Targeting Child Soldiers

This is a difficult moral and ethical question son. And made me think. When you read the two examples quoted, leaving aside the legal points, I'm afraid I would have pulled the trigger in both cases. Just because a child is at rest doesn't mean the gun on his side will not be picked up. 
A boy was recently killed in USA. He was playing with a toy pistol which looks exactly like a real one. And somebody called the police. Who came in and almost immediately shot the boy. You can say the police are trigger happy. Or racist (the boy was black). But the question arises, where do you draw the line. 
Think about another problem with age. You were able to join the army by 16. But you aren't allowed to vote. So you can kill for your country but you can't vote for your leaders. Bit inconsistent eh? So the Tories are bothered by not wanting the voting age for the brexit referendum to be reduced. Why? Stupid excuses. 
Something to think about. 
Love
Baba


Targeting Child Soldiers
http://www.ejiltalk.org/targeting-child-soldiers/
(via Instapaper)

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Despite the numerous volume on child soldiers in legal literature over the last few decades, very little has been said on targeting child soldiers. It seems to be something international lawyers would rather not talk about. The fact that legal literature doesn't say much about targeting child soldiers doesn't mean that no such practice exists, or that soldiers haven't discuss the matter. In 2002, the US Marine Corps Warfighting Laboratory organised a 'Cultural Intelligence Seminar' on the implication of child soldiering for US forces. One trigger for that discussion was the fact that the very first US soldier killed in Afghanistan reportedly was a Special Forces Sergeant shot by a 14-year-old boy. The year before, in Sierra Leone, a squad from the Royal Irish Regiment was taken prisoner by a group consisting mostly of armed children called the West Side Boys, as the British soldiers were hesitant to open fire. After they had been held hostage for two weeks, an assault was launched by an SAS unit supported by suppression fire from helicopters, leading to between 25 to 150 dead among the West Side Boys. Finally, during the civil war in Sri Lanka, a Government aircraft bombed what was deemed an LTTE training camp, killing a reported 61 minors, mostly girls. Although the LTTE was widely known to use child soldiers, and the specific facts were contested, the Sri Lanka Government was adamant that if a child took up arms, then he or she could be targeted and killed.
The phenomenon of child soldiers remains widespread, and their activities does include direct participation in hostilities. It is imperative that international humanitarian law provide guidance as to what opposing forces can do if they are confronted with that reality. In this piece, I suggest that there are elements in international humanitarian law that support adapting a child-specific approach to targeting. Under this approach, the fact that a potential target is a child should prima facie raise a doubt as to whether he or she is targetable. Although the doubt may be dissipated in light of available facts, overcoming the presumption of civilian status might require more than would be the case for an adult. In addition, even if a child is deemed targetable, the allowable means and methods must nevertheless reflect the protected status of children in international law.
Direct participation in hostilities for kids
The issue of targeting child soldiers raises two distinct legal questions: first, whether child soldiers are combatants like any other combatants and, second, if so whether the means used to target then follow the same rules as for adult combatants.
In order to discuss this, it is useful to consider two scenarios as ideal-type situations that give rise to the legal regulation of the targeting of child soldiers: a first scenario corresponds to a minor enrolled in the FARC rebels in Colombia, wearing a uniform, spotted by a government drone while having a nap against a tree, his gun lying next to him. A second scenario is one of a child wearing civilian clothes running towards government troops firing an AK 47 in the context of the civil war in Uganda. . In one case as in the other, can the government forces targets the child as if he or she were an adult?
Are these two child soldiers to be considered combatants under accepted principles of international humanitarian law? The starting points are articles 4(A) of the 1949 Third Geneva Convention and article 43 of the 1977 Additional Protocol I, which provides for the definitional elements of what a combatant is under international humanitarian law, albeit overtly in the context of an international armed conflict. If a child is enrolled in the armed forces of a party to an international armed conflict, there seems to be no apparent basis in current international humanitarian law to characterize that child as anything other than as a combatant. For a non-international armed conflict, which would correspond to the situations in Uganda and Colombia that I provided as my two ideal-type scenarios, the legal concept of the combatant is contested. Article 1 of Protocol I defines the scope of application of the protocol as covering only conflicts between the states armed forces and "dissident armed forces or other organized armed groups", which implies that there is a legal concept of insurgent armed forces. Seeing this, it is possible that a child may be fully incorporated into the insurgent armed forces and, as such, be a 'regular' fighter on a footing prima facie equal to other armed participants in a non-international armed conflict. According to the ICRC Interpretive Guidance on Direct Participation in Hostilities, individuals who can be said to have a "continuous combat function" are not civilians in non-international armed conflict, and can therefore be targeted. There is nothing in the Interpretive Guidance that suggests that children cannot have a continuing combat function and, as a result, be combatants. In a short post, Frédéric Mégret suggests that children should be considered as non-combatant members of the armed forces and not targeted unless they are directly participating in hostilities, implying that there would be no continuous function possibility for children. The underlying assumption seems to be that, because of their age, children can never become combatant in the full sense of the concept. Somehow, that does not appear to square with the reality in the field in many armed conflicts in which, as with the West Side Boys unit in Liberia, children can become ruthless fighters on a strategic footing equal to adults. There may be space in international humanitarian law to reflect an imperative to treat child soldiers differently than adult ones, as I will suggest shortly, but not in the impossibility that a child may have a continuous combat function or, for that matter, be a member of the armed forces.
A somewhat different approach can be taken by inquiring whether a child is directly participating in hostilities. The standard is expressed as regards international armed conflicts in article 51(3) of Protocol I, and for non-international armed conflicts in Common Article 3 of the 1949 Geneva Conventions and Article 13 of Protocol II. According to the approach adopted by the ICRC in its Interpretive Guidance, individuals who do not have a continuous combat function are therefore to be seen as civilians that may temporarily lose their entitlement to protection against targeting. For individuals in this class, direct participation refers to a specific act that meets three distinct criteria: a threshold of harm, linked to the likely effect of the act on the enemy; direct causation, linking the civilian act to that harm; and a belligerent nexus, intentionally linking the act and harm to the conflict. According to this approach, an individual who is not a member of the armed forces or a fighter in an armed group remains a civilian entitled to protection against targeting, except for the time that this individual engages in acts that meet the three elements of direct participation as defined by the Interpretive Guidance. This 'revolving door' approach has been challenged by some as not flowing from accepted treaty and customary humanitarian law. Be that as it may, there is nothing in any of these elements that connects in a particular manner with children. This aligns with the 2015 US Law of War Manual which states that "whether a civilian is considered to be taking a direct part in hostilities does not depend on that person's age" (§4.20.5.3). Decisions of the International Criminal Court and Special Court for Sierra Leone on the crime of recruiting and using child soldiers have confirmed, in that context, that children can directly participate in hostilities, and indeed have adopted a broad approach to participation. Although these courts did not articulate any ensuing consequences as regard the targeting of such children, they would seem to logically follow. Indeed, the ICRC explicitly confirms this in the commentary to the Interpretive Guidance, finding that "Children below the recruitment age may lose protection against direct attack" (page 60).
