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The airwar, Russia and the UN Charter Article 23(1)

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The airwar, Russia and the UN Charter Article 23(1)

Old 15th May 2022, 17:43
  #41 (permalink)  
fdr
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Originally Posted by fdr View Post
Yes, and no; the devil isn't even in the details,
LW-50, just PM me with your objections...

IMHO

A U.N. Security Council Permanent Member’s De Facto Immunity From Article 6 Expulsion: Russia’s Fact or Fiction?

By Dan Maurer
Friday, April 15, 2022, 12:38 PM



Ukrainian President Volodymyr Zelenskyy’s speech to the United Nations on April 5 was the besieged nation’s latest call to the international community for unified aid from the nations that have already vigorously condemned Russia’s so-called special military operation. Zelenskyy questioned the legitimacy and value of the Security Council itself in the face of the most severe, systematic war crimes since World War II: “Where is the security that the Security Council needs to guarantee? It is not there, though there is a Security Council,” clearly pointing out the dilemma: Russia itself sits on this council as a permanent member, exercising its veto authority, effectively making this body impotent. The impotence is even more jarring in the face of the most significant international armed conflict in generations.

The conventional wisdom says that Russia cannot be expelled from the U.N., let alone kicked off its seat on the Security Council, because it is a permanent member of that council. In the weeks since Russia’s attack on Ukraine, much has been said and written on its legal implications. From an international law perspective, this failure in diplomacy and deterrence is a case study for students and observers of just war theory, economic warfare, “lawfare,” treaty obligations, jus in bello principles of the law of armed conflict, and the effect of modern technology on the proliferation of propaganda and misinformation as well as on the documentation of unlawful use of force in real time. Russian President Vladimir Putin’s attack has been so explicitly worthy of public condemnation and political sanction that reasonable people might expect that one simple and predictable consequence would be to expel Russia from the U.N., the important international organization devoted to protecting “peace, justice, respect, human rights, tolerance and solidarity” across the globe. But the resounding, though reluctant, retort has been to say that such expulsion is legally impossible. In syllogistic form, the argument says:
  1. The General Assembly may expel a member from the United Nations.
  2. But a Security Council vote to expel a member of the United Nations is required before the General Assembly can vote on it.
  3. That preliminary council vote requires the unanimous consent of its permanent members.
  4. Russia is a permanent member.
  5. Russia will exercise its veto to prevent the General Assembly from having the opportunity to vote on its own expulsion.
This post questions the key premise: premise number 2. Rather than swiftly dismissing the ability of the U.N. to expel Russia, a close reading of the U.N. Charter’s text and a mostly forgotten decades-old discussion by the International Court of Justice (ICJ) may reasonably suggest that the General Assembly does have that legal authority, regardless of any vote taken or not taken by the Security Council.

Can we? and Should we? are, of course, different questions. This post concerns only the narrower subject of interpreting the expulsion provision of the U.N. Charter; it also avoids the distinct legal and policy matter of whether the Russian Federation is, lawfully, a member of the Security Council at all when the charter itself assigned the responsibility to the U.S.S.R. and was never amended to reflect its dissolution. This interesting argument is raised and debated elsewhere. Nor will this post argue whether Putin and his military commanders are committing war crimes—also a critically important discussion occurring elsewhere. The single question here is this: Assuming legitimate cause for expulsion can be demonstrated, can the Russian Federation be legally removed from the General Assembly? The conventional wisdom says no. This post offers a basis for saying yes.

The Terms of a Social Contract of Article 4

Consider the U.N. Charter’s membership admissions rule. According to Article 4:
  1. Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.
  2. The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.
Foremost, Article 4 is like a social contract. Article 4(1) establishes that membership is conditional, and that condition is the acceptance of all the charter’s obligations, and willingness to carry out those obligations. Russia’s illegal invasion of Ukraine, a continuation of Putin’s unlawful militant action beginning with his government’s annexation of Crimea in 2014, should force the world community to consider what consequences follow in the face of a broken social contract. Putin’s order, and the Russian military’s subsequent breaches of international humanitarian law, by tacitly condoning or expressly ordering attacks on noncombatants and civilian property, is an unambiguous illustration of the very state conduct prohibited by the U.N. Charter and the Geneva Conventions. If the rule of law is to mean anything, then Putin’s attack on Ukraine deserves the global condemnation he has received and the punitive social and economic consequences he and his country feel. But there is something to be said for also denying such bad actors a place on the international stage as punishment for their abusive behavior, as a general deterrent, and as an expressive signal to other members of the international community that certain conduct crosses a red line of dignity and respect—one that separates members from nonmembers.

