That Pakistan can either choose to act on or ignore.
Current active duty soldiers carrying out a mission on the direct orders of the president is a state act.
Something that “can be seen” as an act of war would be something more ambiguous that you could, or could not take as an act of war depending upon your viewpoint.
For example - North Korea funding a jihadist terrorist cell that that then went on to attack America.
Mind you,
I guess you could try to argue that for it to be an act of war, a state must be targeted - and in capturing / killing Osama, the state of Pakistan was not targeted.
:dubious: Then I guess we’re committing acts of war all over the damned world.
The Pakistani government did not publicly say that any intrusion into its territory without their express permission to capture ObL would be considered an ‘act of war’. In fact, the only thing we did to undermine their sovereignty is carry out an operation that they were either unwilling to do or couldn’t do. Since terrorism rarely knows geography, I’m not sure you could consider it an act against the state. Pakistan is still running as usual.
So now a country has to state that a foreign military, carrying out an unapproved instrusion onto their soil with guns blazing is an act of war for it to be considered wrong :dubious:
Sending the military, into another country without that country’s approval cannot be anything other than an act of war.
Look at it this way - if your neighbour comes and steals your TV, but you don’t report it to the police because you are scared of him, is stilll a theft right?
For the record I think that Obama did the “right” thing, and I don’t think Pakistan will want to take action. But that is beside the point.
Yes, if Pakistan doesn’t complain, then it isn’t an act of war.
No, that doesn’t tell you if the act was ‘wrong’.
Personally, I suspect that Pakistan had been told long ago that if OBL was found in Pakistan then the Pakistanis wouldn’t be getting any warning of American action. That has given them time to consider their options and react calmly when it happened. So ‘unapproved’ might be a nuanced concept.
Well, it is reassuring to know at least one person is certain they are absolutely correct in their opinion, however, since the legal experts of international law are in disagreement, and their arguments are reasonable positions, it is inaccurate to state “there is no doubt whatsoever” as far as this debate is concerned. Or, are you so intimately familiar with international criminal law, and international laws of war, as to immediately understand the laws of war are applicable, and justify the government conduct under discussion now, as to render the counterarguments by the legal experts in this particular field of practice are wrong? If so, then you will need to rely upon more than your mere opinion, as you did in the last post, and after a brief review of this post, apparently have done the same here.
I find this to be a very helpful claim, and most edifying, but really I have no idea if it is accurate since A.) you fail to refer to any specific law regarding of the laws of war to support your remarks above and B.) you fail to cite any international law case supporting the remarks above. Again, anybody here is capable of providing commentary of this sort but it hardly makes it right as a matter of law, which is, I remind you, what we are discussing, as opposed to mere opinion.
Essentially, to examine the veracity of your claim above, a citation to a case or international law covering targeted killings, when hostilities in sovereign nations is permissible, and what constitutes as a “neutral” state is required. Otherwise, all we have is your opinion and nothing else, and if mere opinions is what mattered in a legal discussion, then you certainly have done a fantastic job, along with everyone else venturing an opinion in this thread on this topic, on the web, on Facebook, and in the media.
This is a fantastic general idea but ultimately it is not helpful. International laws of war are not only prohibitory but also permit certain kinds of conduct, by expressly stating what States may do. In addition, whether this notion above is even applicable to what we are talking about is a mystery quite simply because in giving your opinion on the matter, you essentially cite no legal authority to support your notion, not even the opinion of a legal professional.
Is this your mere opinion? Furthermore, I think you misunderstood, or strawmanned me to the extreme, about my perception of battlefield. I have yet to make any comments a battlefield is a “geographical place where war must be conducted.” Furthermore, a characterstic unique to a battlefield is the presence of a conflict, but the existence of a conflict in some area does not render it a battlefield, much less a battlefield of an armed conflict, a battlefield connected to or associated with a war.
In essence, your reply leaves a large part of the analysis I have summarized from other legal experts unaddressed.
So, I repeat it once again, hopefully to be addressed with a substantive reply. In other words, under international law, it is perhaps impossible to characterize this operation as a military one, and the killing of Osama as a justified killing done while engaged in an “armed conflict,” much less Osama as a legitimate military target.
To avoid any confusion, it is important we remember what exactly is being discussed here. There is the armed conflict transpiring in Afghanistan, which most likely can be construed as an armed conflict, something akin to a war, and therefore, the battlefields and combat conducted in Afghanistan is regulated by the international laws of war.
