Program on Humanitarian Policy and Conflict Research (HPCR) Harvard University

June 15, 2011

Beyond the Attack on Bin Laden: Implications for Regulating Future Military

Operations

Beyond the Attack on Bin Laden: Implications for Regulating Future Military

OperationsJune 15, 2011

Live Web Seminar

Ms. Naz ModirzadehAssociate DirectorProgram on Humanitarian Policy and Conflict Research at Harvard University

Mr. Dustin A. LewisProgram AssociateProgram on Humanitarian Policy and Conflict Research at Harvard University

Beyond the Attack on Bin Laden: Implications for Regulating Future Military

Operations

The raid by U.S. Special Forces in Abbottabad, Pakistan that killed Osama Bin Laden raised a number of legal questions that are likely to have far-reaching implications for future operations. This live web seminar will focus on the legal issues that arise in situations where a decision is made to target individuals – potentially outside the immediate theater of hostilities – using military force. Analysis of these issues requires determination of what legal framework(s) properly regulates such use of force. This live web seminar will identify and examine such questions, including: Legal justifications and counterarguments for military

intervention targeting members of armed groups on the territory of another state;

Applicability of international humanitarian law and/or human rights law to such operations;

The implications of such operations for the evolving concept of direct participation in hostilities by civilians; and

Whether there is a need for new norms to regulate such counterterrorism operations.

Beyond the Attack on Bin Laden

Vijay PadmanabhanCardozo School of Law

Shuja NawazSouth Asia Center at The Atlantic Council

Mary Ellen O’ConnellUniversity of Notre Dame Law School

Michael N. SchmittDurham Law School

Panelists

Vijay Padmanabhan is a Visiting Assistant Professor at the Benjamin N. Cardozo School of Law, and will be joining the faculty at Vanderbilt University Law School as an Assistant Professor this fall. Professor Padmanabhan teaches international law, international humanitarian law and human rights law, and has published academic and opinion pieces on these subjects.

Prior to entering legal academia, Professor Padmanabhan was an attorney-adviser in the Office of the Legal Adviser at the US Department of State. He was the department’s chief counsel on Guantanamo and Iraq detainee litigation, as well as other litigation implicating the law of war, collaborating with the Departments of Justice and Defense on all aspects of the Supreme Court litigation in Hamdan, Boumediene, and Munaf/Omar. He also advised the Department on issues in multilateral organizations implicating the law of war and human rights law.

Professor Padmanabhan received his J.D. magna cum laude from New York University. He clerked for Judge James L. Dennis of the US Court of Appeals for the Fifth Circuit. He received his undergraduate degree from Georgetown University.

The United States is an armed conflict with al Qaida

U.N. Charter Article 51 Armed Attack: 9/11 attacks Non-State actor? ICJ: Wall Case

Problems with the ICJ approach: Historical and Practical

Inconsistent with international and domestic responses to 9/11: UNSCR 1368 & 1373 NATO North Atlantic Council Sept. 12

resolution AUMF and Hamdan

Vijay Padmanabhan

AQ may be targeted in Pakistan

Hot Battlefield/Cold Battlefield U.N. Charter article 2(4) Exceptions:

Consent Security Council Authorization Self Defense

State is unable or unwilling to act: Pakistan ISI involved in sponsoring terrorism Tipped off earlier drone targets Bin Laden present near Rawalpindi

Vijay Padmanabhan

Bin Laden was a military objective

Who is a legitimate military target in conflict with al Qaida? Distinction ICRC DPH Study: Continuous Combat Function

test D.C. District Court: Command Structure test Al-Bihani: “Part of or supporting AQ forces”

Proportionality: Helicopter operation vs. bomb; minimal civilian casualties

McCann? No lethal force IF lesser means to achieve objective are feasible: MET

Vijay Padmanabhan

New Law?

Bin Laden is the easy case

Drone operations?

Fill the gaps!

Vijay Padmanabhan

Shuja Nawaz, a native of Pakistan, is a political and strategic analyst and writes for leading newspapers and The Huffington Post, and speaks on current topics before civic groups, at think tanks, and on radio and television. He has worked on projects with RAND, the United States Institute of Peace, The Center for Strategic and International Studies, The Atlantic Council, and other leading think tanks on projects dealing with Pakistan and the Middle East. In January 2009 he was made the first

Director of the South Asia Center at The Atlantic Council of the United States.

Educated at Gordon College, Rawalpindi, where he obtained a BA in Economics and English Literature and the Graduate School of Journalism of Columbia University in New York, where he was a Cabot Fellow and won the Henry Taylor International Correspondent Award, he was also a member of the prize-winning team at Stanford University’s Publishing Program. He was a newscaster and producer for Pakistan Television and covered the 1971 war with India on the Western Front. He has worked for the World Health Organization and the New York Times and has headed three separate divisions at the International Monetary Fund. He was also a Director at the International Atomic Energy Agency in Vienna.

