Self-Defense and Non-International Armed Conflict in Drone Warfare

October 22nd, 2010

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by Kenneth Anderson

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Over the past year, I’ve been spending much time on the questions of drone warfare and the legal issues raised - many talks, panel discussions, debates, and so on. In the course of those discussions, as well as discussions with many experts one-on-one, I’ve wanted both to clarify a couple of my views and acknowledge a change in how I would currently characterize some of what we might call the “legal geography” of armed conflict.

So, I have been strongly identified with, and have been robustly urging, that one possible ground justifying the use of drone warfare and targeted killing, as well as setting rules for its conduct, is the international law of self defense. I maintain, and certainly continue to maintain, that there are circumstances in which the use of targeted killing can and as a proper legal description should be understood to be the use of force as a lawful act of self defense even though it takes place outside of an armed conflict, and even though that use itself does not create an armed conflict. It seems to me, before as now, crucial to be clear of the existence of this category of the use of force as a lawful possibility for the United States, particularly looking down the road to conditions and situations that do not implicate the current struggle with Al Qaeda, has nothing to do with 9/11, is not covered by the AUMF - a new terrorist group with different terrorist aims, for example, emerging in Latin America or somewhere in Asia twenty-five years from now, and having no connection to any of today’s issues.

I have suggested that this is an appropriate way of characterizing the legal status of attacks carried out by the US in Yemen or Somalia, or elsewhere that terrorists might go in seeking safe haven, or by new groups emerging that increasingly are not directly linked to AQ even if they take inspiration and aims from it. I have queried at what point jihadist groups threatening the US become only “notionally Al Qaeda” and part of our existing legal framework of a non-international armed conflict only in theory, increasingly remote from the reality. Territory or legal geography of conflict matters in that, not because the armed conflict is inherently bound to a territory or geography, but instead because the group at issue is only tenuously connected to the group initially defined as part of the armed conflict - partly under domestic law considerations and partly under international law considerations. The non-international armed conflict goes where the participants go; and likewise if new groups engage in co-belligerent action, then they become part of the armed conflict. But it has seemed to me in the past several years that some of these groups are in other places and not obviously connected, except by a forced abstraction, to the groups under the AUMF.

I still think that is a perfectly good way to see the use of force. The new groups present a threat; they present a threat in a place where the armed conflict is not actually underway with respect to them; the US targets them as self-defense in the absence of an armed conflict. Alternatively, however, if you think either that the people you are targeting are part of the armed conflict to start with because they are linked sufficiently to AQ and the authors of 9/11, or even more directly because they are AQ or affiliates fleeing Pakistan or Afghanistan in search of new safe havens, then the case for viewing this as simply the continuation of the existing non-international armed conflict is also highly plausible.

I view these rationales as permissive, rather than a forced choice between them, and think that each is a perfectly plausible and justifiable way of looking at current actions in Yemen or Somalia. With regards to Pakistan, insofar as those being targeted are as part of the counterterrorism campaign, that seems to me unremarkably part of the on-going armed conflict, albeit one that has broadened out to include Pakistan Taliban and various terrorist groups in Pakistan that have allied themselves with AQ. The point, however, is that the question of whether the proper framework for legal analysis is armed conflict or self-defense begins not from geography but instead from the identity of whom you fight; if it is a genuinely unrelated group and, even more plainly as a hypothetical, a genuinely unrelated issue - a new form of transnational Maoism in the Andes, say - then the question of legal geography comes into play to ask whether hostilities of sufficient intensity, etc., suffice to evidence a non-international armed conflict.

This is a change in emphasis for me, and in part a shift in view; in the past I have emphasized far more the geography as to where hostilities are underway, but I am persuaded that the correct analytic frame is to ask “who” and then whether, “where” the fighting takes place, the threshold of sufficient hostilities has been met for a non-international armed conflict not already underway. But this is in the context of understanding that, in places such as Yemen, it seems to me the facts can be plausibly understood to fit either view. Indeed, an important shift in my view concerning Yemen in particular is that as we understand better the relationships between Al Qaeda in the Arabian Peninsula and other groups in Yemen and AQ proper, the facts increasingly suggest that both in the past and even more strongly today, the best - and not merely a decently plausible - characterization is to understand them as part of the non-international armed conflict. It seems to me that there are good legal grounds to understand Somalia and Yemen as attacks as individual acts of self-defense, but as I read the Woodward book and what John Brennan in particular says about the movement of AQ operatives into those new safe havens, and talk with well-informed reporters, those factual descriptions are persuading me that the better of the two views today is to see attacks there as part of the on-going non-international armed conflict. That would include the targeting al Al Aulaqi.

(DO- Alternatively, however, if you think either that the people you are targeting are part of the armed conflict to start with because they are linked sufficiently to AQ and the authors of 9/11, or even more directly because they are AQ or affiliates fleeing Pakistan or Afghanistan in search of new safe havens, then the case for viewing this as simply the continuation of the existing non-international armed conflict is also highly plausible.)