Then, we have the AUMFAT (Authorization of Use of Force Against Terrorists), or the “war on terror,” specifically the war against Al Qaeda, a terrorist organization, among other things. I am doubtful the international laws of war are applicable to this scenario, quite simply because none of them legally recognize an armed conflict of a State against a non-state, such as against an organization. As a result, it is argued, going after targets belonging to these organizations is not regulated by laws of war but rather international criminal law, and targeted killings of them would violate international law.
On this basis, we then move to the presumed, for the sake of argument only, targeted killing of Osama would violate international law (assuming it was a targeted killing and Osama did not resist) as the targeted killing would not come within the law of war, because the laws of war do not legally recognize armed conflict or a war of a State against an organization.
The laws of war are applicable to the “war on terror” against the terrorist organization Al Qaeda where the organization is engaged in an armed conflict against the U.S. military on a battlefield, like Afghanistan. However, it is argued the laws of war cannot extend to Osama and a presumed targeted killing of him, when he is located miles away from the battlefield and in a different country, a country in which the battlefield is non-existent.
While there are conflicts in Pakistan, this does not transform Pakistan into a battlefield of war, or a battlefield of armed conflict.
It is getting very cumbersome to respond point by point, so I’m just going to summarize my argument and throw a couple of cites in.
The laws of war and armed conflict clearly apply to US military actions which derive from the AUMF (nitpick: it isn’t the AUMFAT; the words “against terrorism” do not appear in the title of the law). Common Article 3 of the Geneva Conventions state clearly that in a conflict “not of an international character” that there are basic protections for non-combatants and combatants alike. This is clear because the plain text of Common Article 3 makes it applicable to all armed conflicts.
In addition, the Supreme Court decided in Hamdan: “The Court need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not between signatories. Common Article 3, which appears in all four Conventions, provides that, in a “conflict not of an international character occurring in the territory of one of the High Contracting Parties [i.e., signatories],each Party to the conflict shall be bound to apply, as a minimum…”
It would of course not be a surprise that the International Committee of the Red Cross argues that Common Article 3 of course applies as an absolute minimum for the current conflict, and generally views that the laws of war go further in regulating conduct in this conflict than that minimum standard: “Despite the lack of a legal definition, it is widely accepted that non-international armed conflicts governed by Common Article 3 are those waged between state armed forces and non-state armed groups or between such groups themselves.”
In addition, unwritten, customary international law on the conduct of warfare would most certainly seem to apply, as it is so broadly accepted that it is bizarre to imagine that anyone would argue otherwise. The ICRC summarizes the relevant customary laws of war in this document, and each point at which “NIAC” appears would be applicable to the current fight. It is also important to know that the US Army Field Manual guidance and the laws of war specifically incorporate customary international law as being fully binding to the conduct of the military during a conflict.
The idea that there is some provision of international law which prohibits military action within a sovereign country (like Pakistan in this case) is a difficult one to disprove, because I cannot prove that something doesn’t exist. At best, one could make an argument that Pakistan had a right to defend its territory if it had wished and had the means, and that the action may violate Chapter VII of the UN Charter. One could also make the argument that the US acted in self-defense, which I find convincing, and which is also specifically allowed by the UN Charter.
I’m rather short on time at the moment, but just a few other brief comments: the distinction between “laws of war apply” and “criminal laws apply” is a false dichotomy. There is a body of criminal law that applies to the conduct of war, including the US Code, Uniform Code of Military Justice, and the International Criminal Court. If this raid violated any criminal law, the fact that it was an act of war does not provide any cover from prosecutions in US courts, military courts, or even international courts (though it’s common sense that the latter is pretty unlikely).
And on targeted killings, I’d just leave you with one question: would the President of the United States be a valid military target in a war?
I’ll be back later to pick up on your responses and offer additional commentary.
I don’t know if this is relevant to the discussion, but I read today Bin Laden: Al-Qaeda leader was unarmed when shot - US (bbc.co.uk)
The article says that Bin Laden was not armed, and did not use a woman as a human shield: the woman was caught in the crossfire.
I assume you are saying there is an armed conflict transpiring in Afghanistan and that armed conflict is regulated by the laws of war. I think we can agree on that. I’m not clear if you mean against the former Gov’t of Afghanistan (Taliban) or Al Qaeda located in the country of Afghanistan, or both. My opinion is it’s against both.
