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A new report has found the war on drugs in Afghanistan remains colossally expensive, largely ineffective and likely to get worse. This is particularly true in the case of opium production, says the U.S. Office of the Special Inspector General for Afghanistan Reconstruction.
In a damning report released Tuesday, the special inspector general, Justin F. Sopko, writes that “despite spending over $7 billion to combat opium poppy cultivation and to develop the Afghan government’s counternarcotics capacity, opium poppy cultivation levels in Afghanistan hit an all-time high in 2013,” hitting 209,000 hectares, surpassing the prior, 2007 peak of 193,000 hectares. Sopko adds that the number should continue to rise thanks to deteriorating security in rural Afghanistan and weak eradication efforts.
Though the figures it reports are jarring, the inspector general’s investigation highlights drug policy failures in Afghanistan that have been consistently documented for years. Indeed, Sopko himself has been raising concerns over the failing drug war in Afghanistan for some time. In January, he testified before the Senate Caucus on International Narcotics Control and described a series of discouraging conversations with counternarcotics officials from Afghanistan, the U.S., and elsewhere.
“In the opinion of almost everyone I spoke with, the situation in Afghanistan is dire with little prospect for improvement in 2014 or beyond,” Sopko told the lawmakers. “All of the fragile gains we have made over the last 12 years on women’s issues, health, education, rule of law, and governance are now, more than ever, in jeopardy of being wiped out by the narcotics trade which not only supports the insurgency, but also feeds organized crime and corruption.”
While many of the numbers included in the inspector general’s investigation have been made public before, the report serves as a reminder that, in addition to contributing to more than 70,000 deaths in Mexico over eight years, the bloody destabilization of Central America, and the expansion of the largest prison population in history in the United States, the ongoing U.S. effort to eliminate the market for illicit drugs at home and abroad is failing. Afghanistan is still considered the number one producer of opium in the world, responsible for as much as 90 percent of the market, which in turn supports the global heroin trade, even if only a small percentage of heroin from Afghanistan is believed to reach the U.S.
By June of 2014, U.S. departments and agencies — including the Pentagon, the State Department, USAID, the Drug Enforcement Administration and others — had spent a total of $7.6 billion to fight drugs in Afghanistan. Specifically, Sopko notes, the U.S. tax dollars poured into Afghanistan have been intended to support “the development of Afghan government counternarcotics capacity, operational support to Afghan counternarcotics forces; encouragement of alternative livelihoods for Afghan farmers; financial incentives to Afghan authorities to enforce counternarcotics laws; and, in limited instances, counternarcotics operations conducted by U.S. authorities in coordination with their Afghan counterparts.” The results, the inspector general points out, have left something to be desired.
Sopko reports that the resurgence in Afghan poppy cultivation has been driven by the high price of the crop, cheap and mobile labor, and “[a]ffordable deep-well technology,” which “has turned 200,000 hectares of desert in southwestern Afghanistan into arable land over the past decade.” According to figures from the United Nations Office on Drugs and Crime, from 2012 to 2013 the value of opium and the products derived from it increased by 50 percent, from $2 billion to $3 billion.
While U.S. efforts have failed to effectively diminish drug trafficking in Afghanistan, they have succeeded in making a handful of private security companies increasingly rich, a point that is not addressed in the inspector general’s report. In 2009, official responsibility for training Afghan police forces was shifted from the State Department to an obscure branch of the Pentagon known as Counter Narco-Terrorism Program Office (CNTPO), which took over the roughly $1 billion contract. In waging the privatized war on drugs, CNTPO has partnered with such corporate security giants as Raytheon, Lockheed Martin, ARINC, DynCorp and U.S. Training Center, a subsidiary of the firm formerly known as Blackwater.
