An-Aaargh-chical Constitutions

Peter Leeson of George Mason University has published a fascinating article about the political economy of eighteenth century pirate fleets.

As I read "An-arrgh-chy: The Law and Politics of Pirate Organization," I learned that these "abominable societies" were far ahead of sovereign states in awarding veterans benefits for those wounded in battle. In a pre-Henri Dunant period when European armies were still leaving their war-wounded to die on the battlefield, pirates were compensated according to rules clearly specified in constitutions.

Leeson cites the memoirs of 17th century bucanneer Alexander Exquemelin:

"The wounded... would be compensated as follows: for the loss of a right arm, 600 pieces of eight or six slaves; for a left arm, 500 pieces of eight or five slaves; a left leg 400 or four slaves; an eye, 100 or one slave, and the same award for loss of a finger. If a man lost the use of an arm, he would get as much as if it had been cut off, and a severe internal injury which meant the victims had to have a pipe inserted in his body would receive 500 pieces of eight or five slaves in recompense."

Nothing, of course, compared to the extensive veterans disability system now characteristic of governments such as ours. US troops get not one-time lump sums but monthly payments, albeit according to not which limb was chopped or blown up but rather some calculation of what "percent" disabled they are. In addition, according to Military.com, our wounded warriors can look forward to the Army's new "Comprehensive Care Plan," as of March 1 this year, which will "focus on healing the whole person - body, mind, heart and spirit - and not just physical well-being."

The most interesting difference I saw in these kinds of benefits systems is the democratic charater of the pirate constitutions, vs. state armies. Pirate bands would agree to the specific rules in advance of setting sail, and according to Leeson they stuck by them hence.

Also, pirates could overthrow their captains/quartermasters if they didn't abide by the constitution. Conscripts or enlistees in state militaries sign up to pre-existing rules without the ability to negotiate. And they have little power short of exit when the government fails to come through, as with the debacle at Walter Reed, or acts so as to suggest gross negligence. For more on the latter, see Piglipstick.

Not to glorify armed groups, state or non-state, which specialize in theft, torture and murder of innocents.

A Global Ban on Robot Warriors?

Should autonomous weapons systems be permitted on the battlefield in the absence of a clear sense of how fully they can comply with the laws of war?

Noel Sharkey, a robotics expert at University of Sheffield in the UK, thinks not. In an article entitled "Killer Robots: Friend or Foe," MSNBC'S Alan Boyle writes:

"Nowadays, Sharkey is sounding the alarm about the prospect of real-life robot wars: He's calling for an international ban on autonomous weapon systems until it can be shown that they can obey the laws of war. 'I think we should be addressing this immediately,' Sharkey told me. 'I think we've already stepped over the line.'"

The precautionary principle, popularized in the environmental policy-making arena, suggests that the burden should be on policymakers to demonstrate the safety of a new product or technology, rather than on citizens to demonstrate its harmfulness.

So maybe Sharkey has a point. Should the use of lethal robots on the battlefield be the subject of a multi-lateral treatymaking process? What threshhold might we envision determining whether such autonomous sytems constituted a lawful alternative to organic warriors?

Think Again.

Foreign Policy Magazine's latest "Think Again" piece comes from law professor Steve Ratner, writing about the Geneva Conventions. He makes some very important points, clarifying that Camp X-Ray is legal, that Common Article 3 of the conventions applies to all noncombatants, including members of al-Qaeda, and that Conventions do allow interrogations.

However I found a few mischaracterizations as well. Regarding Guantanamo, for example, Ratner writes:

"The Geneva Conventions don't require the US to close up shop in Cuba. The rules simply insist that a working legal framework be put in place, instead of the legal vacuum that exists now."

Is there really still a legal vacuum? The US has established Combatant Status Review Tribunals to make POW status determinations, instead of simply applying or denying that status to whole groups of detainees. And it has established military commissions to try those detainees it suspects of crimes. This is all within the spirit and letter of Geneva. The problem is not that there's a legal vacuum, the problem is that these courts do not include standards measures for due process.

Here's another one:

"'The Geneva Conventions Ban Assassinations.' Actually no... Assassinating one's enemy when hostilities have been declared is not only permissible; it is expected."