So, in addition to the tangible consequences of government-imposed sanctions, private commercial pressure, and a nonbinding resolution from 141 countries in the U.N., the question of whether the Russian Federation also deserves to keep a seat among other states on the Security Council, or even as a member of the General Assembly, has been raised. It is severely problematic for a nuclear nation endangering global peace by attacking a sovereign neighbor under demonstrably false pretenses to be a permanent member of the committee charged with “the maintenance of international peace and security” (Article 24 of the U.N. Charter). It is even more abhorrent and is a strike to the dignity of the organization and its members when that offending state commits the very acts it is expected to prevent and punish. Such a view was recently adopted by U.S. Secretary of State Antony Blinken, who
to question Russia’s continued membership on the Security Council following news of the apparent war crimes committed in the Ukrainian city of Bucha.

The Expulsion Provision of Article 6

Can the Russian Federation be unilaterally removed from its position on the Security Council, demoting it to a two-year term member or even excluding it from the council altogether? The answer is a pretty clear “no, not directly.” Nothing in the U.N. Charter expressly confers on the General Assembly, or other members of the Security Council, the authority to strip “permanent member” status or expel one such member even for good cause, like grossly “egregious” and repeated violations of the law of armed conflict and the U.N. Charter.

The obvious mechanism would be to amend the U.N. Charter to pointedly strike Russia from its permanent council seat or its membership in the General Assembly. This path, however, is merely a tempting mirage. While an amendment (according to Article 108) requires only two-thirds of the organization’s members to ratify it, the amendment still requires unanimous consent of the permanent members of the Security Council. In effect, Russia has the bizarre power to act like a criminal defendant who, with farcical impunity, single-handedly vetoes his own indictment or refuses to submit to the sentence the jury hands down upon convicting him.

Aside from amending the U.N. Charter itself, can Russia be removed, through regular expulsion mechanisms, from the General Assembly? The conventional wisdom says no (moreover, no member state has ever been removed under Article 6, despite numerous resolutions to expel offending nations raised by member nations over the decades). But upon closer inspection of the succinct Article 6, the answer is not so definitive:
A Member of the United Nations which has persistently violated the Principles contained in the present Charter may be expelled from the Organization by the General Assembly upon the recommendation of the Security Council.
The reason for the expulsion is straightforward: persistent violation of the charter’s principles. It is an ironic historical fact that it was the Soviet Union, in discussion and negotiation over what would become the U.N. Charter, that first “insisted” on a mechanism for expelling members, arguing it was “essential as a disciplinary measure.”

But the key phrase for this present purpose is what appears to be a contingent trigger for that expulsion: “upon recommendation of the Security Council.” In the usual rendering of this article, the Security Council’s recommendation necessarily precedes the General Assembly’s vote for expulsion, and that vote can begin only if the council voted in favor of expulsion. The discussions of the parties during the Dumbarton Oaks Conference, which would become the basis for the charter’s text, do not suggest otherwise. Under this interpretation, Russia can veto any such council recommendation, effectively preventing its removal from the U.N., essentially serving as a judge in its own case who dismisses the charges before trial. However, later commentators have sensibly emphasized—even assuming a Security Council vote was a required preliminary step—that the General Assembly’s discretion to expel a member was not controlled by the outcome of that earlier vote.