With the pullout of U.S. forces looming — special operations units notwithstanding — the future of Afghanistan looks grim. Experts at the Afghanistan Analysts Network have noted the expanding power of warlords in Afghanistan’s rural regions. Meanwhile, security agreements between the Afghan government and the U.S. and NATO forces have avoided reining in CIA-backed paramilitaries that have shouldered much of the United States’ dirty work in the last 13 years of war. The rising viability of the opium trade, and the corruption it so often invites, adds yet another layer of complexity to an already fragile situation.
In his report, Sopko encourages the U.S. government and its coalition partners to look back on the years of counternarcotics efforts in Afghanistan and consider what today’s record high levels of poppy cultivation might suggest.
“In past years, surges in opium poppy cultivation have been met by a coordinated response from the U.S. government and coalition partners, which has led to a temporary decline in levels of opium production,” he writes. “However, the recent record-high level of poppy cultivation calls into question the long- term effectiveness and sustainability of those prior efforts.” More
High technology enables the United States and other countries to kill specific terrorists with limited collateral damage. Yet, as Nicholas Rostow reminds us, just because targeted killings may be arguably legal and even ‘prudential’, that doesn’t mean they avoid certain costs.
The struggle against terrorism—more specifically, the effort to prevent terrorist attacks—has raised difficult legal and policy issues including so-called targeted killing, or the killing of specific individuals because of their involvement in terrorist organizations and operations. As we shall see, this form of targeted killing involves domestic and international legal authorities and policy and prudential issues. A substantial number of countries confronting what they consider to be terrorist attacks and threats engage in targeted killings. Each has to resolve questions about authorities and prudence because, while terrorists are always criminals, they also may be lawful military targets. The dual character of terrorists leads to the conclusion that, as a matter of policy, a state should weigh the totality of the circumstances and conclude that no other action is reasonable to prevent a terrorist attack before engaging in the targeted killing. Careful analysis in advance may preempt problems later.
This essay addresses the question principally from the American perspective. It examines the authority, as a matter of U.S. law, for the United States to kill individual terrorists and the international legal context for such operations. The operating premise is that the targeted killing of al Qaeda leaders is emblematic of the subject under review in contrast to such domestic police action against terrorists as the arrest, prosecution, conviction, and execution of Timothy McVeigh, who was principally responsible for the bombing of the Federal office building in Oklahoma City in April 1995.1 The essay concludes that authority in domestic and international law exists for such operations and that, as a policy choice, the United States would do well to apply the Geneva Conventions of 1949 in the conflict with terrorists whether or not it is legally required. In any event, policymakers need to weigh the consequences of targeted killing operations because, like all military operations, unforeseen results—positive and negative—are likely.
Authorities for Targeted Killing
As spokesmen for the U.S. Government have emphasized,2 America’s use of force against terrorists takes place in the context of “armed conflict.” For practical and legal reasons they distinguish the conflict with al Qaeda and similar organizations from counterterrorism law enforcement at home or in other countries, which principally involves the police. This delimitation is commonsensical. It is also important. One does not want the U.S. Government engaging in military operations on American soil absent extraordinary circumstances. Authority for using the military instrument abroad against terrorists in the context of “armed conflict” comes from the Constitution and statute, and the use of armed force needs to comply with the international law of armed conflict (also known as the laws of war or international humanitarian law).
More than 200 years of practice have confirmed that the President has the responsibility to direct the Armed Forces to defend the country. The President accordingly had constitutional authority to order counterattacks by U.S. forces against terrorists who had engaged in attacks against the United States and its citizens even before September 11, 2001.
Presidents George W. Bush and Barack Obama have not had to rely on their constitutional authority alone. After September 11, 2001, Congress gave the President broad authority
to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.3
This statute provided explicit authority for U.S. military operations in Afghanistan and against those the President determined were involved in the September 11 attacks. The words “necessary and appropriate” limit the use of the military instrument to those situations where police action, by the United States or the state in which the terrorist is found, is impossible. Had the perpetrators resembled Timothy McVeigh and been subject to arrest inside the United States, the use of the Armed Forces would have been neither necessary nor appropriate. One therefore should not expect remotely piloted aircraft attacks in London. In states unable or unwilling to take action to prevent their territories from being used by terrorists, the legal and practical situation is different. A use of force, as against Osama bin Laden, may be lawful as well as the only practicable course, especially when a host government withholds its cooperation. On balance, it became more important to the United States and to the international multilateral effort to suppress terrorism to capture or kill bin Laden than to be sensitive to a breach of Pakistan’s territorial integrity and amour propre.