If there is an armed conflict in Afghanistan against Al Qaeda, then I, and it appears Ravenman, are saying you can extend that armed conflict to wherever the enemy is. I mean, during the war against Iraq (before the occupation), Iraq had ever right to attack legitimate military targets on US soil. So do the Taliban. So must Al Qaeda. They all must be done in accordance with the laws of war though, and terrorist attacks, by definition, violate the laws of war.
For example, if Al Qaeda had the capability, the Pentagon would a legitimate military target and the act to attack it would be subject to the laws of war even though it’s far removed from the traditional battlefield and the combatants inside are unarmed. If AQ hijacked a plane full of civilians to attack it, that would violate the laws of war.
Or another, perhaps better example…There’s an armed conflict in Libya between the Gov’t of Libya vs. rebels/NATO. NATO headquarters in Brussels, Belgium would be a legit military target, and the military action to attack it would subject to the laws of war.
I do think you need to get permission of a neutral country before you could enter their sovereignty to initiate an attack.
If, during World War 2, either Germany or Japan had intentionally killed FDR through military action, that may have been unwise, but it would not have been a war crime. The President is not in the military, but is the “Commander in Chief of the Army and Navy” (according to the Constitution), and so is a legitimate military target.
I think a better way to look at this, for those who are convinced it is “legal”, is when would such an act not be legal. Where do we draw the line? And I put quotes around “legal” because it can mean different things in different contexts. US law, so-called international law, Pakistani law…
I’m finding it hard to accept that a bunch of Navy Seals felt they were threatened by ObL to the point where capture was not feasible. There was no way those guys were trying to capture him. We even have Panetta on record as saying it was a “kill mission.”
It would not be legal under the laws of war if an enemy tried to surrender to you.
So, it would take an affirmative action (ie, the act of surrendering) to take the “kill option” off the table. Or rather, the mission was kill or capture (if forced to capture).
That, and the self defense provisions of international law that AG Holder (as well as Ravenman and the NPR article) mentioned. The customary right under the law of nations and under international convention to act in national self defense is the most commonly cited international law justification I’ve heard so far. From the UN Charter:
“Chapter VII of the United Nations Charter, Article 51: Nothing in the present Charter shall impair the inherent right of collective or individual self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by members in exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”
I’m trying to work up some concern over this but being it’s bin laden, I’m way short of compassion. He’s dead. Let’s move on, I’m already feeling like a minority here for not starting a bin laden thread.
This thread has played itself out, but there are larger implications based on the legal reasoning used to kill, than just bin Laden being killed lawfully in this instance. Here’s three that might merit a future thread:
(1) Gitmo detainees. About 46 are being held indefinitely with no plans to charge until the “end of hostilities.” bin Laden was killed on May 1, 2011 based on the laws of war. Those only apply in a war (an armed conflict). So, since Sunday, there has not been an end of hostilities against Al Qaeda (according to the Executive) and the detainees detention is still warranted. Without question that has to be his position (as opposed to, he doesn’t want to detain them indefinitely, but is being forced to). When the talk comes to “is the death of bin Laden the end of the GWOT;” if you get a lot of “terrorists are still a threat…Al Qaeda is still a threat…ect.” it means the “war” is not over even though bin Laden is dead and the Gitmo detainees can still be lawfully detained. If the consensus is the war is over/let’s draw down, then you cannot legally hold the detainees under the laws of war anymore. I’m putting my money on Al Qaeda is still a threat.
(2) Wherever enemy found. The executive has extended the battlefield to an affluent suburban neighborhood close to a major city in a “neutral” country without their explicit permission. (not say, Chile neutral, but not Afghanistan, Iraq, or Libya). How far can this extension of the battlefield go and will you get away with killing lower level terrorists without permission in the same type of neighborhood?
(3) Who is the enemy? Nobody, except NotreDame05, has a problem with bin Laden being killed in the way/legal reason he was allowed to be. bin Laden is apart of Al Qaeda because everyone knows it. But really, the Executive decided he was, and authorized him to be killed as the “enemy.” Logically, this can apply to any enemy. Why was it not ok to kill other Al Qaeda operatives (usually by drones) the Executive decided was the enemy, but it is ok with bin Laden. How much room should the President have to act unilaterally here?