OK, so it's true the Geneva Conventions don't ban assassination - the Hague Conventions do (it's considered a form of "treacherous killing"). And it's true that not all assassinations are illegal - you can hit a sitting head of state in an armed conflict, as long as he is a member of the armed forces. But assassinating civilian leaders is illegal. Ratner's conflation of "assassination" with "killing the enemy" blurs the entire distinction, I think, between lawful killing and extrajudicial execution.

Ratner also opines that the Geneva Conventions "can and do protect innocent bystanders and shield soldiers from unnecessary harm." But it's all relative. The treaties actually provide very little meaningful protection for civilians, even on paper. You need only not target them on purpose... collateral damage is perfectly fine, as long as it's "militarily necessary," which is left up to militaries to decide. This can make a genuine difference - the 88,000+ estimated civilian deaths in Iraq for a full five years, according to Iraq Body Count, are less than the damage wrought in one day over Hiroshima.

But to say that the conventions "protect" civilians is to conflate treaties with practical measures to keep civilians alive. It is weapons-bearers who protect civilians or choose not to. Whether they do this depends on whether they're properly trained, not on whether their government has signed a treaty.

Don't You See What is Happening Here, Worf?

I watched my weekly rerun of Star Trek: The Next Generation with the kiddies last night. The parallels with what has been happening to our justice system gave me chills.

Seems like someone had the same reaction about a month ago and helpfully posted sound bites from the same episode, "The Drumhead,"* on YouTube alongside images from our recent political history. I give you the first in what promises to be an ongoing series of ST:TNG clips serving as metaphors for our own condition.



*In "The Drumhead," Starfleet begins an investigation into a possible Romulan conspiracy aboard the Enterprise which rapidly degenerates into a witch hunt. Captain Picard must stand up to his superior officers who are prepared to toss aside the constitutional rights of Federation citizens in the service of Starfleet security.

Is You Smarter Than a 5th Grader?

If so, you may be one up on both the President of the US and many Africans. The former still has difficulty stringing together a coherent sentence, as evidenced by this gem from his recent visit to Rwanda. "People say why would you want to come to Africa at this point in your presidency? Because I'm on a mission of mercy is why," said the Great Orator, leaving an interrogative hanging off the end of his sentence like a Florida chad.

This "mission" has certainly not ended any suffering in Darfur, on which Bush delivered this incoherent message in reference to his decision not to send US troops to halt the admitted genocide in the region. Quoth the Decider "I'm comfortable with the decision I made, but I'm not comfortable with how quickly the (international) response has been."

Oddly enough, the international community is not comfortable with how failure to speak proper English is Bush...

...but Africans themselves are far too kind as they hail the current Administration for doubling the aid budget for Africa to 8.7 billion dollars. In case they hadn't noticed, that's a mere 10% of what we are spending each year in Iraq, whose issues pale in comparison to the population, disease, security and infrastructure problems experienced by the African states.

Hey, Mr. President... If you want to do something with 8.7 billion dollars in Africa, take a note from China. They took that much, doubled it (yup, 15.6 billion) and invested it quietly in Sudan, buying themselves access to 6 billion barrels of oil, and bankrolling the Sudanese government to continue its war against the Rebels in Darfur.

This is a classic case where the US has failed to use "soft power" to drive a solution to a regional crisis and stabilize our own economy. Had we, not China, chosen to invest 16 billion in Sudan, with the criteria that an immediate peace settlement be brokered to obtain the aid, we could have tied up a key oil reserve, stabilized the region, and greatly increased our status on the African Continent; all for a fraction of what we are spending on war abroad or economic incentive plans at home.

Instead, we're too busy patting ourselves on the back for mercy missions that accomplish nothing meaningful, and no one in Africa is willing to do the math and call "bullshit!"

"It takes little courage to be a blogger in the United States."

In relative terms, of course. This comes from Roger Alford at Opinio Juris. He contrasts the relative safety of US bloggers vis a vis our government to the record of state repression against free-thinking journalists, especially online, in other lands. Documented in the latest Reporters Without Borders Annual Report.

