Obama admin: New Gitmo and we'll kill anybody we want

[MarshalPurnell]

If someone is attacking your citizens across an international border, and the state in which they are sheltering is either unwilling or unable to stop it, then the inherent right of a nation to self-defense justifies them striking across the border. If the attacks are being actively supported by another nation that is an act of war. The wisdom of attacking across an international border is another matter entirely but the legality should be clear cut. And even if it is not, international law is a joke. There is no authority capable of holding a state culpable for its actions but other states, who may or may not bother to do so dependent entirely on their own interests and capabilities. If the only law enforcement is an arbitrary lynch mob, is that actually law in any real sense?

[Thanas]

If someone is attacking your citizens across an international border, and the state in which they are sheltering is either unwilling or unable to stop it, then the inherent right of a nation to self-defense justifies them striking across the border.

And if said evidence of both attacks and unwillingness of the state to do so was presented in public and open to scrutiny you might have a point. As it is, it is just the US saying "that guy is a really bad man, trust us." Didn't work out so well the last time the US tried that, so nobody with any sane mind would trust the US on this, even moreso since a lot of the evidence is bound to have been "extracted" under torture. Especially considering the US has admitted that the vast majority of persons they "were certain of were terrorists" and held them in Gitmo for years were in fact innocent.

That even leaves out the fact of what considers attacking the USA. What definition do you have on that point?

[Darth Yan]

ossus are you going to answer the arguments about the guys who were illegally kidnapped and tortured by the US or ignore them? when did you start becoming a rabid US can do no wrong individual?

[MarshalPurnell]

If someone is attacking your citizens across an international border, and the state in which they are sheltering is either unwilling or unable to stop it, then the inherent right of a nation to self-defense justifies them striking across the border.

And if said evidence of both attacks and unwillingness of the state to do so was presented in public and open to scrutiny you might have a point. As it is, it is just the US saying "that guy is a really bad man, trust us." Didn't work out so well the last time the US tried that, so nobody with any sane mind would trust the US on this, even moreso since a lot of the evidence is bound to have been "extracted" under torture. Especially considering the US has admitted that the vast majority of persons they "were certain of were terrorists" and held them in Gitmo for years were in fact innocent.

That even leaves out the fact of what considers attacking the USA. What definition do you have on that point?

I take it then you concede on the general principle of self-defense allowing for cross-border operations where the harboring state is unable or unwilling to act against the offending party?

The circumstances of specific cases are, of course, specific. Armed members of paramilitary organizations that have in the past carried out attacks on American civilians and military personnel, and who have proclaimed their intention to do so in the future, are obviously legitimate targets. Firing off a Hellfire missile from a Predator drone at the Taliban commander of the Kandahar District is perfectly reasonable even if he happens to be some kilometers over the border into Pakistan. Sending in a team of SEALS to take out Osama bin Laden in Abbottabad was, likewise, an obvious exercise of self-defense rights. Since drones are usually used to target specific individuals or for a tactical overwatch role their use is not comparable to wide-net sweeps of "suspects" where bounties are being paid out by the head. But whether or not you believe the US is wasting $70,000 missiles to kill random innocent people has nothing to do with the broader principle, since poor execution does not invalidate the underlying premise.

[Thanas]

I take it then you concede on the general principle of self-defense allowing for cross-border operations where the harboring state is unable or unwilling to act against the offending party?

I will reply to that as I have always replied to such a question - it is possible to do so with the consent of the state involved and if there is sufficient evidence of an actual and credible threat. Having torture evidence and having the US decide for itself is not the scenario that satisfy either, as it involves the US circumventing actual standards for the sake of convenience. "we can't prove it but we will just assume that we do it."

Nice of you to dodge the actual question raised - what makes you think US intelligence, given their poor performance in the past, can be trusted to make a rational and objectional decision about this?

But whether or not you believe the US is wasting $70,000 missiles to kill random innocent people has nothing to do with the broader principle, since poor execution does not invalidate the underlying premise.

Of course poor execution invalidates the underlying premise. After all, this premise is not a license to just blow stuff up, it is a judgement call between balancing the benefits and negatives. Killing random innocent people just because they happen to be in the vicinity of the target or because US intelligence was incompetent or lazy is not accpetable and does in fact invalidate the premise in the first place.

[MarshalPurnell]

I will reply to that as I have always replied to such a question - it is possible to do so with the consent of the state involved and if there is sufficient evidence of an actual and credible threat. Having torture evidence and having the US decide for itself is not the scenario that satisfy either, as it involves the US circumventing actual standards for the sake of convenience. "we can't prove it but we will just assume that we do it."

Nice of you to dodge the actual question raised - what makes you think US intelligence, given their poor performance in the past, can be trusted to make a rational and objectional decision about this?

Either states have the right to strike across international borders in these cases, or they do not. If they do not then the particulars are irrelevant. It would be just as wrong to send a SEAL team to Abbottabad to kill Osama bin Laden as it was to send hit teams to Mexico City to murder Trotsky. If they do have the right then we've established the principle exists. Improperly citing a principle, or failing to actually meet the requirements to invoke it, does not mean a principle does not exist.

And no, you were raising US behavior in a particular sense to question the validity of a general principle. The question was whether or not states have the right to strike across an international border in self-defense when another nation is unable or unwilling to restrain attacks on it.

As far as the particulars of US drone attacks go I think you're painting an unsustainably broad picture of incompetence based on the early sweeps that filled in Guantanamo, which have been over for years now. While you seem to believe the entirety of US intelligence efforts consist of mustache-twirling CIA agents pulling the fingernails off of innocent Afghani goatherds, that completely ignores other methods of intelligence collection being pursued. First and foremost the US has relied very heavily on electronic monitoring and interception, which has also been the main way of finding the designated targets for attack. If Abdullah al-Jihadi is blabbing away on his satellite phone like an idiot, odds are there is significant confirmatory evidence as well as a means to get a drone over to shove a Hellfire up his ass. There is of course also simple collection of data put out there by the Taliban, Al Qaeda and affiliates, such as analyzing videos and radio statements, press interviews, collecting information on orders of battle by securing material in combat, and the open declarations of the enemy leadership. We did not exactly need to "prove" Osama bin Laden was the leader of Al Qaeda in a court of law when he was openly proclaiming his affiliation with it. Finally of course there is the actual interrogation, not conducted by torture, of people who are high value detainees and affiliated with the groups in question, results which are usually correlated with intelligence from other detainees and sources.

