Assume the Position

Thursday, March 27, 2003
Diminishing Parallax. I thank The Talking Dog for giving the site a fantastic blurb in The Dog Run, so nobody should read this as a complaint. (Dropping an "x" from my pseudonym happens frequently, and I occasionally do it, too.) But, the description of this blogroll I mentioned in the previous post deserves a little discussion. Suffice it to say that when you stand far enough to the left (i.e., in 100% agreement with Tom Tomorrow), looking right across the center-left and center tends reduce your depth perception and compress center-right/right/hard-right into a single, undifferentiated mass on the horizon. Its an easy mistake to make in a quick review and it happens just as frequently going the other way, too. For instance, I'm unable to make a cogent distinction between Marxist-Leninists and Trotskyites, no matter how much some of the center-to-right fawn over Christopher Hitchens (but then, neither can the socialists themselves), and I often confuse anarcho-capitalists and anarcho-syndicalists even though the former are ultra-libertarians and the latter are state-socialists who replace the Comintern with workers' congresses (don't email me, email the keeper of the Anarchist Theory FAQ). Being vociferously anti-Left is not synonymous with being "hard right," though it is a commonality shared by those on the blogroll and the hard right. But hard right is synonymous with far-right, which is out there with Pat Buchanan—an individual that I have never seen get good press on any of those blogs, though I don't read every single post on them; and most of those bloggers seem to oppose the drug war to various degrees, support reproductive choice (albet with allowance for state regulation of certain procedures), and have other sundry positions not in concert with the hard right. The blogroll is, admittedly, almost completely somewhere right of center; I just don't think it's as far right as TD characterizes it.

While I don't normally announce additions to this site's blogroll, since it is the subject of this post, I'll make an exception. Welcome, Talking Dog. If I had any kind of sophisticated organization to the blogroll, you'd belong next to the Anti-Idiotarian Rottweiler; however, that's not where you'll wind up, not because you despise the term "anti-idiotarian," but because I use a simple chronological scheme (except for blogs on hiatus).

Just so you won't feel lonely at the bottom of the list, and to keep the blogroll's imbalanced nature unchanged for whatever engines calculate such stuff, you'll be joined by two female bloggers you'd likely describe as being further rightward then they would describe themselves. Moria Breen's Inappropriate Response, which recently received the kind of eponymous comment that passes for intelligent discourse in some circles on both the left and right; and, from down-under, Angie Schultz's The Machinery of Night, which has this apropos observation in response to British blogger Harry Steele's off-hand characterization of Andrew Sullivan (who, despite TD's contention that he "is one of those 'mandatory' links that all bloggers 'have to have,'" on their blogrolls, I don't.)

Note: Sullivan is "hard right". This is the trouble with some of the British: everyone to the right of Tony Blair is "right-wing" or "hard right".
The blog blurbs in TD's Dog Run are a useful resource. I'd just advise US readers to set their political receivers to non-linear to automatically scale TD's political classifications of right-leaning blogs a notch or two leftward while leaving his classifications of left-leaning blogs relatively unchanged. Non-US readers need to apply their own calibration, since the US versions of "left/right" and "liberal/conservative" probably don't conveniently map to your familiar usages.

Again, thanks for the inclusion in the Dog Run, TD, and you will now assume the position that is currently 103 in the blogroll.

Wednesday, March 26, 2003
Les guérilleros pacifistes français de l'information "ont plagié" mon blogroll. That's how Google translates "French anti-war information guerrillas 'liberated' my blogroll," which seems to describe what has happened.

Assume the Position's hand-rolled blogroll, as it existed probably sometime in mid-January when Curmudgeonly & Skeptical was the final entry, now appears on this French Wiki page on Iraq. (Don't bother checking my January archives, I often have Blogger republish all the archives to propagate template changes. The Wiki's revision history doesn't go back far enough to show a version that doesn't have the blogroll, so I guessed at the date by checking the weekly archives I keep on my machine.)

I'm not complaining or calling it plagiarism (though it probably qualifies), I just think it's funny. While I don't know if the site's organizers are anti-war (a Wiki page is editable by anyone), certainly the majority of articles are anti-war and prominence is given to MoveOn, TrueMajority, Stop the War, etc.. My blogroll, on the other hand, was described in The Dog Run by The Talking Dog as "a who's who of the hard right."