It bears noting that the recruitment age cut-off referred to in the Interpretive Guidance is 15 years old, as provided in article 77(2) of Protocol I, article 4(3)(c) of Protocol II, and Rule 137 of the ICRC study on customary law. Indeed, the structure of article 77 of Protocol I mirrors the general approach to the targeting of child soldiers under international humanitarian law: a first paragraph proclaims a duty to respect and protect children in armed conflicts; a second paragraph declares a duty of the belligerents not to enroll or involve children in hostilities; and three further paragraphs specify special protection for children that have been detained after taking direct part in hostilities. Perhaps as a lingering remnants of the distinction between Hague and Geneva law, international humanitarian law elides entirely the middle phase in which the child is taking active part in hostilities.
It was suggested by the author of one volume on child soldiers that children are 'civilian by nature'. There seems to be no basis for such a view. Upon closer consideration of applicable law, it appears that children can be combatants in largely the same way that an adult can. I offer this qualified statement to suggest that despite the analysis offered up to now, there are elements in international humanitarian law that support adapting a child-specific approach to targeting. Article 50(1) of Protocol I provides that "[i]n case of doubt whether a person is a civilian, that person shall be considered to be a civilian." It is not unreasonable to offer that, as regards the application of both the continuous combat function and 'revolving door' principles, the fact that the individual in question is a child should prima facie raise a doubt as to whether he or she is targetable. That doubt may be dissipated in light of facts available to those making a determination of the targetability of the child in question, but it requires that a presumption of civilian status be overcome, in a manner that would not obtain for an adult. For the three elements listed in the Interpretive Guidance as constituting direct participation, this presumption would imply that the threshold of harm, the direct causation, and the nexus to the conflict are not met unless the facts are sufficiently clear to overcome the presumption that a child is not directly participating. Likewise, a presumption in favour of the civilian character of children would structure the understanding of what is required for a child combatant to unambiguously opt out or withdraw from direct participation in hostilities, lowering the evidentiary threshold that corresponds to a conclusion that a child has regained a civilian status. For example, an adult fighter in uniform running away from battle may not be considered as unambiguously opting out of hostilities, as this could be a mere strategic fallback, but that same behaviour by a child fighter would meet a lower threshold.
In conclusion on this point, direct participation in hostilities for kids does not exclude the possibility that a child may be a combatant, either continuously or periodically, but the test is comparatively more restrictive than for adults as a reflection of the presumption that children are civilians.
Means and ends
The fact that a child soldier can be a combatant or a civilian taking direct part in hostilities implies that this child soldier can be directly targeted. The conclusion that it is lawful to directly target child soldiers does not necessarily entail that it is lawful to target them as if they were adult soldiers. Here again, the moral intuition that children remain children even if they take direct part in hostilities has an impact on applicable legal standards.
The starting point is the principle that, even in war, a belligerent's right to injure its enemy is not unlimited. More specifically, treaty and customary international law proscribe superfluous injury and unnecessary suffering (Art. 35, Protocol I). In a general manner, this is taken as a statement that the injury and suffering that is lawful under international humanitarian law is limited by what is necessary to achieve a military objective. As a foundational statement of the laws of war, this principle has acted as the basis for the specific prohibition of a number of weapons over the last century and a half, including the prohibition of dum-dum bullets, poison, blinding lasers, anti-personnel landmines, etc. But the principle is offered in Protocol I as a broad rule that is meant to have an effect on the lawfulness of means and methods of war generally, and not merely as a basis for a decision by states to regulate specific weapons by way of subsequent agreement. At its broadest, the norm against superfluous injury and unnecessary suffering calls for an appreciation of the necessary use of any means or methods of war in every case, to balance the military advantage against the injury and suffering caused in the operation. Authors likes Dinstein and Meyrowitz have challenged the suitability of a balancing approach in this context, arguing that the principle does not call to import here a balancing that is required only in relation to the impact of an attack on civilians. Still, this suggests that if available means and methods of warfare can achieve the same military advantage while causing a lesser degree of injury or suffering, then international humanitarian law requires that they be used. For example, if a military radar station must be disabled in order to prevent detection of a military operation, and this can be achieved either by kinetic means (bombing the station) or cyberwarfare (a virus attack to disable the computers running the radar), then the latter option must be selected. This finds some support in Art 52(2) of Protocol I which restricts military objectives to those the destruction of which brings a definite military advantage. What could be termed the 'most favoured weapons' doctrine can be extended even further, to suggest that if it is possible to wound instead of killing, or to capture instead of wounding (or killing), then that must be done. Whether international humanitarian law really confers upon belligerent a licence to kill enemy combatants, and whether the rules are different in international and non-international armed conflicts, has generated an intense debate (on 'capture or kill', see eg the contributions of Melzer, Hays Parks, Schmitt, Goodman, Kretzmer).
What I want to suggest is that, regardless of the validity of a general duty to use the least injurious means or method of warfare in any category of armed conflict, such a duty ought to obtain when directing an attack against child soldiers who qualify as combatants or as taking direct part in hostilities. It speaks to the moral intuition that, even in the context of war, the intentional targeting of children is a calamity. In law, it reflects the multiple norms in international humanitarian law and international human rights that demand special protection for children against harm. A duty to use the least injurious means or method of warfare against a child soldier can find some support in the French version of the prohibition of superfluous injury and unnecessary suffering, which speaks of maux superflus. As noted by several authors, the French is actually the original, taken from the 1868 St-Petersburg Declaration and later reproduced in the 1899 and 1907 Hague Regulations. The notion of maux superflus appears broader than its English translation, in that maux can be taken to refer not only to injury or suffering, but also to an evil; indeed, the idea of a mal superflu necessarily evokes its pendant, the mal nécessaire. In other words, war may be a necessary evil, but evils unnecessary for the pursuit of the legitimate aims of war (also defined in the St-Petersburg Declaration) are illegitimate. Returning to child soldiers, direct targeting can be considered permissible only to the extent that it is a necessary evil, meaning that no viable option can be identified and that there is a tangible military necessity for this attack, otherwise it violates the treaty and customary prohibition of superfluous injury and unnecessary suffering.
To go back to the two scenarios I sketched at the start, it seems quite clear that a child fighter with the LRA running towards government troops while firing an AK47 can be directly targeted using lethal force. It seems unlikely that there is another way to stop the attack that involves merely wounding or capturing a child soldier in this context. The second scenario of a drone spotting a FARC child soldier in uniform taking a nap, on the other hand, demands that the specific military advantage of targeting this child be clearly demonstrated and, if that can be done, that there is no available alternative that would be less harmful to this child while maintaining the military advantage.
The aim of this approach is to avoid the pitfalls of moralising idealism and ruthless instrumentalism, to reflect both the reality that child soldiers can sometimes present a direct and significant threat and the moral impulse to try to shield children from war as much as possible.