This despite our penchant for thinking we're so at risk for blogging that, for example, we must write under pseudonyms. Pish.

Worth checking out.

Oh, Shit.

From the NYTimes:

"Serbs in Kosovo Vow to Remain Part of Serbia."

It is logical, of course. If the international community recognizes the independence of Kosovo on the basis of its largely Albanian population and its mistreatment at the hands of the Serbs, then it would be blatantly two-faced not to recognize a similar claim by the Serb population of Northern Kosovo to join Serbia on precisely the same grounds.

We are seeing precisely the same dynamic occurred when Croatia's independence was quickly recognized, as the expense of the Krajina Serbs. That dynamic sparked a bloody four-year war. Will the West learn the lessons of history?

Commandant Strips Contractors of Uniforms

Come June 30th, Iraqi patriots fighting against the Coalition occupation will have a few thousand fewer legitimate targets, thanks to the new order from the Commandant of the Marine Corps, General James Conway.

Previously, contractors working with Marines were allowed to wear the distinctive desert digital camouflage uniforms, making them, theoretically, fair game for enemy combatants.

While this might irk Al Qaida in Iraq (or maybe not) it comes as a relief to many Marines who have begrudged seeing the legions of "Death Star Roofers" making a mockery of this spiffy combat uniform.

Fortunately, contractors working with other services will still be able to wear the multi-patterned fatigues of the Army (one-color-fits-none) the Air Force (tiger stripes? digital? why decide when you can just mix them up?) and the Navy (a blue camouflage uniform that blends with the water? Just what I'd like to be wearing when they call "man overboard" in high seas...)

Ha! The Bushies Are Listening

Recently I blogged about the USG's concern over state secrets escaping our territorial borders through the untimely demise of a US spy satellite due to crash-land somewhere on the terrestrial surface in March.

I made the case that one might be as concerned with human life as with the security of our satellite technology.

Seems the Bushies have paid heed to this dose of wisdom. They've decided to shoot down the satellite and justify it by citing the risk to human populations if it should hit land:

"They say the satellite contains a hazardous material which could be fatal if inhaled by humans.

A US general denied claims that the main aim was to destroy secret parts."

In fact, they're bending over backward it seems to claim that destorying satellite secrets has nothing to do with the decision to pull the trigger.

"General James Cartwright said confidential components would be burned up in the atmosphere and, in any case, that would not be a reason for shooting down the satellite."

Of course it's rubbish, but the fact that they feel they must claim it is says a lot about how "human security" is displacing "national security" in "security-speak." It's a good sign - norm change always does begin with hypocrisy. Anyways, it's nice to know the Bushies are paying attention.

Defending the Death Penalty

Not me (necessarily). The Bush Administration.

Funny that they feel that need to defend their decision to seek the death penalty against 6 Guantanamo inmates accused of various levels of involvement in the events of 9/11. After all, no international law prevents the US from executing convicts - though there may be an emergent international norm against the death penalty, the US is not bound by the Optional Protocol to the International Covenant on Civil and Political Rights. So the Bush Administration really doesn't need to bother justifying this.

Besides, the strategy being used - comparing the US military commissions to the Nuremberg tribunals - is going to backfire, because there is a significant difference and a significance similarity that doesn't work in the Bush Administration's favor.

The difference is 60-some years of international jurisprudence and the establishment of the International Criminal Court by multilateral treaty - a court which does not allow for the death penalty, even for the architects of genocide.

The similarity is the lack of due process in the two proceedings (required, by the way, by Common Article 3, Article 1(d) of the Geneva Conventions even for unlawful combatants - the Bush Administration has admitted this article applied to GWOT detainees). At Nuremberg, Nazis were executed for "crimes against humanity" - a concept that did not exist prior to the crimes being committed, so court's legitimacy was undermined by claims of ex-post-facto justice. As for the Guantanamo Six, at least one of them, Khalid Sheikh Mohammad, is known to have been tortured by the US government during interrogations, so evidence that could hang him is unlikely to be accepted by advocates of due process.

