The Jordanian way
[ by Charles Cameron — hostage negotiations, a new take ]
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As Zen says:
Jordan just threatened to execute all their ISIS prisoners if Daesh kills their pilot. Guess the fooling around is pretty much over
— mark safranski (@zenpundit) January 30, 2015
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Okay, rule of law, much?
What are the angles here? What can we learn?
And will this work?
January 31st, 2015 at 5:03 am
Whether it will work may be secondary now. It is deep into the realm of emotion. They wanted a no quarter war and they got it.
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It occurred to me that this is a needed step in the fight against Daesh. The release of takfiri prisoners by Assad in Syria, by the breaking the walls campaign in Iraq and by the Muslim Brotherhood while they ran the show in Egypt all had the effect of supercharging Daesh and its ilk. Contrast that to what Daesh does when it takes over a place, it hunts down and kills all who, because of their history, may possibly oppose it. They know that those guys can’t come back on them if they are dead. There would have been no prisoner release by whatever means in Syria, Iraq and Egypt if there had been no prisoners to release. I doubt there will be many Daesh prisoners in the future.
January 31st, 2015 at 5:08 am
It worked for the KGB in Lebanon and for the GRU/Red Navy off the coast of west Africa.
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I think technically, the Jordanians pro forma gave their captives a court martial en masse and sentenced them all to death but not really in the spirit of the fair trial thing.
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This kind of reprisal is still allowed under the Laws of War in very exceptional cases, which arguably ISIS/Daesh meets due to it’s abhorrent prior conduct. There being no other way to rein in these maniacs, I think we ought to (carefully) endorse the Jordanian action as legitimate and necessary punitive measure for gross and ongoing violations of the Laws of War, international humanitarian law and the Genocide Convention. This issue has been addressed as recently as the Yugoslavian war crimes tribunal, so it is not some anachronism from Lord Kitchener’s day:
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https://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule145
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Five conditions must be met in order for belligerent reprisals against permitted categories of persons and objects not to be unlawful. Most of these conditions are laid down in military manuals and are supported by official statements. These conditions are:
(i) Purpose of reprisals. Reprisals may only be taken in reaction to a prior serious violation of international humanitarian law, and only for the purpose of inducing the adversary to comply with the law. This condition is set forth in numerous military manuals, as well as in the legislation of some States.[12] It is also confirmed in national case-law.[13]
Because reprisals are a reaction to a prior serious violation of international humanitarian law, “anticipatory” reprisals or “counter-reprisals” are not permissible, nor can belligerent reprisals be a reaction to a violation of another type of law. In addition, as reprisals are aimed at inducing the adversary to comply with the law, they may not be carried out for the purpose of revenge or punishment.
There is limited practice allowing reprisals against allies of the violating State but it dates back to the arbitration in the Cysne case in 1930 and to the Second World War.[14] Practice since then appears to indicate that resort to such reprisals is no longer valid. According to the Draft Articles on State Responsibility, countermeasures are legitimate only “against a State which is responsible for an internationally wrongful act”.[15] This element of responsibility is also reflected in some military manuals.[16] However, whereas most military manuals remain silent on the question of reprisals against allies of the violating State, Italy’s IHL Manual expressly states that a reprisal can, “as a general rule, only be directed against the belligerent that violated the laws of war”.[17] Other military manuals explain that reprisals are used against another State in order to induce that State to stop the violation of international law.[18]
Some military manuals specify that in the light of their specific purpose, reprisals must be announced as such and publicized so that the adversary is aware of its obligation to comply with the law.[19]
(ii) Measure of last resort. Reprisals may only be carried out as a measure of last resort, when no other lawful measures are available to induce the adversary to respect the law. This condition is set forth in many military manuals.[20] It is confirmed by national case-law.[21] It is also repeated in the statements and proposals made by States at the Diplomatic Conference leading to the adoption of the Additional Protocols, before the International Court of Justice in the Nuclear Weapons case and on other occasions, when it was sometimes mentioned that prior warning must be given and/or that other measures must have failed before resorting to reprisals.[22] In its reservation concerning reprisals made upon ratification of Additional Protocol I, the United Kingdom reserved the right to take reprisal action “only after formal warning to the adverse party requiring cessation of the violations has been disregarded”.[23]