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Birangonas

So I went to this quiz yesterday. The team came second. I was invited by Salil my friend who has just written a book on Bangladesh and in particular the killing of sheikh mujibur in 1974. So the quiz was for raising money so that this team can help make a documentary on the birangonas. An estimated 200000-400000 women were raped by the razakars and Pakistani army during the operation searchlight and then the war of independence in 1971.
These poor women were damaged twice. First by the Pakistani soldiers and razakars first. And then second by their Bangladeshi men and society who shunned them, abandoned them, murdered them. About 50000 women were forcibly impregnated. I met with an old Australian doctor who carried out late term abortions on these women. If they had given birth to children of their rapists, then the child would have been killed along with the mother or would've gone through pain.
The women suffer silently. They don't have a channel to express their grief. Nor does the society care. For them they are a reminder of their fragility and weakness and honour. And now, 44 years later, they are dying off. Without their stories being told.
So what these 4 women are doing is to make a documentary on them to show off their stories and try to change society. An extraordinary mission
Just 4 women. Came together and decided to do something. That's what I like. People who DO. Not just talk about it. Or press the like button on Facebook. Oh and sheikh mujibur named them birangonas. War women. Aptly named.
So I've offered my help with fundraising or photography or historical research but looks like they are well covered in that area. So let's see how I can help. But it was an amazing evening son. Seriously affected me.
There was one photograph in particular about a birangona. She was holding a rifle in one hand, a baby in her arms and a small child was holding on to her Aanchal. She was silhouetted against the sky. A black and white photo. Looking off into the direction of where the soldiers had gone. And that was a punch in the gut. She was woman. Who fought to protect her kids. And got raped. And would be abandoned by her husband. But if you want to think of raw courage that's it son. For her to keep loving her kids, living in abject poverty, but in silence. Now there is courage for you.
Anyway. I came out and went for a walk along the 10pm night time next to the Thames. The tide was in and the lights of the O2 and other areas were glimmering on the wind swept surface of the river. Curious son curious. Events of nearly 50 years back and echoing across all those years and so many kilometres.
Made many new friends and a new avenue to explore and learn.
Love
Baba

Birth of a country

Kannu

You missed a great afternoon, when Salil uncle read from his book, the Colonel who would not repent. About the death of Bangabondhu, Mujibur Rahman, the President of Bangladesh, and the history of this great but truly god-forsaken country. He mentioned about this book of photographs, by Kishor Parekh, which I am enclosing. Don’t read it if you have a bit of a sensitive tummy because there are very distressing photographs in here. But it’s not a big book, hardly 40 odd pages, but very powerful photographs, son. Sometimes photographs can be truly heart wrenching. Two of which I have written about before.

