It was today revealed by various newspapers (for instance, the Guardian, BBC and Mail) that Sally Jones, the so-called 'White Widow', has likely been killed by a targeted drone strike. Jones was described as being a member of ISIS and was apparently killed, along with her 12-year-old son, in June 2017 near the Iraq-Syria border.
As a researcher whose work for the last three and a bit years has been on the lawfulness of drone strikes, the question of whether this strike was lawful or not immediately came to mind. Jones was viewed as a member of ISIS and generally the media has uncritically reported her death, implying an assumption that the strike was lawful. But is this correct?
There is an armed conflict occurring in the situation in which Jones was targeted. This means that a particular set of international laws apply, known as 'international humanitarian law' (IHL), or the law of armed conflict. These rules give states, among other things, much greater scope to use lethal force, which ordinarily would be highly constrained. So, when considering the lawfulness of the strike against Jones it is IHL that we apply.
During armed conflicts, IHL allows members of the state armed forces to be targeted at any time (subject to restrictions: medical and religious personnel cannot be targeted). However, the same categorical approach is not permitted in terms of members of non-state armed groups. As they are not members of a state's armed forces, the members of these groups are viewed a civilians. Within IHL civilians are protected against attack and may not be targeted unless they directly participate in hostilities.
The International Committee of the Red Cross (ICRC) has interpreted 'direct participation in hostilities' to mean that members of non-state armed groups will lose their protection as civilians only if they carry out a 'continuous combat function'. This is controversial, with many arguing the ICRC approach is too restrictive and that membership alone should be sufficient to cause someone to lose their civilian protection. This is the position held by the United States. Others think that the ICRC approach is too broad and that an individual may only be targeted during a specific hostile act. While the details of this debate are too complex to set out presently, it suffices to say that, ultimately, the ICRC's position seems to find a middle ground between these two perspectives and is a useful tool for analysis.
So, the question is: was Sally Jones directly participating in hostilities, either through a specific hostile act, or by carrying out a continuous combat function, when she was targeted? The answer depends on facts that have not yet been made public, but we can make some assumptions. She was said by the Mail to have been killed 'while trying to flee Raqqa' which, though not removing the possibility that she was engaged in a hostile act, seems to imply that she was not. This suggests that she was targeted due to her purported membership of ISIS.
Therefore me must next ask whether the nature of her membership of ISIS meant that she could be targeted. An important detail is that the ex-head of counter-terrorism Ministry of Defence is quoted in the Guardian article as having described Jones as a 'significant' target, due to the fact that she was an active recruiter for the group. She was active on social media, encouraging individuals to travel to Syria to join ISIS or to carry out attacks in the UK.
This is not a good thing for a person to do, but does it render them a lawful target for lethal force? There are plenty of despicable people on the internet, but is it right that this should render them liable to be killed out of the blue? For me, the answer is no. Nasty as this conduct no doubt is (or was), there is no way that this behaviour can be construed as being sufficient to make Sally Jones a lawful target. This chimes with the interpretation of the ICRC which has specifically argued that recruitment (page 53) and propaganda (page 51) activities do not equate to a continuous combat function, nor to direct participation in hostilities. On this basis, the strike that killed Sally Jones and her son is most likely to be unlawful.
Others will disagree, utilising more expansive interpretations of the law but the fact that such a position requires an expansive (and contested) interpretation demonstrates that it is not a firm legal basis. However, even if my conclusion is disputed I would argue that it is not possible to assert that the strike was certainly lawful. That view can only be sustained by a adopting a particular view of the law, one that doesn't reflect academic consensus and which opens up much greater scope for the use of lethal force against civilians.
IHL is designed to limit hostilities, not enable them. It should not be treated as a set of rules giving broad powers to states to target individuals, but as a body of law to protect those affected by conflict. This is particularly so in terms of conflicts between a state (or states) and a non-state armed group, in which there is more scope for civilians to become affected by and mixed up in conflict. ISIS are a truly awful group of people, there is no question about that, but just because a person supports them should not make that person liable to lethal targeting. The boundaries of conflict should not be stretched to include those civilians who are involved in a manner not directly related to hostilities. Online activities like those of Sally Jones do not bring an individual into the scope of people who may be killed, no matter how unpleasant we find them. That is not what the law is for, nor should it be.