The conduct of military operations pursuant to these constitutional and statutory authorities has to conform to U.S. legal obligations regarding armed conflict. In the main, the rules for American use of force are contained in the Geneva Conventions of 1949 and subsequent treaties to which the Nation is a party or, as in the case of some articles of the 1977 Protocols Additional to the 1949 Geneva Conventions, which Washington regards as accurate statements of the customary international law of armed conflict. In 2010 the State Department Legal Adviser stated that the United States applied “law of war principles,” including:
First, the principle of distinction, which requires that attacks be limited to military objectives and that civilians or civilian objects shall not be the subject of the attack; and
Second, the principle of proportionality, which prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, that would be excessive in relation to the concrete and direct military advantage anticipated.4
In other words, if the target is lawful under the laws of armed conflict, a state may use weapons, including weapons delivered by remotely piloted, unmanned aerial vehicles, against such targets. In this sense, targeted killing is high technology sniping.
This analysis rests on the premise that the United States is in an armed conflict with al Qaeda as a result of the attacks of September 11, 2001, a conclusion that itself reflects a process of analysis. Under longstanding principles of international law, a state bears responsibility for uses of force from its territory about which it knew or should have known. That responsibility includes a duty to prevent and, if prevention proves impossible, suppress. When a state is unable or unwilling to discharge such international legal obligations, the victim state presumptively has rights of self-defense. Thus, when Afghanistan was the base from which the 9/11 attacks were conducted and when Afghanistan was unwilling or unable to take action against the perpetrators, the United States enjoyed the right to use force in self-defense to attack those actors in Afghanistan. This legal analysis provides the basis for the U.S. use of force in Afghanistan commencing in 2001.
Laws of War and Targeted Killing
Confusion has bedeviled discussion of the conflict between the United States and al Qaeda. Assuming that al Qaeda is a true nonstate actor, governments have had to decide whether the United States is in international armed conflict with al Qaeda and, if so, what rules apply. These questions are rooted in the language of the four Geneva Conventions of 1949.
By their terms, the Conventions apply to conflicts among the “High Contracting Parties” or to “armed conflict[s] not of an international character occurring in the territory of one of the High Contracting Parties.”5 This language means, respectively, conflicts between or among states and civil wars.6 Based on that language, the U.S. Supreme Court determined that the conflict with al Qaeda was a global, noninternational armed conflict to which Common Article 3 of the Geneva Conventions of 1949 applied because that seemed to be the only part of the Conventions that could apply to nonstate actors.7 While the effort to avoid placing alleged terrorists in a legal no-man’s land is laudable, the Supreme Court’s effort in this regard involved intellectual incoherence. As it must, the executive branch adheres to the Supreme Court decision. At the same time, without violating that decision, the U.S. Government may follow an intellectually coherent and simpler approach than the Supreme Court’s by following the Geneva Convention lead.8
The Geneva Convention Approach
The Geneva Conventions, binding as they are on all states, provide a useful guide to governments. They do so whether one uses military or law enforcement instruments against terrorists. If a government treats terrorists outside its jurisdiction or the jurisdiction of a state capable of using the criminal law against terrorists as subject to the Geneva Conventions, then its course is clear. If it captures a terrorist fighter, that fighter may be prosecuted for violations of the Geneva Conventions and then returned to prisoner of war status once a sentence, if any, is served. Prisoner of war status ends with the end of the conflict. Today it is difficult to foresee an end to the U.S. conflict with al Qaeda notwithstanding the deaths of so many al Qaeda leaders and followers.