1. Bhopal: http://piquancy.blogspot.co.uk/2004/07/for-every-glance-behind-us-we-have-to.html. Here is the photograph in question.

 

2. Vietnam: http://piquancy.blogspot.co.uk/2004/02/chemical-warfare-is-not-all-hot-air-my.html. Here is the photograph

I have mentioned to you about my memories of this refugee issue, son. I was in Calcutta when this happened, hardly 4 years or so old, but I can still remember the cries of “phan de go” “please give me phan” echoing in the nights in the roads of Tollygunj which is a Calcutta neighbourhood…Phan is the water which remains after you decant the rice after cooking. People were so poor that they wanted that rice water. There were 10 million people who got into India in a matter of months, you cannot have an organisation which can handle this load of refugees so they were all in huge trouble despite all the help that the Indian government and civil society gave. Plus the second memory I have is of these refugees fighting over the garbage bins where people had thrown their left over food, fighting with dogs. Truly barbarian situation. Bangladesh is where our ancestors came from, son, so they are our people in a way. You are a Bengali and despite you not knowing Bengali, there are roots here. So you need to know because people who forget their history do not have a future. Remember what I told you about the Russian Georgian Girl? She said that you Indian/English people are lucky, you have a history to remember and be proud of.

So some of the photographs are really wrenching. People do not see this level of destruction, son. Why do you think I hate war? That’s why when people go all gung ho about war, I hate it. Absolutely hate it. Just saw a great cartoon, 2500 people died in 9/11 and 2.5million people died in wars which were launched because of 9/11. See? everybody has a reason to fight and kill, but when will it stop? We thought after the cold war, peace will break out but no, more and more wars have happened, and that’s why we need to stop people from fighting, starting with our own country, United Kingdom. Its stupid, its expensive and it creates havoc far beyond and for much longer than the people who did it will remember.

So read and weep for our compatriots, son. And think about not letting this happen again, as much as possible.

Love

Baba

PS: Here are some of the photographs which were totally brilliant

A great comparison between the ICC and the MC USA

Here. We do need to move the ICC along pretty sharpish, more of these morons need to be mobbed

Pakistani Envoy demurs on Bangladesh Genocide Trials

Well, he would, wouldn't he? I quote:

People who collaborated with the Pakistan government during the freedom movement are called "war criminals" in Bangladesh.
During a heated discussion in Jatiya Sangsad (parliament), Pakistan President Asif Ali Zardari's special envoy Mirza Zia Ispahani was asked to "apologise for his audacious remark", New Age newspaper said Thursday. Ispahani is here on a five-day goodwill visit that is the first high level contact by Pakistan after the Hasina Government took office last month. Dhaka should not expect any cooperation from Islamabad "at this stage", Ispahani said Tuesday while responding to a media query on the proposed war crime trials.

War crimes is a prickly issue in Bangladesh-Pakistan relations as all the accused were either Pakistani nationals or armed bands propped up by the erstwhile East Pakistan regime to terrorise the civilian population. Many of the accused escaped to Pakistan after Bangladesh became free. Bangladesh says over two million people, mostly unarmed civilians, were killed during the nine month conflict. Ten years back, Dhaka had expelled a senior Pakistani diplomat posted at the high commission after he made disparaging remarks about the freedom struggle

Technorati Tags: Bangladesh,Pakistan,Genocide,War Crimes

They have finally found WMD in Syria and Iran is to blame!!!!

See? see? the neo-cons were right, those Syrians and Iranians are up to no good and there is now incontrovertible evidence that they have actually used chemical weapons against soldiers of a NATO country. This is all because the Iranians were imperialistic powers waging war against the poor old defenceless NATO soldiers. Heinous crimes.

Here’s the story: I quote:

Archaeologists have found the oldest evidence of chemical warfare yet after studying the bodies of 20 Roman soldiers' found underground in Syria 70 years ago. Clues left at the scene revealed the Persians were lying in wait as the Romans dug a tunnel during a siege – then pumped in toxic gas – produced by sulphur crystals and bitumen – to kill all the Romans in minutes.

….

They had been part of a large Roman garrison defending the empire outpost city of Dura-Europos, on the Euphrates river in modern day Syria, against a ferocious siege by an army from the powerful new Sassanian Persian empire in around AD 256."

I think we need some demonstrations on the streets protesting against the use of chemical weapons against poor old innocent Romans who were simply undertaking resistance against the dastardly imperialistic Persians. What do you think?