International bLAWg
Thursday 12 October 2017
Friday 1 September 2017
My publications
Max Brookman-Byrne 'Drone use "outside areas of active hostilities": an examination of the legal paradigms governing US covert remote strikes' (2017) 64(1) Netherlands International Law Review 3-41 (open access, available here)
Max Byrne 'Consent and the use of force: an examination of "intervention by invitation" as a basis for US drone strikes in Pakistan, Somalia and Yemen' (2016) 3(1) Journal on the Use of Force and International Law 97-125 (open access, available here)
Max Byrne 'The failed state and failed state-building: how can a move away from the failed state discourse inform development in Somalia?' (2013) 1(1) Birkbeck Law Review 111-134 (open access, available here)
Max Byrne 'Consent and the use of force: an examination of "intervention by invitation" as a basis for US drone strikes in Pakistan, Somalia and Yemen' (2016) 3(1) Journal on the Use of Force and International Law 97-125 (open access, available here)
Max Byrne 'The failed state and failed state-building: how can a move away from the failed state discourse inform development in Somalia?' (2013) 1(1) Birkbeck Law Review 111-134 (open access, available here)
Tuesday 1 November 2016
The transformation of international law and the rise of drones series, part I
This post is the first in a series (well, hopefully
a series, but let’s face it, PhD ≠ free time) that I am going to do on the way
in which international law is being or may be transformed by the increased use of armed
drones by states. It is, in large part, an exercise for me to order my own
thoughts on the matter, but I also hope that it will provide some food for
thought among those with interests in international law, politics and technology,
about what drones might mean for the future. So here goes…
It has been a theory of mine, since before
I began my research into drones and international law, that the rise of these remotely
piloted weapons might have the result of promoting, within states, a desire to
interpret the law in a way that is more permissive of the use of force.
The logic behind the theory runs like this: Until now, states' desires to use force have been restrained by both concrete practical and abstract legal impediments. Drones make the extraterritorial use of force a much more ‘simple’ endeavour, as they remove much that has previously
presented a physical, concrete barrier to such actions, at least for those with
the infrastructure to fly them. As a result of the removal of concrete barriers to uses of force, states
become restrained solely by abstract
barriers. International law, and its symbiotic relation (or perhaps its
alter-ego) international politics, represents the most instantly present of these
abstract barriers, manifesting in such things as the prohibition on the use of
force under Article 2(4) of the United Nations Charter. When concrete impediments are overcome and law remains the only barrier, not
only is there is an incentive to change the way that law operates, but it is likely
to occur as a necessary consequence as practice expands to fill its new
horizons, sort of like an international law version of Parkinson’s law. Areas of international law representing the principle barrier(s) to uses of force become focal points, either by design or accident, which are put under stress by practices that occur at the limits of its flexibility, which may ultimately change its shape, like an elastic band which loses its elasticity, or a much-loved sock which just ends up looking sad and tired... Maybe there is a better analogy. Nope, that'll do.
The change
in the law produced by drone use is not an overturning
of that law, but a blurring of it through interpretation.
There is not a concerted and overt campaign to change the law, but rather a
constant stress placed upon those areas which represent barriers. There
is no chance, for instance, that the use of drones will signal the end of the
prohibition on the use of force under Article 2(4) of the UN Charter. But it may
result in an increased permeability of that rule, as the exceptions to it—principally
self-defence—are gradually widened. And it is these sites of the law being ‘widened’,
or made more permissive of uses of force that I would like to focus on over the
coming months.
I have argued previously that the growth of
drones is likely to speed up the transformation of the ‘armed attack’
requirement of Article 51 of the UN Charter form a state-against-state mechanism
to one which focuses on attacks by non-state actors. But I believe that there
are many other areas of international law which are potentially at risk of
interpretive transformation as a result of this new technology. I intend to
consider a number of these within this blog, and to set out my argument as to
why drones present a possible ‘challenge’ to the current state of the law (I
put the word challenge in inverted commas as, of course, some might see this as
a welcome opportunity to expand international law in a way that will enable
states to defend themselves more efficiently. Needless to say, perhaps, I don’t
share this view!).