In other words, invoking Nuremberg was exactly the wrong strategy for the White House. Instead, they should have stuck to the letter of the Geneva Conventions. The conventions provide no immunity from prosecution and even execution for those who engage in political violence without formal combatant status - that is, being incorporated into the legitimate armies of parties to an conflict. The Guantanamo Six do not qualify and therefore the question of whether they can be executed is moot under international law.

It's ironic that the White House would raise this at all then, given its penchant for flouting well-established norms. In this case, the law seems actually to be on the US side. Rather, this would have been a great opportunity to demonstrate our adeherence... complete adherence... to the spirit and letter of the Geneva Conventions. Oh, but wait, there's still that due process / torture thing...

Al-Qaeda, America, and Child Soldiers

An ostensible al-Qaeda recruiting video was released by the US military last week depicting the training of young boys as kidnappers and gunmen.



Is this an authentic video or a propaganda film by the US military? It doesn't strain the imagination to think of al-Qaeda training youngsters, but the timing of the video's release is certainly interesting. Could it be aimed at drawing Americans' anti-child-soldiers sentiment toward our enemy, and away from the fact that the US military is preparing to prosecute Omar Khadr, a Guantanamo detainee who was only 15 when he was captured on the battlefield. Under US treaty obligations (the US signed the Optional Protocol to the CRC in 2002), Omar Khadr should not be tried as an adult, but this is unlikely to save him.

For what it's worth I'm not sure I agree with either position. The 18-years cut-off point below which it is supposedly unethical to recruit persons is a arbitrary Western construct. In many societies, including areas of Central Asia, young men reach fighting age much sooner, just as young women are married off in their teen years. We may object to this, but the mere evidence of such training doesn't by itself signify a lack of "civilization" on the part of al-Qaeda. I think it's much more important what these young lads are being trained to do.

As for Khadr. His lawyers argue he should not be tried at all. But is that appropriate? If the alternative is to rot in Gitmo without a trial like the other several hundred inmates, I'm not sure Khadr wouldn't prefer to have his day in court.

New Tool for Threat-Downs

Now here is something very interesting.



I am always intrigued to see what counts as a "global incident." The threats here seem primarily threats to the state. I'd like to see one with some generic human security measures - areas of low-level repression, civil wars, massacres, disappearances. It would be fascinating, for example, to have someone tracking the intensity of the violence in Kenya using such a tool.

The authors are developing similar maps for things like pandemic outbreaks and "USA school incidents." Hmm.

Goat Security

So get this: the British military will no longer use goats in lethal experiments to guage the risks of rapidly evacuating submarines:

"Animal rights groups complained about the tests for years. Six goats died during the experiments between 2000 and November 2006 while 122 more were slaughtered as a result."

So much for my friend Cleitus' brilliant idea of using armies of pigs as a cheaper safer (if not entirely aesthetic) way to clear landmines in post-conflict zones.

The most interesting line in this article is where we are told why goats, in particular, were used for these experiments:

"British military scientists subjected the goats, chosen because they have physiological similarities to human beings, to similar variations in an effort to gauge how sailors might be affected."

Physiological similarities to which human beings, I'm asking myself? Please, someone help me out here.

Hey, Waterboarding is Perfectly Legal!

So says the White House.

Well, at least this should clear up Attorney General Mukasey's confusion on the subject.



Cleitus, I believe the real acts depicted in this fake video would fall under "strategic" violations of the laws of war by governments rather than your "operational" violations by generals or "tactical" violations by troops in the field. Eh?

One Heckuva Guy

It didn't get much coverage on the TV news, but Attorney General Michael Mukasey faced the Senate again last week and refused to acknowledge that waterboarding is torture.



For more, see this analysis by Helen Thomas in yesterday's Washington Post. She focuses on whether he admitted it was "illegal." Of course, torture can be perfectly legal if domestic laws permit it, though international law does not. Though the CIA and Pentagon have a blanket ban on the practice, according to Thomas:

"Waterboarding remains a technique in the CIA’s arsenal but that it would require the president’s consent and the attorney general’s legal approval before being administered."

No wonder Mukasey's confused. It's illegal... unless he and the President say it's not? But he's not prepared to say it's torture (unless it were done to him), so why would it be illegal?

