Krieg and Rickli – Surrogate warfare: the art of war in the 21st century?

This week we are looking at the topic of Surrogate Warfare in an article by Andreas Krieg and Jean-Marc Rickli. The article is available here. The piece covers ideas of surrogacy in warfare thorugh all sorts of interesting means, from mercenaries and militias to drones and satellites. We hope you enjoy the article. Let us know what you think in the comments. 

 


In this article, the authors note the modern tendency towards ‘surrogate warfare’, in which States externalise the burden of war in order to distance themselves from the violence exercised by their surrogates (5). While the authors argue that surrogate warfare is ‘probably not the panacea for fighting wars in the twenty-first century’ (15), they do concede that surrogate warfare is going to become more common as risks and conflicts are not likely to recede any time soon (15). 

I found this article interesting, though somewhat lacking in analysis, and I was left wondering how much of it is really ‘new’. Furthermore, I struggle to find the actual argument put forward by the authors who focus primarily on explaining what surrogate warfare is, and why it’s so prevalent. They don’t propose any solutions, nor even any remedies or genuine responses – or even make a sufficiently strong case as to why surrogate warfare might be a bad thing. Surrogate warfare may not be the panacea, but then the world is a very different place to it was in the time of Carl von Clausewitz. 

Mike Ryder, Lancaster University 

 


I thought this article was a little misplaced, in that whilst it was really interesting it did not seem to fit well as an academic journal article. As it gives a very thorough overview of states using surrogates in their acts of war, it seemed that this would be a better fit for a textbook chapter. I struggled to find anything that felt truly ‘new’ in this article, it felt as though a history lesson on state use of mercenaries and militias was being put together with some thoughts on modern warfare technologies and PMC’s and given a gloss of conceptual paint under the term ‘surrogate warfare’. I’m sure this would be really interesting to scholars of security and war studies who want a new perspective spin linking current conceptions of PMC’s to historical views of mercenaries, but it didn’t really chime with me in any way. That said, if I were teaching on mercenaries and PMC’s, I would definitely recommend this to my students as a primer document full of great information. 

Joshua Hughes, Lancaster University 

Shunk – Mega Cities, Ungoverned Areas, and the Challenge of Army Urban Combat Operations in 2030-2040

Continuing our intellectual journey into the city, this week we are looking at megacities (those with more than 10 million residents) and possible conflicts within them. We are considering David Shunk’s article ‘Mega Cities, Ungoverned Areas, and the Challenge of Army Urban Combat Operations in 2030-2040’ from Small Wars Journal. Available here.

Shunk discusses a number of aspects of urban warfare, and how they might apply to megacities in the future. The article is quite short and well worth a read.

Here are our thoughts:


The direction of this article comes as no surprise, though it does include far more detail than the other similar article we have read this month on military operations in an urban setting. However instead of focussing on any one of the quite clear-cut issues raised in the article itself, I’d like to raise a few of the other issues raised both in the comments section under the article, and in my own thoughts as a I engaged with the piece:

  • Force size – how big is the enemy force? Is it ever knowable in an urban setting?
    • If the enemy force size is unknowable, how can you commit sufficient forces to win the war, while keeping losses to a minimum? Is there also a danger then that you ‘under-commit’?
  • Logistics – how do we keep our forces supplied in a ‘hostile’ environment?
  • Politics – do we have the political ‘will’ for a protracted urban conflict? Are we prepared to deal with the consequences of what will at times be quite ruthless operations?
  • Is any urban war ‘winnable’? – If the only way to neutralise all threats is to clear each and every building individually, then why even bother going in on the ground at all? Is it ever possible to win a war and keep the infrastructure (generally) intact without say, bombing the city to the ground?
  • Will we see the use of ‘pacifying’ chemicals and/or some form of cybernetic warfare used as the most ‘humane’ way to minimise actual bodily deaths?

Mike Ryder, Lancaster University


Due to the format as a blog-post this article necessary could not provide very in-depth analysis. However, reading this read in conjunction with Michael Evans’ article on future war in cities turns it into an excellent illustration of Evans’ point. Evans warns his readers for a too narrow focus on mega-cities, as most urbanization takes place in small and medium-sized cities. Schunk on the other hand only focuses on megacities, and bases his message of only a few sources, which all stem from a strategic studies background. Kilcullen for instance gets a key role, which Evans had described as a work with a “dystopian view”. Schunk also leaves little room for multiple interpretations on the future of mega-cities, and his view is overwhelmingly negative. “Life in megacities will deteriorate as populations surge beyond their capacity” is a very bold claim, with little material to back up such a claim.