His latest book is Crossed Swords: Pakistan, its Army, and the Wars Within (Oxford University Press 2008), available on the web and from leading booksellers worldwide. He is also the author of FATA: A Most Dangerous Place (CSIS, Washington, D.C., January 2009).

The Future of Military Operations

US heavily depends on Pakistan for ground and air supply routes to Afghanistan; Air is critical but less understood

Co-dependence is key: Pakistan heavily invested in US equipment, training, and cash payment under Coalition Support Funds

Once CSF ceases, Pakistan may have a hard time financing its internal war against a homegrown and growing insurgency

Abbottabad raid was inside Pakistan proper, not “ungoverned space” such as FATA

Obama committed to going after high value targets: expect more if intel gives him confidence he will succeed

US-Pak relations: A train wreck in the making?

Shuja Nawaz

Mary Ellen O’Connell holds the Robert and Marion Short Chair in Law and is Research Professor of International Dispute Resolution—Kroc Institute for Peace Studies at the University of Notre Dame. Her research is in the areas of international legal theory and international law on the use of force. She is the author or editor of

numerous books and articles on these subjects, including, the What is War? An Investigation in the Wake of 9/11 (Martinus Nijhof, forthcoming 2011), The International Legal System, Cases and Materials (with Scott and Roht-Arriaza, Foundation 6th ed. 2010), International Law on the Use of Force, Cases and Materials (Foundation 2d ed. 2009) and The Power and Purpose of International Law, Insights from the Theory and Practice of Enforcement (OUP 2008). She chaired the Use of Force Committee of the International Law Association from 2005 to 2010 and is currently a vice-president of the American Society of International Law. From 1995-1998, Professor O’Connell was a professional military educator for the Department of Defense in Garmisch-Partenkirchen, Germany.

The Law, Policy and Morality Against “War on Terrorism”

The Bush administration’s declaration of a “war on terror” and the Obama administration’s “armed conflict against al Qaeda…and associated forces” are a radical departure from a century of U.S. counter-terrorism policy

A decade after this radical departure, it is time to return to strict law compliance

The law prohibits the use of major military force on the territory of another state, unless:– the state is responsible for a significant armed

attack– has clearly requested assistance in a civil war– the Security Council has authorized the forceMary Ellen O’Connell

The Law, Policy and Morality Against “War on Terrorism,” Cont’d

There is no international legal right to use force against the territory of a state because it is “unable or unwilling” to use military force against terrorist or militant groups

It is counter-productive to demand a right to use force against such “unable or “unwilling” states—military force is not effective in the suppression of terrorism

It is immoral to kill except in situations of real necessity—on a battlefield or to save a human life immediately

Authority for these points is found in: Mary Ellen O’Connell, The Choice of Law Against Terrorism, 4 J. NAT’L SEC. L. & POL’Y 343 (2010), available at http://ssrn.com/abstract=1654049

Mary Ellen O’Connell

Professor Michael N. Schmitt joined the Durham Law School faculty in 2010 as Chair of Public International Law. He was previously Dean of the George C. Marshall European Center for Security Studies in Garmisch-Partenkirchen, Germany, where he had served as Professor of International Law since 1999.

From 2007 through 2008, he occupied the Charles H. Stockton Visiting Chair of International Law at the United States Naval War College. He was the 2006 Sir Ninian Stephen Visiting Scholar at

Melbourne University and has been a Visiting Scholar at Yale Law School (1997-98). Before joining the Marshall Center, Professor Schmitt served 20 years in the United States Air Force, specializing in operational and international law. He is presently a Senior Fellow at the TMC Asser Institute in The Hague.

Professor Schmitt’s works on law and military affairs have been published in Belgium, Chile, Germany, Israel, Italy, Norway, Peru, Sweden, Switzerland, the Netherlands, the United Kingdom, and the United States. He is the General Editor of the Yearbook of International Humanitarian Law and serves on the editorial boards of the International Review of the Red Cross, International Peacekeeping, the Journal of Military Ethics, Connections, Journal of International Humanitarian Legal Studies, and the International Humanitarian Law Series (Martinus Nijhoff). He is currently directing a cooperative project between Durham University and the Cooperative Cyber Defence Centre of Excellence on the international law applicable to computer network attack warfare.

Questions and comments

Vijay PadmanabhanCardozo School of Law

Shuja NawazSouth Asia Center at The Atlantic Council

Mary Ellen O’ConnellUniversity of Notre Dame Law School

Michael N. SchmittDurham Law School

Panelists

HostsNaz Modirzadeh & Dustin

A. Lewis

ProducerElizabeth Holland

Technical DirectorJames Brockman

Production TeamChristina Blunt & Anaïde

Nahikian

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