Laws of War For Dummies

My co-blogger Cleitus the Black laments the lack of reading material on the laws of war for the curious layperson. I heartily agree and shall be happy to muster a periodic post clariying some general precepts as I understand them, in between my usual rants.

For a start, while there is no decent "Geneva for Dummies" reader, a few helpful books on the laws of war for a general audience have come out in recent years and others are forthcoming. One is Michael Byers, War Law - a rather perfunctory treatment, but short and readable.

Another helpful resources is the Crimes of War website maintained by former journalists Roy Gutman and David Reiff. And then there is of course the website for the International Committee of the Red Cross.

Cleitus and I shall work at getting a "must read" list up and running on this blog. (You hear that, Cleitus?) Stay tuned.

The Laws of War (Part the First)

Distinguished readers, scholars, and assorted vertebrate...

Seeing as how my dear colleague and associated devoted legions (of readers, I being the only person here to command legions in the traditional sense) love to question how trivial incidences of murder, rapine, and bad literature can be justified under the Laws of War, I feel it is incumbent upon myself to open that veritable Pandora's Box by asking, (solely for the benefit of the masses) - what are these so-called "laws" - in common terms, such that the average Hoplite can understand... Better yet, in terms so simplistic that even the Commander in Chief of the mightiest military the planet has ever seen can wrap his primate brain around them without having to make up words to make it all make sense.

Of course, a large part of the problem is, there are just so many laws! No less than 45 draft or complete documents, some ratified by many governments, some ratified by few. A notable example would be the 1938 draft of the RULES OF AERIAL WARFARE, which had as Article XXII the following: "Aerial bombardment for the purpose of terrorizing the civilian population, of destroying or damaging private property not of military character, or of injuring non-combatants is prohibited."

How this documented, if ratified, would have affected the outcome of WWII, where a major strategic element employed by the Allies consisted of doing just that is questionable.

In any case I propose the following.

For purposes of this discussion (which will by its very nature be prolonged) let us confine each post to dealing with a single document, or pertinent Article thereof, if a document has multiple key points.

Let us be thorough in asking all questions, raising such proposals for changes, and in short, performing such due diligence that, when we have completed our congress on the subject, we may be suitably ready to publish "The Complete Idiot's Guide to the Laws of War", which will no doubt become an International best-seller, and all us to both retire, or at the very least allow me to purchase a title and engage in all the myriad pleasures and vices thereunto pertaining.

For starters, I should think we might best begin by discussing how wars come to be. War, like sound, cannot exist in a vacuum; like a fire, it must be started. Therefore, we must have and aggressor and a defender, and we should define these terms.

The definition of defender - to ward off attack from; guard against assault or injury; one supposes the Random House definition will do quite nicely.

As for an aggressor, this requires a little more research. UN Resolution 3314 defines aggression as "the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State."

QUESTION - what about non-state actors?

Examples of aggression spelled out in Resolution 3314 include: "invasion or attack... any military occupation... bombardment by the armed forces... blockade of the ports or coasts..."

QUESTION - So, is it safe to say that, for the purposes of international law, an aggressor is any actor who carries out such actions?

I look forward to your learned discussion, and shall encourage you to choose the next subject for this discourse, although, should you move too slowly, I may act aggressively and put it forth myself. And I should note, that because I am but a simple man, perhaps it is best to move forward in an elementary manner, ie, having established the definitions of aggressor and defender, define when war may be waged legally, thence on to how it may be waged at the strategic, the operational, and finally, the tactical levels.

From the Mouths of Babes

My smallish son and I watched Robin Hood: Prince of Theives this weekend, which of course begins with an awful prison scene in a Jerusalem dungeon circa 1050 A.D. He wasn't too traumatized by the floggings, brandings and mutilations, since the film rather quickly moved onto jollier subjects like trouncings with quarter-staffs, outlaw trickery, fencing, archery and good old fashioned romance.

But later he asks, "Are our jails like that?"

I tell him, no, we take care of our prisoners because we believe that even criminals have rights.

"Even if they're our enemies, like in the Crusades?" he asks. "We would still give them food and take care of them? Because we're good guys, right?"

I pause.