(DO - no change in identity of adversary against US has been fighting)

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I also understand that the Obama administration has reasons grounded in domestic law for preferring to see the best international legal frame as non-international armed conflict in Yemen or Somalia. This arises from its view that for domestic law purposes, the terms of the conflict are set by the AUMF, and not the discretionary scope of the executive. I think this is perfectly plausible as an international law rationale - either seems to me available to it - and in any case, my reading of the facts on the ground in those places suggest that the administration is not simply making a “notional” argument by any means for how it sees attacks in Yemen or Somalia. The Obama administration is on sound grounds, in my view, in saying that the non-international armed conflict goes where those who participate go, and extends to groups that co-participate with them. But that is a shift in my read of the facts from two years ago, and it is also a shift in emphasis as to taking geography into account.

As one government lawyer put it to me, the administration’s view is that, yes, it does have independent grounds for self-defense, exactly as Harold Koh said, and in an appropriate circumstance will invoke it nakedly, without recourse to an armed conflict. But it also holds the view that once parties initiated a non-international armed conflict, and met the thresholds of intensity and all that, the same non-international armed conflict goes where they go, irrespective of geography. (DO- ??, See Israel's alleged killing of Hamas official in Dubai) As he immediately added, with notable weariness, this does not mean Predators over Paris, whether France or Texas; Yemen is not France. (DO- in what sense??) Territorial integrity is an important, vitally important principle of international law - but it can be overcome where a state either cannot or will not control its territory - which is to say, assert the lawful sovereignty over territory for which it has both a privilege but an obligation. (DO- I don;t know it is well-established the principle of international law. If it were in the context of R2P, I would make more sense of the conditional territorial integrity, to safeguard immediate human security. I doubt conceptually-impenetrable sovereignty on which territorial integrity based will give in to war on terror.) ”No safe havens” has also been a bedrock qualification on territorial integrity of states, as a matter of self defense and evidenced by consistent state practice.

(historical event of state practice might be seen without difficulty. whether it is legal also might be another.)

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At this moment, strategically, safe havens for both AQ and the Taliban in Pakistan are at the center of the storm, because they represent the intersection of Petraeus’s counter-insurgency strategy as well as what Woodward terms the Biden “counterterrorism-plus” strategy of attacking the safe havens in Pakistan as the locus of the terrorist groups; there is convergence on attacking the safe havens from every strategic view, combined with a view that the real source of the threat is not just in Pakistan, for leading players in the adminstration’s strategic team, it is Pakistan, far more than Afghanistan. And finally, if one adds to this the John Brennan view, the safe havens already have largely shifted to Yemen and Somalia and will continue to shift into other places in Africa. If that is the Obama administration’s strategic lens in a nutshell, then the traditional and consistently held US view that safe havens are not immune from attack will not remotely be up for discussion, whether on an armed conflict view or an independent self-defense view of targeted killing and drone strikes.

I am (still) completing a new essay on the operational roles of drones, a roster of strategic uses, one that leaves aside the legal issues in favor of trying to get an analytic handle on the increasingly variegated uses of drones and targeted killing. It seems to me important for legal analysis because the variations are sufficiently great at this stage that different uses suggest different legal frameworks - some are involved in armed conflict, for example, and some might not be. (DO- e.g. for force protection?) But as the argument over the use of drones in Afghanistan, Pakistan, Yemen, and beyond intensifies, I thought it would be worth taking a moment both to clarify and advance my own baseline legal position. Thus:

Although asserting the framework of self defense, and elaborating its constraints based in necessity, discrimination, and proportionality is crucial, because not all uses of force by the United States will always and forever be instances of armed conflict, it does seem to me plausible and - given the current understanding of facts on the ground in Yemen and Somalia - the best understanding of who is being targeted to regard those uses of force as part of the on-going non-international armed conflict.

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(Added: Thanks to the comments below. Two quick thoughts. First, with respect to Alan’s comment on assassination, my understanding of the legal meaning of the assassination ban at this point, as a descriptive legal matter, is that it is indeed only the restatement of the illegality of something that was already illegal; Koh’s speech restates Sofaer’s 1989 statement that the ban applies to acts that would already be illegal. Hence it does not add a new category of previously illegal things, and in that sense says that the original executive order was hortatory or a restatement of existing US law and policy. I understood Koh to be reaffirming precisely that interpretation in his speech. Second, to Nathan, no worries. But I’d add that I don’t think my factual view of AQAP from two years is correct, on the basis of what has been publicly shown; I had been inclined as a matter of factual characterization to see it as “inspired” by but not coordinated with AQ in any substantial way, and that was, I believe, not actually the case, and not the case now in any event.)

http://www.nytimes.com/2010/10/22/world/europe/22iht-mladic.html?_r=1&hp=&pagewanted=print

October 21, 2010

Serbia Tested as War Crimes Suspect Roams Free

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By DAN BILEFSKY and DOREEN CARVAJAL

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BELGRADE — After 15 years on the run — sometimes in plain sight at soccer matches and weddings and sometimes deep in the fabric of this secretive city — Europe’s most wanted war-crimes suspect, Ratko Mladic, is being hidden by no more than a handful of loyalists, most probably in a neighborhood of Communist-era housing towers, according to investigators and some of his past associates.

The diminished circumstances of the former Bosnian Serb general, who once was protected by scores of allies and Serbian government officials, make him ripe for capture, according to these people. But a softening by several European countries on whether his arrest should be a prerequisite for Serbia’s admission to the European Union is raising questions about whether he will ever face justice.

