Thanas wrote:Yes, because the Spiegel is internationally known for not consulting with legal experts or having numerous lawyers on their staff.
Alright, Thanas. It was pretty fucking easy to take apart your earlier article, and this one is even worse. Let's see about this more seriously, since you obviously treat it as being serious.
Fundamentally, the article (and by "the article," I mean "Kress," since he is the
only source that the article ever bothers to cite) makes three points:
1. According to the article, the US is no longer involved in an ongoing armed conflict with Al Qaeda.
That is BULLSHIT.
ICRC wrote:On the basis of the analysis set out above, the ICRC proposes the following definitions,
which reflect the strong prevailing legal opinion:
[...]
Non-international armed conflicts are protracted armed confrontations occurring
between governmental armed forces and the forces of one or more armed groups, or
between such groups arising on the territory of a State [party to the Geneva
Conventions]. The armed confrontation must reach a minimum level of intensity and
the parties involved in the conflict must show a minimum of organisation.
Al Qaeda obviously meets these criteria. The conflict with them is protracted, and armed, taking place between elements of the US military (and other militaries) and Al Qaeda, as well as numerous Al Qaeda-affiliates and the Taliban. It has obviously reached "a minimum level of intensity" because of the scale of atrocities that Al Qaeda have committed, and the many thousands of people who have been killed during the conflict. Finally, the parties involved obviously "show a minimum of organization." Al Qaeda has multiple levels of operatives, commanders, and many groups and sub-groups that demonstrate this. It also has people who fill specialized roles--everything from command and control to construction and use of weapons to financing, espionage, counter-intelligence, and communications, to name but a few. In fact, the article
concedes (without actually explaining the self-contradiction) that "Al-Qaida has obviously had a network structure for some time." This demonstrates conclusively that it had a minimum level of organization.
2. The article claims that bin Laden might not have been "giving orders," and that if he "was no longer a leader, it would no longer be permissible to treat him as an enemy combatant or kill him." This is BULLSHIT. First of all, international law permits the targeting of people other than "leaders." For instance, direct combatants. Even ignoring this obvious oversight, a lawful target must take steps to identify themselves as no longer being a lawful target in order to escape their status. For instance, retired soldiers must remove their uniforms. Surrendering forces must complete their surrenders. Bin Laden did not do this.
According to the LOAC,
LOAC wrote:Military targets are those that by their own nature, location, purpose, or use make an effective contribution to an enemy’s military capability and whose total or partial destruction, capture, or neutralization in the circumstances existing at the time of an attack enhance legitimate military objectives.
With bin Laden, this condition is obviously satisfied. Bin Laden, as the symbolic and spiritual head of al Qaeda, effectively contributed to al Qaeda's military capabilities. His destruction, capture, or neutralization was a legitimate military objective.
3. Der Spiegel (again, code for "Kress") argues that the conflict violated Pakistani sovereignty. It does this by falsely arguing that "the commanders of the war on terror consider the entire world to be a battlefield. The US would seek to justify a military operation like the one that took place Sunday anywhere it believes the enemy is hiding--regardless whether it be in Europe or Islamabad." This is TOTALLY false for reasons I will describe
infra.
Der Stupid wrote:And what business did the United States even have acting within the territory of Pakistan, a foreign power? A military strike that crosses national borders, barring acts of self-defense, is generally viewed as an infringement on sovereignty -- unless Pakistan's government requested help from the Americans.
However, the invitation of a host nation is
not the only circumstance in which one state can enter another in order to engage a military target.
Ashley Deeks lays out the proper test--the "unwilling or unable" one.
Ashley Deeks wrote:Based on the facts that have come to light to date, the United States appears to have strong arguments that Pakistan was unwilling or unable to strike against Bin Laden. Most importantly, the United States has a reasonable argument that asking the Government of Pakistan to act against Bin Laden could have undermined the mission. The size and location of the compound and its proximity to Pakistani military installations has cast strong doubt on Pakistan’s commitment to defeat al Qaeda. The United States seems to have suspected that certain officials within the Pakistani government were aware of Bin Laden’s presence and might have tipped him off to the imminent U.S. action if they had known about it in advance.[11] Further, it would have been reasonable for the United States to question Pakistan’s capacity to successfully raid Bin Laden’s compound, given that he was known to be a highly sophisticated and likely well-protected enemy.
Pakistan might argue that it would have been able to stage an effective mission against the compound, or that the United States at least should have constructed the mission as a joint operation, given that the two countries work closely together in other intelligence and military contexts. It also could point to the fact that it conducted searches for al Qaeda leaders in Abbottabad in 2003 and in subsequent years, and that it passed on information about the 2003 search to U.S. officials.[12] On balance, however, Pakistan’s defense of its sovereignty in this case, while understandable from a political perspective, seems weak as a matter of international law.
In short: the article consistently misstates international law. One also wonders who these unnamed "vast majority of other experts on the law of armed conflict."
Every legal blog with which I am familiar is essentially entirely of the opinion that the killing was completely lawful.
For example,
Ilya Somin wrote:To my knowledge, hardly any serious commentators claim that the targeted killing of enemy military commanders such as Yamamoto and Heydrich is either illegal or immoral. [...]
Even people who ARGUE WITH SOMIN acknowledge that:
Kevin Jon Heller wrote:I have no doubt that killing UBL was legal. To begin with, I think the applicable legal regime is international humanitarian law (IHL), not international human-rights law (IHRL) — a conclusion that can be reached in a number of different ways. The best rationale is that UBL was a member of an organized armed group (”original” al Qaeda) taking part in the armed conflict in Afghanistan. In the alternative, I think we can say (although it is a closer call) that the hostilities in Pakistan rise to the level of armed conflict and that UBL was a member of an organized armed group (original al Qaeda or al Qaeda Pakistan, if the two are distinct entities) taking part in that conflict. Either way, UBL was legitimately targetable with lethal force at any time, subject only to the principles of distinction and proportionality.
Justice Stevens agrees, as does
Opinio Juris, as does
New Yorker. None other than
Orin Kerr took the opportunity to compare a complaint about the lack of an arrest and trial to an Onion article! And as for
scholarly opinion on the matter? It seems pretty well settled that the US is correct in its views (I posted this article earlier, but it's worth looking at this in more detail, again, with respect to OBL:
absolutely all of the issues he argues are ambiguous are... anything but in the case of OBL, and I already thought that the article strongly suggested that the US was correct in its views). Such infamously conservative scholars as
Harold Koh have actually gone out of their way to lay out the US case for these types of activities.
SO WHERE IS THIS "VAST MAJORITY?" Der Spiegel does not say. How does Der Spiegel get the definition of such an unimportant term as "armed conflict" wrong, according to the strong prevailing opinion adopted by the ICRC? It's unclear. What is clear is that Der Spiegel's article doesn't accurately state international law, and goes to absolutely no effort to examine the range of opinions on the issue. Had it done so, it would have concluded that Kress is a lunatic who seems to be entirely alone in his views on the legality of the operation.