‘…otherwise targetable…’: the curious case of the US and its expansive targeting practices

Within the last few days, the US government has released figures detailing its estimate of the number of civilians and combatants killed by drone strikes ‘outside areas of active hostilities’ (presumably Pakistan, Yemen and Somalia). While much commentary has focused upon the veracity of the figures given (many outlets estimate far higher numbers of civilian fatalities, for instance the Bureau of Investigative Journalism) I would like to draw attention to a rather curious phrase which features not in the White House’s statement itself, but in the document produced by the Office of the Director of National Intelligence which contains the figures.  The passage in question goes like this:

‘The U.S. Government draws on all available information (including sensitive intelligence) to determine whether an individual is part of a belligerent party fighting against the United States in an armed conflict; taking a direct part in hostilities against the United States; or otherwise targetable in the exercise of national self-defense.’

This sentence seems to detail the US understanding of the way individuals may be targeted lawfully, according to international law.  It envisages three categories; the first two are unremarkable, but the third is, to my mind, pretty peculiar.  The US asserts that there exists a category of persons ‘otherwise targetable in the exercise of national self-defense’.  As will be shown, this does not fit with established law on who may and may not be targeted during an armed conflict.

The law which governs when a state may kill an individual during an armed conflict is known, prosaically, as… the law of armed conflict (LOAC) (or more poetically as the jus in bello; or more humanistically as international humanitarian law (IHL)).  Within the LOAC, there are clear rules detailing who may be targeted during an armed conflict (okay, they’re not always that clear, but they are if you ignore the vagueness... for our purposes they’re clear, alright?).  In the case of US drone strikes, the situation is a ‘non-international armed conflict’ (NIAC), in accordance with common Article 3 of the Geneva Conventions and relevant case law (see the Tadić case, Decision on Jurisdiction) as the fighting does not take place between two states.  In such a conflict, individuals may be targeted when they are: members of dissident armed forces (a category which does not apply in the areas in which drones are used); members of organised armed groups; or individuals directly participating in hostilities.  These categories arise out of treaty and customary law.  None of these categories resemble the notion of those ‘otherwise targetable’ posited in the DNI document.  So immediately it seems that the DNI document has revealed a method of targeting that operates outside of the legal framework.

The DNI document links those ‘otherwise targetable’ with ‘the exercise of national self-defense’, which suggests a cross-pollination from another area of law governing force.

It is axiomatic to those who study international law that there is a distinction between the LOAC and the law which governs the use of force in self-defence (jus ad bellum).  Indeed, they are two entirely separate areas of law.  The jus ad bellum provides criteria under which force may be resorted to—it governs the lawfulness of the resort rather than the specifics of the way force is used.  Generally, force is prohibited under Article 2(4) of the UN Charter but will be lawful if undertaken in self-defence, according to Article 51 of the Charter (or customary law).  This Article requires that, for self-defence to be lawful, there must have been an armed attack (itself a contentious concept) and that the use of force is necessary and proportionate to that attack.  It is the gateway which must be passed through before a state may use any force.  It is clear that the law of self-defence has no bearing whatsoever on who may be targeted; that is entirely within the purview of the LOAC.

So, is the US using a standard that governs the resort to force to determine a question of on-going force, to establish who may be targeted by armed drones?  It seems like it may be.  If so this would greatly expand the scope for targeting and allow the US to conduct strikes and call them legal if they were undertaken as part of an operation which was lawful under the jus ad bellum.  But, as we know, the jus ad bellum does not relate to the specifics of force—its remit ceases once force has been resorted to, at which point the LOAC takes over.  Taken to the extreme, the ‘otherwise targetable’ doctrine would mean that once force began in self-defence, any individual killed as part of the action would have been targeted lawfully.  To my mind, it recalls the concept of ‘naked self-defence’, proposed by Ken Anderson, in which lawful self-defence allows uses of military force but in the absence of an armed conflict (I reject this notion entirely: the use of military force outside of an armed conflict is almost certain to be illegal, regardless of whether the original resort was legal under jus ad bellum).  The idea that individuals (and let’s be honest here, we’re talking about civilians) are ‘otherwise targetable in the exercise of national self-defense’ appears to be an attempt by the US to create an extra-legal space in which actions may be justified as not unlawful by virtue of the fact that norms of international law have been bypassed.  It is hallmarked by broad categories (‘otherwise targetable’, how broad is that?!) and confusion.  It represents the fostering of uncertainty in a clear drive to influence the discourse surrounding extraterritorial drone strikes in a way that makes them appear generally legal. 

I am surprised that this phrase has not caused more of a storm, it’s incongruity on the legal landscape is stark.  It is no wonder that the US has managed to produce civilian casualty statistics so different from those proffered by NGOs: its categorisation of those who are lawfully targetable by drones is vast.

The implications of the inclusion of this phrase within the US targeting policy are very dire indeed.  Drones will continue to be used, as long as the enemies of the US reside in hard to reach areas.  Meanwhile the legal frameworks in place to protect civilians and mitigate the consequences of war are gradually eroded, to be replaced by a soup of interpretations in which (borderline) unlawful, indiscriminate and trigger-happy uses of force can be relabelled as precise, clinical and neatly legal.  I am alarmed; I wonder if others agree? 

A fairly accurate depiction of the present author's feelings on US targeting policy

ESRC socio-legal masterclass, 3-4 May 2016: Are we all socio-legal now?