Anyway, if those of you above Curmudgeonly & Skeptical in my blogroll show some referrers from, you're welcome. Don't expect many, though, I've only gotten one (Assume the Position isn't listed in the blogroll, but they did give it a link just four places after InstaPundit).

Tuesday, March 25, 2003
A powerful post by Andrew Hagen on the depraved brutality of Hussein's regime and the after effects it will leave on the Iraqis.
Saddam's Iraq is oppressive and grievously violent: it is the heart of terror.

Even as coalition forces liberate the country, the people of Iraq will continue to fear Saddam. While we in America know that our military can defeat the forces of Iraq, the people of Iraq believe there is no earthly power greater in the world than their tyrant. That is what most of them were raised to believe. His brutal force is nearly all the force they know—air strikes in the Gulf War having been transitory. It will take time to convince people that he is really gone. Only then will the coercion and intimidation dissipate. Only then will Iraqis begin to open up.

An effect that Andrew doesn't mention that will pose difficulties for the US during the transition will be the thirst for revenge. Like "Papa Doc" Duvalier's Tonton Macoutes and so many other similiar paramilitaries, Hussein's Fedayeen will face a backlash once they are no longer a threat to the people they had so long terrified.
When Father Jean-Bertrand Aristide took power, the public backlash against known Macoutes was fierce. Many met Pere Lebrun, which is better known as "necklacing" -- a person is set on fire by having a burning gasoline-soaked tire thrown around his neck. Roughly 70 to 100 former Macoutes met this fate. There are some reports that a few of the Macoutes were ritually eaten by their killers, their flesh having been first sautéed in a cheap Haitian rum called Clarin…

Unconventional Conventions. Although, as mentioned in the last post, the US has not withdrawn its signature from 1977 Additional Protocols to the Geneva Conventions of 1949, it may consider doing so or making an exception to its general policy toward unratified agreements.

Humanitarian NGOs and various governments have been pushing international agreements that far exceed customary international law. The two 1977 Additional Protocols to the Geneva Conventions of 1949 provide a timely example this, with the Iraq war falling under Protocol I.

First, the beginning of Chapter 5 in the Commander's Handbook on the Law of Naval Operations [red added]:


Article 2 of the United Nations Charter requires all nations to settle their international disputes by peaceful means and to refrain from the threat or use of force against the territorial integrity or political independence of other nations. The United Nations Charter prohibits the use of force by member nations except as an enforcement action taken by or on behalf of the United Nations (as in the Gulf War) or as a measure of individual or collective self-defense. It is important to distinguish between resort to armed conflict, and the law governing the conduct of armed conflict. Regardless of whether the use of armed force in a particular circumstance is prohibited by the United Nations Charter (and therefore unlawful), the manner in which the resulting armed conflict is conducted continues to be regulated by the law of armed conflict. (For purposes of this publication, the term "law of armed conflict" is synonymous with "law of war.")


The law of armed conflict seeks to prevent unnecessary suffering and destruction by controlling and mitigating the harmful effects of hostilities through minimum standards of protection to be accorded to "combatants" and to "noncombatants" and their property. (See paragraphs 5.3 and 11.1.) To that end, the law of armed conflict provides that:

    1. Only that degree and kind of force, not otherwise prohibited by the law of armed conflict, required for the partial or complete submission of the enemy with a minimum expenditure of time, life, and physical resources may be applied.

    2. The employment of any kind or degree of force not required for the purpose of the partial or complete submission of the enemy with a minimum expenditure of time, life, and physical resources, is prohibited.

    3. Dishonorable (treacherous) means, dishonorable expedients, and dishonorable conduct during armed conflict are forbidden.

