I am not going to explain in detail, i think you have misunderstood some concept.
So i am going to answer in key point for you in your argument.
But bereft of the ability to formallly and legally declare war upon a group -- such as AQ -- does not absolve the country of the responsibility of self defense. No citizenry will stand idle while its people are being killed just because there are no laws that would allow a formal declaration of war against a stateless group.
Of course a visiting force have the right of self defence, but what exactly contribute as a defensive strike/defensive posture?
When you are talking about self defence, the concept of self defence is minimal effort on providing security and safety on certain location that most likely your troop present. The term "Defensive Operation" would mean they are being on the reactive side of the scale.
I would considered that an operation to weed out insurgent a defensive operation, that i can accept. But if you ask me using a drone on a "
Pre-emptive" attack as a defensive operation, then, i would have to disagree.
You are treading into morally dangerous grounds.
First...I have yet to read any literature from any respected law sources, which includes human scholars, that would dispute the non-privileged status of an AQ member. The sources that I have read, all of them concurred that failure to comply to Geneva Convention III Article 4, largely by will and not by accident or incompetence, would initially immediately disqualify anyone from privileged combatant status. Al-Qaeda made it clear a long time ago that it would not respect the Law Of Armed Conflict (LOAC) which governs effectively enough how the Western countries wages war.
Second...Despite the fact that AQ is stateless and that rendered its fighters illegal combatants, what you are arguing is that as long as the host country is not at a formal state of war against US, we are morally and legally prevented from prosecuting AQ fighters. The 9/11 hijackers supposeldy lived and planned the operation from Germany, but it would not matter. The plot could have hatched from Taiwan or Japan or Great Britain or Timbuktu or even the Easter Islands. The host country could have been incompetent and unaware of AQ fighters in its territory or even collaborative with AQ, but as long as no formal state of war exists between the US and said host or hosts, there could be multiple acts of terrorism against American civilians and the US government would be morally and legally bound from pursuing AQ, worse since we would be absolutely dependent upon the good will of the host or hosts in order to exact justice via the common crime investigative path.
In short...You want US to be like Israel, living with the constant threat of terrorism and its horrors where the terrorists could come from Canada or Mexico and we would not be allowed to retaliate.
You will not find anything in anywhere pointing out that AQ operative is anything but illegal combatant, however, that would not mean US have a legal right to engage them, in a pre-emptive manner. (also since i am a new member, i cannot post any link)
As i said, US and ISAF force staying on Afghanistan by the good grace of Afghanistan government, that would make them a visiting force. The problem is, at a Civil War situation like this, it is established that the current civil war in afghanistan would only have 2 belligerents, that's the afghanistan government and the AQ. If (I said if, because this is a point we should really argue) the US is not a co-belligerent anymore, any offensive operation conducted by the US is not legal as per Afghani law
And the bold part very distrubing. If i understand them clearly, you are advocating a right to strike a non-belligerent, non-sovereign country in any attemp agaisnt an enemy of states. That's the same as saying, if Canada is harboring a terrorist organisation to the United States, US have the right to strike deep in Canadian soil for that particular terrorist group with or without Canadian authority cooperatiion?
Then how are we to consider a civil war when Geneva Convention III Art. 4 say nothing about citizenship?
Take the China-Taiwan divide, for example. On both sides are men-at-arms and each side largely obeyed GC III. For China, this divide is an internal matter, or a civil war, so how can a country formally declare war against itself? If you demand that a formal state of war must exist in order for a combatant to be a 'privileged combatant', how is mainland China to regard Taiwan? A 'terrorist' state? Why not the reciprocal and China be regarded as a 'terrorist' state? China called Taiwan a 'rebellious' province. So if Taiwan is a province then that mean all Taiwanese are Chinese citizen and how then are we to view Taiwanese soldiers since it is not possible to declare war agaisnt self?
In the American Civil War, blacks were not citizens but the blacks who fought for the Union side were legal combatants by virtue of them conforming to GC III, even though no formalization of the GC III existed back then. The American Civil War was not an international conflict because no countries formally accepted envoys from the Confederate States of America as ambassadors, in short, the CSA was like Taiwan in China's view, a 'rebellious' region, or a 'belligerent power' that contested the authority of the US government. A formal state of war was not declared. So in your flawed argument, that made CSA soldiers what if not 'privileged' combatants?
As far as GC III Art. 4 goes, compliance mean 'legal combatant' status. The further one strays the closer one becomes an 'illegal combatant'. Any other labels such as 'terrorist' or 'spy' or 'criminal' can only compound the severity of one's errors.
