Posts Tagged ‘Thom Shanker’

International Law and the Use of Force: Drones and Real Anarchy Unleashed Upon the World

Sunday, July 17th, 2011

Recently a number of articles have been published that are of particular interest with respect to the development and use of drones.

See

William Wan and Peter Finn, “Global race on to match U.S. drone capabilities, Washington Post, July 4, 2011

Elisabeth Bumiller and Thom Shanker, “War Evolves With Drones, Some Tiny as Bugs,” New York Times, June 19, 2011

Peter Beaumont, “Campaigners seek arrest of former CIA legal chief over Pakistan drone attacks: UK human rights lawyer leads bid to have John Rizzo arrested over claims he approved attacks that killed hundreds of people,” The Guardian, July 15.2010

Michael Tennant, “U.S. Begins Drone Strikes in Somalia,” The New American, July 14, 2011

In previous articles, The Trenchant Observer has pointed to some of the troubling issues in international law raised by the use of unpiloted aircraft or drones in situations removed from the active battlefield in an on-going armed conflict.

Now, with other countries driving to develop comparable military capabilities in the form of drones, some as tiny as bugs, the short-sightedness of U.S. military policy regarding drones has come fully into view.

Moreover, as far as is publicly known, the United States has done nothing to develop in cooperation with other countries new international legal regimes and norms that might help to control what appears to be a headlong rush toward real anarchy among the nations of the world.

President Barack Obama rarely, if ever, speaks of international law. In his Nobel Prize acceptance speech, he spoke not of international law and legal norms, but rather of international “rules” or “norms”. The words “international law” are absent from his discourse.

One consequence has been an approach to international law that can be summed up as “If I can get away with it I can do it,” a formulation that goes back to Justice Oliver Wendell Holmes Jr.’s famous dictum about “the bad man theory of law”.

The system of international law is different from the domestic system in which a “bad man” might focus on the law only in terms of what he might be able to get away with. For the nations that are subject to international law are themselves the creators of the norms of international law. They are at once the legislature, the sheriff and the potential offender. This creates a dual responsibility on the part of nation states and their lawyers: They must not simply interpret international legal norms in a permissive way that allows them to do what they want, but also act to safeguard and strengthen the system of international law, and the way international legal norms wiil be interpreted by other countries. This is sometimes referred to by international lawyers as the “double-function” (or “dédoublement fonctionnel”) of international lawyers and states: in choosing a course of action they must not only seek to pursue their own short-term objectives, but also the critically-important longer-term objectives of building a viable international legal order that will contribute to their own security.

It is precisely in this area, of the obligation to build future international norms and regimes, while not weakening those that exist, that the United States has utterly failed with respect to drones. In past eras, legal regimes to prevent the use of space for military purposes, or the seabed, were developed in order to shape the future environment in which force might be employed. This the Obama administration has failed to do with respect to drones, both as a result of a very short-sighted pursuit of immediate military advantages through their use, and as a result of the fact that President Obama does not seem to understand very deeply the function of international law in safeguarding the nation’s security.

To facilitate reflection on these issues and the legality under international law of the use of drones, a review of the following articles previously published here might be useful.

See

UPDATE: Anwar al-Aulaqi: Targeted Killings, Self-Defense, and War Crimes, August 6, 2010

Targeted Killings: U.N. Special Rapporteur Alston Publishes Report to U.N. Human Rights Council, June 2, 2010

Targeted Killings by Drone Aircraft: A View From India, and Some Observations, May 20, 2010

Targeted Assassinations: Mahmoud al-Mabhouh, International Law, and Strategic Implications, February 17, 2010

U.S. Targeted Assassinations Violate Citizen’s Right to Life and Due Process, Undercut International Law
February 3, 2010

As Thomas M. Frank (1931-2009), a distinguished international lawyer and professor of international law at New York University, and Edward Weisband once observed, we should be careful whether to observe and how to interpret international law, because “the law you make may be your own.”