But then the United States is sensibly not in the habit of talking about its most successful and capable methods of intelligence collection. Thus only the scandals and failures become public record. An actual evaluation of the competence of American intelligence would rest on information that cannot and should not be made public. But in so far as the drone attacks target people who are known and openly proclaimed members of the Taliban or Al Qaeda and company, I see absolutely no problem. And I rarely if ever recall the Taliban or Al Qaeda claiming the targets of the strike were innocent, rather than proclaiming them holy martyrs whose death in battle would not materially effect their operations. If there are cases where the intelligence really is dodgy they ought to be taken off the targeting list, but I do certainly believe a target list of people like Ayman al-Zawahiri and Mullah Omar and other self-proclaimed leaders of Al Qaeda and the Taliban ought to exist, and that they ought to be killed regardless of what country (cough Pakistan cough) happens to be sheltering them.

Of course poor execution invalidates the underlying premise. After all, this premise is not a license to just blow stuff up, it is a judgement call between balancing the benefits and negatives. Killing random innocent people just because they happen to be in the vicinity of the target or because US intelligence was incompetent or lazy is not accpetable and does in fact invalidate the premise in the first place.

Killing innocent people in the vicinity of a legitimate target is collateral damage. States are obliged to limit that damage as much as possible but are not required to eliminate it, as using military force means that innocent people will necessarily die some time. Hellfire missiles are already very discrete and effective in limiting that damage compared to bombs, and commando raids are very rarely possible in the window of opportunity to take a shot. Bad things happen in war, which maybe the militants and terrorists ought to consider before taking on a nation incomparably more powerful than they are. In cases where the intelligence was actually wrong, well, too bad, should tighten up targeting guidelines to avoid it, but... well, does a botched arrest that kills an innocent man mean that all arrests are wrong? Or that that particular arrest obviously failed to follow procedure or was flawed in some way?

[Master of Ossus]

Way to miss the point, idiot. The robber still does not make the legla determination if his actions were lawful.

And neither is the US the final arbiter of the legality of its operations in Pakistan. If Pakistan were so concerned, it could bring the case before the ICJ or the Security Council. Too bad they know that they would lose, isn't it?

This is precisely analogous: in both cases, the actor is entitled to act on their own volition should they determine that the facts sufficiently support their claims (e.g., the "robber" concludes that the property is theirs; the interventionist determines that action is justified because the host state is unwilling or unable to act). In both cases, the party who is allegedly wronged has judicial recourse should they dispute the actor's actions.

You will now demonstrate how the situation in Mexico is the same as in Pakistan.

It's not the same, dumbass. That's the whole point: even though there is an ongoing armed conflict in Mexico it is not one that involves the US because the Mexican drug cartels are not so involved in the US.

This whole line of argument is retarded, too. It's like asking when the last time you failed to jaywalk was: the US has done quite a bit to ensure that its operations are consistent with international law, and many of operations its critics complain about most vociferously (e.g., the one to kill bin Laden) are unambiguously legal even if some of the operations are more questionable because they fall closer to the line.

Only if you interpret his words in a most hilarious fashion. "We reserve the right to commit unilateral action whenever we determine you to not be helpful. Of course we are going to be bound by international law, which of course is interpreted by us as you having to be helpful to us. Of course the nation who determines you to be helpful or not is...us, the same nation that bombs you."

Nice doublespeak.

That bears no resemblance to the US position at all. It is a complete strawman, born entirely by a desire to ignore international law in its entirety.

Tell me, do you support the right of Iraq to land in your country and assassinate Bush? After all, the US has not given any indication that it will be helpful to extraditing him. And he has admittedly committed much worse crimes than Al-Quida against Iraq. So.....what now? Or does this law only apply to the USA?

So am I to understand that Iraq is now in an ongoing armed conflict with the US?

Going even further, you do realize how this is essentially a law by the strong for the strong, right?

First of all, that's not true at all. But even if we assume, arguendo that it is true it would entirely destroy your claims about the US operations in Pakistan being illegal under international law.

I think you mean "the former," but the US has expressly laid out the circumstances in which its right to self-defense permits it to temporarily infringe upon the sovereignty of other nations--it draws the line where international law draws the line (i.e., when a host nation is unable or unwilling to address nonstate groups with which the US is engaged in an ongoing armed conflict within its borders).

Moreover, there are numerous precedents for this doctrine being applied by other nations, many of them quite spectacular (i.e., the Israeli Operation Spring of Youth and Operation Jonathan, Turkish operations into Northern Iraq (this is hardly the first example), the Colombian Operacion Fenix, Selous Scout operations into Botswana, and SAS operations outside of Rhodesia, to name but a very few.

And you'll note how even those were described as "serious violations of state sovereignty". Again, this is nothing new and just beacause people keep claiming that it is legal does not make it so per se.

Who claimed that these were "serious violations of state sovereignty?" In none of these instances did the ICJ determine that these operations were unlawful. In fact, in many of these cases the target nation would have been laughed out of the place because the operations were obviously consistent with international law. This paper argues at length that these types of interventions have been generally accepted, historically, and certainly in the last two decades as the international community has recognized that non-state actors pose a substantial threat to civilians. Moreover, it specifically argues that the prohibition on use of extraterritorial force in the face of another state which is not exercising its obligations to prevent cross-border terrorism is outdated and not the law.

[After listing and describing numerous instances during which a state applied force extraterritorially to engage terrorists which had attacked within its borders, and describing uncertainty on two areas of justification for the extraterritorial application of force]

Yet three points can be made: (i) the new
practice is more than a response to the 9/11 attacks. On frequent occasions, during
the last two decades, many different states have asserted a right to use force against
terrorists, and their conduct has been viewed rather favourably by the international
community. (ii) The new practice is exclusively justified under an expanded doctrine
of self-defence, even though it may bear little resemblance to classical forms of selfdefence.
(iii) As far as possible re-adjustments of the law of self-defence are concerned,
the debate about the state or non-state origin of the attack seems overstated. While
there seems to emerge a new, lower standard of attribution, the new practice can
be explained as a reform of the previous, restrictive approach set out in Nicaragua

Contrary to your claims, the actions of the US in Pakistan are not unprecedented, and any criticism of such acts as "serious violations of sovereignty" is muted at best, and nonexistent in many cases. Please check back further and cite the condemnations from relevant authorities (e.g., the ICJ) before claiming that these are inapposite.