These developments make this a seminal moment not only in the search for Mr. Mladic but also in Europe’s often agonized deliberations over how much to encourage the manhunt in the face of deeply conflicting priorities. In the name of unity and stability, should Europe put a premium on rehabilitating a battered country that became a pariah state in the Balkan wars of the 1990’s?

Or in the name of its human rights tradition, should Europe first require a friendly Serbian government to make the politically difficult arrest of a man blamed for the worst ethnically motivated mass murder on the Continent since World War II? That involved the massacre of about 8,000 Muslim men and boys from the Bosnian town of Srebrenica, an enclave under the failed protection of United Nations peacekeepers from the Netherlands.

An investigation into Mr. Mladic’s whereabouts, how he has eluded capture, and Europe’s shifting response to him paints a picture of a man of obstinate will and bravado, slowly and haltingly being drawn into a shrinking world of shadows. Over the years, as European pressure for an arrest intensified and then retreated, he received vital, little known, assistance from Serbian military forces and several of the country’s past governments.

By all accounts, one of the most effective points of pressure was withholding consideration of E.U. membership until Serbia produced Mr. Mladic.

But as Europe has struggled with the dilemma, time seems to have played its hand. The vividness of the wartime horrors has receded outside the Balkans. Mr. Mladic has gotten older, and, according to many people, sicker and more isolated, probably moving from nondescript apartment to nondescript apartment in New Belgrade, a sprawling extension of Belgrade across the Sava River.

The two-year-old government of Boris Tadic has been overtly pro-Western and has vowed to apprehend Mr. Mladic, even though he has defied arrest for more than two years after his fellow fugitive, the former Bosnian strongman Radovan Karadzic, was brought in.

Given all of this, there are strong indications that when European foreign ministers meet in Luxembourg next Monday, the balance could tip away from requiring an immediate arrest and that an E.U. admission process that would take several years could start.

“Your future is the European Union and that future must accrue as soon as possible,” the Greek prime minister, George Papandreou, said in Belgrade this month, a comment representative of others made in Belgrade over the past month, by officials from France, Germany, Belgium and other E.U. members. Secretary of State Hillary Rodham Clinton also visited and offered encouragement to the government.

But some senior European officials and human rights groups are unrelenting in believing that a compromise over Mr. Mladic would undermine international law and amount to a moral failure.

“The arrest should be a number one priority,” Serge Brammertz, the chief prosecutor of the International Criminal Tribunal for the former Yugoslavia in The Hague, said in an interview.

At a commemoration of the massacre this summer, he was one of many speakers to urge a quick capture. “I said in Srebrenica at the summer memorial that this was the most emotional moment for me in my three years with the tribunal,” Mr. Brammertz recalled. “I could see that for all of the survivors and relatives, Srebrenica is not an event from the past, but something dominating their life, not only today but for tomorrow. And the number one priority for the victims is to see Mladic in the Hague.”

Although the European Union halted accession talks in 2006 when Serbia failed to arrest Mr. Mladic, Dutch diplomats say they are now the lone holdouts for an arrest as a prerequisite for resuming the discussions. They are hoping to forestall action until December, when Mr. Brammertz issues his annual report evaluating Serbia’s effort in the manhunt. In the last few days, to the consternation of some E.U. officials, he has called for more aggressiveness.

Mariko Peters, a Green member in the Dutch Parliament, which passed a resolution this month seeking to delay a decision, acknowledged, “Our Dutch position has become more isolated.”

“Many nations are weighing Mladic’s capture as just one of many factors — stabilization of the Balkans, the Kosovo issue, upcoming Serbian elections and the need to give rewards to democratic forces that are weak,” she said.

Mr. Tadic, the Serbian president, has been adamant that he is dedicated to a capture. In response to written questions, he wrote, “This government of Serbia is doing absolutely everything in its power to locate and arrest him.”

Given history, many analysts in Serbia and beyond remain skeptical.

“It’s easy to hide successfully when nobody wants to find you,” said a key protector of Mr. Mladic’s fellow fugitive, Mr. Karadzic, offering a wry smile.

Out in the open

Mr. Mladic, who commanded Bosnian Serb forces, has proved a wily foe — tough, resourceful and abetted by military-trained protectors, according to more than two dozen sources, including government investigators, two loyalists who aided him and Mr. Karadzic, and five family friends, including the family priest.

A tall, burly man of 68 with a ruddy face and sharp blue eyes, Mr. Mladic was born in a remote Bosnian Serb village, Bozanovici. He was shaped by poverty and the killing of his partisan father by soldiers of the Nazi puppet state in Croatia. His rise in the Yugoslav Army was swift.

In 1992, one month after a Bosnian majority voted to secede from Yugoslavia, Mr. Mladic’s forces launched the three-and-a-half-year siege of Sarajevo, killing 10,000 people, including 3,500 children. In July 1995, the Srebrenica men and boys were led to killing fields where they were shot with hands bound. The Bosnian war ended five months later.