Technorati Tags: Iran,Syria,Italy,History,War

Quote of the Day:
An ounce of loyalty is worth a pound of cleverness.
--Elbert Green Hubbard

Quote of the day:
Many would be cowards if they had courage enough. - Thomas Fuller

Bringing dictators to justice is troublesome

This article is a very thought provoking one, talking about how ICC indictments are becoming more and more difficult. And if you look at the UNSC which has now been thought about as idiots for not voting against Mugabe, one wonders if this indeed will work.

Curious, no? how dictators are protected by Russia and China? Mind you, USA and UK are protecting their own goons, robbers and thugs in Pakistan, Iraq and in so many other countries. I guess, Mugabe is no longer our son of a bitch, no?

 

Technorati Tags: Autocracy,Dictators,United Nations,UNSC,Russia,China,United Kingdom,ICC

Kargil and casualties

I came across an interesting email on a list, it purported to contain an email from a Pakistani Army Officer commenting on the casualties in the Kargil War. Also see this link. I quote (my comments at the end):

Dear All,

I am so relieved to finally find somebody backing up my view point on the subject at hand. Some of us uniformed people who do not have the luxury to scoff at the civilian point of view are caught between the devil and the deep sea. But what pains us the most is the fact that information offered by us no matter how authentic is invariably met with the usual distrust. At least we have nothing to hide from our brothers in Mufti (short of the classified/sensitive information of course). Before I offer some points to ponder I would like to reiterate that independent analysts have a lot to gain through exaggeration of the facts and figures.

There is a lot of tactical mumbo jumbo involved in military analysis and gauging of casualties (if we are not ready to believe the official figures prima facie). Nevertheless, I shall try to explain in as layman terms as possible, the deployments vis-a-vis the terrain and the likely casualties:-

(a)   Whereas a number of brigades are/were deployed along the NAs segment of the LoC, only one brigade i.e. 80 Bde went into actual action.

(b)   At one time during the conflict five NLI battalions were part of the 80 Bde but not during the entire conflict. These five battalions never went into action simultaneously.

(c)   A standared three battalion brigade when deployed in defensive formation has generally two battalions in front if operating in a plain, in mountains the frontages shrink further. The forward battalions generally deploy two companies in the front. So when a standard brigade is taking up defence it has only 4 companies (400 men) at the receiving end of the onslaught. Air Comodore T will bear me out that 400 men is one hell of a strength to deploy in the mountains.

(d)   80 Bde with three battalion had a strength far lesser than a standard infantry brigade; Why? Because NLIs were light infantry battalions before the conclusion of the Kargil conflict and had 60% (approximately) strength of a normal infantry battalion( and infantry battalion may have 700-810 men depending upon its role and situation)

(e)   so the figure of 5000 troops engaged, included the forward deployed troops plus the long logistic tail extending back to Gilgit and beyond to Rwp.

(f)   Artillary doesn't come under direct enemy fire. Only one odd observer may, if at all. It generally operates well out of enemy field artillary range if possible. IAF rarely crossed into our side of the LoC so Artillary could have met any worthmentioning causualties.

(g)   It is next to impossible to wipe out entire battalions even if you carpet bomb in the mountains.

(h)   Artillary is an area weapon and it can cause damage to some extent. It is used generally to demoralize, soften up and/or pin down the enemy. If enemy could be wiped up with artillary and air force alone, there wouldn't be any need for the infantry.

(j)   Scouts and rangers etc (called civil armed forces in military parlance) are never employed on the front as a principle.Their role is restricted to defence of installations, bridges or kept in depth positions. No such forces saw actual action in Kargil.

Some Fact Regarding the Conduct of Battle

(a)   Not all 131 posts were invoved in pitch battle. Some located at the edge of our territory hardly met any casualties.

(b)   Tiger hills was the hottest spot and a matter of prestige for Indians, the reason why they pounded it so severely and sacrificed such a high number of their troops while attempting to clear it. However, only one NLI battalion (i.e. two companies) were deployed on tiger hills. One NLI battalion was uprooted initially but was retaken by the reinforcement battalion. If we check the war diaries of those battalions we don't come up with a very high figure so as to substantiate the claims of many analysts, Why? In infantry terms when forward company suffers the loss of one of its forward platoons (there are three in a company) it goes into counterpenetration position letting the reserve battalion to launch a counter attack which is exactly what happened in the case of tiger hills. (Refer to one of issues of the TIME magazine of that period to have an idea of the causalties suffered by the Indian forces in their failed repeated bids to retake Tiger hills with their infantry)

(c)   Tiger hills was never taken by Indians before the political decision of abortion of the operation and withdrawal from the captured localities. It was only during the withdrawal that the most casualties were met by our men. (this assertion is contradicted by Brigadier Qadir's account, but apparently junior officers in the army continue to believe that Tiger Hill was never taken by the Indians -omar)

(d)   An SSG company (approximately 100 men) was deployed on Tiger hills and was to fight till the last bullet and last man. It suffered heaviest of the casualties. This was the single biggest loss suffered by our troops. A few however still survived ( some of them our own very friends with whom we had intimate discussions afterwards).

(e)   The pitch battle (involving artillary and IAF) lasted only for a short duration, there is no way 2700 - 3000 casualties could've been inflicted in such a short battle. There simply weren't such a number present to be slaughtered.

(f)   No matter if the body of a soldier is found or not, no matter if his body lay buried in  a snow grave, a coffin to his name must be sent to his ancestral home to be buried with military honours. Not all the graves we located necessarily have the bodies of martyrs in them.