It does not expressly permits violation of state sovereignty except in the very small situation of the state itself preparing to harm the US.

State sovereignty doesn't shield international terrorist groups within a nation's borders if that nation is "unable or unwilling" to exercise the duties of a sovereign. This principal of international law, outside of pathetic German publications which apparently exist for no other reason than to mirror the heart's desires of their readership (even when their readership is utterly delusional know-nothings), has been universally accepted at least since the UN's disastrous failure to timely intervene to stop the situation in East Timor, and even before then the Westphalian consensus among the international community was waning.

This paper describes the nature of the transformation.

In September 2000, the International Commission on Intervention and State Sovereignty took on the challenge to
build a conceptual bridge between matters of intervention and state sovereignty. The twelve-member independent
commission sought to conceive an alternative framework that would articulate dilemmas of interventions and forge
some sort of consensus on when and how to intervene. Cochairs Gareth Evans and Mohamed Sahnoun orchestrated
an extensive, worldwide consultation of scholars, policy-makers, and civic leaders that fueled the development of
the final report, The Responsibility to Protect, which was published in December 2001. They also called on Thomas
Weiss and Don Hubert to advise them and produce a companion volume of background research and bibliography,
dealing with a broad range of conceptual, ethical, legal, political, and operational issues related to interventions.
Steering clear of the paths that had paralyzed the debate on humanitarian intervention in the 1990s, the commission
reframed its terms in an ingenious way. Rather than revisiting the "right to intervene," it reconceptualized
sovereignty as the responsibility of a state to protect its vulnerable populations. If--but only if--it fails, the broader
community of states must shoulder that responsibility. (5) In other words, rather than establishing the rights of the
intervener, the commission tries to shift the discourse to focus on the rights of populations in need, while still
affirming sovereignty as the primary principle, since the chief responsibility for protection still must lie with the
state. Only when the state is unable or unwilling to exercise this sovereignty defined as a responsibility to protect
does an international duty to save civilians in danger trump the rights of the sovereign state and does the principle of
nonintervention yield to an international responsibility to protect.

Emphasis added.

Here's Kofi Annan's description of East Timor:

The tragedy of East Timor, coming so soon after that of Kosovo, has focused attention once again on the need for timely intervention by the international community when death and suffering are being inflicted on large numbers of people, and when the state nominally in charge is unable or unwilling to stop it.

The US cannot simultaneously claim a state its ally and then completely go and spew all over its sovereignty. Not until that state gives consent, like Yemen did for example.

Why not? Is it so impossible to imagine a state that controls only a portion of its territory? Can the Danish claim Canada as an ally (and vice versa)?

Want to try any more Ad hominems? How about this one: Ossus wants to create KZs for people who do not like what the US is doing. Beause that is about on the same level as your bile right there.

And you are one to preach about US caring so much for legality when considering Guantanamo bay is still not closed. [/url]

I believe that Guantanamo Bay is legal, actually, but please provide a statute and an application of that statute which states otherwise.

For the record because I know you are not one to get things without people throwing rocks at you:
- War in Afghanistan: Legal
- war in Iraq: illegal war of aggression
- using drones: depending on target
- using commandos to kill Al-Quida in warzones: Depending on individual execution, general principle not illegal
- invading an Ally to kill people there without allies consent: Illegal.

The US has not "invad[ed] an ally to kill people there without the allies [sic] consent." Even under the most generous definition of an invasion, the US has not invaded Pakistan as you claim. But even if it HAD invaded Pakistan, this would not necessarily be an illegal action under international law if the ally was unable or unwilling to adequately address a massive armed group involved in an ongoing armed conflict with the US.

Even opponents of the US view concede that extraterritorial application of force is legal. Note that this guy's only argument is that, while the violation of sovereignty is fine, this doesn't necessarily justify the violation of the "right to life" on the part of bin Laden or other terrorists.

As I see it, when the US uses a predator drone in Pakistan to kill a terrorist, it thereby commits two distinct acts which can in principle be characterized as wrongful: it violates the sovereignty of Pakistan, and it violates the right to life of the person killed. It is the wrongfulness of the former only that can be precluded by an invocation of self-defense, just like Pakistan’s (or Yemen’s, or whoever’s) consent would preclude it. But, assuming the (extraterritorial) application of human rights treaties to a given situation, I don’t see how self-defense could be used to preclude the wrongfulness of an act contrary to the individual rights enshrined in such treaties. It is indisputable, for example, that self-defense as a matter of the jus ad bellum cannot preclude the wrongfulness of the violations of the jus in bello, i.e. IHL. How could it be any different when it comes to human rights? Indeed, the ILC explicitly says so in its commentaries on the articles on state responsibility, at 74.

Thus, I don’t see how Ken’s proposed solution can actually do all the work that it needs to do. It’s one thing to say that a state can’t complain about another state violating its sovereignty when it responds to an armed attack by a non-state actor which the former state did not prevent. It’s quite another to say that individuals somehow lose their equally inherent rights just because a state exercises its inherent right to self-defense.

[Master of Ossus]

ossus are you going to answer the arguments about the guys who were illegally kidnapped and tortured by the US or ignore them? when did you start becoming a rabid US can do no wrong individual?

I don't know enough about the particular facts of either case alluded to earlier to say specifically, but even assuming that these individual actions were illegal they would still come nowhere close to justifying Thanas' moronic recitation that the US does not consider itself answerable to international law, anymore than someone who receives a speeding ticket declares themself to be outside of traffic laws.

Again, his entire premise puts the lie to his argument: a speech explaining how US policy is consistent with international law cannot possibly be a statement that they are not answerable to it.

[Master of Ossus]

Master of Ossus, I would like to hear your views on the legality of the following scenario. This isn't some kind of 'ooh gotcha reversal', I would just be somewhat surprised if this was actually perfectly legal under international law.

Let's say China is fighting some kind of terrorist separatist group, which uses a leaderless resistance model. Cells spread to various other countries to conduct fundraising rackets, etc. China claims that some of the cells are in America. America investigates and denies this. China claims that the U.S. is 'unwilling' to take action. It presents intelligence which is either trivial or ambiguous, and refuses to share detailed information due to 'national security restrictions' and 'suspicions that factions in the U.S. govmt are co-operating with the terrorists'. One day it sends special forces and stealth drones into various rural and remote areas of America, kidnapping some number of American citizens and killing bystanders. China declares that its counter-terrorism and legislative experts have determined that these were real terrorists and the raids were perfectly legal under international law. They are detained indefinitely without trial, and leaks reveal routine torture.