That year, an international court in The Hague indicted Mr. Mladic twice, for war crimes in the Sarajevo siege and for genocide in the Srebrenica massacre. He became a fugitive at a time when 60,000 NATO troops were on the ground, raising questions about why he was not seized. American and European diplomats say a consensus prevailed that no country wanted to spill its soldiers’ blood in a battle with Mr. Mladic’s armed protectors — which has left Serbian governments asking why they should risk the same.

Mr. Mladic certainly did not lie low for many years. Protected by Serbia’s nationalist president, Slobodan Milosevic, he visited for several years the grave of his daughter, Ana, who committed suicide with his favorite pistol in 1994. He enjoyed a Chinese-Yugoslav soccer match surrounded by bodyguards at a Belgrade stadium in 2000. His framed photograph hung in bars like the Crazy House in New Belgrade. He prayed at his brother’s funeral in 2001 in a jogging suit and sunglasses with a young woman on his arm, according to the family priest, Vojislav Carkic, who said local men blocked off the cemetery road.

One protector — a Serbian military officer who was later arrested — recalled that Mr. Mladic lived fairly openly in a house guarded by a private 52-man security detail with four cars. Last year, a former Mladic bodyguard, Branislav Puhalo, testified that the unit was established in 1997 on Mr. Milosevic’s orders.

For Mr. Mladic, this was the easiest time.

Doubts grow about manhunt

After 13 calamitous years, Mr. Milosevic was ousted in October 2000 after a popular uprising.

In 2001, a new government, threatened with the loss of American aid and World Bank loans, arrested him on genocide charges and sent him to The Hague.

Mr. Mladic pulled back from public view and began to move among military barracks, according to friends, who said they would visit him to play table tennis or chess. As he did, the myth of his fugitive cunning only grew. In 2002, the government signed a cooperation agreement with the war crimes tribunal in The Hague. It eventually asked him to leave the Topcider barracks in Dedinje, an exclusive Belgrade district where he was hiding. According to Vladimir Vukcevic, Serbia’s war crimes prosecutor, he simply refused.

The Topcider barracks, built in the 1960s under the dictator Josip Broz Tito, was an ideal hiding place, as it concealed an underground city carved into a hill. Mr. Milosevic is believed to have hidden behind its thick, reinforced concrete walls during the NATO bombing of 1999.

The military authorities tried to smoke Mr. Mladic out by summoning a police helicopter to hover over the barracks, dropping a decoy rope ladder to pretend a raid was imminent. But that did little more than provoke Mr. Mladic to speed away, a level further into Belgrade.

Investigators say that they chose not to attempt an arrest out of fear of a violent shoot-out with Mr. Mladic’s ardent military supporters. This, along with other subsequent failures to make an arrest, intensified doubts about whether the manhunt was genuine.

At one point, a former protector said, 50 bodyguards formed a human shield when investigators showed up at one of the safe houses Mr. Mladic began to use, and he fashioned another escape.

There were other near showdowns. In March 2003, the Serbian prime minister, Zoran Djindjic, pledged to arrest him to pave the way for E.U. admission. Days later, a sniper killed Mr. Djindjic.

‘Snitch culture’ aids movement

When their network was vibrant, Mladic loyalists would meet routinely in four crowded public lobbies in Belgrade — summoned by the code, “waiting room,” according to a former protector who is now on trial in Belgrade with more than a dozen others for helping Mr. Mladic. All were brought in at a time of intense Western pressure.

As the former protector described the process as it worked in 2006, they discarded mobile telephones and SIM cards 4 kilometers, or 2.5 miles, from their gatherings in crowded places where they could easily blend in. Meeting face to face, they hardly spoke, discussing protection logistics by exchanging written messages that they burned.

Mr. Mladic’s pursuers came from two agencies, one military and another that reported to senior government officials, and sometimes they clashed. According to an agent involved, military intelligence labeled one of its actions “Operation Network.” Mr. Mladic was referred to as “The Host.”

A former member of the government’s surveillance operation — who described with precision the monitoring of Mr. Mladic and Mr. Karadzic — said investigators knew the fugitives’ hiding places until February 2008, five months before the Tadic government took over and Mr. Karadzic was apprehended. Until then, the official said, the surveillance team did not receive an order to make an arrest.

The former investigator said teams stalked both men outside their apartments and followed their helpers on grocery trips. Until his arrest on genocide charges in 2007, they said, the mastermind of the network that shielded Mr. Mladic was Zdravko Tolimir, a former general and an assistant commander of intelligence in the Bosnian Serb Army who is now on trial in The Hague.

The investigators received technical help from the United States and other countries, but those forces have dwindled. And even when at full strength, according to Mr. Mladic’s protectors and investigators, they faced an insidious force that often undid their efforts — an elaborate “snitch culture” in which officials in military and state intelligence regularly tipped off Mladic operatives.

Perhaps with such insight, Mr. Mladic visited his dying mother’s bedside in 2003, Father Carkic, the family priest, related, and then vanished before investigators arrived. His mother’s marble tomb, located in a verdant Bosnian cemetery, is inscribed: Provided by Ratko Mladic.

Pressure and concessions

Mr. Mladic’s support from Serbian governments ebbed and flowed, shaped by national politics and the West’s inconsistent pressure.