The key areas (in addition to the armed attack requirement) I have identified as being most
susceptible to change are:
-
The gravity requirement within
self-defence
-
The unable and unwilling test
within self-defence
-
The law governing the consent
of states to third state interventions
-
The law governing the existence
of non-international armed conflicts
It will be noted that these areas of law
are, for the most part, the gateways to uses of force, rather than aspects of
international law that govern conduct in the use of force. I suppose that this
is a result of the fact that drones are being viewed from the perspective of
technology that enables the use of force, so it follows that the areas of law
they impact upon are those involved in the enabling/disenabling of uses of
force. These are the abstract barriers. It is pure coincidence that these areas
of law coincide with those so far covered in my PhD thesis on drones and
international law!
So, hopefully I will have a chance to post the first substantive piece in the series within the coming weeks. I look forward to writing it and I hope you enjoy reading it!
Friday 7 October 2016
Drones and the politics of international law
Drones (also known as unmanned aerial
vehicles or remotely piloted aircraft systems among other monikers), though not
yet ubiquitous, are increasingly permeating our daily lives. They are used by
scientists, police forces, hobbyists and delivery companies (but only for burritos...). Only the
other day, while my partner and I were walking in the isolated North York moors,
a drone hummed determinedly across the sky. But it was not a
quadcopter being flown by a member of the public, it was (most likely, having
referred to the very handy Drone
Survival Guide) a ‘Hermes’ military surveillance drone, operated by the
Royal Air Force, providing a clear reminder that the growth of drones has
arguably had its most palpable manifestation within the field of armed conflict.
Drones have had a place in this field since
at least the First World War, and they have subsequently played a part in many
conflicts, including Korea, Vietnam, the Yom Kippur War and Yugoslavia. However,
though some of these drones were used lethally as guided bombs, most were purely for reconnaissance. It was not until the Kosovo war that a
drone, the Predator, was armed[i]
and later still, during the war in Afghanistan, that a missile was fired by a
drone. Since then, the number of
drones has grown at a staggering rate. In 2000 the US had fewer than
50 drones[ii]
but by 2012 this had risen
to over 19,000, set to rise as the Pentagon
seeks to increase its daily drone flights by 50%. Drones therefore have the
capacity to change the traditional picture of warfare from one of direct
personal engagement to one that is indirect and impersonal, at least for those
states with the infrastructure to fly them.
Nonetheless, this transformation does not
have immediate implications for armed conflicts and the law that governs them—from
a doctrinal perspective, drones are not per
se legally problematic, they are ‘conventional weapons’ under international
law and they are not prohibited under any of the treaties that restrict the use
of certain weapons.[iii] However, this statement masks the fact that
it is not the weapon itself that is controversial, but the uses to which it can
be put. On 3 November 2002, the US fired a missile from
a Predator drone operating in Yemen, which killed six people including a reputed
high-ranking member of al-Qaeda, wanted by the FBI in connection with the
attack on the USS Cole in 2000. The importance of this event is difficult to
overstate as it represented the first drone strike undertaken outside of a
combat zone, against a non-state actor with no link to the state in
which they were present. It is therefore of a distinctly different character,
demonstrating the ability of drones to transcend the traditional boundaries of
‘war’. Since that first extra-conflictual strike, the use of drones in this
manner has increased dramatically and the US flies them constantly in Pakistan,
Yemen and Somalia. The number of deaths from drone strikes is now
well over 5,000, many of which have been civilian. What drones represent
therefore is a dramatically increased ability of states to use extraterritorial
force avoiding much in the way of public accountability.
Luckily, untrammelled force on the part of
powerful states is circumscribed by the framework of law that governs the use
of force by states, known as jus ad
bellum.[iv]
This area of law comes out of the historic practice of states (known as
customary international law) and, most importantly, the Charter of the United
Nations. Article 2(4) of the Charter creates a universal prohibition on the use
of force by states, subject only to a handful of exceptions. Principal among
these is force used in self-defence;[v]
under Article 51 of the UN Charter and international customary law, a state may use force ‘if an armed attack occurs’ and if it is necessary and
proportionate.[vi]
The Charter has been acceded to by ostensibly every state in the world and
therefore we may assume that when drone strikes are carried out, they are done
so in line with these laws. Indeed the US has insisted
(in the guise of assertions about its wider use of force) that its global drone
programme is carried out in line with international law. Thus it is possible to
aver that the resort to drone strikes can be lawful under the rubric of jus ad bellum and that as such their use
is done so in accordance with the international law; those actions that would
be illegal are not carried out. End of story.