Is this, in fact, legal? Obviously this would be considered an act of war, but is the threat of retaliation really the *only* thing stopping countries from doing things like this? If America was unwilling to initiate nuclear war with China over a 'mere' few dozen American deaths and kidnappings, is it conceivable that this would just die down after a few years and nothing would happen?

(I would only be a little bit surprised if this was possible. The more I happen to learn about international law the more I feel that it's a bunch of castles built on air. Sometimes it seems to me that the only thing that has changed since the days of squabbling autocracies is that a veneer of co-operation has become accepted as economically favourable for all.)

Well, let's apply the analytical framework supplied by international law to find out:

1. Is there an ongoing armed conflict between China and the terrorist group?

Presumably (although it's not specifically spelled out), the answer here is that there is one--that the conflict is of sufficient scale and protraction to constitute an ongoing armed conflict, and that China's military is entitled to apply force in the first place. If there is no ongoing military conflict, then by definition no target can be a legitimate military target.

2. Determine whether the extraterritorial application of force is legal:
There are three situations in which such an act is lawful: (1) pursuant to U.N. Security Council authorization under Chapter VII of the U.N. Charter; (2) in self-defense; or (3) with the consent of the territorial state.

Presumably, China is citing the second case, here (self-defense).

2a. Self-Defense: There are three conditions which must all be satisfied for an action in self-defense to be legally justified: necessity, immediacy, and proportionality. From the facts that you've laid out, it's really hard to argue for or against any of these. Presumably, the ICJ would be asked to evaluate whether or not these conditions were met if a case such as this were to arise. In general, necessity is determined by reference both to the type(s) of attack(s) which the hostile group has launched, the conditions in the target country (i.e., willingness or ability), and the specific value of these targets. Here, presumably, China will claim that these attacks are necessary and that the US has been both unwilling and unable to adequately address the problem. China's particular facts will doubtless be called into question in the ICJ to establish these arguments. Ashley Deeks cites the following factors which she garnered from state practice:

(1) ask the territorial state to address the threat and provide adequate time for the latter to respond; (2) reasonably assess the territorial state’s control and capacity in the region from which the threat is emanating; (3) reasonably assess the territorial state’s proposed means to suppress the threat; and (4) evaluate its own prior interactions with the territorial state. However, an important exception to the requirement that the acting state request that the territorial state act arises where the acting state has strong reasons to believe that the territorial state is colluding with the non-state actor, or where asking the territorial state to take steps to suppress the threat might lead the territorial state to tip off the non-state actor before the acting state can undertake its mission.

These factors would tend to favor the US, barring strong evidence of collusion with the Chinese terrorist group. Although China first asked the US to respond, and (presumably) provided the US with a reasonable opportunity to respond, a reasonable assessment of the territorial state's control and capacity in rural areas of the country would presumably be fairly high and its prior interactions with the US in terms of addressing terrorist organizations and the extradition of criminals have been strong.

However, if there were additional facts, such as the Chinese had strong evidence that the US was intentionally shielding these types of groups or supplying them then the analysis might shift.

3. Proportionality and Distinction: The use of force must be proportional to the threat and reasonable steps must be taken to distinguish legitimate military targets from the rest of the population. Although there are not firm rules (e.g., "kill only X civilians to kill Y terrorists"), application of force must be somewhat proportional to the scale of the threat to be justified under the doctrine of self-defense. Here, there are very few facts one way or another. Presumably, China will argue that their operations were fairly surgical despite the civilian casualties, and that the "kidnapped" targets (or POWs) are entirely or almost entirely legitimate targets. There are no facts with which to argue one way or the other, here.

Thus, although the facts are far from clear, the strikes are probably illegal under international law because rural areas of the US do not fit the criteria for lack of state control, and so the US would probably not satisfy the "unwilling or unable" test, provided that there was no strong evidence of collusion between the terrorists and the US.

There is some speculation as to whether people are being tortured. Torture is banned by the 1984 United Nations Convention Against Torture..., and "Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction." Since the alleged torture is likely taking place within China's jurisdiction, that is almost certainly unlawful if the allegations are true. It would additionally, likely, violate Article 13 of the Geneva Convention of 1949, and probably some other articles of the Convention.

Indefinite detainment without trial seems to be lawful for POWs (well... at least, it's lawful until there are no longer ongoing armed hostilities and until there has been a reasonable period in which to exchange prisoners between the Parties)--at least from my reading of the Geneva Conventions of 1907, 1929, and 1949. Therefore, assuming that China's initial application of force was lawful, this aspect of their actions would not be otherwise unlawful.

[K. A. Pital]

...provided that there was no strong evidence of collusion between the terrorists and the US

As if the US would care if anybody points out a collusion. Posada Carilles was a CIA henchman, everyone fucking knows that. Fucking everyone. So fucking what?

So the Chinese attacks would be absolutely justified, because the US has been known to collude with terrorists and especially if China exposes CIA-terrorist ties, China may legitimately strike at the USA.

Moreover, the evidence of the US and Pakistani involvement in Afghanistan, foistering a terrorist activity inside the nation, would allow the USSR in the 1980s to conduct surgical strikes in the USA and Pakistan against targets that legitimately relate to the terrorist activities therein. For example, Bzezhinsky Of course, for a fear of nuclear escalation nobody did that.

But this only points out a serious flaw in the principle: a small and non-nuclear nation-state would probably either fear or be unable to conduct a surgical strike against its enemies which are hidden inside a large nuclear power. So this "law" is in fact just a fig leaf for fortuna favet fortibus, fortune favors the strong. It is not a norm that can be used by weaker nations as easily as stronger nations.

[Winston Blake]

Thus, although the facts are far from clear, the strikes are probably illegal under international law because rural areas of the US do not fit the criteria for lack of state control, and so the US would probably not satisfy the "unwilling or unable" test, provided that there was no strong evidence of collusion between the terrorists and the US.

There is some speculation as to whether people are being tortured. Torture is banned by the 1984 United Nations Convention Against Torture..., and "Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction." Since the alleged torture is likely taking place within China's jurisdiction, that is almost certainly unlawful if the allegations are true. It would additionally, likely, violate Article 13 of the Geneva Convention of 1949, and probably some other articles of the Convention.