But on many occasions, his protection reached to the political elite, investigators say. Mr. Vukcevic, the prosecutor, said that Vojislav Kostunica, prime minister from 2004 to 2008, pressured him to try those accused of war crimes in Serbia, to shield them from the potentially harsher justice of The Hague.

When he refused, he said, Mr. Kostunica tried to oust him, but was blocked by the West, particularly the United States. Mr. Kostunica has vigorously denied in the Serbian media that he knew the whereabouts of Mr. Mladic or Mr. Karadzic or obstructed the search.

Still, Western officials detected a long-running pattern: Whenever pressure increased, the Serbs made limited concessions. When pressure receded, efforts evaporated. The authorities staged raids targeting Mr. Mladic and Mr. Karadzic through the first half of 2008, for example. But in interviews, Serbian investigators and protectors of the two men said members of Serbian state intelligence services were simultaneously watching Mr. Mladic and Mr. Karadzic in their true hiding place, far from the drama.

“This game has been going on now for five to six years,” a Western diplomat said. “They are either waiting for him to die — a stroke or kidney problems — or hoping to get into the European Union without doing anything.”

‘Very disciplined’ fugitive

The government’s boldest move took place in 2006. In raids on homes and hangouts, the government arrested more than a dozen protectors, culminating in the arrest a year later of the network’s supposed organizer, Mr. Tolimir, the former Bosnian Serb general. The actions severely damaged the network, but there is a belief that they, too, actually worked to help Mr. Mladic.

To Mr. Vukcevic, the Serbian prosecutor, the arrest of a key protector, whom he identified as Stanko Ristic, was devastating. “It sent a message to Mladic to run away and hide,” Mr. Vukcevic said. “It was catastrophic.”

After the arrests, one investigator, who said he monitored Mr. Mladic through 2008 outside his apartments, described a fugitive still at large, but in a smaller way, reduced to an ascetic existence in the large, gray towers of New Belgrade, where he could disappear like a ghost.

Mr. Mladic “was very disciplined,” the investigator recalled. “He stayed in his apartment and food and supplies were brought to him. He lived in tall buildings with 40 other apartments in New Belgrade where there are only 54 police officers for 70,000 people. He was never seen leaving the apartment even to go to the park. It was like he was under house arrest.”

Investigators and friends of Mr. Mladic say his network is now likely down to one or two people — deeply loyal associates, with probable links to the former Yugoslav Army — who aid him in a way roughly parallel to what a former protector says was the way Mr. Karadzic was helped.

One of his allies described how Mr. Karadzic shifted among a collection of 12 apartments in New Belgrade once every five months and survived monthly on €200, or about $280, for groceries. Protectors delivered newspapers, bread, even fresh salmon. Funds came from former associates, say friends.

But Mr. Mladic’s life is likely harder. Mr. Karadzic disguised himself as a New Age guru with a bushy beard and circulated in public. Mr. Mladic’s friends said he has refused an elaborate disguise, preferring an underground existence, and that he may be sick.

In a raid in March 2009 on the Bosnian home of Dusan Todic, a former military associate of Mr. Mladic, European Union troops found evidence that Mr. Mladic had used Mr. Todic’s military medical identification to seek care in Serbia.

Is he alive, or dead?

The Serbian authorities, pressed by Western countries since Mr. Karadzic’s arrest in 2008, have clearly been intensifying pressure on Mr. Mladic’s family.

His wife, Bosiljka, whose nervous tick has intensified under constant surveillance, was detained in June and questioned for possessing unregistered weapons that the authorities knew about for years, according to Milos Saljic, the family’s lawyer. Darko, Mr. Mladic’s son, is routinely searched at airports and his computer business clients have been pressured to break contracts, Mr. Saljic added. Darko’s wife, Biljana, was recently fired from a position at the state telecommunications company.

“They want to destroy the family,” Mr. Saljic said, noting that relatives sought a court order to declare him dead to relieve pressure. Prosecutors say the family was really trying to recover assets, including a $50,000 pension, frozen by the state.

Yet some friends insist that Mr. Mladic is indeed dead, having committed suicide to foil the manhunt, or that he will choose to take his life if he cannot thwart an attempted arrest.

The Serbian authorities say that regardless of how the European Union treats Belgrade’s application, they will press for an arrest. “Serbia will bring its international obligations to completion,” Mr. Tadic, the president, wrote in response to written questions.

On a recent, misty, gray afternoon in Srebrenica, rows of marble tombstones were mixed with freshly turned red dirt.

The remains of victims — heads, arms, legs, scattered and concealed by Bosnian Serbian forces — are still being discovered 15 years after the killings.

"Fat Bear" speaks

by Joshua Keating

2 people liked this

Kim Jong Il's casino and Disneyland-loving son Kim Jong Nam is back in the headlines after kinda, sorta opposing his family's succession plans in an interview with the Japanese media:

Speaking in Korean, he told Japan's TV Asahi, in an interview from Beijing aired late Monday and Tuesday, that he is "against third-generation succession," but added, "I think there were internal factors. If there were internal factors, (we) should abide by them."

"I have no regrets about it. I wasn't interested in it and I don't care," Kim said, when asked whether he is OK with the succession plan.

