Friday, 29 April 2016

International Law and The Eye in the Sky: a hasty critique

Gavin Hood’s The Eye in the Sky is a timely release for me.  I am just on the wrong side of halfway through my thesis examining the legality of armed drone strikes and all of a sudden a film arrives which attempts just that.  Well, sort of.  BEWARE of reading on if you’ve not yet seen the film, I’ve included some SERIOUS SPOILERS!  Go watch it now then come and read this later…

Much of the film focuses on the legality of a drone strike upon a meeting of identified members of al-Shabaab the Somali armed group, in a house within a compound in Nairobi, Kenya.  It concerns the debate surrounding the change of a mission from one aimed at capturing subjects to one in which they become targets, to be killed by a missile fired from a drone.  Prominent is the issue of collateral deaths, as a young girl named Fatima (played by Faisa Hassan), sets up a stall selling bread next to the targeted house and will likely be killed by the strike.  The purpose of this piece is to consider, in brief, the various legal elements of the film.  If you want to know where, in terms of cold hard doctrine, the film got it totally wrong, then skip ahead to paragraph five!

The first is that of jus ad bellum, the law governing when force can be used extraterritorially.  Normally, states are prohibited from using force under Article 2(4) of the UN Charter, except in cases of self-defence, as enshrined in Article 51 of the Charter and customary law.  At first glance, this might seem the most problematic aspect of the strike—there is reference in the film to Kenya being ‘a friendly country’, implying that the use of force would be in breach of the Article 2(4) prohibition—the UK is clearly not using force to defend itself against Kenya.  However, the strike is a joint operation, lead by the British but with clear support from the Kenyan military.  We can therefore infer that the Kenyan government has given its consent to the operation.  Consent—as I have written about in depth elsewhere—vitiates questions of jus ad bellum.  There is no infringement of a state’s sovereignty when that state has authorised the strike, an act which is inherently an exercise of sovereignty.  Kenya has consented so there is no infringement of the jus ad bellum.  So far, so legal.

Secondly is the question of whether the strike was lawful under international humanitarian law (IHL), the law that governs warfare (in peacetime human rights and domestic law applies) and it is this that occupies the majority of the film.  Much time is spent wrangling over the calculation to be made between the collateral damage likely to occur (Fatima being blown to pieces) and the ‘concrete and direct military advantage anticipated’.  This calculation found in Article 51(5)(b) of Additional Protocol I of the Geneva Conventions and customary international law.  The realities of this calculation are beyond my experience, but I was told soon after watching the film that, sadly, the death of one child balanced against those of three high-level members of a terrorist group, three additional low-ranking members and the prevention of two suicide attacks, is not one that would take long to make: the strike would definitely go ahead.  And doubtless, under IHL, it would be legal.  In this way the main legal questions of the film are ultimately uncontentious, and the main dilemma political and moral, rendered cold through the operation of strategic legal language (discussed excellently here by Ntina Tzouvala).

But there is a problem!  IHL and the collateral damage calculation are only applicable during an armed conflict.  The assumption throughout is that the situation in which the strike occurred was an armed conflict and that therefore IHL was applicable.  But this assumption is incorrect: the UK is not in an armed conflict with al-Shabaab.  For it to be, there must be violence which is protracted and an armed group which is organised (held by the ICTY in the Tadić jurisdiction decision, paragraph 70).  Al-Shabaab is certainly organised, demonstrating many indicative features identified in international jurisprudence (for instance, in the film itself we see the use of checkpoints, cited as evidence of organisation by the Tribunal in the Limaj judgement, paragraph 145).  But there is no protracted violence between the UK and al-Shabaab, nor has there been.  It is possible that there is an armed conflict with Kenya since the horrific attacks on the Westgate shopping mall and Garissa University College but these attacks are insufficiently intense to have produced a non-international armed conflict; though awful, they were terrorist acts which have been distinguished from armed conflicts (Tadić Trial Judgment, paragraph 562).  Thus the strike occurred outside of an armed conflict situation.

Therefore, the international law that should have been applied to the strike is not IHL, but human rights, rules which are far less permissive than IHL when it comes to killing: there is no balancing of collateral damage and military necessity within human rights.  Though Kenya consented, no state can consent to acts with contravene human rights.  I am no human rights expert (that comes in the final third of the PhD, I’m not there yet!) but the right to life under Article 2 of the European Convention on Human Rights is only derogable in, inter alia, instances of armed conflict, which is exactly what does not exist in The Eye in the Sky.  Article 6 of the International Covenant on Civil and Political Rights provides that ‘No one shall be arbitrarily deprived of [her or] his life’ but it seems that this is exactly what has occurred at the end, when the dust settles and Fatima lies dying on the ground.  

It seems, as such, that the strike was carried out contrary to international law, though this is not immediately evident from the film.  That the decision to carry out a drone strike is a political, rather than legal, choice is apparent by the fact that the lawyers in the film possess about as much backbone as a tridacna crocea.  Nonetheless, the likely initial and ongoing feeling elicited by the film is that the strike was unpleasant though legal, despite the fact that it was quite the opposite.  In this manner, the film makes a, presumably accidental, point about the nature of those drone strikes currently being carried out in the world, which are continually asserted to ‘comply with all applicable law, including the laws of war’.  In actual fact, the legal reality is infinitely less straightforward.

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