The law of armed conflict is not intended to impede the waging of hostilities. Its purpose is to ensure that the violence of hostilities is directed toward the enemy's forces and is not used to cause purposeless, unnecessary human misery and physical destruction. In that sense, the law of armed conflict complements and supports the principles of warfare embodied in the military concepts of objective, mass, economy of force, surprise, and security. Together, the law of armed conflict and the principles of warfare underscore the importance of concentrating forces against critical military targets while avoiding the expenditure of personnel and resources against persons, places, and things that are militarily unimportant. However, these principles do not prohibit the application of overwhelming force against enemy combatants, units and material.
Now, to Konstantin Obradovic, who "teaches international law at the University of Belgrade… [and] …took part in the Diplomatic Conference of 1974-1977 as a member of the Yugoslav delegation and was deputy Chairman of Committee I" on the 20th anniversary of the signing of the Additional Protocols [red added]:
The sense of exhilaration that we felt when the Protocols were signed was doubtless justified with regard to the content and even the wording of this new law. For it is good law. I considered it so at the time and my opinion has not changed since. This law is well made, in the first place because, unlike the old law of The Hague, it makes war difficult to wage. Secondly, if, despite that difficulty, war is nevertheless engaged in, the Protocols provide penalties for violations of the rules governing it. Nowadays, anyone who intentionally violates those rules is held directly and personally responsible. How could it be otherwise in an international community that not only outlaws armed conflict but forbids any use of armed force, or even the threat thereof? It would be unfair to criticize a body of law so well adapted to its legal environment, reflecting as it does the trend towards establishing international public order where brute force holds sway.
[In 1974-1977, when Obradovic was one of the Yugoslav delegation to the conference, Tito (1892-1980) was still Yugoslavia's Communist President for life (1953-1980) and darling of the West. In 1977, when the US became a signatory to the Additional Protocols, Carter was President of the US (1977-1981).]

Many of the treaties, conventions and protocols of late that deal with the "Law of Armed Conflict" or "International Humanitarian Law" seem not to have been drafted to control conduct during war, but to impede the conduct of war. They are unconventional conventions pushed by utopians (and some perfidious dystopians) in a world that has probably never been at peace. I doubt there is a single year, month, or even a week over the past two or three centuries that there hasn't been at least one war, civil war or insurgency going on somewhere in the world. Orbradovic's description of the "…international community that not only outlaws armed conflict but forbids any use of armed force, or even the threat thereof," is an international community that guarantees the preservation of dictators—such as Tito.

Six years have passed since Serb execution squads shot, knifed, axed, and clubbed to death about 7,000 Muslims from the United Nations "safe area" of Srebrenica.

The media routinely bill these killings as Europe's largest mass murder since the Second World War. They were actually its largest since Tito's execution squads shot, knifed, axed, and clubbed to death about 35,000 Croats, Muslims, Slovenes, Serbs, White Russians, and Cossacks in the weeks after the war had ended. These crimes, separated by 50 years, a few hundred miles, and a universe of social, economic, and political changes, show how human depravity has remained constant through the years. They also show how far the governments of the Western alliance have come in terms of their willingness to bring the perpetrators of such crimes to justice, at least when the victims are located in Europe's poor eastern corner.

The similarities in these mass murders are striking. Almost all of the victims were prisoners - defeated soldiers, civilians. Some had taken part in atrocities. Some were wounded and dragged from hospitals. None had a trial. Many died with their hands bound with wire. The killers buried the bodies in mass graves.

It was British troops in Austria who handed over 5,000 to 10,000 of the victims to the murderers in 1945. It was United Nations civilian officials and military officers who effectively handed over thousands of the victims to the murderers in 1995, after the Security Council reneged on its promise to protect Srebrenica. In both instances, the victims were reviled by the foreigners involved.

The Allies looked upon the prisoners they delivered to Tito's forces as Nazi collaborators and murderers; and there were more than a few butchers among them. Many UN personnel in Bosnia, even in the highest echelons, identified with the Serbs and looked on the Muslims trapped in Srebrenica as troublemakers, whiners, and thugs; alas, there were a few killers and thieves among them. But what normal person, living in penury in what was a concentration camp surrounded by enemies who had sworn to take vengeance and protected by a the flimsiest of promises, would have trusted the Serbs and the UN over the law of the jungle?

There is little doubt that Tito used mass murder in 1945 to both extirpate the Communists' bitterest rivals and made scapegoats and examples of them. His men herded thousands of the victims on a death march during which anybody who had an axe handle, a rock, or a fist, could vent the bloodlust he, or she, had developed during the orgy of nationalist butchery that took place during the Second World War. There is little doubt that the commander of the Srebrenica mass murder, Ratko Mladic, used the executions to extirpate the last Muslims in lower Drina valley and, in the process, exploited the bloodlust left over from the Second World War, and exacerbated during the 10-month period in 1992-93, when Srebrenica's Muslims fought to steal whatever food they could from the Serbs trying to starve them out.