Thank you for taking the time to write that. As I understand it, in this (admittedly somewhat vague) scenario, there are essentially two things preventing the Chinese actions from being plausibly legal:

• (1) Regarding 'unwillingness': presumably China's prior interactions with the US in terms of addressing terrorist organizations and the extradition of criminals have been strong.
  (2) Regarding torture: presumably the torture is taking place within China's jurisdiction.

So to amend these and see 'what it would take' for such an act to be legal:

• (1) Let's say these attacks take place during a long-time low in Sino-American relations. Let's say Liu Xiaobo (or someone similar) managed to escape to the U.S., after which China demanded extradition, and the U.S. refused. In fact, some American politicians praise him and give him opportunities to speak. The Chinese declare that they view this as sheltering and co-operating with a criminal (specifically, a person tried and found guilty of "inciting subversion of state power"). This sets a recent precedent for the U.S. being 'uncooperative' toward China, in terms of addressing 'subversives' and extraditing criminals.
  
  (2) The Chinese implement the current American methods, such as extraordinary rendition and/or a Guantanamo-style solution (e.g. declaring a portion of some Chinese island to be 'outside Chinese jurisdiction'). Thus, no torture takes place technically within their jurisdiction. Regarding the strength of evidence for torture, let's say it's clearly shown by photos and short video clips from camera phones.

Are these all that's required to make the strikes & torture plausibly legal? (Although I'm sure there are caveats and special cases, I'm speaking generally).

Would there be anything in international law that America could invoke to condemn such acts as illegal? Or would war be the only option?

[Winston Blake]

So the Chinese attacks would be absolutely justified, because the US has been known to collude with terrorists and especially if China exposes CIA-terrorist ties, China may legitimately strike at the USA.

Moreover, the evidence of the US and Pakistani involvement in Afghanistan, foistering a terrorist activity inside the nation, would allow the USSR in the 1980s to conduct surgical strikes in the USA and Pakistan against targets that legitimately relate to the terrorist activities therein. For example, Bzezhinsky Of course, for a fear of nuclear escalation nobody did that.

Minor correction: for both of these, as I understand it, such operations are legal if and only if China or the USSR first gives/gave the U.S. an opportunity to extradite the hypothetical CIA personel involved, or Brzezinski, or whomever. After they refuse to co-operate, then yeah, it would become legal.

But this only points out a serious flaw in the principle: a small and non-nuclear nation-state would probably either fear or be unable to conduct a surgical strike against its enemies which are hidden inside a large nuclear power. So this "law" is in fact just a fig leaf for fortuna favet fortibus, fortune favors the strong. It is not a norm that can be used by weaker nations as easily as stronger nations.

It's disappointing, but based on Ossus' posts, this seems to be how the world works currently. Consider that it wasn't so long ago that the 'right of conquest' was not only considered acceptable, but righteous.

[K. A. Pital]

I understand it, such operations are legal if and only if China or the USSR first gives/gave the U.S. an opportunity to extradite the hypothetical CIA personel involved, or Brzezinski, or whomever. After they refuse to co-operate, then yeah, it would become legal.

Yeah, you can log a formal requisition request. But when that fails, you have the right to murderize the target all right. I mean, Venezuela and Cuba did file extradiction requests for Carilles. So they can kill him. Of course, that would require growing one huge set of balls, since the US is a nuclear power and they are not. However, it is most certain that assassinations have been carried out even by weaker powers. Pinochet assassinated on U.S. soil. He was a "formal ally" at the time, though. If he was on the Axis of Evil, I assume the events could've played out in a quite different fashion.

It's disappointing, but based on Ossus' posts, this seems to be how the world works currently. Consider that it wasn't so long ago that the 'right of conquest' was not only considered acceptable, but righteous.

This is hideous. But the world is hideous, from the very economic system we operate to the enormous limitless abyss of suffering people are plunged into every day and every night. Understanding is the first step towards action. The right of conquest is still there - the UN legalized the invasion of Iraq post-facto, just like its pathetic precursor, the League of Nations, legalized Italy's murderous rampage in Ethiopia, just as the Hague convention did not stop Americans from slaughtering people upwards of 10 years of age in the Philippines, the Geneva conventions did not stop any of the World War II massacres and post-war massacres. The "cleanliness" of war is much more a factor of the development of precision weapons, IMHO, not due to the laws that most large powers don't give two shits about when it comes to srs biznis.

Alas, alas.

[Alyrium Denryle]

ossus are you going to answer the arguments about the guys who were illegally kidnapped and tortured by the US or ignore them? when did you start becoming a rabid US can do no wrong individual?

I don't know enough about the particular facts of either case alluded to earlier to say specifically, but even assuming that these individual actions were illegal they would still come nowhere close to justifying Thanas' moronic recitation that the US does not consider itself answerable to international law, anymore than someone who receives a speeding ticket declares themself to be outside of traffic laws.

Again, his entire premise puts the lie to his argument: a speech explaining how US policy is consistent with international law cannot possibly be a statement that they are not answerable to it.

It is more like a mob boss. They say in public that their business interests are legitimate with the one hand, while operating a criminal enterprise with the other.

"It was self defense, officer"

"No, I have no connection with that murderer, and they acted without my having any knowledge whatsoever"

etc

The actions of the united states are not the equivalent of the isolated traffic ticket. They are a pattern of criminal behavior that should make any such assertion that they have the right person, that the targeted individuals have attacked the US etc immediately suspect, as they have an established track record of faulty intelligence, obtaining information unlawfully via torture, and butchering innocent people and each event cannot be considered independent from eachother.

[Master of Ossus]

As if the US would care if anybody points out a collusion. Posada Carilles was a CIA henchman, everyone fucking knows that. Fucking everyone. So fucking what?

I believe you've answered your own question. It's not really relevant since there is no ongoing armed conflict to which this can be tied. No self-defense claim can be based on a conflict that isn't ongoing.

So the Chinese attacks would be absolutely justified, because the US has been known to collude with terrorists and especially if China exposes CIA-terrorist ties, China may legitimately strike at the USA.

Nonsense. How can China pin a claim of self-defense to an armed conflict that never involved them (eliminating the "self" element) and which happened decades ago (eliminating the "defense" element of it)? Moreover, the scale and protraction of the "conflict" arguably never even qualified it as an ongoing armed one.

I'm not sure whether you are willfully ignoring the IHL, or if you are merely this confused, but this is an entirely absurd line of reasoning that has literally no logical connection to the subjects of discussion, and it's really nothing more than an elaborate red herring to go along with your various strawman arguments from earlier in the thread.

