The use of drones in Pakistan is illegal. Given that there is now hard evidence that the 9/11 crime was a controlled demolition, therefore, the US s war inMessage 1 of 1 , Sep 18, 2011View Source
The use of drones in Pakistan is illegal.
Given that there is now hard evidence that the 9/11 crime was a controlled demolition, therefore, the US's war in Afghanistan was illegal. Congress passing a resolution did not make it legal under international law.
Sept. 16, 2011: The Obama administration's legal team is split over how much latitude the United States has to kill Islamist militants in Yemen and Somalia, a question that could define the limits of the war against Al Qaeda and its allies, according to administration and Congressional officials.
The dispute over limits on the use of lethal force in the region whether from drone strikes, cruise missiles or commando raids has divided the State Department and the Pentagon for months, although to date it remains a merely theoretical disagreement. Current administration policy is to attack only "high-value individuals" in the region, as it has tried to do about a dozen times.
Defense Department lawyers are trying to maintain maximum theoretical flexibility, while State Department lawyers are trying to reach out to European allies who think that there is no armed conflict, for legal purposes, outside of Afghanistan, and that the United States has a right to take action elsewhere only in self-defense, the official said.
The State Department's top lawyer, Harold H. Koh, has agreed that the armed conflict with Al Qaeda is not limited to the battlefield theater of Afghanistan and adjoining parts of Pakistan. But, officials say, he has also contended that international law imposes additional constraints on the use of force elsewhere. To kill people elsewhere, he has said, the United States must be able to justify the act as necessary for its self-defense meaning it should focus only on individuals plotting to attack the United States.
Robert Chesney, a law professor at the University of Texas at Austin who specializes in the laws of war, said the dispute reflected widespread disagreement about how to apply rules written for traditional wars to a conflict against a splintered network of terrorists and fears that it could lead to an unending and unconstrained "global" war.
"This is a worldwide conflict without borders," Senator Lindsey Graham, R SC who is on the Armed Services Committee, argued. "Restricting the definition of the battlefield and restricting the definition of the enemy allows the enemy to regenerate and doesn't deter people who are on the fence."
Comment: I disagree Graham. T
As a matter of customary international law a situation of armed conflict depends on the satisfaction of two essential minimum criteria, namely:
a. the existence of organized armed groups
b. engaged in fighting of some intensity
Thus, armed conflicts are determined not by declarations but by organized armed fighting, intense enough to justify killing under a lower standard of necessity than is permitted to police.
Battlefield weapons may also be lawfully used before an armed conflict in the following situations: when initiating self-defense under Article 51 of the United Nations Charter; when authorized by the UN Security Council; when a government seeks to suppress internal armed conflict; and, perhaps, when a state is invited to assist a government in suppressing internal armed conflict.
The rules governing resort to force in self-defense are found in Article 51 of the UN Charter and a number of decisions by international courts and tribunals. The International Court of Justice made clear in the Nicaragua case that an attack giving rise to the right of self-defense must be a significant attack, as opposed to a "frontier incident" or low-level shipments of weapons to insurgents. The ICJ has also made clear in several cases that to exercise military force lawfully on the territory of another state, that other state must be responsible for a significant armed attack. The decision most relevant to drone use is Congo v. Uganda, in which the ICJ found unlawful UgandaÊ¼s use of force on the territory of Congo to halt years of cross-border incursions by armed groups based in Congo. In reaching this holding, the Court found that Congo was not legally responsible for the armed groupsit did not control them. Even CongoÊ¼s failure to take action against the groups did not justify UgandaÊ¼s use of force in Congo.
Additionally, in the Nicaragua and Nuclear Weapons decisions, the ICJ held that even where a state is responsible for a significant attack, there is no right to use force in self-defense if the use of force is not necessary to accomplish the purpose of defense and/or the purpose cannot be accomplished without a disproportionate cost in civilian lives and property. The ICJ found that "there is a specific rule whereby self-defense would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law. This dual condition applies equally to Article 51 of the Charter, whatever the means of force employed."
In 2001, the United States took the position that AfghanistanÊ¼s Taliban government was legally responsible for al Qaeda so that under the law of self-defense, the United States had the right to use military force in Afghanistan following the 9/11 attacks.
The use of force in self-defense in Afghanistan ended in 2002 when a loya jurga of prominent Afghans selected Hamid Karzai to be AfghanistanÊ¼s leader.
Today, the United States and other international forces are in Afghanistan at President KarzaiÊ¼s
invitation in an attempt to repress an insurrection. The lawful use of force respecting the Afghan insurrection must be limited to Afghanistan and be within the bounds of AfghanistanÊ¼s request.
Hot pursuit is a highly limited maritime right of law enforcement agents to pursue fleeing criminal suspects. The use of lethal force during such a pursuit is subject to peacetime law enforcement limitations and thus would preclude the types of weapons currently being used with drones.
Because Somalia lacks effective government, the United States might have the right to carry out law enforcement operations there. Such operations would violate the principle of non-intervention but might be justifiable if in compliance with the law of counter-measures. The Security Council has authorized some law enforcement operations against pirates in Somalia.
Finally, arguments have been made for a right of pre-emptive self-defense to kill people who may engage in future violent action. However, as explained above, the right of self-defense in international law is based on response to an armed attack, not pre-empting future attacks. Nor does the law of self-defense encompass a right to initiate military action against an individual or small group, especially when the state where those persons are located is not legally responsible for their actions.