This is just about where the similarities end. No one was ever brought to justice for the 1945 murders…

Obradovic wrote, "Nowadays, anyone who intentionally violates those rules is held directly and personally responsible," which may be true; but in his world that waits for the UN to authorize even the "threat" of armed force they really wouldn't have to worry about it. In Obradovic's world, all of those indicted for war crimes in the former Yugoslavia would still be living it up under Slobodan Milosovic's rule. He almost admits as much [bold added]:
It may be argued that Protocol I's prohibition of reprisals has not spelled the end of such practices. One thinks again of the "Yugoslav wars". Nevertheless, the relevant provisions are extremely precise and clear, leaving no doubt that reprisals against civilians and civilian targets constitute a grave breach of international humanitarian law. The mere fact that this point is now crystal-clear in the law is a highly significant step forward. At present, any combatant who chooses this course of action must be perfectly aware that he is in flagrant violation of the law and may well one day have to answer for his deeds. In other words, those who order or carry out such acts will no longer be able to claim to a national or international tribunal that they were responding to a similar violation by the enemy. If the aim of humanitarian law is, among other things, to guard against needless cruelty, then that cause is well served by this prohibition. Having been consecrated as a fundamental principle and restated in various provisions of Protocol I in an attempt clearly to define its scope, the prohibition of reprisals against protected persons and objects is unquestionably a bulwark against barbarity.
More likely, in Obradovic's world, those who order such acts will never have to answer for those deeds in this life as long as their "barbarity" keeps them in power while the UN dithers over what to do.

As I said about the UK's 1998 accession to Additional Protocol I, "[Their] reservations and declarations essentially place their obligations at the level of the 1949 conventions; in other words, they might as well never have become a party to the protocol—the way they have done so is simply for public relations, to be able to say they are a party without it having any effect. The US hasn't been playing that game, and takes the more straightforward route of refusing to join." Here is the UK reservation that absolutely repudiates the "prohibition of reprisals against protected persons and objects" that Obradovic extols.

(m) Re: ARTICLE 51 - 55
The obligations of Articles 51 and 55 are accepted on the basis that any adverse party against which the United Kingdom might be engaged will itself scrupulously observe those obligations. If an adverse party makes serious and deliberate attacks, in violation of Article 51 or Article 52 against the civilian population or civilians or against civilian objects, or, in violation of Articles 53, 54 and 55, on objects or items protected by those Articles, the United Kingdom will regard itself as entitled to take measures otherwise prohibited by the Articles in question to the extent that it considers such measures necessary for the sole purpose of compelling the adverse party to cease committing violations under those Articles, but only after formal warning to the adverse party requiring cessation of the violations has been disregarded and then only after a decision taken at the highest level of government. Any measures thus taken by the United Kingdom will not be disproportionate to the violations giving rise there to and will not involve any action prohibited by the Geneva Conventions of 1949 nor will such measures be continued after the violations have ceased. The United Kingdom will notify the Protecting Powers of any such formal warning given to an adverse party, and if that warning has been disregarded, of any measures taken as a result.
But there are other things dreadfully wrong with Additional Protocol I besides the prohibition of reprisals. The Iraqis practiced perfidy in the Gulf War and nobody should be surprised that they are doing it again.
WASHINGTON (CNN) -- Pentagon officials lashed out Monday at the "deadly deception" of the Iraqi regime on the battlefield, saying that Iraqi troops are engaged in "serious violations of the laws of war" by falsely indicating their willingness to surrender or by fighting U.S. and allied troops in civilian clothes.

"Known as perfidy or treachery, such acts are strictly prohibited because they make it extraordinarily difficult for coalition forces to accept surrendering forces or protect civilians," said Pentagon spokeswoman Victoria Clarke.

Here are some applicable parts of Protocol I [bold added]:
Art 37. Prohibition of Perfidy

1. It is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy. The following acts are examples of perfidy:

(a) the feigning of an intent to negotiate under a flag of truce or of a surrender;
(b) the feigning of an incapacitation by wounds or sickness;
(c) the feigning of civilian, non-combatant status; and
(d) the feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other States not Parties to the conflict.

2. Ruses of war are not prohibited. Such ruses are acts which are intended to mislead an adversary or to induce him to act recklessly but which infringe no rule of international law applicable in armed conflict and which are not perfidious because they do not invite the confidence of an adversary with respect to protection under that law. The following are examples of such ruses: the use of camouflage, decoys, mock operations and misinformation.