Moreover, the evidence of the US and Pakistani involvement in Afghanistan, foistering a terrorist activity inside the nation, would allow the USSR in the 1980s to conduct surgical strikes in the USA and Pakistan against targets that legitimately relate to the terrorist activities therein. For example, Bzezhinsky Of course, for a fear of nuclear escalation nobody did that.

Way to go, genius. You have identified that there is a difference between political and judicial considerations in international relations. What a revelation!

Remember, we're discussing the legality of the US activities; not what the US can theoretically get away with when bound only by real politik concerns.

But this only points out a serious flaw in the principle: a small and non-nuclear nation-state would probably either fear or be unable to conduct a surgical strie against its enemies which are hidden inside a large nuclear power. So this "law" is in fact just a fig leaf for fortuna favet fortibus, fortune favors the strong. It is not a norm that can be used by weaker nations as easily as stronger nations.

I have no idea where this is coming from, but this is not a bug of international law: this is a feature. Nations which bother to control their territory and exclude armed groups involved in ongoing armed conflicts with other nations enjoy greater privileges with respect to legal defenses of their sovereignty than nations that don't. How can it possibly be otherwise? A state without the capability of properly distinguishing legitimate military targets from civilians can very reasonably be excluded from use of force because of humanitarian concerns. Not only does this incent nations to pursue methods of accurate target identification and distinction, but it also discourages nations without these abilities from killing civilians. How is this a bad thing?

More broadly, laws almost invariably favor some groups over others. I have a more difficult time refraining from auto theft than I presume Warren Buffet does. Why would this possibly invalidate the law against auto theft?

The actions of the united states are not the equivalent of the isolated traffic ticket. They are a pattern of criminal behavior that should make any such assertion that they have the right person, that the targeted individuals have attacked the US etc immediately suspect, as they have an established track record of faulty intelligence, obtaining information unlawfully via torture, and butchering innocent people and each event cannot be considered independent from eachother.

Even under this reading, the US is not saying that it is not answerable to international law. At worst they're getting the law wrong; they're not claiming immunity from it (as Thanas originally suggested).

[Master of Ossus]

Thank you for taking the time to write that. As I understand it, in this (admittedly somewhat vague) scenario, there are essentially two things preventing the Chinese actions from being plausibly legal:

• (1) Regarding 'unwillingness': presumably China's prior interactions with the US in terms of addressing terrorist organizations and the extradition of criminals have been strong.
  (2) Regarding torture: presumably the torture is taking place within China's jurisdiction.

So to amend these and see 'what it would take' for such an act to be legal:

(1) Let's say these attacks take place during a long-time low in Sino-American relations. Let's say Liu Xiaobo (or someone similar) managed to escape to the U.S., after which China demanded extradition, and the U.S. refused. In fact, some American politicians praise him and give him opportunities to speak. The Chinese declare that they view this as sheltering and co-operating with a criminal (specifically, a person tried and found guilty of "inciting subversion of state power"). This sets a recent precedent for the U.S. being 'uncooperative' toward China, in terms of addressing 'subversives' and extraditing criminals.

This change to the scenario would actually seem to me to make China's claims significantly weaker. Recall that the basis for the application of force in these circumstances is self-defense, and in order to exercise self-defense there must be an ongoing armed conflict between the acting nation and some group. In this case, there is clearly no ongoing armed conflict. Even under the Chinese side of the ledger, there are no actions here which could rise to the level of an armed conflict. In fact, there doesn't appear to have been any violence at all, let alone violence of the scale and protraction to qualify as an armed conflict.

Further, unlike in the above scenario, here China has no plausible claim that there is an organized group against which it is acting, let alone one which meets the minimum requirements of scale and organization to qualify as a non-state actor for the purposes of creating an ongoing armed conflict. Instead, it appears to be a single person accused of a nonviolent crime.

In short, this would be a clear case for application of police powers and not military force, even under the reading of the facts most favorable to China, and so China's self-defense claim would be dismissed trivially.

(2) The Chinese implement the current American methods, such as extraordinary rendition and/or a Guantanamo-style solution (e.g. declaring a portion of some Chinese island to be 'outside Chinese jurisdiction'). Thus, no torture takes place technically within their jurisdiction. Regarding the strength of evidence for torture, let's say it's clearly shown by photos and short video clips from camera phones.

Are these all that's required to make the strikes & torture plausibly legal? (Although I'm sure there are caveats and special cases, I'm speaking generally).

I don't think that the US has claimed that Guantanamo is outside of its jurisdiction. Correct me if I'm wrong, but I believe that the US defense against torture has been two-fold:
1. The US has not tortured people directly, nor allowed it to occur in places like Guantanamo (which is presumably within the US' jurisdiction because it is administered by the US).
2. Torture which other nations have committed (assuming that they have), has invariably occurred in other countries and by agents of those other countries.

We can debate the factual validity of these claims, but again the US position (at least if taken at face-value), would in fact render its actions lawful under international law.

Incidentally, I failed to describe this in my earlier discussion of the hypo since it didn't seem to touch on anything that seemed relevant to the original case, but torture by the agents of a state is a violation of the Geneva Convention even if it occurs outside of the jurisdiction of that state. This is spelled out throughout the Conventions. If you're interested, I can probably dig up a few archetypal references which demonstrate this.

Would there be anything in international law that America could invoke to condemn such acts as illegal? Or would war be the only option?

Sure. The US could pursue the case in the ICJ and/or the UNSC, followed by the General Assembly (if necessary).

[Alyrium Denryle]

Even under this reading, the US is not saying that it is not answerable to international law. At worst they're getting the law wrong; they're not claiming immunity from it (as Thanas originally suggested).

No. You do not get to make "mistakes" with the Geneva Conventions, Due Process and Torture. The precedent that waterboarding, other torture, non-repatriation of prisoners etc is illegal, and Right of Return exists is very clear, if I remember correctly. Hell, it is not legal under our own law to torture people, and out government has basically declared that domestic law does not apply in that respect.

[BrooklynRedLeg]

Hell, it is not legal under our own law to torture people, and out government has basically declared that domestic law does not apply in that respect.