If an 'organized resistance' group, such as the many formed back in WW II in Nazi Germany occuppied countries, conformed to GC III Art. 4, members of said group will qualify as 'privileged' combatants. A resistance group could be formed while the country's regular armed forces are still trying to conduct its own combat operations, or the group could be formed after the collapse of the regular armed forces. But the group would NOT be stateless. This cannot be said for AQ, which is stateless and its cells are often formed inside host countries who are usually ignorant of the existence of the cells.
Al-Qaeda is not Greenpeace, the latter also stateless group. Greenpeace members do not seek to subvert the existing political structrures of the host countries that they live in and depends upon for moral and financial support from the citizenry. Greenpeace members will have no issues in displaying their 'colors' and/or to openly proclaim what they are. On the other hand, AQ does seek to subvert the existing political structrures of the host countries and by its stated mission, it earned the military enmity of host countries. If the host country have a clear military superiority over an AQ cell, and host countries usually do, then in order to continue to exist and function, AQ members have no choice but to NOT conform to GC III Art. 4, rendering them 'illegal combatants' anyway, irrespective of the citizenships of its members.
So if there is an AQ cell in the US, that would make AQ a 'belligerent power' inside US territory, equivalent in principle to the CSA Army of the American Civil War. But just as how some US citizens were treated as 'illegal combatants' during the American Civil War, US citizens who are AQ members can also be treated as 'illegal combatants' in this new American Civil War. And if you insists that citizenship, not allegiance, matters in how to treat a combatant, then you must show supporting legal arguments that the entire CSA Army, of the American Civil War, was composed entirely of civilians, effectively casting the Union Army en masse violators of the LOAC.
Again, i do think you have mistaken my point.
In a Civil War, when an enemy that does not present itself in an regulatory fashion, only then it would be constructed as "Legal Combatant"
In the Chinese Civil war case, both Taiwan and Mainland China claim the other sovereign, and both side claim the other side "Occupation Force" while the Taiwanese government claim the Chinese PLA occupying their soil in mainland China, and the Chinese PLA claim Taiwan as a province and that the Taiwanese Force occupied their province.
The key important here is not the Citizenship (Ableit the both side does not regonize the other Nationality) but rather both side is a regulated force (PLA and ROC military) and they both, in international law term, were see as a regulated militia, hence the legitimacy.
in the US Civil war case, indeed Black does not have citizenship to the US, but both side using black soldier to fight, the problem is, as i mentioned in previous post. It's up to any organisation itself to recruit anyone, having citizenship or not, into their rank and if that was a regulated militia (With structure, distinctive uniform and alligence), only then those force would become legitimate.
However, in both case, say a third party national (TPN) exist, their relation to other third country national (Other than their own country) would not have any co-relation. Say for example, in Chinese Civil war case, if an American is fighting on behalf the PLA government, for which the US is neutral but have force present in Taiwan, would that equate to a legal "Go-Ahead" for the American Government in Taiwan to pre-emptively kill the US Citizen fighting for PLA?
This is
THE question for this topic. Tradition wisdom suggest that the US do not have right to kill such a person unless that person were caught in the middle of firefight, then compelling law applies (As to right of self-defence), but if US have foreknowledge and know that he is in a location that did not have immenent thread on their own personel, they do not have the casus belli to engage that combatant, regardless if he is legal or illegal combatant, especially when the combatant is in a third country that is out of the scope of any current warfare.
As i said, if the situation is compelling, then even if US is not a co-belligerent, it would still justified the strike by means of self defence. However, if that is not a set of an legal application, but the act of killing would be extra-judiciary.
The CIA is an agent of the US government, so let us dispense with it and just acknowledge the US government.
Question: Does the US have the legal authority to strike at an enemy when that enemy is inside a supposedly neutral country?
Answer: Yes, according to...
As long as Articles 2 thru 5 are respected by Yemen, the US must and will respect Article 1: The territory of neutral Powers is inviolable.
If Yemen fails to enforce its duties either thru will or incompetence, that failure opened the door to both sides to conduct their respective methods of warfare inside Yemeni territory. If the US have rules on how we should treat US citizens when they are ideological, political, and finally military hostiles to US, it is a matter of our generosity, not of how the LOAC expects warring powers to behave.
Neutrality is not an option when your way of life is threatened. Even at this day and age, this kind of political correctness is not accepted.
You cannot quote neutral law as a source when we are yet to establish the
intent of belligerency between US and AQ operative, which is the core problem of the topic at hand. You assumed the belligency exist between US and AQ operative, which is yet to be debated.