Treating terrorists as if they are not combatants and are not entitled to prisoner of war status may be legally correct; it nonetheless puts a government in a policy and legal straitjacket. Terrorists inevitably fail the requirements set forth in the third Geneva Convention to wear a uniform, carry weapons openly, obey the laws of war, and operate in an organized fashion under a commander responsible for his or her subordinates, with rigorous systems of command and control, in order to enjoy the privileged status of combatant and prisoner of war upon capture.9 The terrorists’ failure in these respects does not make it easier to deal with detainees, as the American experience during the past 11 years demonstrates. As a result, a new approach is needed. That approach should be rooted in the law and in common sense. The Geneva Conventions provide both.
For the United States, acting as if terrorists captured in battlefield conditions are combatants and therefore prisoners of war would have a number of benefits. First, it would limit challenges to the legal status of detainees because they would not be held in what might appear to be legal limbo. As a result, whether they were held in prisoner of war facilities within the United States or at Guantánamo Bay would not matter in legal terms. Detainees would not acquire more rights by being held as prisoners of war within the United States than they do in Guantánamo Bay, and the administration should be able to close the prison facilities there without increasing its legal exposure. Second, it would clarify the status of prisoners for prison guards by making clear that the prisoners were not in a penitentiary status unless convicted of a crime. Third, it could improve the international reputation of the United States, which stands sullied as a result of allegations of torture and questions about its authority to hold alleged terrorists indefinitely, even those who might be acquitted at trial.
Since 9/11, the United States has traveled far in its quest to diminish, if not eliminate, the risk of terrorist attack. In the process it has revealed much about its willingness to engage in targeted killing and the conclusion that this tactic is useful and “wise” as well as legal.10 The argument for wisdom is that technology permits such a high degree of accuracy that collateral damage—the killing of bystanders—and the risk to American lives are reduced. The third test of wisdom is an act’s consequences. The wise strategist will weigh consequences of chosen tactics. For example, the negative consequences of the frequent U.S. use of remotely piloted aircraft to attack al Qaeda in Pakistan in 2011 led to an intense “Pakistani animus toward unilateral U.S. action [with] huge implications for America’s counterterrorism aspirations in the country.”11 To avoid negative consequences does not require inaction, but rather an effort at forethought and foresight. It is something that cannot be guaranteed even if one abides by the law. So far the United States has followed U.S. and international law by engaging in targeted killing as a combat tactic against military targets. Keeping to this line will be clarifying and simplifying even though one may argue that the law does not require treating terrorists as if they were military targets. Lawfulness by itself does not guarantee wisdom. But it is a good starting place. JFQ More
I'd Dump the Israelis Tomorrow -Ex-CIA Michael Scheuer Tells Congress House Homeland Security Committee on October 9, 2013
The international criminal court has persistently avoided opening an investigation into alleged war crimesin Gaza as a result of US and other western pressure, former court officials and lawyers claim.
In recent days, a potential ICC investigation into the actions of both the Israel Defence Forces and Hamas in Gaza has become a fraught political battlefield and a key negotiating issue at ceasefire talks in Cairo. But the question of whether the ICC could or should mount an investigation has also divided the Hague-based court itself.
An ICC investigation could have a far-reaching impact. It would not just examine alleged war crimes by the Israeli military, Hamas and other Islamist militants in the course of recent fighting in Gaza that left about 2,000 people dead, including women and children. It could also address the issue of Israeli settlements in the Palestinian territories, for which the Israeli leadership would be responsible.
The ICC’s founding charter, the 1998 Rome statute (pdf), describes as a war crime “the transfer, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies”.
Also at stake is the future of the ICC itself, an experiment in international justice that occupies a fragile position with no superpower backing. Russia, China and India have refused to sign up to it. The US and Israel signed the accord in 2000 but later withdrew.
Some international lawyers argue that by trying to duck an investigation, the ICC is not living up to the ideals expressed in the Rome statute that “the most serious crimes of concern to the international community as a whole must not go unpunished”.