But of course this is not the end of the
story at all. To claim that the law restricts the use of force and that
therefore any resort to drones must be legal (I mean, come on, states aren't going to breach international law are they? Right??) is to ignore part of the picture. This is that the law is a political process, subject to competing interpretations
vying to crystallise a particular view of the law, advancing specific interests. In the words of Martti
Koskenniemi, the law is a ‘[p]olitical struggle … waged … on the meaning of
legal symbols’.[vii] And drones provide a catalytic point around
which these divergent interpretations converge by virtue of the fact that they
represent a (relatively) easy way of states to resort to forceful actions. To
put it another way, when force is a practical difficultly and therefore less
likely to be used, it makes no difference whether the legal system in which it
is used is restrictive or permissive; however, when the resort to force is
readily available, the practical barrier has been removed and only the legal
one remains. This consequently rests a state’s foreign policy options on whatever is
the dominant interpretation of the law, giving states a huge motivation to interpret the law in a way that suits them.
This interpretive struggle is evident throughout
the jus ad bellum but it is at its most
clear when we look at a state’s ability to resort to force not
against another state, but against a non-state actor (NSA). Under Article 51 of
the UN Charter, which preserves states’ ‘inherent right’ to self-defence, a
state may respond forcefully only when they have suffered an ‘armed attack’,
but there is no definition of what such an attack constitutes. Consequently,
the notion of an ‘armed attack’ presents itself as a legal concept which cannot
but exist through interpretation. The key site of interpretive struggle
over its meaning is whether such an attack can only come from another state
(this could be via a NSA but requires a link between that NSA at the state in
which it resides), thus restricting a ‘victim’ state’s right to self-defence, or
whether it can come from a NSA, therefore expanding a state’s right to
self-defence.
The UN Charter regime has been
traditionally understood to emphasise the limitation of the use of force and it
has been said that during the foundation of the UN ‘the general tendency was
towards a restrictionist interpretation of any permission in relation to the
use of force.’[viii]
The traditional teleology of the jus ad
bellum is like the ‘perpetual peace’ of Kant’s cosmopolitanism.[ix] This provides the first interpretation of the
law—the ‘restrictionist’ approach. This interpretive underpinning has been
borne out by judicial decisions considering the possibility of armed attacks
originating from NSAs. In the case of Nicaragua v United
States, the International Court of Justice (ICJ) held that for an armed
attack to be carried out by a NSA, there must be some degree of connection
between that NSA and the state in which they reside[x]
(though without saying what this degree needed to be). Similarly, in the Wall
advisory opinion of 2005, the Court referred to ‘the existence of an inherent
right of self-defence in the case of an armed attack by one state against
another state’.[xi] Finally, in DRC v
Uganda the Court again cited the need for a non-state actor to be
linked with a state before self-defence can be invoked.[xii] Under this interpretation of the
international law of self-defence, drone strikes would be restricted to
conflicts which are ostensibly between states. Attacks carried out by NSAs
would necessarily be treated as crimes and accordingly be dealt with as a
matter of law enforcement. It is thus that such an interpretation can be
understood to focus on and promote peace rather than allowing states easily to
use military force in the territory of others.
Despite this seemingly staunch support for
the requirement of a link between NSA and territorial state, the traditional
restrictionist approach has been challenged by an opposed interpretation that emphasises
states’ security requirements over the pursuit of peace. This alternative
interpretive paradigm entirely removes the requirement of a state-NSA nexus and
consequently creates a regime in which the lawful resort to force is much more
readily available, known as the ‘expansionist’ approach. Jordan Paust referred to 19th Century state practice to interpret the armed attack concept as
requiring no state-NSA link[xiii]
while others have suggested that preventing self-defence against independent
NSAs would undermine the object and purpose of the UC Charter.[xiv]
This expansionist interpretation appears
to have found favour with states in their recent practice as well, an example
of which being the use of force against ISIL in Syria, in which self-defence
appears to have been raised.[xv] In contradistinction to the restrictionist
paradigm above, this formulation of self-defence allows states to undertake
forceful actions in the territory of others much more readily, and makes
conflict a much more likely prospect, to the point of normalisation.