(g) Indians handed over 5 additional bodies after the battle. The would be more than glad to line up 2000 plus dead bodies for the whole world to see and gloat over their prize. It wouldn't be difficult for them to spot and collect the bodies from the Kagil Dras sector once our troops had withdrawn for the territory. In fact they would love to do this.

(h)   And lastly, more than 60 officers of various ranks were martyred during the operation making it the highest officer to men ration killed in the history of modern conflict. It is an internationally recognized ratio and in no way could be true if the actual fatalaties were as high as some analysts repeat ad nauseum.

Finally, some of us might be in a position to state the exact figures, but wouldn't be able to do so for the reason of restrictions laid upon us by the service. But I just want to say that six hundred is not a negligibe bodycount, it is greater than the 65 war, it is very high even by the standards of a fierce battle like Kargil. In the end, however, Kargil was an example of daring action, of ultimate sacrifice by officers and men alike. You may question the wisdom behind the launching of the operation, you can lament the inadequacies of the logistic support that presumably caused suffering to our men, you can curse the weak political will for not risking an all out war by using Air Force, that is immaterial to us soldiers fighting on the front. For, its not for us to question the logic behind the orders, we do or die.

Fascinating history from a Pakistani Army officer. Just a small point relating to the last line “For, its not for us to question the logic behind the orders, we do or die”. The very same defence was used at Nuremberg as well and unfortunately was not acceptable as a defence either. Given the fact that no civilian politician ever gave the order (I know it is debatable with Nawaz Sharif saying he had absolutely nothing to do with it), one wonders about which orders were legal and which were being followed? I am afraid Kargil was not an example of daring action; it was the most spectacularly stupid action possible but then, well, you would expect a Pakistani Army officer to disagree with me there! :)

Technorati Tags: Pakistan,India,Kashmir,War

Abraham Lincoln - the constitutional President? Nope!

Very interesting book review here. Specially see the bolded bits. Sort of puts Dubya's attempts at making an end run around the constitution into perspective, no? This is why every US President from Lincoln down has had issues with the War Powers Act and its predecessors. So wherein the demands for impeachment and war crimes?

Anyway, read and scratch chin


Daniel Farber. _Lincoln's Constitution_. Chicago: University of Chicago
Press, 2003. ix + 240 pp. Notes, bibliography, index. $27.50 (cloth),
ISBN 978-0-226-23793-0.

Reviewed for H-CivWar by Brian Flanagan, Hauenstein Center for Presidential Studies, Grand Valley State University

Abraham Lincoln, _Praetor Maximus_

Examples abound in history, of leaders who have taken on dictatorial powers at the expense of constitutional order--Lucius Cornelius Sulla and Julius Caesar in classical Rome; Mao Zedong, Joseph Stalin, Hideki Tojo, Adolf Hitler, and Benito Mussolini in modern Europe and Asia. It would come as a shock to the sensibilities of most Americans who revere their sixteenth president that Abraham Lincoln is often placed in the
company of such leaders. As we approach the bicentennial of Lincoln's birth, it is important to remember that throughout the Civil War he took actions that were viewed by many of his contemporaries--and are still viewed by many scholars--as beyond the limits of _ordinary_ presidential authority, as perhaps dictatorial.

In 1861, after the South's attack on Fort Sumter, newly inaugurated President Lincoln opted for several counter-offensives that fell squarely within Article I of the United States Constitution, describing the national legislature's authority--not the president's. He blockaded Southern ports (effectively declaring a state of war); suspended _habeas corpus_ between Washington D.C. and Philadelphia, and eventually across
the North; expanded the regular army and navy; and ordered the U.S. Treasury to advance two million dollars to a private firm in New York for discretionary use on war supplies. Later he instituted military trials across North and South to dispense justice and ignored a Supreme Court directive challenging his authority to suspend the writ. Even the Emancipation Proclamation, Lincoln himself admitted, would have been
beyond his authority in peacetime.

But 1861-65 was a time of rebellion--of Civil War--in the United States. How does this _extraordinary_ circumstance change the legal implications of Lincoln's actions?

Enter Daniel Farber.

Farber's book, _Lincoln's Constitution_, could justifiably be re-titled
"Lincoln's Constitutionality"(at the expense of the author's double
entendre): it is more correctly characterized as an assessment of the
legality of Lincoln's presidency than as an analysis of his
interpretation (or reinterpretation) of the U.S. Constitution. In fact,
this is one notable limit to Farber's legal history of the executive
administration of the Civil War. He does not consider, as Garry Wills
has, the significance of the Gettysburg Address in changing the
Constitution by cleansing it of "that legal compromise" over the issue
of slavery and by appealing instead to its "spirit," its moral root in
the Declaration of Independence.[1] Except in passing, he does not
consider, as David Herbert Donald has, Lincoln's Whig understanding of the Constitution that actually _weakened_ the executive branch in
relation to Congress and the cabinet, even if in war decisions it tended toward John Quincy Adams's expansive view that, "by the laws of war an invaded country has all its laws and municipal institutions swept by the board, and martial law takes the place of them.... Whether the war be civil, servile, or foreign ... the military authority takes for the time the place of all municipal institutions, slavery among the rest."[2]