If US is indeed a Co-belligerent of the War between Afghanistan Government and the AQ dissident, then the neutrality act will felt thus, given if Yemen does not complies to the ruling, an act of punishment could be established
However, if the belligerency does not exist, the neutrality act does not applies to Yemen
Also, CIA asset are bounded by CIA charter so that no asset are used on Domestic capacity or on any US National. Unless the subjects and event are esponiage in nature. AQ is not a spy agency, it does not establish a relation from esponiage and terrorist activities.
And US military are not to act on US citizen unless it's in a state of emergency, it was also in their charter.
The AVG was a cover for the US to militarily enter China against Imperial Japan. Yes, those Americans had to resign their memberships in the US military, but if you want to argue that the AVG as an organization is not a mercenary outfit, then at least its members are mercenaries under the Geneva Convention...
At best, the AVG and the French Foreign Legion treads the grey area between accepted military groups under the hierarchies of the greater military and having a mercenary status. The US military allows non-citizens to enlist but their occupations and security clearances will be restricted.
For the FFL, upon enlistment, the soldier do not swear allegiance to France but only to the Legion. France gives orders to the Legion and it ends there. How the Legion executes those orders is up to the Legion's leadership.
For the AVG, the US via General Stilwell's analyses knew of the Chinese military institutional flaws, inefficiencies, and general moral lapses. Below Chiang, soldiers held their allegiances for their local commanders, who may switch sides as all knew they could, taking their soldiers with them. The AVG had to remain institutionally and operationally independent as much as possible if the US was to have any military influence at all in China against Imperial Japan. If anything, the AVG was more removed from the Chinese military than the FFL could be from the French military. The AVG was a clear cover for US military presence in China for one military event: WW II. The FFL was a unit created by France to serve France's interests for perpetuity.
The AVG was very much a mercenary unit.
AVG does not meet the requirment of e and f on article 47 as part of mercenary charter. They do are a member of the armed force of the party to the conflict (ROC) and they do sent by a state of the party to the conflict on official duty.
FFL swore their alligence to the Legion the same way US national guard swore their alligence to the US States (Instead of Federal Government or America) However, US National guard, as well as Legion have a clause that the President would activitate it to protect their respective country and serve on their respective country, as per Legionnaire Code of Honour art 1
Art. 1 – Légionnaire, tu es un volontaire, servant la France avec honneur et fidélité.
That translate to, Legionaire, you as an volunteer, servant of France with Honour and Fidelity.
At best, the AVG pilot can only say as an advisor to ROC, notice that they do not engage any offensive combat until US declare war on Japan. Regardless of how detached, they are still part of ROC Armed force. That part is the only parts that's important. Indeed, every body know they are only a cover, but that would be enough to class them as legal combatant by law of war, unless you can find anything regarding them not fitting the Rule of Law, that would be the case for me.
In all, going abck to topic, you have assumed US was still a co-belligerent in the conflict between Afghanistan and AQ Operative. That's what you build on and discuss on the issue with that assumption. You spend a lot of time to argue whether or not AQ is legal or illegal combatant but you did not focus on the part on whether or not US is still a co-belligerent on the on-going conflict
Now, i am not a judge and i will not say whether or not your assumption is correct or not, for me i would be more willingly to accepted that if that was the case, then all your agrument would be correct, but the problem as far as i can see is, this is not yet the case, and if you have to debate that, you need to first established that US is still a co-belligerent in the conflict.
Most country treat terrorist attack on their soil as a part of Law Enforcement operation, whenever there are terrorist attack in any part of the world, you would not see Military is there to investigate the attack, you will see law enforcement official. Now i don't know whether or not it is the same in the United States, but for me, terrorism is not a casus belli for war.
When i was deployed to afghanistan as a Swedish Contribution to ISAF, they make quite sure that we can only engagement in combat on the permise of self defence. That we should have no part on offensive operation unless request upon by afghanistan government or ISAF command.
The baseline of war is, can ISAF/US force count as belligerent? My argument is as follow
1.) US Force declare war on Afghanistan and their respective government, the casus belli was expired when the Taliban was rooted and AQ became stateless, accord to both Law of War, International Humanitarian law, Customary law and Compelling law, the state of war ceased to exist between US and Afghanistan, to the extend, AQ operative.
2.) US force cannot declare war again on Taliban/AQ operative as they are stateless.
3.) US/ISAF force are of visiting force, not an invasion force nor occupation force, while AQ operator does not represent a sector of taliban government, they are illegal combatant in the civil war between Afghanistan and Taliban
Based on the argument above, in my opinion that the killing by drone in Yemen is illegal because
1.) There are no State of War exist between US and AQ (A war cannot be established wih stateless entity)
2.) Yeman is a sovereignty that do not have on-going/outstanding belligerency with the US
3.) The use of drone on an pre-emptive attack does not consider as a defensive operation.
This is my argument.