Nothing wrong there, that fits customary international law and its codification in earlier Hague and Geneva Conventions.
Section II. Combatants and Prisoners of War:

Art 43. Armed forces

1. The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct or its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.

2. Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains covered by Article 33 of the Third Convention) are combatants, that is to say, they have the right to participate directly in hostilities.

3. Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict.

Art 44. Combatants and prisoners of war

1. Any combatant, as defined in Article 43, who falls into the power of an adverse Party shall be a prisoner of war.

2. While all combatants are obliged to comply with the rules of international law applicable in armed conflict, violations of these rules shall not deprive a combatant of his right to be a combatant or, if he falls into the power of an adverse Party, of his right to be a prisoner of war, except as provided in paragraphs 3 and 4.

3. In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly:

(a) during each military engagement, and
(b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.
Acts which comply with the requirements of this paragraph shall not be considered as perfidious within the meaning of Article 37, paragraph 1 (c).

4. A combatant who falls into the power of an adverse Party while failing to meet the requirements set forth in the second sentence of paragraph 3 shall forfeit his right to be a prisoner of war, but he shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war by the Third Convention and by this Protocol. This protection includes protections equivalent to those accorded to prisoners of war by the Third Convention in the case where such a person is tried and punished for any offences he has committed.

Chapter II. Civilians and civilian population

Art 50. Definition of civilians and civilian population

1. A civilian is any person who does not belong to one of the categories of persons referred to in Article 4 (A) (1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.

2. The civilian population comprises all persons who are civilians.

3. The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.

Art 51. - Protection of the civilian population

1. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances.

2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.

3. Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities.

In a world of moral equivalence where Iraqi state television's American POW and KIA disgrace
[Information Minister Mohammed Saeed al-Sahhaf] refuted accusations by the U.S. that Iraq did not respect the Geneva Conventions when Iraqi TV broadcast a videotape showing five U.S. captured prisoners and the bodies of at least 8 others killed during a battle in al-Nassiriayh, in southern Iraq over the weekend.

Al-Sahhaf explained that what the videotape showed was "not an investigation" as "these were local journalists and reporters."

He said the reporters were simply asking the captured U.S. soldiers from which cities they originate. He denied the dead U.S. soldiers were tortured but rather "killed in the battlefield."

…will be offset because CNN showed a long line of surrendering Iraqi's marching to a holding compound;

where multiculturalism makes it more likely that long before any of the Taliban who destroyed the Buddha statues in Bamian get charged for that act, somebody will try to get these Brits charged under the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its Protocols I (1954) and II (1999) for using a Warrior combat vehicle to knock over a Hussein 'monument,' then when they find out the UK is not a party to that convention, they'll try under Article 56 of the Hague Convention IV of 1907…

Art. 56. The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property. All seizure of, destruction or wilful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings.
…to which the UK is a party;

is a world in which Hussein's Fedayeen will have no problems using Article 44, Paragraph 3, Article 50, Paragraph 1 and Article 51, Paragraph 3 to get away with their Article 37, Paragraph 1(c) acts of perfidy even though Iraq is not a party to Protocol I.

I can almost hear Ramsey Clark right now, in one of his rare lucid phases, "The Protocol is clear. When my client was standing outside his home waving to the American unlawful invaders he was not engaged in hostilities and therefore he was a civilian under Article 50, Paragraph 1 (in case of doubt) and entitled to all the protections under Article 51. When he went into his home and then came back out with an AK-47 and grenades he was carrying arms openly and therefore he was a lawful combatant under Article 44, Paragraph 3, when he engaged in the valiant defense of his invaded homeland. This could not have been an Article 37, Paragraph 1(c) perfidious act. After the Americans were dead and he returned his weapon to its hiding place and ceased taking a direct part in hostilities, he again became entitled to all civilian protections according to Article 51, Paragraph 3." Actually, that might make a better case than he's ever put forward in his pastime defending war criminals.

International law shenanigans from this unconventional convention being applied to the war in Iraq might cause the US to either withdraw its signature from the 1977 Additional Protocols, which would be a public relations nightmare worse than refusal to join the International Criminal Court; or, at least, admit an exception to the general policy of complying with signed but unratified and, therefore, nonbinding agreements in the specific case of Protocol I.

Original content copyright © 2002-2005 Lynxx Pherrett. All rights reserved.