Farber's analysis of Lincoln's abidance by constitutional law,
congressional statute, presidential precedent, and Supreme Court ruling is exhaustive. With the possible exception of J. G. Randall, no scholar to date has made as thorough a study of Lincoln's war measures in light of American law. More limited analyses have stopped at the (accurate) assertion that Lincoln himself never claimed his sweeping use of power was ordinarily legal. In essence, he went stovepipe hat in hand to a special session of Congress to ask ratification of his otherwise extralegal usurpation of congressional authority:

"These measures, whether strictly legal or not, were ventured upon,
under what appeared to be a popular demand, and a public necessity; trusting, then as now, that Congress would readily ratify them. It is believed that nothing has been done beyond the constitutional competency of Congress."[3]

More limited analyses have pointed to Congress's August 1861
ratification of Lincoln's actions, the Supreme Court's March 1863 _Prize Cases_ decision upholding the legality of his early war measures, and Congress's 1863 Habeas Corpus Indemnity Act, which retroactively authorized all arrests and seizures made under authority of the president.

More limited analyses have gone back further to emphasize the 1787
Constitutional Convention's decision to replace Congress's authority to "make" war with its authority to "declare" war, leaving it to the
president to repel sudden attacks. Much more limited analyses have
claimed broad, inherent, executive war powers--out of reach of the
legislative and judicial branches--and other exclusively presidential
prerogatives deduced from Article II clauses of the United States
Constitution. These analyses have used the uncharacteristic claim of a preeminent constructionist, Thomas Jefferson, that jeopardizing the nation's "very high interests ... by scrupulous adherence to written law, would be to lose the law itself ... thus absurdly sacrificing the end to the means."[4] Or they have used Lincoln's refrain defending suspension of the writ, "are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?"[5] Together, these arguments can be used to make a strong case for the constitutionality of Lincoln's war measures, and all are assessed by Farber--most of them in one chapter.

But it is important--especially as debates persist today over the
balance between national security and individual rights, presidential
and congressional authority, national and state sovereignty--to remember that Lincoln's presidency was extraordinary in our history. It is important, as we read presidential historian Michael Beschloss
trumpeting the supreme value of presidential courage, to look closer at Lincoln's actions and understand where at crucial moments he probably overstepped his authority--even if he has been vindicated by history.[6] It is important, as Lincoln scholar Vernon Orville Burton pins the roots of an "imperial presidency" in the sixteenth president's "cavalier" approach to civil liberties, to recognize where the president was squarely within his legal bounds and where he showed great restraint.[7]

For this, we can return to Daniel Farber's legal history of Lincoln's
war decisions. Farber, the Sho Sato Professor of Law at the University of California, Berkeley, and McKnight Presidential Professor of Law at the University of Minnesota, has given us a disciplined and fair look at the sixteenth president's most controversial decisions. Farber considers a wide range of arguments both defending and condemning Lincoln: from his pre-presidential conclusion that secession was indeed illegal--that the federal government had authority to coerce state governments into
recognizing the supreme law of the land--to his exercise of powers
ordinarily reserved by Congress, to his administration's infringements on individual liberties in North and South. The author is decisive where possible but allows uncertainty to remain where it must--particularly on constitutional questions of "original intent" that the framers themselves debated until their deaths.

Farber's conclusions, overall, are favorable to Lincoln's legacy. With
the exception of some prominent freedom of speech infringements and cases of unjustified abridgement of individual rights in the North, most of what Lincoln did was strictly constitutional, falling within explicit presidential or congressional authority. It is a vital distinction, of course, that Lincoln's use of congressional powers--though probably necessary and in line with the "classic liberal view of emergency power"--were "approved and in all respects legalized and made valid" by Congress (p. 194). "Nowhere was there any thought," writes Farber, "that necessity alone gave the president an exemption from the legal consequences of violating statutory or constitutional requirements. Lincoln does not seem to have claimed such legal authority" (p. 195). Instead, Lincoln was retroactively granted executive and legislative prerogative to deal with the consequences of rebellion in the South.

Such being the case, Abraham Lincoln's accusers turn out to be right. In the classical Roman sense, he may accurately be called a dictator--a _praetor maximus_--vested temporarily with extraordinary power to deal with crisis. It is lucky, Farber reminds us, that at the crucial moment a man of "unshakable determination, combined with a shrewd sense of reality" was available to lead (p. 199).

Notes

[1]. Garry Wills, _Lincoln at Gettysburg: The Words That Remade America_ (New York: Simon & Schuster, 1992), 38.

[2]. Charles Francis Adams, "The Sifted Grain and the Grain Sifters,"
_American Historical Review_ 6, no. 2 (1901): 233.

[3]. Lincoln's Special Session Message, July 4, 1861, _Messages and
Papers of the Presidents_ (New York: Bureau of National Literature,
1897), 7: 3225.

[4]. Thomas Jefferson to John B. Colvin, September 20, 1810, _Works of Thomas Jefferson_ (New York: G. P. Putnam's Sons, 1905), 11: 146.

[5]. Lincoln's Special Session Message, July 4, 1861, _Messages and
Papers of the Presidents_ (New York: Bureau of National Literature,
1897), 7: 3226.

[6]. Michael Beschloss, _Presidential Courage: Brave Leaders and How They Changed America, 1789-1989_ (New York: Simon & Schuster, 2007), ix.

[7]. Vernon Orville Burton, _The Age of Lincoln_ (New York: Hill and
Wang, 2007), 225.