The Security Council Offers Advice or Grants Permission? Two Theories of Expulsion

In 1961, the General Assembly debated whether or not the cost of operations it had authorized in the Congo and the Middle East were to be paid by apportioning that cost across the member states of the U.N. The General Assembly asked the ICJ for a formal advisory opinion interpreting the charter’s text. In its July 1962 opinion answering this question, the court affirmed that the phrase in Article 17 “expenses of the Organization” and its requirement for defraying the cost of doing business across the member states did apply to the General Assembly’s expenditures for those specific operations. In drawing this conclusion, the court discussed a much larger concept: the General Assembly’s relationship with the Security Council. Notably, the court described the Security Council as having “primary” responsibility, not “exclusive” responsibility, for the maintenance of international peace:
The Charter makes it abundantly clear ... that the General Assembly is also to be concerned with international peace and security. Article 14 authorizes the General Assembly to “recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations, including situations resulting from a violation of the provisions of the present Charter setting forth the purposes and principles of the United Nations.” The word “measures” implies some kind of action, and the only limitation which Article 14 imposes on the General Assembly is the restriction found in Article 12, namely, that the Assembly should not [emphasis added by the author] recommend measures while the Security Council is dealing with the same matter unless the Council requests it to do so. Thus while it is the Security Council which, exclusively, may order [emphasis added] coercive action, the functions and powers conferred by the Charter on the General Assembly are not confined to discussion, consideration, [or] the initiation of studies and the making of recommendations; they are not merely hortatory.
Concerning the legal authority for Russia’s potential expulsion, it should be noted carefully what the court said next:
In connection with the suspension of rights and privileges of membership and expulsion from membership under Articles 5 and 6, it is the Security Council which has only the power to recommend and it is the General Assembly which decides and whose decision determines status; but there is a close collaboration between the two organs.
I will emphasize the point: “[T]he Security Council ... has only the power to recommend ...[.] t is the General Assembly which decides and whose decision determines status.”

It is difficult to square the conventional and widespread assumption about Russia’s de facto immunity with this ICJ opinion. Article 6 must be read as meaning something more than just an occasion for the General Assembly to vote on a nation’s expulsion only when the Security Council has first raised it, debated it and recommended it. It does not read—and this ICJ opinion makes the point clear—that the General Assembly may only vote on expulsion after a preceding vote by the Council, and one that positively recommended that punitive action.

Indeed, if the power and responsibility for global security rest with both bodies of the U.N.—each with independent and overlapping roles—then it would defy logic and the intention of the U.N. Charter to permit a small group of nations to function as the gatekeeper of all expulsion or suspension actions regardless of which nation is at risk for such a sanction or why it has come within the organization’s cross-hairs. It would further defy the charter’s clear intentions to afford one nation within that already exclusive club a perpetual shelter that remains secure even if that nation is the one violating international law and the foundational principles (see Article 2) and purposes (Article 1) of the charter.



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Old 15th May 2022, 17:43
  #42 (permalink)  
fdr
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Originally Posted by fdr View Post
IMHO

A U.N. Security Council Permanent Member’s De Facto Immunity From Article 6 Expulsion: Russia’s Fact or Fiction?

By Dan Maurer
Friday, April 15, 2022, 12:38 PM....
....of the charter.

A Structural Interpretation of the U.N. Charter

This reasonable reinterpretation of Article 6 is strengthened by reading the expulsion rule in light of the charter’s related provisions. There are at least four places in the document to consider. To begin, there is clear enough evidence that the parties well understood and appreciated the potential scenario of a Security Council member having a conflict of interest in a matter it was responsible for resolving: Article 27(3) expressly requires that such a member abstains from voting on the investigation and pacific settlement of disputes in which it is a party. There is no exception available for a permanent member. Not dispositive of the expulsion question, but suggestive.

Next, recall the charter’s membership admissions rule in Article 4 quoted above. It complements the warning in Article 6 that “persistent violations” of the charter justify expulsion from the organization. Note that Article 4’s set of qualifications for admission to the U.N. and Article 6’s permission to expel a member for persistent violations of the charter have something in common. They both speak of the Security Council’s recommendation. More conspicuously, they both lack something in common—neither article says explicitly whether a recommendation by the Security Council must be made before a vote to admit or remove a member.

