Category Archives: LOAC

The NFL and the LOAC (Following Illegal Orders)

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.

LOAC: Is Syria in the midst of a Civil War or not?

by Travis Normand

There is no clear definition of when an armed conflict begins, however, this hasn’t stopped United Nations Under-Secretary-General for Peacekeeping Operations Herve Ladsous from claiming that Syria is now in a Civil War.

Article: Ibtimes.com

Article: BBC

Article: ABC.com

Article: InternationalLawBureau.com

US v. El-Hanafi (Cont.)

by Travis Normand

If you haven’t see the post that I re-blogged from Prof. Robert Chesney’s site, please take a look at it first.  The follow quote comes from his post.

U.S. Attorney Bharara said, “The pleas of these two avowed supporters of al Qaeda is a chilling reminder of the threat of homegrown terrorists and the unwavering vigilance that must be exercised so they can be thwarted – as they were in this case. It is also a reminder of the commitment that we share with our law enforcement partners to identify, prosecute and punish those who would do harm to the United States and its citizens.”

Beginning in 2007, El-Hanafi and Hasanoff conspired with others to support and receive assignments from al-Qaeda. In November 2007, Hasanoff received approximately $50,000 from a co-conspirator (CC-1), with the understanding that at least a portion of the money would be used to support the terrorist organization. In February 2008, El-Hanafi traveled to Yemen, where he met with two members of al-Qaeda. While in Yemen, El-Hanafi swore an oath of allegiance to al-Qaeda, received instructions from al-Qaeda on operational security measures, and received assignments to perform for al-Qaeda. Also while in Yemen, El-Hanafi instructed the members of al-Qaeda on how to communicate covertly over the Internet in a manner that would avoid law enforcement detection.

After El-Hanafi returned from Yemen, Hasanoff also swore allegiance to al-Qaeda. About three months later, in May 2008, El-Hanafi met with CC-1 in Brooklyn to discuss CC-1 also joining al-Qaeda, and Hasanoff and El-Hanafi subsequently had additional discussions with CC-1 about joining al-Qaeda. During the same approximate time period, El-Hanafi purchased a subscription for a software program that enabled him to communicate securely with others over the internet.

El-Hanafi and Hasanoff also helped finance the terror group by regularly sending money to al-Qaeda through international wire transfers and through couriers. El-Hanafi and Hasanoff also were interested in fighting with al-Qaeda in Afghanistan, Iraq and other locations abroad, and they discussed traveling to engage in jihad, although they never succeeded in participating in armed conflict.

After a  cursory reading of the article and opinion, I would say that El-Hanafi was a full member of al-Qaeda.  Therefore, while he may never have actually participated in a “fire fight,” he is still a party to the armed conflict that the US is currently involved in with al-Qaeda.  One must remember that the LOAC deals with status based targeting and not conduct based targeting.

With this view in mind, El-Hanafi would be a lawful military target no matter where he was found. While it is definitely possible for him to be arrested and prosecuted via the criminal justice system (as was done here); the real debate hovers around the issue of whether or not the US Military could have used deadly force against him as a measure of first resort.

Jeremy Scahill’s “murder” comments cont.

by Travis Normand

Jeremy Scahill has come out and clarified the statements he made on MSNBC’s “Up With Chris Hayes” by stating that:

Just a point of clarification. If you actually listen to what I was saying on “Up With Chris,” I was discussing two specific cases. One, was the December 17, 2009 cruise missile strike on the Yemeni village of al Majala. I investigated that strike on the ground in Yemen, and did a 30 minute documentary on it for al Jazeera. It was the first strike Obama authorized on Yemen. The vast majority of the victims–35 in all–were women and children. The US used horrendous cluster bombs in that attack, which shred human beings into ground meat. Unexploded bombs killed more people a few days after the strike. That was not a drone strike. The other issue I discussed was the so-called “Signature Strikes.” The idea that you target people based on the fact that they are “military aged males” or patterns of travel or geography is extremely dubious and will undoubtedly result in innocent people being intentionally targeted. To me, drones are not the prime issue we should be debating; the kill program is the issue. Whether it is Tomahawk cruise missiles fired from the ocean, Hellfires fired from drones, or AC-130s firing on people is, in many ways, a side issue. Those are the vehicles for implementing a policy.

This update/clarification is quoted at the bottom of the page here: http://www.mediaite.com/tv/daily-caller-scribe-keeping-troops-out-of-harms-way-a-strange-way-to-fight-a-war/ 

Here is a post to the article and video of his original comments:  http://www.huffingtonpost.com/2012/06/02/jeremy-scahill-says-drone-strikes-murders_n_1565441.html?icid=hp_search_art

I actually agree with Mr. Scahill in that the vehicles for implementing the policy (or Kill Program) is really a “side issue,” and that it is the policy itself that we should focus on.

However, what seems to be missing from this discussion about the policy is that before we can discuss whether the policy is right or wrong, we must determine whether or not the policy is being carried out in a theater of war (or armed conflict).

Mr. Scahill states, in the video here, that because the U.S. was aware of the fact that civilians were present in the targeted/bombed area, such targeting/bombing constitutes “mass murder.”  Scahill clearly states that the strike he is referring to was due to the fact that the U.S. believed there to be someone from al-Qaeda in the area, and yet after the attack only one person has been found to have any such connection to al-Qaeda.

In fact, Scahill says “its mass murder when you say that we are going to bomb this area because we believe a terrorist is there and you know that women and children are in the area.  The United States has an obligation to not bomb that area if they believe that women and children are there, im sorry, but that’s murder.”