Kim said he hopes his brother will do his best to bring abundance to the lives of North Koreans and that he stands ready to help from abroad, according to a dubbed Japanese-language version of his remarks.

Kim Jong Nam was once considered the favorite to succeed his father but fell out of favor after he was caught trying to enter Japan with a fake Dominican passport bearing the name Pang Xiong, which means “Fat Bear” in Chinese.

There's also a middle son, Kim Jong Chul, who Dear Leader reportedly simply derides as "girlish."

Oct 12, 2010 10:11 AM

Aung San Suu Kyi to boycott poll

by Joshua Keating

Despite the fact that she has apparently been given authorization to vote in Burma's upcoming presidential election, democracy leader Aung San Suu Kyi says she's not planning on participating:

Her National League for Democracy (NLD) had already decided to disband to avoid having to expel Ms Suu Kyi and other detainees under strict electoral laws.

Our South East Asia correspondent Rachel Harvey says her decision not to vote may further encourage other NLD supporters to follow her lead, come election day.

That in turn will infuriate the current military leadership, she says.

"The NLD will not compete so she (Suu Kyi) said she has no party to vote for even if she is allowed to vote. As the NLD is not participating in the election, she will not vote," said Nyan Win.

Burma's upcoming election and the sort-of-but-not really transition to civilian rule appear to be a sham so blatant that one wonders why they're even going ahead with it. The poll certainly won't do much for the regime's international legitimacy. Is anyone in Burma buying it?

Oct 13, 2010 10:02 AM

FP passport

Korean Idol singers get their G-20 on

http://blog.foreignpolicy.com/posts/2010/10/21/korean_idol_singers_get_their_g_20_on

Posted By Joshua Keating Thursday, October 21, 2010 - 5:37 PM Share

I don't believe that anyone in history has ever used the phrase "Y'all ready for this" in reference to a debate on exchange rates and monetary policy... until now.

The South Korean Presidential Commission for the G-20 Summit is currently hosting the above video on its YouTube Channel featuring Korean Idol contestants welcoming the world to Seoul with a blast of Black Eyed Peas-esque K-Pop.

I like the enthusiasm, but lyrics like "On and on and on, we're gonna party" make me think that South Korea is either overselling this summit a little bit or they've got something very interesting planned.

Hat tip: Clark Gascoigne

restore sanity

(to me ...)

ordered knit hat.

In passing: Louis Henkin - Lou Henkin

Louis Henkin (1917-2010)

by Harold Hongju Koh

2 people liked this

by Harold Hongju Koh

[Harold Hongju Koh is the Legal Adviser, United States Department of State; previously he was Martin R. Flug ’55 Professor of International Law and Dean, Yale Law School (2004-09), as well as U.S. Assistant Secretary of State for Democracy, Human Rights and Labor (1998–2001). This tribute is adapted from "The Future of Lou Henkin’s Human Rights Movement," Columbia Human Rights Journal (2007).]

Lou Henkin, who died today, was my hero. He was one of the few truly great men I have ever met. During his six decades at the State Department, Penn, and Columbia Law School, Lou shaped modern international human rights law. In his years as an international lawyer, there was no important issue on which he did not take a stand. One measure of his influence is that every human on this planet has found some shelter or affirmation in his ideas. His commitment for human rights universalism came through in The Rights of Man Today; his passion for the rights of aliens and refugees in The Constitution and United States Sovereignty: A Century of “Chinese Exclusion” and Its Progeny, 100 Harv. L. Rev. 853 (1987). As a framer of the Refugee Convention and U.S. member of the Human Rights Committee of the International Covenant on Civil and Political Rights, he fought for human rights not just in the academy, but in the trenches.

Lou dreamed of a world where the executive branch would use diplomacy and compliance with international law to promote global cooperation; where legislatures would maintain our compliance with our international obligations; where the courts would pay “decent respect to the opinions of mankind;” and where civil society would monitor our leaders and hold them accountable. In each of these areas, Lou did foundational work. As a law student, I first read Foreign Affairs and the Constitutionand saw new vistas opening from Lou’s crystalline analysis. As a graduate student studying international relations, I read How Nations Behave and paused over “the sentence that launched a thousand articles”: “It is probably the case that almost all nations observe almost all principles of international law and almost all of their obligations almost all the time.” Id. at 47 (2d ed. 1979) (1968). Lou’s thought pushed me toward the question–why do nations obey international law– that has since occupied my career.

I first saw Lou in the flesh thirty years ago, at D.C. ‘s Mayflower Hotel where he was running a meeting of theRestatement (Third) of Foreign Relations Law as the American Law Institute’s Chief Reporter. Like Daniel in the lion’s den. Lou was standing amid perhaps one hundred lawyers, each billing $500+ an hour, who were ferociously criticizing the Restatement’s expropriation provisions. After one particularly savage exchange, Lou turned to the speaker and said: “That may be what your clients pay you to say, but that’s not the law, and I won’t say it.”

At that moment I realized that what made Lou a true hero was not just his brilliance and scholarship, but his utter incorruptibility. For if Lou said it, people knew it must be true, because there was no one smarter, and because there was no one more honest. When I was a minority professor in my first year of teaching, the first person who invited me to speak on a scholarly panel was the great Lou Henkin. Once I finally met him, I realized that Lou was not one of those people who loved human rights, but hated human beings. I was as touched by his personal kindness, as by his clarity of thought. He regularly reached out to the underdog, the unnoticed, the unknown.