See Thomas M. Franck and Edward Weisband, “The Johnson and Brezhnev Doctrines: The Law You Make May Be Your Own,” Stanford Law Review, Vol. 22, pp. 979-1014 (1970).

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“The Magician” draws eyes away from the ball in Afghanistan–again!

Wednesday, October 13th, 2010

Once again, on the eve of a major meeting of U.S. and NATO foreign and defense ministers on October 14, the “Magician” in his green cape with a wide-sweeping gesture says, “Look over there!” And everyone takes their eyes off the ball, to be entralled once again by the Magician’s magic.

This magic causes them to forget nine years of dealing with the Magician, the rational and analytical factors that are relevant to the situation on the ground, and strategic thinking on how to manage and overcome the obstacles those realities pose, including the goals to be pursued.

The latest gesture is really a series of actions, including the recent formation of a peace negotiation council and culminating in the well-timed news report, based on an interview with a NATO official, on background, announcing that ISAF is facilitating preliminary discussions–not negotiations–aimed at reconciliation of the Taliban and reintegration of their members into Afghan society.

The NATO official confirmed that “there has been outreach by very senior members of the Taliban to the highest levels of the Afghan government.” But the official cautioned that these have been only preliminary discussions about reintegrating insurgent fighters and reconciling with the militant movement’s leadership.

Even so, the official said, prospect of a cease-fire and peace pact as a path to ending the war, now nine years old, is deemed sufficiently tantalizing that personnel from NATO nations in Afghanistan “have indeed facilitated to various degrees the contacts (emphasis added).

The NATO official…spoke in advance of a NATO meeting in Brussels on Thursday that will include alliance ministers of foreign affairs and of defense. Secretary of State Hillary Rodham Clinton and Defense Secretary Robert M. Gates are scheduled to attend.

Thursday’s meeting of NATO foreign and defense ministers comes a month before an alliance summit in Lisbon to discuss strategy in Afghanistan.

–Thom Shanker, “NATO Helping Afghan-Taliban Talks, Official Says,” New York Times, Oct. 13, 2010

In January, at the London Afghanistan International Donors Conference, Hamid Karzai used a similar ploy with great success. There, he moved attention to excitement about reconciliation with the Taliban, away from the massive electoral fraud in the August 2009 presidential elections which he had just overseen (the climactic moments of which came in early November, 2010), and away from the continuing and massive corruption in Afghanistan, from the top down.

The Allies fell for it, and ignored the electoral fraud for all intents and purposes. Now, as another massive electoral fraud is underway, the allies talk of the “magic” solution of negotiating a deal with the Taliban and exiting the country, which is, in the words of the NATO official quoted above, “sufficiently tantalizing” to lead NATO to facilitate safe passage of Taliban members to Kabul.

But there are hard fracts on the ground. The Taliban has the momentum, and according to most reprts is gaining ground. Good governance, according to U.S. counterinsurgency (COIN) doctrine is the sine qua non , i.e., absolute prerequisite, for any success against the Taliban.

So, here is the agenda which should form a central focus of discussions among leaders of the NATO countries and also among the more broadly-based donors conferences to be held in the future:

1. What is Hamid Karzai doing to build good governance–i.e., constitutional government and the rule of law–in Afghanistan?

2. Will he reverse the blocking of the two anti-corruption bodies that had been established, and allow prosecution of high-ranking officials in his government for graft or other corrupt activities?

3. What is he doing to ensure that the counting of votes in the September 18 national assembly elections is conducted fairly, and that all complaints of electoral fraud be fully investigated with their results being reflected in the vote totals?

4. What is he doing to establish good governmence and the provision of government services in the Kandahar region, as the U.S. moves to clear the Taliban from the area?

These are not, of course, the only questions that need to be taken up in allied discussions. However, they require a central, serious and sustained focus, both at meetings and in ongoing discussions between coalition officials.

If a central requirement for Taliban reconciliation and reintegration is that they accept the Afghan constitution, the allies should also insist that Hamid Karzai accept the Afghan constitution and the rule of law, even when it comes to the prosecution of his cronies.