On the 3 May 2016, eighteen fresh-faced PhD students and a handful of academics found their way, haphazardly, to Cumberland Lodge, in the grounds of the beautiful (though almost sinister—we were told that leaving the Lodge after dark would result in our being accosted by guards and returned.  Anyone seen The Prisoner?) Windsor Great Park, for two days of immersive socio-legal discussion.  Geographically, we all arrived at the same spot at the same time through multiple different routes, which neatly sums up the discovery of socio-legal studies by postgrads working in law.  For instance while others seemed to miraculously get straight to the Lodge, I confidently arrived at a nearby town on a train from London, and then spent a long time lost, as did my taxi driver, traveling to and fro around the bucolic idyll of Windsor.  Having arrived at multiple entrances to the park which were all firmly closed, we finally found a gate that opened and let us in, only to discover that we were then lost within the park itself.  Needless to say, I made it to the Lodge just before the coffee ran out.  My experience of socio-legal studies has been similar: a confident beginning (doctrinal law was the business), followed by total confusion in the stunning theoretical scenery of my LLM in critical jurisprudence, before an arrival in the perhaps equally, though differently, puzzling yet irresistibly promising world of socio-legal research.  In this metaphor, I am yet to discover whether there is any coffee left…

The masterclass was led by Linda Mulcahy (LSE) under the auspices of the ESRC DTCs and principally took the form of group discussions around a set of issues and collection of texts.  Mercifully, the sessions did not religiously rely on the texts that had been set (I may have crammed a little on the train in…) and instead emphasised free discussion about our thoughts on and experiences with socio-legal research.  Due to this, I’m going to focus more on the themes that emerged from these dialogues rather than specific questions concerning the texts.

The first session focused on our understandings of what socio-legal research is.  It was, for me, the most valuable session as my research in international law and warfare kind of sets me on the fringe of socio-legal research, particularly in terms of method.  After a quasi-interview of Phil Thomas (Cardiff) by Dave Cowan (Bristol) we had an engaging discussion of what we postgrads understand socio-legal work to be.  Opinions ranged greatly between us, socio-legal scholarship being variously seen as a separate discipline, the application of non-law methodologies to the study of law and related issues, a rebellion against power in general, a rebellion against power in the form of the traditional law school and so on.  One possibility that particularly chimed with me was the notion, proposed by Thomas, that socio-legal research aims be subversive in an incremental and progressive manner, in contrast to the radical challenge to power that is the hallmark of critical approaches to law.

This theme was picked up at the second session, dealing with ‘critical empiricism’ (that kind of gives away what some of the assigned reading might have been…).  In this session, run by Mulcahy and Cowan, the maintenance of critical self-awareness by socio-legal researchers was emphasised.  For me the key message was that the apparently intractable antagonism between socio-legal and critical scholarship is really rather illusory, the barrier separating them being entirely permeable.  Interestingly, this feeling had been discussed over lunch, prior to the session, by some of the postgraduate attendees.  This, for me encapsulated why socio-legal work can be about the adoption of alternate methodologies, often from sociology, in legal research with a view to challenging ‘power’, be that of the state, the law school, corporations or whatever.  It seems that socio-legal and critical work exist on the same spectrum of challenges to power.  At one end there is the radical (or revolutionary) approach and at the other there is (perhaps) the uncritical compliance with power.  At the former end we are most likely to find work that would call itself critical, while at the latter we may find traditional doctrinal legal scholarship, with work more accepting of the law as it is.  I reckon that socio-legal studies can really exist at any point on that spectrum, bar the latter end.  Its aims are unfixed in terms of the extent to which power is challenged, though nonetheless defined by the presence of the challenge.

Next was a conversation between Rosemary Hunter (QMUL) and Mavis Maclean (Oxford) about Maclean’s extensive work with the Ministry of Justice.  This was the perfect segue from the previous session, as work so closely undertaken with a government department appears to run the risk of being co-opted, its potential challenge to power losing its force.  It was an insightful discussion in terms of the practicalities of such research but Maclean was also happy to grapple with the argument that her type of socio-legal work might become supportive of the status-quo.  Further emphasising the spectrum of possible types of socio-legal work, the message from this session was about the ability of such research to stop, or mitigate, crazy (my word, not hers) policy decisions.  This is perhaps the subtlest form of challenge to power that socio-legal research can offer, but it is a vital one.  If you’re not a revolutionary then informing policy decisions with evidence based research has to be one of the most important aims for those of us working in the academy.

The following three sessions (one after dinner and drinks, the other two after breakfast: oh how those established academics worked us!!) focused on the very real need for socio-legal researchers to be able to formulate research plans which can be communicated to people with money.  After receiving a scenario, we split into groups of three and formulated then pitched our research ideas.  For me this was an eye-opening session—I learned a lot about the practical side of running surveys, conducting interviews and many other activities I’ve not yet carried out.  Each group’s pitch was well received by our colleagues and the academics, who gave us in-depth and detailed feedback.  These sessions felt very much to have left behind the themes of challenges to power and focused instead on the skills socio-legal researchers need.

This continued in the final substantive session, in which Kate Malleson (QMUL) and Alan Paterson (Strathclyde) discussed the trials and tribulations of interviewing ‘elites’.  This session fit very well with the work undertaken by some of the attendees, which resulted in some very interesting conversations which I’m sure were highly beneficial to many.  Following this there was a session for reflection about our two days together, which I’m sure was excellent though I missed out on it as I had to leave early.  Perhaps someone can summarise it in a comment below!

In a very promising sign, the penultimate session had to be cut short: as I said, some of us had to leave early, but not before we had all posed for a group photo!  This was instigated not by the organisers but by us students.  During our time together we had fostered a great sense of community (like Phil’s group in the 1970s, though with less football… See Thomas, 1997: 9), and have agreed to create an informal network to aid our on-going research.  There was a palpable sense of potential and excitement about the future.  Ultimately this is perhaps the most important result of the two-day masterclass, I hope very much that it signals a continued interest in socio-legal research and that one day it will be a group of us hosting a similar event for optimistic young doctoral students.

  This just a representation, I haven't got a copy of the original photo...

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.