The use of drone strikes in Pakistan, Yemen
and Somalia has
been justified by self-defence[xvi]
and in these instances force has been used against NSAs which are not linked to
those states. In this manner it is entirely clear how their use has been made
possible through an interpretation of the law and that the expansionist
interpretation is currently dominating. Likewise, it is easy to see how this
understanding of self-defence could be employed in the future to justify their
further use. Drones therefore represent a coming together of the concrete and
the abstract; when an expansionist interpretation is adopted, drones are the
point at which the practical and legal possibilities of the use of force become
congruent. They allow those states with the capacity to operate them the
ability to use military force to police an entire region, as is arguably the
case in the Federally Administered Tribal Areas in Pakistan.
In conclusion, it is vital that those
studying drones are cognisant of the inherent plasticity and interpretive
flexibility of the international law governing the resort to force. It is
submitted that drones have arisen in an epoch that is hallmarked by an
increased desire on the part of states to use force and a consequent reduction
of global stability. The law cannot be viewed as a fixed structure which checks
state uses of force—to do so would be result in the loss of all critical legal
faculty. Drones have pushed to the forefront many inherent tensions within
international law and without examination and resistance these have the
potential to resolve themselves into a system that is highly permissive of the
use of drones. The risk is the creation of conditions that encourage powerful
states to subject weaker ones to near perpetual militarised policing from the
air. This rather bleak prediction may sound far-fetched but it is already the
case in the tribal areas of Pakistan. The need for critique is immediate.
[i] M Benjamin Drone Warfare;
Killing by Remote Control (Verso, 2013) 15.
[ii] M Benjamin Drone Warfare;
Killing by Remote Control (Verso, 2013) 17.
[iii] For instance the United Nations Convention of Certain Conventional
Weapons (1980), which regulates landmines, incendiary weapons and blinding
lasers, amongst others.
[iv] It should be noted that this is distinct from international
humanitarian law (or jus in bello)
which governs the conduct of hostilities once they have begun, which is not
considered here.
[v] The other exceptions to the prohibition are collective actions in response to
threats to peace, under Chapter VII UNC, as well as the more controversial
humanitarian intervention. A state is able to consent to foreign intervention
within its territory as an inherent aspect of sovereignty, but this removes the
act from the jus ad bellum framework,
rather than rendering it lawful within it.
[vi] Necessity and proportionality do not originate with the UN Charter
but from much earlier customary international law, as evidenced in the Carline affair of 1837 in which self-defence
was deemed lawful only when the ‘necessity of that self-defense is instant, overwhelming, and leaving no
choice of means, and no moment for deliberation’.
[vii] M Koskenniemi ‘What Should International Lawyers Learn from Karl
Marx?’ (2004) 17 Leiden Journal of
International Law 229, 236.
[viii] I Brownlie ‘Legal Regulation of the Use of Force’ (1959) 8 International and Comparative Law Quarterly
707, 718.
[ix] I Kant ‘Toward Perpetual Peace’ (DL Colclasure trnsl.) in P
Kleingeld Toward Perpetual Peace and Other Writings on Politics, Peace, and
History (Yale University Press, 2006) 73.
[x] Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America) ICJ Reports (1986) [195].
[xi] Advisory Opinion Concerning the Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territories ICJ Reports
(2004) [139].
[xii] Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v. Uganda) ICJ Reports (2005) [146].
[xiii] JJ Paust ‘Self-Defence Targetings of Non-State Actors and
Premissibility of US Use of Drones in Pakistan’ (2010) 19(2) J.Transnat'l
L.& Pol'y 237, 244-7.
[xiv] AC Orr ‘Unmanned, Unprecedented, and Unresolved: The Status of
American Drone Strikes in Pakistan Under International Law’ (2011) 44 Cornell
Intl LJ 729, 739.
[xv] SJ Power ‘Letter dated
23 September 2014 from the Permanent Representative of the United States of
America to the United Nations addressed to the Secretary-General’ S/2014/695
[xvi] See e.g. H Koh ‘The Obama Administration and International Law’
(March, 2010) Speech at the Annual Meeting of the American Society of
International Law; and Eric
Holder ‘Attorney General Eric Holder Speaks at Northwestern University School
of Law’ (2012) <http://www.justice.gov/opa/speech/attorney-general-eric-holder-speaks-northwestern-university-school-law>
(accessed 20 August 2015).
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