Starling

Dear @tedlieu: Actually, YOU are wrong. For a JAG veteran @usairforce, it's shocking how little you know about #LOAC. Don't worry. I'm a retired @USArmy judge advocate myself + a current int'l law prof, and I'm here to help. Before you go threatening all our servicemembers @DeptofWar with the specter of future "war crimes" prosecutions with "no statute of limitations", let's get a few things straight right now. 1. Federal law does NOT "require our military to follow the principle of proportionality." Although you don't cite what "federal law" you mean (rookie mistake), it seems you may be referring to 18 USC § 2441 on "War Crimes". If that IS what you claim requires "our military to follow the principle of proportionality," you maybe should have asked one of your staffers to check the actual text of the law before you tweeted this nonsense. Too late now, but let's walk through it together so I can explain. As you can see from pic 1 attached, this statute establishes the term "war crime", for purposes of this federal law, means conduct in 1 of 4 specific circumstances. Let's go through them 1 by 1, but here's your spoiler alert: none of them apply here. First is grave breaches of 1949 Geneva Conventions. All 4 GCs have a provision on grave breaches. BUT unfortunately for your credibility, none of them address #LOAC proportionality rule (look it up for yourself if you don't believe me...don't expect me to do ev-er-ything for you). You'll notice I lined through the part about "any protocol to which" 🇺🇸 is a party since the main treaty establishing the proportionality rule - Additional Protocol I (1977) to the 1949 Geneva Conventions (AP I) - we have NOT ratified. womp womp. Second is Hague Convention (IV) of 1907. Also no LOAC proportionality provision (just Google it if you're not sure...I didn't have to look it up, because I already am sure). Third is Common Article 3 to the 1949 Geneva Conventions. This provision doesn't apply (not that it addresses proportionality anyway) since the statute makes clear this aspect applies only in the context of "an armed conflict not of an international character." Any guesses what conflict is of an international character? That's right...the one you're commenting on! And fourth is (amended) Protocol II to the Convention on Conventional Weapons (CCW) involving mines, booby-traps, and other devices (Protocol II does, that is). Now, that component could apply, and it does have a proportionality provision (art. 3(8)(c), not pictured). BUT, there's a problem here. Any guesses what that might be, since we're talking now about a protocol that applies to anti-personnel landmines & such? That's right! Restrictions in that treaty apply to..."mines, booby-traps, and other devices" (art. 1(1), also not pictured). So unless you think DoW personnel are going to violate the LOAC proportionality rule by launching anti-personnel landmines to decimate power infrastructure & bridges & such (more about that below in point # 2), this provision of the statute you seem to be citing...also doesn't apply. So, before we move on, let's take stock of the circumstances in which this statute applies: ❌Grave breaches of 1949 GCs & protocols thereto ❌ Hague IV (1907) ❌ Common Article 3 to 1949 GCs ❌ CCW, Protocol II (amended For the reasons addressed immediately above, none of these circumstances apply in the context to which you're purporting to apply this federal law. So, if you are talking about 18 USC § 2441, then you're whole tweet deserves an ❌ as well. Now, even if that weren't the case, there's still a provision of this federal statute that you would need to consider in order to support your outlandish claim about potential prosecutions for war crimes. As you can see from pic 2 attached, the intent required for relevant violations (if they did apply under the circumstances, which they don't anyway) precludes incidents involving "collateral damage; or death, damage, or injury incident to a lawful attack." So even if you weren't wrong about the applicability of this statute, we would need to consider what conduct you're alleging could amount to prosecutable "war crimes" in order to confirm whether we could demonstrate the attacks would be "unlawful" to begin with. That brings us to the next point, about dual-use objects & LOAC violations. 