When I heard of his passing earlier today, I remembered Lou walking through the meadows of Aspen, with his dear friend, Justice Harry Blackmun, debating the right to privacy. And if you ever wanted to know what love looks like, imagine Lou and his beloved partner Alice, strolling in the sunset at Wye Meadows, arm in arm, talking about international human rights.

In his dedication to How Nations Behave, Lou remembered his own father with the words of the Psalms. Today, let us remember our greatest international lawyer the same way: as a simple man, an authentic hero “Who All His Days Loved Law, Sought Peace and Pursued It.”

http://opiniojuris.org/2010/10/15/louis-henkin-1917-2010/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed:+opiniojurisfeed+(Opinio+Juris)

2010. 10.15

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As Herald Koh was pushed toward the question - why do nations obey international law - and came up with four levels by analogy with "fastening seatbelt" in his scholarly piece, I would be pushed toward to a dumb question - what grows Lou to be such a utter incorruptibility? -strolling with his beloved partner in the sunset at Wye Meadows, arm in arm, and his tribute to his own father

it might be true of Herald Koh as well.

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http://intlawgrrls.blogspot.com/2010/10/in-passing-louis-henkin.html

Posted by Diane Marie Amann at 4:48 PM

We note with sadness the passing of Louis Henkin (right), who died this morning at age 92.

Lou, as some of us were honored to call him, may not have been much taller than I, but he was a true giant in our field -- in international law, particularly as it interrelates with the constitutional law of the United States.

I first met Lou soon after I began teaching at the University of California, Davis, School of Law; I was privileged to serve as a moderator when ourJournal of International Law & Policy held a symposium to mark the 2d edition of Foreign Affairs and the Constitution (1997), one of Lou's many landmark books. His kindness and erudition were evident, as was the high regard of the assembled conference participants.

A year or two later, during an annual meeting of the American Society of International Law -- for which he served as President from 1994 to 1996 -- I was standing at a D.C. streetcorner, patiently waiting for the traffic signal to change. "You're obviously not from New York," came a voice from behind, and soon Lou, by then in his 80s, strode past me and safely crossed the empty road without regard for the red light.

Lou, he was a New Yorker.
Though born on Nov. 11, 1917, in what is now Belarus, he was resident in New York's Lower East Side by his 7th birthday, his family having fled anti-Jewish agitation in their homeland.
Following undergraduate studies at New York's Yeshiva University and law studies at Harvard, he clerked first for 2d Circuit Judge Learned Hand, then for Supreme Court Justice Felix Frankfurter. He served in the Army during World War II, then worked at the U.S. Department of State, eventually arriving at Columbia Law School in 1956. There he undertook a truly stellar career in international law, marked by, among many other things, his service as Reporter of the Restatement (Third) of the Foreign Relations Law of the United States (1987). Many more career details may be found in this obituary at Columbia's website.

A last memory:
On one of the too-few opportunities I had to talk with Lou, we discussed a then-forthcoming casebook for which he was the 1st-listed author. He noted with pride that he had succeeded in naming the book, simply, Human Rights. No "international" to modify -- perhaps, implicitly to undercut -- what he saw as the chosen words' fundamental, universal essence.

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“The memory of the righteous is a blessing.” My fondest memory of Lou is, in the late 1980s and early 90s, occasionally running across Lou and Alice walking hand in hand on the streets of the Upper West Side near Columbia. My wife once said after we happened to see them on Broadway, I hope we can be like that.

10.14.2010
at 5:39 pm ESTKenneth Anderson===========

Reading for tomorrow's class

Just kidding ...

Enjoy sleeping in late tomorrow! Then get to work on those papers!!

MW

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I've never seen such a cute professor ...

CIA Escalates in Pakistan

http://online.wsj.com/article/SB10001424052748704029304575526270751096984.html?mod=WSJ_newsreel_world

OCTOBER 2, 2010

Pentagon Diverts Drones From Afghanistan to Bolster U.S. Campaign Next Door

By ADAM ENTOUS, JULIAN E. BARNES And SIOBHAN GORMAN

Reuters

Onlookers in Pakistan's Sindh province after suspected militants set fire to tankers Friday carrying fuel for NATO troops in Afghanistan.

WASHINGTON—The U.S. military is secretly diverting aerial drones and weaponry from the Afghan battlefront to significantly expand the CIA's campaign against militants in their Pakistani havens.

Tensions between the US and Pakistan after a key supply route was closed following NATO air strikes. Video courtesy of Reuters.

The shift in strategic focus reflects the U.S. view that, with Pakistan's military unable or unwilling to do the job, more U.S. force against terrorist sanctuaries in Pakistan is now needed to turn around the struggling Afghan war effort across the border.

In recent months, the military has loaned Predator and Reaper drones to the Central Intelligence Agency to give the agency more firepower to target and bombard militants on the Afghan border.

The additional drones helped the CIA escalate the number of strikes in Pakistan in September. The agency averaged five strikes a week in September, up from an average of two to three per week. The Pentagon and CIA have ramped up their purchases of drones, but they aren't being built fast enough to meet the rapid rise in demand.

