Category Archives: LOAC

April 24, 1916: The Easter Rising begins!

by Travis Normand

Today is April 24, 2013 and it has been 97 years since the Easter Rising began in Dublin Ireland.

In a world where asymmetric warfare, insurgency, and terrorism dominate the headlines, the Easter Rising stands out as significant due to the fact that it is one of the last “rebellions” to employ conventional methods of warfare.

The Easter Rebellion was (generally) the product of Irish Republicans who aimed to establish an Independent Irish Republic.  These Irish Republicans carried out their plans of a Rising using conventional methods of warfare that are seldom seen in rebellions today.

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Tsarnaev as Enemy Combatant?

by Travis Normand

I heard a short audio clip on NPR yesterday concerning whether or not Dzhokhar Tsarnaev should be charged (or treated) as an “enemy combatant.”  You can listen to the audio of this discussion HERE (on NPR).

Notwithstanding the debate on whether or not Tsarnaev should be treated as an enemy combatant, White House press secretary Jay Carney says Tsarnaev will not be charged as an enemy combatant and instead will face trial in a federal court.

The reasoning Carney gives has nothing to do with whether or not Tsarnaev meets the criteria of being an enemy combatant but instead focuses on the fact that “when it comes to United States citizens, it is against the law to try them in military commissions.”  Carney’s answer is an interesting one considering that many are calling for Tsarnaev to be labeled as an enemy combatant for intelligence gathering purposes only and that he should still be tried in Federal Court (and not in a military commission).  In other words, if Tsarnaev can be designated as an enemy combatant, and still be tried in Federal Court, then Carney’s answer doesn’t make much sense.

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Ownership of “International Humanitarian Law”

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.

The opposite of peace is chaos, not war.

by Travis Normand

I stumbled upon the following quote and thought it was highly relevant to the study of the LOAC.

[Emphasis Added]

This week I have been doing some reading for a class I’m taking at ESR called Images of God. While studying the image of God as Warrior my class read an article by an Old Testament professor at Harvard, Paul Hanson, who wrote about the concept of Peace as Shalom in the early Old Testament. This concept doesn’t translate directly into the way we use the English version of it. Hanson said many interesting things -among them that the opposite of peace is not war. It is chaos. Webster’s Dictionary gives a definition of “chaos” as a word that means the disorder of formless matter and infinite space. Hanson described the ancient Israelites sharing with their neighbors over the cook pot, their basic view that the world was situated precariously between order and chaos. Order is defined as a life-enhancing condition which the creator God maintains by holding the unruly forces of chaos in check. [1]

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Targeted Killings of Americans: Three Things to Know [CFR.org]

by Travis Normand

The following video and article were originally created and posted by CFR.org.  You can visit their site HERE.

As for the three points discussed by Matthew C. Waxman (in the following video), I think the first point is the most important. After all, whether or not the U.S. is at war determines if the LOAC paradigm is applicable to the situation.

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The war on terror is without geographically defined battlefields

by Travis Normand

An article appeared yesterday (Feb. 14, 2013) on the HuffingtonPost.com titled Drone Attacks Spur Legal Debate On Definition of ‘Battlefield.’

The debate concerning the geographic limits of the battlefield is not a new one.  In fact, the debate has been ongoing at least since the U.S. declared that it was engaged in a “War on Terror.”  After all, terrorist groups such as al-Qaeda are organizations and they typically have no geographic nation or state.  So, contrary to the traditional war paradigm we are used to, when the U.S. sent troops into Afghanistan to combat the al-Qaeda organization, the U.S. was not going to war with Afghanistan.

However, the author of the above referenced HuffingtonPost.com article suggests that a 2002 Drone attack in Yemen is what “blew apart notions of ‘war’ and ‘battlefield’ which has guided the application of the legal traditions, treaties and laws of armed conflict for centuries.”

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[OUPblog] Killing journalists in wartime: a legal analysis

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

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.

Obama administration to codify U.S. drone policy

by Travis Normand

I found this article on NYTimes.com about how the Obama administration is looking to codify the U.S. drone policy. The article is quite fascinating and addresses a few of the larger complaints and challenges concerning drone usage.

Click HERE to read the entire article.

While reading the article, I had several thoughts which I wanted to address here.

My first thought came after reading the following quote:

“One of the things we’ve got to do is put a legal architecture in place, and we need Congressional help in order to do that, to make sure that not only am I reined in but any president’s reined in terms of some of the decisions that we’re making,” Mr. Obama told Jon Stewart in an appearance on “The Daily Show” on Oct. 18.

In the quote above, President Obama states that he needs “Congressional help” in order to put a legal architecture in place for the drone policy. My first thought was that as Commander in Chief, the President has historically been very careful to keep congress out of the decisions of who was designated an enemy combatant.  It will be interesting to see how much congressional help he will accept and what this will do to any current precedent.

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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.