John Dugard, a professor of international law at the University of Leiden, in the Netherlands, and a longstanding critic of Israel’s human rights record, said: “I think the prosecutor could easily exercise jurisdiction. Law is a choice. There are competing legal arguments, but she should look at the preamble to the ICC statute which says the purpose of the court is to prevent impunity.”
In an exchange of letters in the last few days, lawyers for the Palestinians have insisted that the ICC prosecutor, Fatou Bensouda, has all the legal authority she needs to launch an investigation, based on a Palestinian request in 2009. However, Bensouda is insisting on a new Palestinian declaration, which would require achieving elusive consensus among political factions such as Hamas, who would face scrutiny themselves alongside the Israeli government. There is strong US and Israeli pressure on the Palestinian leader, Mahmoud Abbas, not to pursue an ICC investigation.
Western pressure on the ICC to stay away from the issue has caused deep rifts within the prosecutor’s office. Some former officials say the Palestinians were misled in 2009 into thinking their request for a war crimes investigation – in the wake of an earlier Israeli offensive on Gaza, named Cast Lead – would remain open pending confirmation of statehood. That confirmation came in November 2012 when the UN general assembly (UNGA) voted to award Palestine the status of non-member observer state, but no investigation was launched.
Bensouda initially appeared open to reviewing the standing Palestinian request, but the following year issued a controversial statement (pdf) saying the UNGA vote made no difference to the “legal invalidity” of the 2009 request.
Luis Moreno Ocampo, who was prosecutor at the time of the Palestinian 2009 declaration, backed Bensouda, saying in an email to the Guardian: “If Palestine wants to accept jurisdiction, it has to submit a new declaration.”
But another former official from the ICC prosecutor’s office who dealt with the Palestinian declaration strongly disagreed. “They are trying to hiding behind legal jargon to disguise what is a political decision, to rule out competence and not get involved,” the official said.
Dugard said Bensouda was under heavy pressure from the US and its European allies. “For her it’s a hard choice and she’s not prepared to make it,” he argued. “But this affects the credibility of the ICC. Africans complain that she doesn’t hesitate to open an investigation on their continent.”
Moreno Ocampo took three years to make a decision on the status of the 2009 Palestinian request for an investigation, during which time he was lobbied by the US and Israel to keep away. According to a book on the ICC published this year, American officials warned the prosecutor that the future of the court was in the balance.
According to the book, Rough Justice: the International Criminal Court in a World of Power Politics, by David Bosco, the Americans suggested that a Palestine investigation “might be too much political weight for the institution to bear. They made clear that proceeding with the case would be a major blow to the institution.”
Although the US does not provide funding for the ICC, “Washington’s enormous diplomatic, economic and military power can be a huge boon for the court when it periodically deployed in support of the court’s work,” writes Bosco, an assistant professor of international politics at American University.
In his book, Bosco reports that Israeli officials held several unpublicised meetings with Moreno Ocampo in The Hague, including a dinner at the Israeli ambassador’s residence, to lobby against an investigation.
A former ICC official who was involved in the Palestinian dossier said: “It was clear from the beginning that Moreno Ocampo did not want to get involved. He said that the Palestinians were not really willing to launch the investigation, but it was clear they were serious. They sent a delegation with two ministers and supporting lawyers in August 2010 who stayed for two days to discuss their request. But Moreno Ocampo was aware that any involvement would spoil his efforts to get closer to the US.”
Moreno Ocampo denied that he had been influenced by US pressure. “I was very firm on treating this issue impartially, but at the same time respecting the legal limits,” he said in an email on Sunday. “I heard all the arguments. I received different Oxford professors who were explaining the different and many times opposing arguments, and I concluded that the process should … go first to the UN. They should decide what entity should be considered a state.”
He added: “Palestine was using the threat to accept jurisdiction to negotiate with Israel. Someone said that if you have nine enemies surrounding you and one bullet, you don’t shoot, you try to use your bullet to create leverage.”