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The escalated campaign in September was aimed, in part, at disrupting a suspected terrorist plot to strike in Western Europe. (==>. something to do with the alert by state dept. today? ) U.S. officials said Friday their working assumption is that Osama bin Laden and other senior al Qaeda operatives are part of the suspected terror plot—or plots—believed to target the U.K., France or Germany. They said they are still working to understand the contours of the scheme.

U.S. officials say a successful terrorist strike against the West emanating from Pakistan could force the U.S. to take unilateral military action—an outcome all parties are eager to avoid.

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Although the U.S. military flies surveillance drones in Pakistan and shares intelligence with the Pakistani government, Pakistan has prohibited U.S. military operations on its soil, arguing they would impinge on the country's sovereignty. The CIA operations, while well-known, are technically covert, allowing Islamabad to deny to its unsupportive public its involvement with the strikes. The CIA doesn't acknowledge the program, and the shift of Pentagon resources has been kept under wraps.

Pakistan has quietly cooperated with the CIA drone program which started under President George W. Bush. But the program is intensely unpopular in the country because of concerns about sovereignty and regular reports of civilian casualties. U.S. officials say the CIA's targeting of militants is precise, and that there have been a limited number of civilian casualties.

U.S. officials said there is now less concern about upsetting the Pakistanis than there was a few months ago, and that the U.S. is being more aggressive in its response to immediate threats from across the border.

"You have to deal with the sanctuaries," Senate Foreign Relations Committee Chairman John Kerry (D., Mass.) said after meeting with Pakistan's foreign minister, Shah Mehmood Qureshi, in Washington this week. "I've pushed very, very hard with the Pakistanis regarding that."

Tensions between the U.S. and Pakistan have been exacerbated in recent days by a series of cross-border attacks by North Atlantic Treaty Organization helicopter gunships. Islamabad responded by shutting a key border crossing used to supply Western troops in Afghanistan and threatening to halt NATO container traffic altogether. On Friday, militants in Pakistan attacked tankers carrying fuel toward another border crossing, in another sign of the vulnerability of NATO supply lines crossing Pakistani territory.

Because U.S. military officials say success in Afghanistan hinges, in large part, on shutting down the militant havens in Pakistan, the surge in drone strikes could also have far-reaching implications for the Obama administration, which is under political pressure to show results in the nine-year Afghan war and has set a goal of beginning to withdraw troops in July.

The secret deal to beef up the CIA's campaign inside Pakistan shows the extent to which military officials see the havens there, used by militants to plan and launch attacks on U.S. and NATO troops in Afghanistan, as the primary obstacle to the Afghan war effort.

"When it comes to drones, there's no mission more important right now than hitting targets in the tribal areas, and that's where additional equipment's gone," a U.S. official said. "It's not the only answer, but it's critical to both homeland security and force protection in Afghanistan."

The idea of funneling military resources through the CIA was broached during last year's Afghanistan-Pakistan policy review, officials say. The shift in military resources was spearheaded by CIA Director Leon Panetta and Defense Secretary Robert Gates, a former CIA director himself. It also has the backing of the chairman of the Joint Chiefs of Staff, Adm. Mike Mullen, and the new commander of allied forces in Afghanistan, Gen. David Petraeus.

Mr. Gates helped smooth over initial dissent among some at the Pentagon who argued that the drones were needed in Afghanistan to attack the Taliban.

Since taking command in Afghanistan in July, Gen. Petraeus has placed greater focus on the tribal areas of Pakistan, according to military and other government officials.

The U.S. military has been focused on trying to persuade the Pakistan army to step up its actions against militants in the tribal areas. That effort led to operations in some areas, but not North Waziristan, which is used by the Haqqani militant network to mount cross-border attacks and is believed by U.S. officials to be the hiding place of senior al Qaeda leaders.

Pakistan says its army has been spread thin, limiting its ability to carry out additional large-scale operations. Its resources have also been diverted to responding to the worst flooding in the country's history.

The U.S. now sees the need for a stronger American push in Pakistan because of the growing belief that Pakistan isn't going to commit any more resources to fighting militants within its borders, said a former senior intelligence official. The Pakistani military is tapped out, the former official said. "They've gone as far as they can go."

U.S. officials are also increasingly frustrated by what they see as Islamabad's double-dealing. Some elements of the country's powerful Inter-Services Intelligence agency continue to support the Haqqanis as a hedge against India's regional influence, and the government has rebuffed U.S. calls for a crackdown on the group.

Pakistani government officials have repeatedly denied that they provide any support to the Haqqanis and said their military is too overstretched to take them on directly in their North Waziristan base.

Gen. Petraeus has taken a hard line on the Haqqani network, calling them irreconcilable. He has also met with top Pakistani military leaders and presented intelligence tying the Haqqanis operating out of North Waziristan havens to attacks on U.S. and Afghan troops, according to a military official.

The Pentagon has allowed loaned equipment and personnel to the CIA several times since the Sept. 11, 2001, attacks, according to former intelligence officials.

In addition to drone aircraft, officials said the military was sharing targeting information with the CIA from surveillance over-flights