[sarcasm]Pish, you mundanes have laws given by your betters and you know your place. Government is law and doesn't have the time or inclination to explain to tiny minds why it must break the law to save the law. Now, support the troops, obey the police, eat your veggies like a good citizen and grow up to carry an M-4 for Uncle Sam![/sarcasm]

[Winston Blake]

This change to the scenario would actually seem to me to make China's claims significantly weaker. [...] In short, this would be a clear case for application of police powers and not military force, even under the reading of the facts most favorable to China, and so China's self-defense claim would be dismissed trivially.

No - this isn't the scenario I meant. my intention was to add these events to the above scenario, not replace them. The idea was to retain the ongoing armed conflict against 'bad guy' terrorists with cells ostensibly in the U.S., while inserting a precedent for U.S. 'uncooperativeness' regarding a different criminal subversive who is basically a 'good guy'.

I don't think that the US has claimed that Guantanamo is outside of its jurisdiction. Correct me if I'm wrong, but I believe that the US defense against torture has been two-fold:
1. The US has not tortured people directly, nor allowed it to occur in places like Guantanamo (which is presumably within the US' jurisdiction because it is administered by the US).
2. Torture which other nations have committed (assuming that they have), has invariably occurred in other countries and by agents of those other countries.

We can debate the factual validity of these claims, but again the US position (at least if taken at face-value), would in fact render its actions lawful under international law.

Incidentally, I failed to describe this in my earlier discussion of the hypo since it didn't seem to touch on anything that seemed relevant to the original case, but torture by the agents of a state is a violation of the Geneva Convention even if it occurs outside of the jurisdiction of that state. This is spelled out throughout the Conventions. If you're interested, I can probably dig up a few archetypal references which demonstrate this.

I was under the impression that Gitmo was 'special' in this way. Wikipedia seems to agree but I don't know how reliable it is:

After the Justice Department advised that the Guantanamo Bay Detention Camp could be considered outside U.S. legal jurisdiction, the first twenty captives arrived at Guantanamo on January 11, 2002.

In any case, let me drop the torture part because it's more complicated than I thought and I don't have time to investigate the details yet.

---

Considering my clarification in the first paragraph of this post, what would be the legality of the amended 'China strike' scenario without subsequent revelations of torture?

I.e. (1) ongoing armed conflict, (2) precedent for U.S. 'uncooperativeness' re a 'good guy' Chinese criminal, (3) China demands action, U.S. claims no evidence of cells, China claims 'unwillingness' (4) Chinese surgical strikes with collateral deaths, (5) China claims full legality.

It's the subsequent '(6)' that I don't quite understand and am interested in.

[Master of Ossus]

No. You do not get to make "mistakes" with the Geneva Conventions, Due Process and Torture. The precedent that waterboarding, other torture, non-repatriation of prisoners etc is illegal, and Right of Return exists is very clear, if I remember correctly.

Evidence?

Hell, it is not legal under our own law to torture people, and out government has basically declared that domestic law does not apply in that respect.

Right--almost as if those laws existed ahead of time and were applied properly to remove any possible criminal or civil liability on the part of the people involved.

No - this isn't the scenario I meant. my intention was to add these events to the above scenario, not replace them. The idea was to retain the ongoing armed conflict against 'bad guy' terrorists with cells ostensibly in the U.S., while inserting a precedent for U.S. 'uncooperativeness' regarding a different criminal subversive who is basically a 'good guy'.

Merely refusing to extradite criminals does not constitute uncooperativeness to the extent required to assert a self-defense claim. Again, I think you're taking the term without understanding the legal concept which is being applied, here. The "unwillingness" claim which is evaluated using Deeks' factors refers not merely to a failure to extradite domestic criminals but to a failure to exercise the obligations of a sovereign with respect to its nominal territory. Even in this scenario, China doesn't seem to have any facts which would support a claim that the US was colluding with the terrorists within its territory and has nothing to suggest that it would protect them if forewarned of the action. Therefore, we should apply only the first four factors. Again, it still seems to me as if they slightly favor the US. Although China had previously asked the US to respond and (presumably) provided adequate time, any reasonable assessment of the US' control and capacity within its rural areas would be very high (i.e., virtually complete control and capacity), and (presumably) its proposed means to suppress the threat would be reasonable. Moreover, while the US (in the amended scenario) has been reluctant to extradite nonviolent criminals (or, really, one specific nonviolent criminal), this has little bearing on its treatment of a non-state actor involved in an ongoing armed conflict with China. Finally, the immediacy factor still seems to weigh against China, unless they can tie the people to something beyond a very general strike risk, because the risk from the US to participate in the fighting is small.

I was under the impression that Gitmo was 'special' in this way. Wikipedia seems to agree but I don't know how reliable it is:

After the Justice Department advised that the Guantanamo Bay Detention Camp could be considered outside U.S. legal jurisdiction, the first twenty captives arrived at Guantanamo on January 11, 2002.

That is true, however the Justice Department (and I, since I agreed with the Justice Department's take on it) erred in this view, per Rasul v. Bush, in which the Supreme Court determined that even though the detainees involved in the case were assumed to be unlawful combatants who had never been to the US, nonetheless their removal to Guantanamo Bay (where they were controlled by another sovereign) sufficed to place them under the jurisdiction of the US and entitled them to various legal protections customarily afforded under US law.

Considering my clarification in the first paragraph of this post, what would be the legality of the amended 'China strike' scenario without subsequent revelations of torture?

I.e. (1) ongoing armed conflict, (2) precedent for U.S. 'uncooperativeness' re a 'good guy' Chinese criminal, (3) China demands action, U.S. claims no evidence of cells, China claims 'unwillingness' (4) Chinese surgical strikes with collateral deaths, (5) China claims full legality.

It's the subsequent '(6)' that I don't quite understand and am interested in.

See above. I generally think that China's case is still fairly weak, because the US clearly maintains effective control of its territory, there's little immediacy to any threat posed, and failing to extradite a single nonviolent criminal has little bearing over the handling of terrorist organizations large enough to be engaged in an ongoing armed conflict with another state.

[Winston Blake]

Merely refusing to extradite criminals does not constitute uncooperativeness to the extent required to assert a self-defense claim. Again, I think you're taking the term without understanding the legal concept which is being applied, here. The "unwillingness" claim which is evaluated using Deeks' factors refers not merely to a failure to extradite domestic criminals but to a failure to exercise the obligations of a sovereign with respect to its nominal territory. Even in this scenario, China doesn't seem to have any facts which would support a claim that the US was colluding with the terrorists within its territory and has nothing to suggest that it would protect them if forewarned of the action. Therefore, we should apply only the first four factors.