A spokeswoman for his successor, Fatou Bensouda, rejected allegations of bias in the prosecutor’s choice of investigations. “The ICC is guided by the Rome statute and nothing else,” she said. “Strict rules about jurisdiction, about where and when ICC can intervene should be not be deliberately misrepresented … Geographical and political consideration will thus never form part of any decision making by the office.”
The French lawyer representing the Palestinians, Gilles Devers, argued that it was for the court’s preliminary chamber, not the ICC’s prosecutor, to decide on the court’s jurisdiction in the Palestinian territories. Devers said negotiations were continuing among the Palestinian parties on whether to file a new request for an investigation, even though he believed it to be unnecessary in legal terms. Ultimately, he said, the outcome would be determinedly politically.
“There is enormous pressure not to proceed with an investigation. This pressure has been exerted on Fatah and Hamas, but also on the office of the prosecutor,” Devers said. “In both cases, it takes the form of threats to the financial subsidies, to Palestine and to the international criminal court.”
Among the biggest contributors to the ICC budget are the UK and France, which have both sought to persuade the Palestinians to forego a war crimes investigation. More
He noted that most Caribbean countries are ranked as middle-income countries, and using that metric alone makes his country, St. Vincent and the Grenadines, with its one-billion-dollar Gross Domestic Product (GDP), “richer than China”.
“If that is the metric by which we determine economic health and access to concessionary financing, and our ability to borrow ourselves out of a crisis or to spend ourselves out of a crisis, it is clearly a flawed measure,” he said.
He noted that within three hours last Christmas Eve, a trough system left damage and loss in St. Vincent equal to 17 percent of GDP, while the country also suffered natural disasters in 2010, and 2011 – the loss and damage from each of which was in double digits.
This, however, is the measure by which the World Bank, the IMF determine the economic strength of Caribbean countries, Gonsalves said, adding that these international institutions do not consider the region’s vulnerabilities.
“The Caribbean small island developing states are among the most heavily indebted states in the world,” Gonsalves said, noting that the debt-to-GDP ratio in the region ranges from 20 percent in Haiti – which received significant debt forgiveness after the 2010 earthquake – to 139 percent in Jamaica, with St. Kitts and Nevis and Grenada at 105 and 115 per cent, respectively, even as the European Union has set itself a debt-to-GDP ratio of 65 per cent.
“If your debt-to-GDP ratio is 139 percent and you are struck by a natural disaster… how do you borrow yourself out of that crisis? Where do you find money immediately to build your roads, your houses, your bridges, your hospitals that have been damaged? How can you set money aside in preparation for the next climate event if you have a debt to GDP ratio of over 100 per cent or approaching 100 per cent, and your debt servicing charges are that high?” Gonsalves said.
Agreeing with Wescot-Williams and Maharaj that there is strength in unity, Gonsalves, who serves as foreign affairs minister for St. Vincent and the Grenadines, said the upcoming Third United Nations Conference on Small Island Developing States (SIDS) in Samoa is an ideal opportunity for regional countries to do more than just talk about collaboration.
“The issue of how we are ranked and classified has to be rectified – not addressed, not flagged, not considered. It has to be rectified in Samoa. That has to be one of our prime objectives going into this conference,” he said.
The Samoa conference will be held from Sep. 1-4 under the theme “The Sustainable Development of Small Island States Through Genuine and Durable Partnerships”.
It will seek to assess progress and remaining gaps; renew political commitment by focusing on practical and pragmatic actions for further implementation; identify new and emerging challenges and opportunities for the sustainable development of SIDS and means of addressing them; and identify priorities for the sustainable development of SIDS to be considered in the elaboration of the post-2015 U.N. development agenda.
Maharaj said “one big challenge” for his organisation is the advancement of the interest of small states.
“When I think about the Caribbean and I think about development…we need to think about development not only in terms of five years, 10 years or 15 years,” he said.
“I would like to think about and imagine what will the Caribbean be in the year 2050 at the time when our grand- and great-grandchildren will be around and many of us won’t be here,” Maharaj added. More