This plain reading of the text faces at least one obstacle. In 1950, the ICJ rendered an advisory opinion directly addressing the meaning of Article 4. The ICJ unequivocally determined that it limited the General Assembly’s admission discretion: that decision could only follow on the heels of a Security Council affirmative vote, which thus implied that no permanent member had exercised its veto power:
The text under consideration means that the General Assembly can only decide to admit upon the recommendation of the Security Council; it determines the respective roles of the two organs whose combined action is required before admission can be effected: in other words, the recommendation of the Security Council is the condition precedent to the decision of the Assembly by which the admission is effected.
To the court, this was the “natural and ordinary meaning” of the words. Nevertheless, the ICJ was not unanimous in its opinion: The dissent observed that conditions of modern international relations, the very conditions that led to the creation of the United Nations, force a reconsideration of how to interpret international law:
The text must not be slavishly followed. If necessary, it must be vivified so as to harmonize it with the new conditions of international life. When the wording of a text seems clear, that is not sufficient reason for following it literally, without taking into account the consequences of its application.
In other words, when a literal reading would lead to “unreasonable or absurd results,” and “run counter to the purposes of the institution,” the interpretation of the text must be read more broadly and contextually.

But assuming, arguendo, that a Security Council recommendation must be made first, neither provision reads as a constraint on the General Assembly’s discretion and decision afterward. Article 97, regarding the appointment of the U.N.’s secretary-general, follows a similar pattern: “appointed by the General Assembly upon recommendation by the Security Council.” This, also, looks like an affirmative recommendation from the council must precede the assembly’s opportunity to vote and appoint the secretary-general. In practice, this is usually the case. However, as early as 1950, the U.N. demonstrated its flexibility and broad understanding of the plenary power of the General Assembly: The Security Council was deadlocked over the reappointment of Norway’s Trygve Lie as the first secretary-general; despite the Soviet Union’s threatened veto, the General Assembly reappointed him to the office anyway.

Just as the ICJ observed six decades ago (“it is the General Assembly which decides and whose decision determines status”), the assembly need not submit to the council’s recommendation. Otherwise, the word “recommendation” is hollow, and not just in one article but in several. It would, inevitably and always, lead to “absurd results” and “manifest injustice” that “run counter to the purposes of the institution.” And if the General Assembly can disregard that recommendation, it is not obvious at all that a recommendation must be made, one way or the other, first.

There is a foreseeable, though relatively weak, objection to this view—one that also considers context and the changing character of international relations. It would say the particular phrasing or word choice of these two provisions is—in the real world of politics and diplomacy—irrelevant, or at best an academic puzzle. It would insist that the clause “upon the recommendation of the Security Council” should be construed, as most observers conclude today, as a limiting constraint on the General Assembly’s freedom of decision and its timing. This broad interpretation, empowering the Security Council at the expense of the General Assembly, is—the thoughtful objector would say—the most natural one when considering the gravity of the council’s peacekeeping mission and accepting the scope of its responsibilities. In other words, the Security Council does wield tremendous authority and can speak for the U.N. as a whole by ordering punitive economic sanctions or authorizing military force. Therefore, presuming the Security Council must vote first and must vote in favor of admission or expulsion before the General Assembly may consider the course of action is a normatively coherent and pragmatically consistent reading of Article 4’s admissions criteria and Article 6’s expulsion process.

That presumption, however, fails in the face of the structural interpretation of the U.N. Charter; and its inappropriateness is even clearer when giving due regard to the drafters’ intentions and the very purpose of the charter outlined in Articles 1 and 2. During the Yalta Conference in 1945, Secretary of State Edward Stettinius of the American delegation described in a memorandum the U.S. position on how future Security Council voting, relative to action taken by the General Assembly, would proceed. The memo explained that when it came to the issues of admitting new members, suspending or expelling members, and selecting a secretary-general, the action by the council was explicitly categorized as a “recommendation” and distinguished from decisions that would be left to the ultimate discretion of the council itself, like punitive enforcement actions.

