Author Archives: Jessica Poarch

ASIL Insights: U.S. Court Issues Writ of Mandamus, Effectively Removing Organization from Terror List: In Re People’s Mojahedin Organization of Iran

by Jessica Poarch

In his article written for the American Society of International Law’s Insights bulletin, Tom Syring discusses the removal of the People’s Mujahidin Organization of Iran (PMOI) from the State Department’s Foreign Terrorist List.

In September 2012, after unprecedented involvement by the U.S. Court of Appeals for the District of Columbia Circuit, the Secretary of State removed the PMOI from the Foreign Terrorist List. Prior to this decision, inaction by the Secretary left the organization in administrative limbo, which prompted the Court to step in and mandate that the Secretary make a decision regarding the organization’s status.

The article discusses the PMOI’s background, the implications of being on the Foreign Terrorist List, and the arguments before the Court. Syring concludes, “Considering what is at stake, the D.C. Court’s ruling…may start a trend of closer scrutiny and judicial review of governments’ terrorist designations. The ‘unreviewable political realm’ may be justiciable after all.”

Read the entire paper here

Visit the ASIL Website.

ICTY Appeals Panel Overturns War Crimes Convictions

by Jessica Poarch

This morning’s edition of Bloomberg Businessweek reported that the appeals panel for the ICTY overturned the convictions of General Ante Gotovina and General Malden Markac, both convicted by the Court in 2011 for war crimes committed in Operation Storm. The appeals panel disagreed with the trial court and found that “there was no excessive shelling of four towns by the Croats and that the mass departure of Serbs couldn’t be described as a ‘deportation.’” This ruling is final and will not be appealed.

Read the entire story here.

For the complete record of the trial visit the ICTY website.

Iran Fires on US Predator Drone: An Armed Conflict?

by Jessica Poarch

This morning, CNN reported that last Thursday (1 November 2012), Iranian fighter jets fired on a U.S. Predator drone. The Iranian government claims that the drone was fired on after it had entered Iranian airspace; however, the Pentagon’s official statement is that the drone was past the 12 nautical mile limit and was therefore over international waters when fired upon. The drone was not damaged.

With the amount of tension surrounding Iran and its nuclear program, the question of whether or not this action constitutes an armed conflict is interesting. An International Armed Conflict (IAC) is (1) a conflict between States that (2) leads to the intervention of armed forces (for more information on the types of armed conflicts, see the “LOAC Basics” tab above).

Determining whether or not an IAC could exist in this circumstance requires meeting both prongs of the definition laid out above.

(1) I think the fact that there is a conflict between the U.S. and Iran is a given, globally with issues over the Iranian nuclear program and locally over the issue of airspace. Further, (2) the intervention of armed force by Iran is also clear as the attackers were fighter jets flown by Iranian military pilots.

If we assume these two prongs are conclusively established, the question becomes whether or not we need two armed parties in order to have an armed conflict? CNN’s article calls the drone a “U.S. Air Force drone,” so for the sake of argument, we will say that this drone is considered to be a part of the U.S. military forces (thereby eliminating the other looming questions of who is driving and regulating the drone). However, if the drone is not armed and is only doing surveillance, is it considered a party to the “intervention of armed forces”?

In reality, the question of whether firing on the drone constitutes an IAC or not is moot as the armed conflict, if there was one, is now over, and its limited duration lead to no meaningful application for the rest of the LOAC. Nevertheless, as students of the law and observers of international relations, we must take note of this event, hoping that it is just another example of the growing tensions between the U.S. and Iran, and not the first shots fired in America’s next major conflict in the Middle East.

The Use of Drones for Targeted Killings – A Decade Behind Us, A Decade to Go?

by Jessica Poarch

“What was once considered an immediate response to an exceptional threat to the United States is now a permanent and institutionalized feature of U.S. foreign policy. Perhaps by November 3, 2022, policymakers and the American people will have noticed.” ~ Micah Zenko (30 October 2012)

In his report to Foreign Policy, Micah Zenko reminds us that November 3rd marks the 10th Anniversary of U.S. use of Drones for Targeted Killings in the War on Terror – what he terms “America’s Third War.” He shows that this program has largely expanded over the last decade and argues that, unlike the wars in Iraq and Afghanistan, there is no sign that it will be discontinued in the near future.

You can read the entire article here

LOAC Principles in Current Events: War vs Armed Conflict

by Jessica Poarch
October 4, 2012

Yesterday, mortars from the ongoing conflict in Syria crossed the border and killed 5 civilians in Turkey. In response, the Turkish government “pounded targets inside Syria on Thursday in retaliation…” In spite of the damage caused to the Turkish people, the Prime Minister of Turkey’s staff came out with statements against war with Syria. This is a clear example of the differences between “armed conflict” and “war.” Turkey has not made a formal declaration of war against Syria, therefore no state of “war” exists. However, an armed conflict does exist between the two nations. International Armed Conflict is defined as the “recourse to armed forces [by one or more states] against another state, regardless of the reasons or the intensity of [the] confrontation.” It is clear therefore that an International Armed Conflict exists between Turkey and Syria.