Will it hapen? I wouldn’t hold my breath.

Karzai has “rolled” President Obama on the corruption issue, and there now appears to be little inclination to hold him to account. In fact, with the dismissal of the deputy attorney general in charge of the anti-corrupion efforts, the whole allied anti-corruption policy is in a shambles.

Let the leaders of the allies and the donors group focus on that, not the Magician’s latest ploy. Without good governance, which by definition appears to be impossible in a lawless state, the U.S. and its allies are not likely to prevail in Afghanistan.

General David Petraeus is quoted by Bob Woodward in his new book, Obama’s Wars, as saying, I understand the government is a criminal syndicate.” (p. 220).

American, ISAF and other coalition soldiers should not be asked to risk their lives to maintain in power “a criminal syndicate” headed by Hamid Karzai. The central task for decisionmakers, in the U.S. as in allied countries, is to move the government of Afghanistan toward observing the rule of law. That appears to be the only path to establishing good governance.

The alternative, in theory but not really on the ground, is to fall for the Magician’s ploys about reconciliation and reintegration of the Taliban, and just hope the whole problem of Afghanistan and Pakistan will simply go away.

We should bear in mind that even the negotiated withdrawal of U.S. forces from Vietnam took five years of negotiations in Paris (1968-1973). In that case, the consequences for the U.S. of withdrawing from Vietnam and the ensuing defeat of the South Vietnamese government in 1975 were very minor, when compared to what would happen in South Asia if a negotiated peace with the Taliban led subsequently to the fall of the Afghan governmet to the Taliban.

The Magician’s ploy is “tantalizing”, particularly to those with no memory or who see no way out of the morass in Afghanistan.  But all concerned should keep their eyes on the ball, the realities on the ground, and discuss in earnest a strategy that can overcome them.

Since the U.S. strategy appears to be in disarray, perhaps NATO foreign and defense ministers can come up with some useful ideas, particularly with respect to the establishment of  “good governance” and the rule of law, including effective prosecution of individiuals at the top of the power structure in Afghanistan.

The Trenchant Observer

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Comments are invited.

“The Magician” enthralls donors once again, in Kabul

Thursday, July 22nd, 2010

Once again the Magician has waived his green cape and dazzled the international donors who are paying for the war they are waging in Afghanistan to keep him in power. A donors conference was held in Kabul on July 20, 2010, launching “the Kabul process”.

See Nipa Banerjee, “Too many conferences, too few results in Afghanistan,” The Ottowa Citizen, July 22, 2010; and
Editorial, The Salt Lake Tribune, July 22, 2010

The last time the donors met was at the London conference in January, where after committing massive corruption in the first round presidential elections in August 2009, and refusing to replace the members of the Independent Electoral Commission who were directly responsible for certifying that fraud, the Magician dazzled the internationals with his talk of re-integration of the Taliban.

Exactly nothing, or at least nothing desirable, has come of that talk of re-integration. But because the U.S. and its allies can see no way out of Afghanistan, they long for a magical ending.

In London, the Magician succeeded in changing the subject, with the question of free and fair elections receding to something like the 25th goal in the final communiqué of the conference.

One has to marvel at such legerdemain, even if the objects of manipulation are incredibly easy targets. Among them all there does not seem to be more than six months of collective memory. None of them seem to recall the nine years of empty promises the Magician has plied them with, telling each of them exactly what they wanted to hear at exactly the right moment.

While the Magician promised to clean up the corruption in his government, the level of corruption doubled between 2007 and 2010.

While the Magician promised to build up good governance and the national police, he recently replaced Hamid Atmar, the Minister of the Interior in charge of the national police, one of a handful of Afghan ministers the U.S. and its allies believed to be highly competent. Another, Amrullah Saleh, the head of Afghan intelligence, was fired at the same time. Both were former officials of the Northern Alliance, and were apparently fired to satisfy Pakistani demands.

Nonetheless, year in, year out, the internationals are enthralled by the latest spell cast upon them by the Magician, for it contains exactly what they want to hear.

