Monday, January 6, 2020

War And Its Law

     Amid all the caterwauling from the Left about how awful it was that President Trump dared to execute Qassem Soleimani, the most fatuous emissions probably came from Speaker of the House Nancy Pelosi, who called the strike “unauthorized,” and therefore illegal:

     The Administration has conducted tonight’s strikes in Iraq targeting high-level Iranian military officials and killing Iranian Quds Force Commander Qasem Soleimani without an Authorization for Use of Military Force (AUMF) against Iran. Further, this action was taken without the consultation of the Congress.

     As it happens, there was authorization that covered the strike, though Pelosi, being rather addled at this point in her degeneration, has probably forgotten it:

     Barack Obama’s former DHS Secretary told Chuck Todd on ‘Meet the Press’ that Qassem Soleimani was a “lawful military objective” and the President had “ample domestic legal authority to take him out.”

     Former Secretary Jeh Johnson leaves open the possibility that the terror general wasn’t a terrorist, but even then, he states he was a “lawful military target.”

     Soleimani and his Quds Forces were declared terrorists by the United States in 2007 and Barack Obama never sought to change the designation.

     So much for that. But beyond that, there is this: Iran has been at war with the United States, by declaration of its parliament, since 1979. During declared war, any recognized combatant anywhere is a lawful military target under the law of war as it’s been understood since the Treaties of Westphalia. Moreover, under those same understandings, which have been codified in the Geneva Conventions, one who makes war on non-combatants is a war criminal eligible for a battlefield execution – and Qassem Soleimani had provably done that on more than one occasion.

     But these observations invite further thought, specifically about the law of war and the principles behind it.

     Tom Kratman’s excellent novel A Desert Called Peace, which opens his Terra Nova / Carreraverse series, contains a great deal of pithy commentary on war and its law. The following passage is particularly relevant to the events of the week behind us:

     "As you probably know, there is, over on the continent of Taurus, a fairly new court, the Cosmopolitan Criminal Court, or CCC. This court purports to have universal jurisdiction over certain crimes, much as any nation's courts have jurisdiction over piracy at sea. Without going into the merits of this 'universal jurisdiction' here, let me ask you what the CCC could have done to you, or to the Sumeris, that was one whit worse than what was done here today? The answer, as I am sure you are all aware, is precisely nothing. Courts are for civilized circumstances where people can be deterred by punishment. There is nothing any court can do to anyone, and even what it could do it cannot do very quickly, that even begins to approach what we do to each other in war, routinely. The CCC, or any similar court, is toothless as far as furthering its stated purpose. It might be effective, mind you, at its true purpose which is undermining national sovereignty and the ability of the civilized world to defend itself from barbarism. That, however, is the subject for another day.
     "What is important for this day is that the law of war—customary, statutory, or common—cannot be enforced by any court, ever. Because we live in an anarchic system of sovereign states, and because the stakes in war are so high, the only thing that can enforce the law of war is the law of war itself. To do this it has one recourse: reprisal. Reprisal, which I am sure you are familiar with because Tribune Puente-Pequeño, your law of war instructor, told you about it— I've heard him, is a war crime, or conduct that would ordinarily be a war crime, but which becomes legal and legitimate in order to counter or deter an enemy from violating the law of war. It is all we have, all the world has, to make the law of war work.
     "Thus, I ordered you to reprise for the murder of our men. Thus," and here Carrera stopped for a moment and pointed skyward where three Turbo-Finch Avengers were winging it northward, "I have ordered leaflets prepared, in Arabic, to be dropped ahead of our forces, to let the enemy know what we have done and to explain to him the laws which he must follow in the future if he wishes to avoid a repetition. Thus," and his finger pointed at the pressies, still standing in clueless (which Carrera was certain was their natural state) shock (at being treated with open contempt), "I had those . . . people brought here so that they, too, can spread the word. Let everyone know that if you commit a crime against the Legio del Cid then punishment will be immediate and frightful."

     Perfect from first to last. Note especially Carrera’s observation that “we live in an anarchic system of sovereign states.” I’ve made the same comment:

     The States of Earth exist in an anarchic relation to one another. Each has its own regional code of law, which might differ markedly from all the others. Despite several thrusts at the matter over the centuries, there is no “super-State” to enforce a uniform code of law over them all. More, they view one another as competitors in many different areas; their populations and institutions are often in sharp economic competition with one another. Thus, they are often at odds. They resolve important disputes among them through negotiation or warfare.

     As war is a phenomenon that occurs between or among sovereign states – the key word here being sovereign — there is no alternative to warfare when negotiation fails. In the midst of a war already in progress, war itself is the enforcement mechanism for the law that remains.

     It simply cannot be otherwise.

     War, speaking in Westphalian terms, is an organized attempt by one state to impose its will on another through violence. In that regard it can seem distinct from what we call “terrorism,” which often appears divorced from the intentions or actions of any state. Yet the distinction is illusory. An organized force that declares itself, by word or by deed, to be above the penal laws that prevail in a given jurisdiction has declared itself, de facto, to be a sovereignty, and therefore unaccountable to the laws promulgated by others. Under circumstances entirely confined to the territory of the United States, we tend to treat persons who commit terrorist acts as simple criminals. When apprehended, they’re referred to the justice system. When such a force acts beyond our shores, we cannot take that approach. We must regard the actors just as we would a hostile sovereignty, and act accordingly: i.e., according to the laws of war.

     Let the execution of Qassem Soleimani, not the Obamunist kowtowing to and appeasement of those who hate us and wish us ill, serve as the pattern for future dealings with them. Either they will “get the lesson” or they will die – and in either case Americans’ interests will be properly served.

1 comment:

Oldfart said...

"War is politics by other means."

Sun Tzu