This is why it is important to first decide whether or not such attacks are being carried out within an armed conflict.  If the attacks Scahill is referring too happened outside of an armed conflict, then he perhaps has an argument for murder.

However, if these attacks happened within an armed conflict, then Scahill’s comments are incorrect for several reasons.  First, a party of an armed conflict has the right to target an area based on its belief that the enemy is present and is using such location as a military advantage.  In other words, military necessity can allow for the targeting of such an area as the one described by Scahill.  This is still true whether or not the US knew of the presence of civilians in the area.  The LOAC prohibits the pure targeting of civilians, however, it does not prevent the targeting of an area where civilians are present.

Second, Scahill wants to use the benefit of hind-sight against the attack by claiming that afterwards only one person with ties to al-Qaeda was found in the area.  While that may be true, the LOAC judges decisions at the time they are made and on the information they are made on, and not upon information gathered after the fact.

Finally, Mr. Scahill tries to impose an obligation upon the US and says that the US has an obligation not to bomb if they know women and children are present. Again, this is why it is important to first determine if the LOAC applies.  If it does, then the US has no such obligation because the LOAC doesn’t impose one. The LOAC does, however, use the concept of “Proportionality.”

Proportionality prohibits the use of any kind or degree of force that exceeds that needed to accomplish the military objective. Proportionality compares the military advantage gained to the harm inflicted while gaining this advantage. Proportionality requires a balancing test between the concrete and direct military advantage anticipated by attacking a legitimate military target and the expected incidental civilian injury or damage. Under this balancing test, excessive incidental losses are prohibited. Proportionality seeks to prevent an attack in situations where civilian casualties would clearly outweigh military gains. This principle encourages combat forces to minimize collateral damage—the incidental, unintended destruction that occurs as a result of a lawful attack against a legitimate military target.

Link

I am not making an argument that these attacks did, or did not, happen within an Armed Conflict and that the LOAC does, or does not, apply.  However, hopefully it is a little more clear as to why such a discussion about the LOAC’s applicability needs to be had first before trying to resolves the issues that Mr. Scahill brings up.

After all, if the LOAC does apply, Mr. Scahill’s argument should shift away from being “this is murder” and towards an argument of “this was not proportional” or “this was not a legitimate military target.”

The U.S. is not happy with President Tomislav Nikolic’s statement

by Travis Normand

Yesterday, Serbian President Tomislav Nikolic tried to re-write history by calling the war crime of Genocide a “grave crime.”

Serbia’s new president revives Balkan tensions by denying Srebrenica massacre was genocide

BELGRADE, Serbia — Serbia’s new nationalist president has been in office for less than a week and he’s already rocking fragile Balkan stability and casting doubt over his proclaimed pro-European Union policies.

Tomislav Nikolic, a former ultranationalist ally of Serbia’s wartime leader Slobodan Milosevic, revived ethnic tensions in the still volatile region by stating that the Srebrenica massacre, in which Bosnian Serb forces killed some 8,000 Muslim men and boys in 1995, was not genocide but a “grave crime.”

Read more at: The WashingtonPost.com

Today, June 5th 2012, the U.S. State Department issued a press statement in order to voice their position on President Nikolic’s comments.

Serbian President Nikolic Denies Srebrenica Genocide
Press Statement
Mark C. Toner
Deputy Spokesperson, Office of the Spokesperson
Washington D.C.
June 5, 2012

The United States deplores the statement made by newly elected Serbian President Tomislav Nikolic denying genocide in Srebrenica.

Genocide in Srebrenica is not a subjective determination—it is a defined criminal act which the International Criminal Tribunal for the former Yugoslavia has confirmed in final and binding verdicts in multiple cases. The International Court of Justice also has concluded that genocide occurred in Srebrenica. It cannot be denied.

Read more at: State.gov

Article on CNN.com

by Travis Normand

This is a little late, however, I only started this blog over the weekend and part of what I am doing now is going back and posting a few things that I think are relevant.

This opinion piece appeared on CNN.com in April 2012, and claims that Syria must be held to the law of war (or LOAC).  I am probably a little biased, but I think it is a great piece; especially for those of you who are new to the LOAC and are still trying to understand why it is important.

Prof. Corn and Prof. Blank do a great job of outlining their argument and injecting some logic into the discussion.

Welcome!

by Travis Normand

Welcome to my site/blog.  If you are reading this, you are reading the first post to what hopefully will become an exciting adventure in exploring the Law of Armed Conflict.

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Jeremy Scahill calls drone strikes “murder”

After I read this article, my first thought was to say that Mr. Scahill apparently doesn’t understand how the Law of Armed Conflict (LOAC) works as his argument seems to center around the idea of “proportionality.”  However, for all I know, he may understand the LOAC better than most.

Either way, I still think he would have been better served by making a different argument. For example, arguing that “drone strikes are disproportional in the specific situations discussed,” would make a lot more sense.

Another argument he could have made would be that the drone strikes are not taking place within an armed conflict, and the current conflict and its field of battle don’t extend to where the strikes are taking place.

So, whats the point of this?  The point is that I did not start this blog to lecture to anyone. I have plenty to learn when it comes to the LOAC, and I have no reason to pretend to be an authority on the subject (especially with so many scholars already out there).  The point of this blog is to be a resource for those who want to learn and explore the LOAC further. Hopefully I can flush out some details and arguments, while also learning something along the way.  The article by Jeremy Scahill demonstrated a discussion of LOAC principles being held outside of a LOAC construct. This blog will try its best to bring these discussions back into the fold, and get them into the proper confines . . . where they belong.