The magic is powerful. Its spell enables the internationals to believe that they can negotiate a victory with the Taliban and other insurgent groups, precisely when the latter have the momentum, and believe they must only wait for the Americans and their allies to withdraw to claim victory.

The Magician’s powers of persuasion are so great that he even convinced the donors to channel 50% of their financial support directly to him and the central government. Given his government’s record of corruption, that was a magical achievement in and of itself, of stupendous proportions.

Let us hope there is a magical ending in Afghanistan that allows NATO troops to withdraw. For otherwise, with more waves of the Magician’s green cape and whatever promises the allies may wish or need to hear, it looks like a long, hard slog, with neither good governance nor victory in sight.

The Trenchant Observer

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Comments are invited. Please add to the discussion and tell the Observer why he is wrong. Or right. Or some of one and some of the other.

General Petraeus, the Haqqani network, and moral clarity in Afghanistan

Wednesday, July 14th, 2010

Updated

To find our way in Afghanistan, we need to find our compass.

Our moral compass.

General David Petraeus, according to reports, is pushing for the Obama administration to add the Haqqani network to the terrorist organizations list.  They are one of the principal groups who are blowing up everyone in suicide attacks in Afghanistan. Senator Carl Levin (D.-Michigan) made a similar suggestion upon returning to Washington from a trip to Afghanistan last week.

See Mark Landler and Thom Shanker, “U.S. May Label Pakistan Militants as Terrorists,” New York Times, July 13, 2010 (July 14 print edition).

Petraeus’ inclination, as reported, provides a ray of light, a ray of hope.  A hint of moral clarity.

With that clarity, perhaps there is another road in Afghanistan other than turning its people over to warlords and terrorists like the Haqqani network. Perhaps there is another path other than striking deals with Pakistani generals and shady Pakistani intelligence elements who have been backing the Taliban. Perhaps we can find another way to leave the country without abandoning its women, or surrendering hegemony over the South to Pakistan acting through its ties to Afghan insurgent groups, planting the seeds for future civil war between the North and the South.

The huge question is, of course, “Why wasn’t the Haqqani network already on the terrorist organizations list?

Not only was it not on the list, but we have gone aong with Karzai’s efforts to remove a large number of names of Taliban leaders from the U.N. sanctions list.

What are the reasons for omitting the Haqqani network from the terrorist organizations list, for seeking removal of Taliban leaders from the U.N. sanctions list, and for negotiating with Pakistan to get them to bring the Taliban to the negotiating table?

The administration needs to be candid with the American people about the kind of Afghanistan it is prepared to negotiate with Karzai, the Haqqani network, and the Taliban.

What we get out of Washington are platitudes about these groups accepting the Afghan constitution, and laying down their arms. What does this mean, what does this look like when you flesh it out?

The reasons we have heard so far to justify these actions, which appear to be based both on dubious assumptions and on dubious moral propositions, need to be subjected to intense and continuing scrutiny–in the full light of day.

What President Obama has apparently failed to grasp is that without a moral compass, the U.S. and NATO can neither achieve their essential goals in Afghanistan nor exit on terms short of catastrophic defeat.

Viewed from afar, at the present the White House’s only goal seems to be to help Karzai solidify his grip on power so we can beat a hasty retreat.  This is a harsh judgment but one, it is submitted, that is supported by the facts.

It is a view, moreover, that is shared by many in the region, who look more to American actions than to the finely-tuned policy pronouncements that emanate from Washington.

Hopefully, Petraeus can bring moral clarity to his job and to the president’s thinking about Afghanistan.

The moral compass Obama must find and use is an American one. The American people will not support a war without moral purpose for an indefinite period of time.

A democratic path?

It is time for President Obama, with Petraeus’ assistance and experience building the institutions of democracy in Iraq, to reconsider the now-jettisoned democratic project in Afghanistan.

That project foundered on the rock of U.S. passivity in the face of Karzai’s massive fraud in the presidential elections last August, and its unwillingness to open up the political process by forcing Karzai to fix the electoral machinery so a fair second round election for president could be held.