So why the confusion? The procedural requirement that an expulsion vote within the Security Council must include the unanimous consent of each permanent member (regardless of whether one of those members was the problem) has been misinterpreted by some scholars as proof that a problematic permanent Security Council member could effectively block its own removal before the decision could be made by the General Assembly: One commentator asserted unequivocally that “the General Assembly cannot expel a Member without first receiving a recommendation to that effect from the Security Council.” This might be called the “Security Council Permission Theory of Expulsion.”

But if the drafters of the U.N. Charter wanted a preliminary Security Council vote to be both required and binding on the General Assembly for admission or expulsion of a member, they could have said so explicitly. They certainly knew how to draft text in this fashion: They did so in several other areas in the charter. For example, in Article 12:
  1. While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests. [emphasis added]
    • The Secretary-General, with the consent of the Security Council [emphasis added], shall notify the General Assembly at each session of any matters relative to the maintenance of international peace and security which are being dealt with by the Security Council and shall similarly notify the General Assembly, or the Members of the United Nations if the General Assembly is not in session, immediately the Security Council ceases to deal with such matters.

And in Article 25: “the Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”

If words matter at all, then two points are paramount and largely obvious. First, a “recommendation” by the Security Council is not the same as a “decision” by the Security Council. Second, no conditional triggers or caveats like “unless the Security Council so requests” or “with the consent of the Security Council” are found to hinder the actions of the General Assembly permitted by Articles 4 and 6. The “Security Council Permission Theory of Expulsion” is long-entrenched. But it is also wrong.

Conclusion

Engaging Article 6 of the U.N. Charter to expel Russia is not, in fact or law, prevented by Russia’s status as a permanent member of the Security Council. Whether Putin and his agents in the government and military on the ground in Ukraine ought to be prosecuted as war criminals, or even whether Russia should be expelled from the U.N. for directly endangering international peace by waging an unlawful war of aggression against the territorial integrity of a sovereign neighbor and its noncombatant citizens, are deeply complicated geopolitical questions for which this post admittedly offers no hint of an answer. Instead, there is some reason to be optimistic, rather than cynical, about the global community’s legal right to hold even a Security Council permanent member accountable for its illegality by removing that offender from the community itself, as both a deterrent and an expressive signal of how much the global communities values the principles of the U.N. project. I suspect that this view does not appeal to the governments of any of the other four permanent members. But one consequence of making expulsion a real possibility is that it would shift attention to the justification required—the evidence of “persistent violations” that must be presented for the consideration of the General Assembly.

Expulsion has always been considered a drastic remedy, fraught with the risk that it would delegitimize the very concept of a global community of nations united in a process to peacefully resolve disputes and advance mutual interests, or at least cast out a member and force it to the fringe of global society, the periphery of cooperation and the sidelines of decision-making. That such action has never occurred in the U.N.’s history does not render the individual U.N. Charter’s meaning and purpose irrelevant, though. The charter is understood to be a “constitutional framework” that structures the rights and responsibilities of the member states. Just as one would interpret the U.S. Constitution in the absence of binding precedent, the charter’s rules, including rules creating the rights and responsibilities of the Security Council, ought to be read in a way consistent with the charter’s purpose and design. Article 6, demonstrated by its text and by its relation to other articles, does provide for the very kind of accountability that intuition demands but that conventional wisdom has, so far, prematurely deemed procedurally impossible.


The UN Charter has been amended at least 5 times in it's history, this would be just another use of Art 108 process to get Russia out of the house. Personally, I prefer running the continuing state issue past the ICJ under Article 96(1) which would be binding under Article 94(1). The beauty of this is that it is fast, the jurists assess the question and answer that, and if it is that the USSR was not continued by Russia legally, then Russia is done on the UNSC. At that point, the UNSC can deliberate on a motion to suspend or expel Russia. Article 94(2) doesn't arise as an issue, where Russia has been removed from the UNSC by the ICJ ruling, which is binding on all members....
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Old 15th May 2022, 18:24
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How about a UNSC2 ?

