Anwar Al-Awlaki is killed

(Anwar Al-Awlaki in happier times...)

At least according to the Guardian. It's interesting that the particular point made about Awlaki is his US citizenship, as if this exempted him from targeting as a leading member of Al Qaeda in the Arabian Penninsula (AQAP).

Interesting. I'll scribble some more when more is known.

J-70 Tram Engines

 (Toby, battler for justice)

Interlude time.

Growing up, it was always clear that Toby is an unusual christian name; indeed the market demonstrated this by the fact that there was never any mugs or other types of tat with Toby on them - it was all David, John, Bill, Oliver, etc etc. Hence, discovering Toby: The Tram Engine at an early age was simply wonderful - something with my name on it, and a quirky steam engine to boot - very important a six.

But in common with most of the rest of the the Reverend Awdry's creations in the Railway Series, (later known as "Thomas and Friends"), Toby in fact was based on a real series of strange steam tram engines produced by the Great Eastern Railway between 1903 and 1921 for service on the equally idiosyncratic Wisbech and Upwell Tramway, in rural Cambridgeshire, and were a more powerful version of an earlier Victorian design. 

(68222 in the early 1950s)

Unkindly described by my sister as a "garden shed on wheels", the "Tobys" were replaced by diesel shunters in the early 1950s, and were all scrapped. (Sniff!) Nonetheless, this strange design has achieved a degree of immortality in the unlikely venue of a children's storybook character.

Minus the side plates, you can see how short the wheelbase was.

And under the "garden shed", it was just a conventional (if very small) steam engine.

"Targeted Killings" Legal Considerations: Part One Armed Conflict

 (MQ-9 Reaper: Radio controlled model airplanes were never this much fun in high school.)

“Targeted Killing” is a strange term. On one hand, it is a technocratic phrase used by commentators to describe what is described by the US Joint Special Operations Command (JSOC) in Professor Philip Alston's excellent essay on targeted killings as “kinetic counter-terrorist operations”* – evoking images of robotic planes blowing up terrorists / bad guys / evil doers in precision ("clinical") strikes, or Special Forces kicking in doors at night and "taking down" the aforementioned terrorists / bad guys / evil doers (T/BG/EDs, I suppose).  

On the other hand, “Targeted Killing” is an Orwellian obfuscation of language to camouflage the violent – and sometimes apparently random – deaths of large numbers in zones of conflict worldwide. Thus, Targeted Killings as a term can cover many things, ranging from the legitimate killing of enemy combatants through assassination of opponents to the murder of innocent civilians.

Finally, “Targeted Killing” is curious as a grammatical description – to define some killings as “targeted” immediately implies a differentiation from others that are “untargeted”, and therefore, (presumably) indiscriminate. Indiscriminate attacks run the serious risk of killing or injuring those who are not legitimate targets - which is a war crime. As this blog has covered in the past, under the Law of Armed Conflict (LOAC) the legal use of force is always targeted - so the very notion of a "targeted" - as opposed to an "untargeted" killing is somewhat confusing.

It is also emotive; killing is not a warm fuzzy word, and therefore, arguably the whole term is pejorative - and in the process we run the risk of missing the legal point. Fundamentally, how do "Targeted Killings" differ from any other combatant deaths? 

Let's look at the law.

(Professor Philip Alston, NYU; a good lawyer, who also writes beautifully.)

Conflict Nexus

The most important question is "what is the controlling law?" There are three possible answers:

- LOAC, when there is an International Armed Conflict (IAC), with the IAC rules;

- LOAC, when there is a non-International Armed Conflict (NIAC), with the NIAC rules;

- International Human Rights Law (IHRL), where there is no armed conflict (ie, any disturbances / riots are below the level for conflict), based on the 1948 UDHR subsequent international instruments (e.g. the ICCPR, CEDAW) and the regional charters (e.g. ECHR / ACHPR);

The key here is that under LOAC, "targeted killings" against combatants (IAC) or those taking an active part in hostilities (NIAC), are, subject to the proportionality and military advantage rules, legal. Under the peacetime policing rules of IHRL, the test for the use of lethal force is much tougher - is acceptable if it the only way to protect others from an immediate threat. 