2. Let's talk a bit more about what are often referred to in targeting parlance as "dual-use" objects. See, you're quoting a post @ABC reporting that @USAmbUN defended @POTUS @realDonaldTrump's "renewed threat to decimate Iran's power infrastructure and bridges amid his push to try to strike a deal with the country ahead of another round of in-person talks in Pakistan on Monday." Now, attacking power infrastructure & bridges & such most certainly can qualify as a war crime. BUT in order to confirm that, the first step would be to demonstrate EACH & EVERY ONE of the incidents you're condemning was not an attack directed at a military objective. As the DoD Law of War Manual indicates on the subject, "If an object is a military objective, it is not a civilian object and may be made the object of attack" (pic 3). Contrary to what seems to be popular belief (including among way too many of your @TheDemocrats friends in #Congress, unfortunately), attacking power infrastructure & bridges & such is not a war crime. It is a war crime to intentionally direct an attack against a civilian person (not DPH) or object. And to determine if an actual crime was committed, you almost always need actual evidence of intent & knowledge of personnel responsible for each attack AT THE TIME. If you don't have that, you don't know whether the thing that was attacked was believed AT THE TIME to qualify as a military objective. And if you can't do that, then you're not conducting a proper war crime assessment. Besides, refraining from attacking something that could be destroyed because it's a military objective and then deciding to go ahead & attack it later isn't a war "crime". It's just...war. Based on what I can tell from your bio, it doesn't appear you would personally know anything about that. If that's the case, it shows. Now, what I said above about confirming whether power infrastructure & bridges & such was perceived to be a military objective before you can confirm a war crime was committed is only partially correct. Because we're likely talking about "dual-use" objects, we're almost certainly expecting some degree of incidental damage from attacking these. As the DoD LoW Manual also notes (still pic 3), in that case "it will be appropriate to consider" the proportionality rule. So, let's do that next - not as a matter of federal law as you mistakenly claimed (see point # 1 above), but simply as a matter of basic LOAC compliance. 3. I hate to break it to you (actually, no I don't), but you just made the same mistake humanitarian activists @hrw + @amnesty & such often make. Most of them have never served a day in any military, let alone received any formal LOAC training in the applied military context. Not sure what your excuse is, but the way you articulate the proportionality rule is pretty pathetic. Here's what you said in the post I'm QT'ing here: Bombing "every single Power Plant, and every single Bridge" causes excessive civilian harm, which are war crimes." Now, I'm not going to go into, yet again, the difference between Trump's geopolitical rhetoric on social media & actual guidance carried out by the military bc I've already addressed that adequately before - maybe if I remember after I post this, I'll pull up one of those earlier tweets & include it as 1st reply to this one. For now, let's focus on the part I emphasized with bold + italics text from your quote about proportionality. As you should know, as a former USAF JAG & all, LOAC targeting rules - including (especially!!) proportionality - are not evaluated based on the outcome. That is, not on what degree of civilian harm they cause. This is because the doctrinal proportionality rule prohibits attacks in which the expected incidental damage is excessive in relation to the direct & concrete military advantage expected (pic 4, DoD LoW Manual; proportionality formulation reflected in AP I is substantially similar fwiw). Not the degree of incidental damage caused, but that which is expected. See the difference? Evaluating compliance with your rubbish version allows us to just observe how much incidental damage was caused AFTER an attack then make a judgement call whether it seems "excessive." The doctrinal version requires evidence of knowledge & intent of personnel responsible for each attack AT THE TIME of the attack. This is not something you can adequately gather from just looking at the aftermath of an attack & saying, "Oooohhhh. That seems excessive. Must be a war crime!!" Ok, here's the bottom line. We don't waive our hand & say "war crime" then pursue prosecutions on that basis alone in military practice. You shouldn't either in public discourse - especially as a member of Congress ffs. That goes for all 435+100 of y'all. But it's even more true for you, as a USAF veteran & former judge advocate. Because let's be completely honest. This nonsense you just posted - in public - is an embarrassment. It's an embarrassment to you, your reputation, the Democrats, and tbh all of Congress. But it's also an embarrassment for the U.S. Air Force JAG Corps. And I have close friends who have served or continue to serve as USAF JA's. Your very public ignorance on LOAC as a former USAF JA yourself is an embarrassment to them. For that, you should feel deep shame above all else. I'll close this little LOAC lesson with the same message I've conveyed to your comrades in Congress, like @RepVindman & @RoKhanna & others, I've had to correct here @X on similar subjects: Stay in your lane. You were elected to legislate. So do that. Leave LOAC compliance to actual practitioners in the Dept' of War & the commentary to actual experts...like me.