Karzai may be the obstacle on the democratic path.

See Chibli Mallat, “Law, war and the Petraeus doctrine: How to take democracy seriously in Iraq and the AfPak theater,” The Daily Star (Beirut), June 24, 2010. Interestingly, Mallat suggests Karzai be persuaded to leave or removed from office, with arresting him for the election fraud being one option.

Yet the democratic path may be the only alternative that gives Afghan soldiers and police a vision of the future that is worth fighting for.

As President Obama noted at his West Point commencement speech on May 22, 2010,

(P)reparing for today, I turned to…the words of Oliver Wendell Holmes. And reflecting on his Civil War experience, he said, and I quote, “To fight out a war you must believe in something and want something with all your might. So must you do to carry anything else to an end worth reaching.” Holmes went on, “More than that, you must be willing to commit yourself to a course, perhaps a long and hard one, without being able to foresee exactly where you will come out.”

Our challenge in Afghanistan, also in a civil war setting, is quite similar. We must help the Afghan soldier and policeman find and have something to believe in and something to want with all of his or her might. Only then will an Afghan army and an Afghan police force be able to take over from the ISAF forces and defend their country against the Taliban.

The Taliban have such a belief, anchored in part in their religious faith.

What can the United States and NATO offer an Afghan soldier or policeman that can counter that?

This is perhaps the most critical question in Afghanistan, and one whose answer will largely determine the success of our counterinsurgency strategy there.

Free and fair elections and representative government, however crude? The rule of law, at least as a roadmap to be followed? Some form of democracy?

This was the path we followed in Iraq. It is time to reconsider the democratic project in Afghanistan. With all options open for consideration.

The democratic road may be the only one by which we can get to where we want to go, period. Moreover, it may be the only road that can maintain the support of the American people, and the support of the peoples of the other democracies with whom we are allied, for a war that will surely continue for quite some time.

Let us consider a central fact. America’s greatest weapon in the world is not its drone aircraft or its special operations forces, however useful these may be at the right moment and in the right place.

America’s greatest weapon is its story and the vision it has pursued for over two centuries. This vision is a vision of democracy, of respect for law and individual rights, and of the security and prosperity that are possible in a democratic society governed by law.

It is parochial to assume that our vision and our values have no appeal to the people of Afghanistan, or that our vision and values are weaker than and cannot triumph over the those of the Taliban.

To ask America to fight in Afghanistan without this vision and without these values, is to ask the country to fight with one arm tied behind its back, in a long and grinding struggle which ultimately it cannot win.

To engage the people of Afghanistan in a common struggle, not for warlordism or a coalition with the Taliban and the Haqqani network, but for the achievement of commonly shared values, and for the security that can be achieved through a government based on the consent of the governed and the rule of law, would be to commit to the democratic road.

As suggested above, the democratic road in Afghanistan may be the only one that gets us where we want to go. Petraeus, with his intellectual grasp of the critical importance of governance in counterinsurgency doctrine and his direct experience in Iraq, must already sense this.

Where would Iraq be today if it were not for steadfast U.S. support for the development of democratic institutions, and for adherence to the rule of law? It’s worth thinking about.

It’s worth thinking about now. The September 18 National Assembly elections are barely two months away. Yet instead of focusing on building a democratic process starting with those elections, Secretary of State Clinton is off to Pakistan to see what kind of a deal we can make with the Pakistanis on Afghanistan.

It was on just such a trip in November, it will be recalled, that we reportedly struck a deal with the Pakistanis the outlines of which we seem to be following. It resulted in our abandoning negotiations in Kabul to form a national unity government with Abdullah and Karzai, or to proceed to replace those in the electoral commission behind Karzai’s fraud so that a fair second round election could be held.

Why we are playing Karzai’s game, instead of the democratic game in Kabul, is a question which calls out for a full and complete answer to the American people from the President of the United States.

The Trenchant Observer

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Comments are invited. Please add to the discussion and tell the Observer why he is wrong. Or right. Or some of one and some of the other.