Fundamentally, the legal problem under LOAC comes down to combatant status - or not - and with it, identification. If you successfully target and kill a senior enemy combatant, then you may well gain a measurable military advantage - similarly, if you were able to target individuals with specific high-demand skills (e.g. Yahya "The Engineer" Ayyaash, killed by the Israelis in January 1996), then you'll gain a disproportionate military advantage. 

But to achieve these disproportionate results, you need excellent intelligence, a precise understanding of the weapon's explosive effect - which as long ago as 2003 was detailed in the Seattle Times - and a judgement based on the likely number of civilian deaths (Collateral Damage) versus the military advantage to determine legality.

(T/BG/EDs? Pashtun civilians? Stag do? Hollywood extras? How can you tell?)

Role of Intelligence 
This is where things become difficult, in that the information used to conduct the target identification is likely to be highly classified intelligence, which by its' nature is unlikely to be released - and if material is occasionally declassified or leaked, then the manner in which it was collected and analysed will remain unclear, making an external assessment of its veracity difficult. After all, intelligence agencies rightly want to protect their sources and methods, for fear of losing access to a source or method in future.

Within these rules the challenge - as Alston's article details - is to ensure that the legal requirements are met, and that there is an appropriate level of oversight; ironically (in light of the Nicaragua Case) Ronald Reagan's notion of "trust but verify" is ever more important. The problem, of course, is that if the intelligence files are not openly available, then it is difficult or impossible to assess the targeting decision. Moreover, as the enquiries and cynicism predictably coalesce around those strikes that have gone wrong, (either because of a technical, intelligence or judgement error), then the lack of the intelligence basis for the targeting decision makes accurate ex-post assessment of the decision-making virtually impossible: all you'll see is the human - and civilian - toll. 

So "Targeted Killings" - if we must use the term - of combatants in IACs and NIACs are much less legally problematic than some would have us believe. But establishing oversight to ensure that the analytical framework behind these attacks is credible and produces legal strikes is critical - and that's where Professor Alston's essay is so useful.

I'll return to specifics later, along with the IHRL implications.

* Alston, p. 47

New ICRC Blog

News just in - the ICRC has launched a new blog, "intercross", with a section on LOAC - it's here. Have a look - initial thoughts are that it will be very interesting.

More on Israeli Settlements

(Map of the West Bank in June 2011 from B'tselem)

Further to the recent posts on the (il)legality of Israeli settlements in the occupied territories, (shown above in the latest map from B'tselem) and the threat of a US veto of a Palestinian UN membership application, I was interested in looking more closely at what current US policy is on the issue of Israeli settlements.  Israel, remember, claims that settlements themselves are legal as the Fourth Geneva Convention doesn't apply in the Occupied Territories, though it accepts that there are some settlements that are illegal under Israeli domestic law, e.g. Migron. This analysis is wrong as a matter of international law, as the Geneva Conventions have customary - and therefore binding - status on all States, a fact underscored by UNSCR 827 in 1993, itself binding on all UN Members as it was adopted under Chapter VII.


In particular, I was curious about whether US policy was as lock-step behind the current Israeli Likud administration on the question of legality? It is certainly true that America's detractors and opponents would like the rest of the world to believe that the Obama Administration is in the pocket of the Likudniks, and that therefore the US was fundamentally flawed as an interlocutor in the Middle East.

(To their detractors, puppet and puppeteer. If true, which is which?)

Digging through the record, it's clear that this isn't the case, despite the visuals. 

As long ago as 1979, the UN Security Council has held that Israeli settlements constructed on land captured by Israel in 1967 are illegal through the passage of Resolution 446 on 22 March 79. UNSCR 446 was adopted 12-0-3, with Norway, UK and USA abstaining - meaning that the US allowed passage.