According to the Draft Articles on State Responsibility, before taking countermeasures an injured State must call on the responsible State to fulfil its obligations, notify the responsible State of any decision to take countermeasures and offer to negotiate with that State.[24] In its judgment in the Kupreški? case in 2000, the International Criminal Tribunal for the former Yugoslavia confirmed what had already been stated by the Special Arbitral Tribunal in the Naulilaa case in 1928, namely that reprisals may only be carried out after a warning to the adverse party requiring cessation of the violations has remained unheeded.[25]
(iii) Proportionality. Reprisal action must be proportionate to the violation it aims to stop. This condition was already laid down in 1880 in the Oxford Manual and was recently reaffirmed in the Draft Articles on State Responsibility.[26] It is also contained in many military manuals.[27] Furthermore, there is case-law concerning violations committed in the Second World War in which the accused’s claims that their acts had been committed as lawful reprisals were rejected because, inter alia, they were found to be disproportionate to the original violation.[28]
The requirement that reprisal measures be proportionate to the original wrong is repeated in various statements and proposals made by States at the Diplomatic Conference leading to the adoption of the Additional Protocols, before the International Court of Justice in the Nuclear Weapons case and on other occasions.[29] In its reservation concerning reprisals made upon ratification of Additional Protocol I, the United Kingdom stated that “any measures thus taken by the United Kingdom will not be disproportionate to the violations giving rise thereto”.[30]
The International Court of Justice in its advisory opinion in the Nuclear Weapons case in 1996 and the International Criminal Tribunal for the former Yugoslavia in its judgment in the Kupreški? case in 2000 confirmed what the Special Arbitral Tribunal had already stated in the Naulilaa case in 1928, namely that belligerent reprisals are subject to the principle of proportionality.[31]
Most of the practice collected requires that acts taken in reprisal be proportionate to the original violation. Only a few pieces of practice specify that proportionality must be observed with regard to the damage suffered.[32]
(iv) Decision at the highest level of government. The decision to resort to reprisals must be taken at the highest level of government. Whereas the Oxford Manual states that only a commander in chief is entitled to authorize reprisals,[33] more recent practice indicates that such a decision must be taken at the highest political level.[34] State practice confirming this condition is found in military manuals, as well as in some national legislation and official statements.[35] In its reservation concerning reprisals made upon ratification of Additional Protocol I, the United Kingdom stated that reprisals would be taken “only after a decision taken at the highest level of government”.[36]
In its judgment in the Kupreški? case in 2000, the International Criminal Tribunal for the former Yugoslavia held that the decision to resort to a reprisal must be taken at the highest political or military level and may not be decided by local commanders.[37]
(v) Termination. Reprisal action must cease as soon as the adversary complies with the law. This condition, formulated as a formal prohibition in the event that the original wrong had been repaired, was already laid down in 1880 in the Oxford Manual and was recently restated in the Draft Articles on State Responsibility.[38] It is also contained in several military manuals, official statements and reported practice.[39] In its reservation concerning reprisals made upon ratification of Additional Protocol I, the United Kingdom stated that reprisals would not be continued “after the violations have ceased”.[40]
In its judgment in the Kupreški? case in 2000, the International Criminal Tribunal for the former Yugoslavia confirmed that reprisal action must stop as soon as the unlawful act has been discontinued.[41]
January 31st, 2015 at 5:27 am
I will also add something else about the Jordanians, I think this is a Black September Redux moment for them. The Hashemites see ISIS is an ‘us or them” existential question and unlike the PLO, the Assad regime and the Russians won’t try to save Daesh from retaliation
January 31st, 2015 at 5:51 am
Thanks.
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I hoped to learn something when I posted this, and I am indeed learning.
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Please continue..
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Interesting WaPo story today about Mughniyeh the Elder, btw. That’s retaliation too, I guess.
