noted in the LOAC debates – the importance of LOAC to the military.