Article Review: Losing the Forest for the Trees: Syria, Law and the Imperatives of Conflict Recognition

by Jessica Poarch

Have you ever wondered how to tell when a riot or internal dispute becomes a non-international armed conflict falling under the regulation of Common Article 3 of the Geneva Conventions? If the answer is yes, I highly recommend reading  “Losing the Forest for the Trees: Syria, Law and the Imperatives of Conflict Recognition” by Laurie R. Blank & Geoffrey S. Corn. This article can be found on Professor Corns’ SSRN page to which the title above is hyper-linked.

In the Article, while arguing for a new approach to Conflict Classification, the authors provide detailed analysis on the history, purpose, and current test used to classify conflicts as well as an explanation as to why proper classifications of conflict are vital to the future of the LOAC.

Continue reading

A Quick Discussion on Drone Strikes in Yemen

by Jessica Poarch

With the death of some of its top leadership al-Qaeda’s power based has shifted into Yemen. With this influx of power and presence has come more drone strikes by the U.S. As the bombs fall news articles and blog post spring up to bring to the World’s attention the questions, realities,  tragedies and triumphs surrounding the attacks; I have included a few below as a catalyst for thought or conversation on the issue.

Wired Blogger Noah Shachtman wrote, “29 dead in a little over a week. Nearly 200 gone this year. The White House is stepping up its campaign of drone attacks in Yemen, with four strikes in eight days. And not even the slaying of 10 civilians over the weekend seems to have slowed the pace in the United States’ secretive, undeclared war.”

What are the effects of the Drone strikes on al-Qaeda? The Washington Post reported in May that the killing of civilians in drone strike bread resentment for the U.S. among Yemenis and strengthened their sympathies for the militant group; what the article calls a “marked radicalization of the local population.” In the same article, the Washington Post states that the strikes “have significantly weakened al-Qaeda’s capabilities.”

Are the strikes pushing the Yemeni population toward al-Qaeda? In the article sited above, the Washington Post says yes. However, this may not mean an increase is recruits to the group. Christopher Swift, after conducting interviews with “tribal leaders, Islamist politicians, Salafist clerics, and other sources” writes that it is economic factors and not the Drone strike that push new recruits toward al-Qaeda. The article states, “Though critical of the U.S. drone campaign, none of the Islamists and Salafists I interviewed believed that drone strikes explain al Qaeda’s burgeoning numbers. ‘The driving issue is development,’ an Islamist parliamentarian from Hadramout province said. ‘Some districts are so poor that joining al Qaeda represents the best of several bad options.’ (Other options include criminality, migration, and even starvation.) A Salafi scholar engaged in hostage negotiations with AQAP agreed. ‘Those who fight do so because of the injustice in this country,” he explained. “A few in the north are driven by ideology, but in the south it is mostly about poverty and corruption.”’

What is clear is that the Yemeni population is highly concerned with civilian casualties. It is the death of civilians that is sited by the Washington Post as string movement in support of the militant group and it is the death of civilians sited time in again in the interviews mentioned above that breads disapproval of the strikes among the interviewees. One interviewee “explained that Yemenis could ‘accept [drones] as long as there are no more civilian casualties.’An Islamist member of the separatist al-Harak movement offered a similar assessment. ‘Ordinary people have become very practical about drones,’ he said. ‘If the United States focuses on the leaders and civilians aren’t killed, then drone strikes will hurt al Qaeda more than they help them.'”

However, The Economist’s recent article seems to suggest broader disapproval of the strikes which are not voiced due to the necessity of U.S. support for the Yemeni government.

A Discussion on Syria

by Jessica Poarch

Today the Economist reported that: “August was certainly the bloodiest month so far [in the Syrian Conflict]: as many as 4,000 may have died, 3,000 of them civilians and rebels, the rest soldiers or pro-regime militiamen. The death toll now often tops 250 a day. The opposition reckons that 23,000-plus Syrians have been killed since protests began in March last year; the UN, more conservatively, puts the toll at 17,000.”  (Read the rest of the article here).

The persistent and growing bloodshed raise questions about whether or not the International Community is doing enough to support the rebel force or to bring an end to the conflict. In the same article sighted above, the Economist notes that foreign governments are not ready for direct intervention into this Conflict, but should they be? For additional information on the debate check out this mornings Daine Rehm Show entitled “The Deepening Conflict In Syria“.

For me, as a student of LOAC, this is a reminder that there is no international police force to impose the LOAC rules on nations and people at war; a reminder that, as Gary Solis wrote in his book*, “At the best of times, LOAC is never more then imperfectly observed, and at the worst of times is very poorly, observed indeed. In fact, one must  admit that LOAC really does not work well at all. However, … we should perhaps not so much complain that the law of war does not work well, as marvel that it works at all.”

[*] Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War, p 8.