January 31st, 2015 at 11:23 pm
That spare tire bomb is reminiscent of a car bomb that killed an Iranian scientist a few years ago.
http://www.cnn.com/2012/01/11/world/asia/iran-scientist-killed/
Not exactly the same, but you get the idea that the same types of players on the same types of teams are using the same types of tactics.
January 31st, 2015 at 11:28 pm
Now consider the tactics of the Israelis that led to the recent attack that killed Mugniyeh the Lesser
http://www.ynetnews.com/articles/0,7340,L-4618889,00.html
“Israeli intelligence was reportedly able to track down the location of Iranian General Mohammed Ali Allah Dadi, who was killed in a strike attributed to Israel last week in Syria, via his cellphone”
January 31st, 2015 at 11:35 pm
That sounds suspiciously familiar also
http://en.wikipedia.org/wiki/Dzhokhar_Dudayev#Death_and_legacy
“Dudaev was killed on 21 April 1996, by two laser-guided missiles when he was using a satellite phone, after his location was detected by a Russian reconnaissance aircraft, which intercepted his phone call.”
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Out of geopolitical neccesity,
Israel has always needed to rely on a foreign patron to assist with its security. That patron has been the US for the past 40 – 45 years. It could be with the current political fracturing of the partnership, Israel has found new friends.
February 1st, 2015 at 5:30 am
Hi Charles
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Not retaliation, regarding Imad the Elder. If he was employed directing or advising attacks on US troops at the time of his death, he was simply a legitimate military target, even if present in a third country. If the third country was sheltering/tolerating Mughniyeh, then the US action is legitimized vis-avis that state as well.
This whole “outside war zone” business is pure media/NGO activist invention and has no standing as a matter of law. States that claim non-belligerency or neutrality cannot permit a belligerent to use their territory to launch attacks. They have an affirmative obligation to prevent or expel and if they will not or cannot, the other belligerent party may do so without it being considered an act of aggression
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Regarding Israel and the Son of Imad and Iranian nuclear scientists, that hinges upon Israel being in a de jure state of international armed conflict with Syria and Hezbollah. The Son of Imad was an armed combatant. The Iranian nuclear scientists are a trickier question. It depends whether the sporadic hostilities between Iran and Israel rise to the level of international armed conflict. If not, Israel’s acts are illegal assassinations. If so, a nuclear weapons program and its key personnel are military targets. This one is arguable.
February 1st, 2015 at 10:37 am
Fooling around? Sounds pretty Western.
February 2nd, 2015 at 5:19 pm
A very fine woman I know has contact with a very wide range of retail customers daily and she told me something interesting. They are not at all happy with our policy toward the the takfiri killers of the world especially Daesh. They consider Daesh and the other takfiris to be very dangerous people who will come after us when they can and are upset that we aren’t dealing with them in a serious way. They don’t mean we should fire up the 82nd but they do mean that we aren’t helping the people who are fighting them directly effectively and if we don’t Daesh and the others will only get stronger. Her customers feel we aren’t taking it to those “bearded bastards” and they are frustrated by that. (She says that “bearded bastards” has replaced “ragheads.” I rather like the term “bearded bastards”.)
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Combine that with the howls of alarm coming from DC, if the Sunday morning shows are an indication, and it seems like it may be getting to the point where you got the country, or most of it, on one side and the administration on the other side. How that will play out I don’t know but I am fairly confident that Mr. Obama’s confidence in his and Ms. Jarret’s judgment won’t be shaken by anything.
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The WSJ had an article last week about aid we were giving to a Syrian commander who the CIA had vetted and considered trusted. The aid was 16, count ’em, 16 rounds of small arms ammunition per month for each of his men.
February 3rd, 2015 at 8:20 pm
Daesh killed the pilot in such a way as to intentionally call out the Jordanians. They aren’t backing off at all but are doubling down in the apparent belief the Jordanians are just talking. Now we will see. All very interesting if only people weren’t suffering so.
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I wonder how this will affect the pre-mission briefs for our guys. I don’t mean the pilots, they’re going to go, I mean the inside the beltway types who may dictate what the briefs will be from now on.