So does the meaning of 'unwillingness' here necessarily imply collusion? Can the territorial state be accused of being 'unwilling' without evidence of immediate and substantial collusion (evidence strong enough to hold up in the ICJ)?

[K. A. Pital]

Did America even bring Pakistan's case in the ICJ? Or it is a case "we bomb your territory, the onus is on YOU to prove you were not colluding with terrorists"?

[Winston Blake]

Did America even bring Pakistan's case in the ICJ? Or it is a case "we bomb your territory, the onus is on YOU to prove you were not colluding with terrorists"?

I think it's more a case of "we bomb your territory, now go ahead and call for an ICJ investigation, we double-dare you, meanwhile we'll just sit here stroking this briefcase full of evidence of collusion".

[Alyrium Denryle]

Hell, it is not legal under our own law to torture people, and out government has basically declared that domestic law does not apply in that respect.

[sarcasm]Pish, you mundanes have laws given by your betters and you know your place. Government is law and doesn't have the time or inclination to explain to tiny minds why it must break the law to save the law. Now, support the troops, obey the police, eat your veggies like a good citizen and grow up to carry an M-4 for Uncle Sam![/sarcasm]

Let us compare and contrast:

Right now we have a society with low infant mortality rates, low murder rates, high life expectancy. In general, we have a much better quality of life than what happened the last time political anarchy was tried:



Yeah... you know the dark ages? That 600 years after the fall of Rome? Lets repeat that

Right--almost as if those laws existed ahead of time and were applied properly to remove any possible criminal or civil liability on the part of the people involved.

Are you high? The only reason people have not been thrown into prison for performing and ordering torture is political expedience. Unless of course, you have specific citations to the contrary.

Evidence?

Oh lets see. We have in the past executed people as war criminals for performing the same actions on our soldiers as we are now performing on POWs from the middle east.

http://www.cbsnews.com/stories/2007/11/ ... 4687.shtml

So, I suppose it is only illegal if white people are the victims...

Torture has been illegal for a while, and... well let me check the relevant law

Let us discuss the torture of prisoners in terms of the Geneva Conventions, and various other forms of international law...

United Nations Convention Against Torture

Article 1
1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

We have most certainly violated this... Would you like me to get you the list of people we have tortured, as illegal under this provision, or are you going to insist that torture has not occurred you lily livered little shit-stoat?

2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

Well, that settles that question.

Article 2
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Well, Gitmo certainly is covered under our jurisdiction.

Article 3
1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

Oh look. Our rendition practices are also plainly illegal. So much for having one of our own citizens tortured when he was visiting Yemen... oh...wait.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

Or, you know... the fact that we have asked them to do it. That should be a pretty good indicator.

Article 16
1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.

Oh look. Even things that are not exactly torture are illegal. You can stop applying grease to yourself. It will not do you any good.

Oh and I did check. We are signatories. Not on the Optional Protocol, but hey. I dont need it.

So, that covers the waterboarding... And you really cannot fuck this up in good faith. I applaud the UN for laying this out in such a clear cut manner.

Also: What we do to our prisoners also violates Article 3 of the Third Geneva Convention:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

Also, torture of prisoners and rendition are clearly illegal under Part II, Article 12 of the Third Geneva Convention

Our kidnapping of a German citizen (and Canadian citizen... and one of our own citizens etc etc etc) and subsequent use of torture upon them was illegal under Part 1, Article 3 of the 4th Geneva Convention

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

Our abject failure to repatriate a german citizen in germany (in fact, this was not a failure... it was a deliberate crime. The CIA knew at that point he was german, so left him penniless in Albania to die) was illegal under the 4th geneva convention, Part 13, article 132.

There is Zero, Read this Zero legislative action which can make a ratified treaty go away, save to withdraw from said treaty. There is no legislative or executive action, save for the unconstitutionality of the treaty, which will permit the use of torture or "stress and duress" techniques in interrogations. Why? Because ratified treaties are a step below the constitution in US law.

Do you want me to find the legal precedent from the court of human rights and our own legal system? Because I can do that. It will take me a while, but I can do it just to metaphorically shit on you.

Now go fuck yourself.

[Master of Ossus]

So does the meaning of 'unwillingness' here necessarily imply collusion? Can the territorial state be accused of being 'unwilling' without evidence of immediate and substantial collusion (evidence strong enough to hold up in the ICJ)?

No. Evidence of collusion constitutes an exception to the general rule that you have to find a state unwilling or unable.

It's like there are two parallel paths, and if you can establish either one then you are entitled to enter their nominal territory to engage lawful military targets sheltering therein:
1. If there's evidence for collusion, cooperation, etc.
2. If the state is unwilling or unable (which uses the four factors, and probably some others).

Either path will be sufficient to allow an acting state to apply force against lawful military targets within the territorial state, subject to other restrictions on the force employed.

Edit: the rationale for both rules is pretty clear: there's no reason to extend protections ordinarily given to a sovereign over territory that they are unable or unwilling to control. Similarly, if the state is actively colluding with terrorists, there's little reason to allow them to use their sovereignty to shield the colluding terrorists.

I think it's more a case of "we bomb your territory, now go ahead and call for an ICJ investigation, we double-dare you, meanwhile we'll just sit here stroking this briefcase full of evidence of collusion".

Precisely. Pakistan cannot bring a case against the US because they know they would lose and because they know that they would be found to have been unwilling and unable to adequately address al Qaeda forces from operating within their territory. Needless to say, this would be a highly embarrassing outcome of any ICJ case. The US would have to demonstrate that Pakistan was unwilling or unable, but presumably they would have very little trouble doing this.

[snip entire canned-outrage spiel]

Alyrium, please save your canned strawman spiel for someone for whom it is actually relevant. Please provide evidence that there is some right of repatriation and right of return during an ongoing armed conflict of unlawful combatants.

In the meantime, I agree with you that waterboarding is unlawful and that torture is unlawful. In fact, had you bothered reading the thread I stated that specifically. However, (and for about the third time) this does not approach what Thanas accused the US of in the OP and falls well short of establishing his argument.

And, btw, ratified treaties are NOT above congressional statutes. They are equivalent, and both follow the "last in time controls" rule if there is a conflict amongst them. I have absolutely no idea from where you've derived this bullshit, but it's false. (See, e.g., Jamison v. CIR). For a scholarly defense of this doctrine (which is pretty widely panned for lots and lots and lots of reasons), see here.