It's the usual way to get rid of an obnoxious member.
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Old 16th May 2022, 14:25
  #44 (permalink)  
 
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Originally Posted by fdr View Post
IMHO
LW-50, just PM me with your objections...
Why waste my time dealing with someone who is in 'trasmit only mode' on this topic? Two very simple points that you continue ignore. Spoiler to confine the text that isn't aviation content to its own zone.
Spoiler
 
4. Aviation Content: The much wished for UN No-Fly-zone (which does have precedent) that numerous posters have brought up since Feb 24 is not going to happen for the same reasons (and of course Russia's ability to veto). Interestingly, the lack of a no fly zone has not enabled Russian victory - their ability to conduct complex air operations in support of a theater level conflict is substantially less than many of us had suspected it was.

If you look at the recent river crossing mess that's in the news: despite their having smoked the crossing site and made the attempt while drones were a bit less able to 'see', their lack of even local air superiority left their troops exposed.
Granted, the video (up thread a bit) shows that the Ukrainian artillery, in a fine application of Red Army artillery doctrine, had already assessed that area as a likely river crossing site and had set up a kill sac (having pre registered their artillery). If they were at risk of airborne counter artillery measures, or had been counter attacked from the air when their positions were exposed by firing, that would not have been as effective as it was.

Last edited by Lonewolf_50; 16th May 2022 at 14:42.
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Old 16th May 2022, 14:47
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Originally Posted by Lonewolf_50 View Post
Why waste my time dealing with someone who is in 'trasmit only mode' on this topic? Two very simple points that you continue ignore. Spoiler to confine the text that isn't aviation content to its own zone.
Spoiler
 


4. Aviation Content: The much wished for UN No-Fly-zone (which does have precedent) that numerous posters have brought up since Feb 24 is not going to happen for the same reasons (and of course Russia's ability to veto). Interestingly, the lack of a no fly zone has not enabled Russian victory - their ability to conduct complex air operations in support of a theater level conflict is substantially less than many of us had suspected it was.

If you look at the recent river crossing mess that's in the news: despite their having smoked the crossing site and made the attempt while drones were a bit less able to 'see', their lack of even local air superiority left their troops exposed.
Granted, the video (up thread a bit) shows that the Ukrainian artillery, in a fine application of Red Army artillery doctrine, had already assessed that area as a likely river crossing site and had set up a kill sac (having pre registered their artillery). If they were at risk of airborne counter artillery measures, or had been counter attacked from the air when their positions were exposed by firing, that would not have been as effective as it was.
Didn't the mods create a special thread for you two to transmit at each other?
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Old 16th May 2022, 15:06
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Originally Posted by Ripton View Post
Didn't the mods create a special thread for you two to transmit at each other?
No. IIRC, fdr did. (The mods did, I think, move a few posts there after the fact).
Like you, I am responding to a post in this thread.
If you want fdr to stop doing crap like this and this in this thread, then I suggest that you take it up with him.
Have you got any comment on the aviation related content that I posted, or are you just sniping?
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Old 16th May 2022, 16:29
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Originally Posted by Lonewolf_50 View Post
No. IIRC, fdr did. (The mods did, I think, move a few posts there after the fact).
Like you, I am responding to a post in this thread.
If you want fdr to stop doing crap like this and this in this thread, then I suggest that you take it up with him.
Have you got any comment on the aviation related content that I posted, or are you just sniping?
Your recollection and mine differ
No not sniping, just getting a sense of deja vu from a month ago. I apologise, perhaps it would have been better if I'd quoted both you and fdr in my comment? I'll keep out of it now.
Rather than rehashing your response you could have just reminded him of the other thread.
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Old 16th May 2022, 21:30
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Originally Posted by Ripton View Post
No not sniping, just getting a sense of deja vu from a month ago. I apologise, perhaps it would have been better if I'd quoted both you and fdr in my comment?
Yes, that would have been a fairer approach than calling me out and leaving his spam unmentioned.
Your general position is a fair one, though. If it crops up again I will suggest that it be moved to that other thread where it belongs.
Back to bombs, BTR's, and BMPs. As you were
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Old 17th May 2022, 21:05
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