On 18 Feb this year, the UNSC sat for its' 6484th meeting, and considered a draft UNSCR which was proposed by 100 states in the UNGA*. The draft UNSCR's Operational Paragraphs stated:

1. Reaffirms that the Israeli settlements established in the Palestinian Territory occupied since 1967, including East Jerusalem, are illegal and constitute a major obstacle to the achievement of a just, lasting and comprehensive peace;

2. Reiterates its demand that Israel, the occupying Power, immediately and completely ceases all settlement activities in the Occupied Palestinian Territory, including East Jerusalem, and that it fully respect all of its legal obligations in this regard;

3. Calls upon both parties to act on the basis of international law and their previous agreements and obligations, including under the Roadmap, aimed, inter alia, at improving the situation on the ground, building confidence and creating the conditions necessary for promoting the peace process;

4. Calls upon all parties to continue, in the interest of the promotion of peace and security, with their negotiations on the final status issues in the Middle East peace process according to its agreed terms of reference and within the time frame specified by the Quartet in its statement of 21 September 2010;

5. Urges in this regard the intensification of international and regional diplomatic efforts to support and invigorate the peace process towards the achievement of a comprehensive, just and lasting peace in the Middle East;

6. Decides to remain seized of the matter.

For the UN, this is strong stuff; and it was duly defeated by a US veto, 14-1-0.

So far, so normal for the US's critics who assert that the US is simply a nebbish covering up for Israel's illegal excesses.

(The estimable US UN Ambassador Dr. Susan Rice).

After each Security Council vote, the UNSC members may choose to speak explaining what just happened. These speeches are known, (with a stunning lack of diplomatic originality) as "Explanation of Vote", or EOVs. Here's what Ambassador Rice had to say after the US vetoed the draft in the face of unanimity on the rest of the Security Council and against the wishes of 100 UN member states:

"The United States has been deeply committed to pursuing a comprehensive and lasting peace between Israel and the Palestinians. In that context, we have been focused on taking steps that advance the goal of two States living side by side in peace and security, rather than complicating that goal. That includes a commitment to work in good faith with all parties to underscore our opposition to continued settlements.

Our opposition to the resolution before this Council today should therefore not be misunderstood to mean we support settlement activity. On the contrary, we reject in the strongest terms the legitimacy of continued Israeli settlement activity. For more than four decades Israeli settlement activity in territories occupied in 1967 has undermined Israel’s security and corroded hopes for peace and stability in the region. Continued settlement activity violates Israel’s international commitments, devastates trust between the parties and threatens the prospects for peace.
 

The United States and our fellow Council members are also in full agreement about the urgent need to resolve the conflict between the Israel and the Palestinians on the basis of the two-State solution and an agreement that establishes a viable, independent and contiguous State of Palestine once and for all. We have invested a tremendous amount of effort and resources in pursuit of that shared goal, and we will continue to do so. But the only way to reach that common goal is through direct negotiations between the parties, with the active and sustained support of the United State and the international community. It is the Israelis’ and Palestinians’ conflict, and even the best-intentioned outsiders cannot resolve it for them."

The language is direct, and strikingly similar to that used by President Obama in threatening a veto on the Palestinian application for UN membership: if nothing else, the US was being entirely consistent. It is also heartening to hear that the US "reject[s] in the strongest terms the legitimacy of continued Israeli settlement activity", by which I presume were are suppose to understand that the US considers them illegal under international law, though they don't actually want to say so.

What is missing, of course, is successful economic or political pressure from the US to force the Israelis to freeze the settlements as a prelude to negotiations. But that is a political, not a legal matter. 

(*For the record, the co-sponsors of the draft Resolution were: Afghanistan, Algeria, Argentina, Austria, Azerbaijan, Bahrain, Bangladesh, Belarus, Belgium, the Plurinational State of Bolivia, Botswana, Brunei Darussalam, Chile, Comoros, Costa Rica, Cuba, Cyprus, the Democratic People’s Republic of Korea, Djibouti, Ecuador, Egypt, Finland, Greece, Grenada, Guatemala, Guinea, Guyana, Iceland, Indonesia, Iraq, Ireland, Israel, Jordan, Kuwait, the Lao People’s Democratic Republic, Lesotho, Liechtenstein, Luxembourg, Malaysia, Mali, Malta, Mauritania, Mauritius, Mexico, Morocco, Namibia, Nicaragua, Norway, Oman, Pakistan, Papua New Guinea, Peru, the Philippines, Qatar, Saint Vincent and the Grenadines, Saudi Arabia, Senegal, Serbia, Slovenia, Somalia, the Sudan, Sweden, Switzerland, Tajikistan, Tunisia, Turkey, Turkmenistan, the United Arab Emirates, Uruguay, the Bolivarian Republic of Venezuela, Viet Nam, Yemen and Zimbabwe.)