All this to be taken with a grain of piquant salt!!!

The Abu Ghraib whistleblower's ordeal

This is really sad and tragic. Abu Gharib was a blot on USA's high principles and has to be condemned harshly. But what was more sad was the reaction by the local town's people who ostracised him. But this is not uncommon and for people who think that this is indeed only american, this is human. We have heard this exact behaviour for all whistleblowers across the world, whether it be in the UK, Europe, Asia, Saudi Arabia, Egypt, India and China. People who are exposed, people whose cherished idols are shown to have feet of clay and people who are simply corrupt/disgusting/indecent are going to react in this manner.

But what this man did was courageous. Remember Neville Ramsbottom of Harry Potter? Professor Dumbledore gave him 50 points because he went against his friends for something he thought was right. Now that's courage.

The US soldier who exposed the abuse of Iraqi prisoners in Abu Ghraib prison found himself a marked man after his anonymity was blown in the most astonishing way by Donald Rumsfeld.

Joe Darby was commended by the military for his actions
When Joe Darby saw the horrific photos of abuse at Abu Ghraib prison he was stunned.
So stunned that he walked out into the hot Baghdad night and smoked half a dozen cigarettes and agonised over what he should do.
Joe Darby was a reserve soldier with US forces at Abu Ghraib prison when he stumbled across those images which would eventually shock the world in 2004.
They were photographs of his colleagues, some of them men and women he had known since high school - torturing and abusing Iraqi prisoners.
His decision to hand them over rather than keep quiet changed his life forever.
The military policeman has only been allowed to talk about that struggle very recently, and in his first UK interview, for BBC Radio 4's The Choice, he told Michael Buerk how he made that decision and how he fears for the safety of his family.
Photos of abuse
He had been in Iraq for seven months when he was first handed the photographs on a CD. It was lent to him by a colleague, Charles Graner.

I knew that some people wouldn't agree with what I did... They view it as - I put American soldiers in prison over Iraqis
Joe Darby
Most of the disc contained general shots around Hilla and Baghdad, but also those infamous photos of abuse.
At first he did not quite believe what he was looking at.
"The first picture I saw, I laughed - because one, it's just a pyramid of naked people - I didn't know it was Iraqi prisoners," he says.
"Because I have seen soldiers do some really stupid things. As I got into the photos more I realised what they were.
"There were photos of Graner beating three prisoners in a group. There was a picture of a naked male Iraqi standing with a bag over his head, holding the head, the sandbagged head of a male Iraqi kneeling between his legs.
"The most pronounced woman in the photographs was Lyndie England, and she was leading prisoners around on a leash. She was giving a thumbs-up and standing behind the pyramid, you know with the thumbs-up, standing next to Graner. Posing with one of the Iraqi prisoners who had died."
Promised anonymity
Joe Darby knew what he saw was wrong, but it took him three weeks to decide to hand those photographs in. When he finally did, he was promised anonymity and hoped he would hear no more about it.

Mr Darby feared repercussions from the soldiers in the photos
But he was scared of the repercussions from the accused soldiers in the photos.
"I was afraid for retribution not only from them, but from other soldiers," he says.
"At night when I would sleep, they were less than 100 yards from me, and I didn't even have a door on the room I slept in.
"I had a raincoat hanging up for a door. Like I said to my room mate, they could reach their hand in the door - because I slept right by the door - and cut my throat without making a noise, or anybody knowing what was going on, and I was scared of that."
When the accused soldiers were finally removed from the base, he thought his troubles were over.
And then he was sitting in a crowded Iraqi canteen with hundreds of soldiers and Donald Rumsfeld came on the television to thank Joe Darby by name for handing in the photographs.
"I don't think it was an accident because those things are pretty much scripted," Mr Darby says.
"But I did receive a letter from him which said he had no malicious intent, he was only doing it to praise me and he had no idea about my anonymity.
"I really find it hard to believe that the secretary of defence of the United States has no idea about the star witness for a criminal case being anonymous."
Rather than turn on him for betraying colleagues, most of the soldiers in his unit shook his hand. It was at home where the real trouble started.
Labelled a traitor
His wife had no idea that Mr Darby had handed in those photos, but when he was named, she had to flee to her sister's house which was then vandalised with graffiti. Many in his home town called him a traitor.
"I knew that some people wouldn't agree with what I did," he says.
"You have some people who don't view it as right and wrong. They view it as: I put American soldiers in prison over Iraqis."
That animosity in his home town has meant that he still cannot return there.
After Donald Rumsfeld blew his cover, he was bundled out of Iraq very quickly and lived under armed protection for the first six months.
He has since left the army but did testify at the trials of some of those accused of abuse and torture. It is Charles Graner he is most afraid of.
"Seeing Graner across the courtroom was the only one that was difficult during the trial," he says.
"He had a stone-cold stare of hatred the entire time - he wouldn't take his eyes off me the whole time he sat there. I think this is a grudge he will hold till the day he gets out of prison."
Mr Darby and his family have moved to a new town. They have new jobs. They have done everything but change their identities.
But he does not see himself as a hero, or a traitor. Just "a soldier who did his job - no more, no less".
"I've never regretted for one second what I did when I was in Iraq, to turn those pictures in," he says.
You can hear Joe Darby being interviewed by Michael Buerk on BBC Radio 4's The Choice on 7 August at 0900 BST.