The analysis is rather descriptive, with little time spent on what causes the phenomena we will encounter in mega-studies, how they are connected, and wat the concrete effects will be on urban warfare. Everyone is aware of the fact that rapid urban growth might create environmental or infrastructural problems, but how does this specifically affect urban warfare?  He does not really go into depth on that – which makes sense due to the format, but which ensures the article has little substance. I do appreciate his list of “basic characteristics of combat in urban terrain”, but again, I wish this was connected with the phenomena of urbanization.

Shunk also makes some strong statements which border on colonialist and orientalist thinking, especially in his descriptions of cities in the Global South as completely outside control. Saying that the rule of law in Lagos almost does not exist anymore is a gross exaggeration. It presents the Global South as an urban jungle left into the darkness, without growth, development or technology, which is a highly colonial view, and left a bad taste in my mouth after reading this article.

Maaike Verbruggen, SPIRI


It would seem that the danger when considering urban warfare following on from the major city conflicts that this article refers to, Stalingrad, Mogadishu, Grozny and Nablus, that a decisive victory in a mega city could be impossible. Indeed, repeating Mogadishu and the temporary US withdrawal from international interventions would be catastrophic for power projection and the actual securing of a mega city. This leads us to posit that states cannot really afford to lose urban conflicts where potentially major strategic positions could be taken by non-state actors.

Non-state actors have held territory, Islamic State being a prime example. But, Syria only provides a case study of where it is mostly difficult to regain territory in terms of the political situation in the area. A non-state actor in control of a mega city also presents a case study where it is militarily difficult to remove the enemy.

Perhaps such potential of non-state actors shows that the concept of the state as the primary movers in warfare is slipping, along with their monopoly on violence. A city so dominated by a non-state actor that it becomes an ‘ungoverned space’, much in the same way that rural Yemen and Somalia have been seen could result in major changes to the way in which warfare takes place. We see drone strikes against terrorist suspects in these rural areas because they are controlled by the terrorist groups, and not by the territorial state. Drone strikes in a city centre do not fit with the general conception that voyeuristic operators wait to strike targets out in open countryside. However, we do see city-based drone strikes in the fights against IS.

Conceptually, there is no difference between a state losing control over rural areas, and over urban areas. This should mean that there is also no conceptual difference between striking targets in open countryside and urban areas. Yet, the higher concentration of civilians means that such strikes are less-likely to take place. At least, this would be the case if munitions remain the same. Striking single enemy target in and amongst civilians may require robotic systems to be equipped with bullets, rather than explosive munitions.

This perhaps leads us to a possible ‘solution’ to the difficulties of urban warfare, more increased use of robotics. Potentially, this enables force to be exerted in enemy urban areas, without risking lives. Yet, use of Terminator-like machines is unlikely to happen anytime soon. Indeed, a high-loss rate is likely, so quickly made machines using 3D printing will probably be more common. Use of such systems may be able to provide infantry with an equal reduction in risk that the drones we use today have given to air forces. Other than an increased use of machines, the other option that springs to mind for reasserting some government control in a mega city dominated by non-state actors is Judge Dredd.

Joshua Hughes, Lancaster University.


Let us know what you think in the comments below!

State of Exception – Agamben

Here, we discuss one of the most influential philosophical works of recent times: Giorgio Agamben’s State of Exception. It investigates the use of exceptional powers and laws which governments acquire through declaring states of emergency during crises, whether they are real or invented.

Here’s what we thought:


This is one of Giorgio Agamben’s most famous works, and one that often gets cited in academia. At the core of Agamben’s argument here is that the state of exception (SoE) operates as a zone effectively ‘without law’ that serves to enshrine the law itself through the process of its exclusion. Agamben then goes on to argue that whereas before the exception was just that – an ‘exception’ – it has in modern times become the rule.

While this is undoubtedly the book that academics so often cite in relation to Agamben and the SoE, I would suggest that Homo Sacer is perhaps the more useful in terms of his discussion of the workings of the SoE itself. Some extracts that may be useful for discussion below:

  • ‘The paradox of sovereignty consists in the fact the sovereign is, at the same time, outside and inside the juridical order.’1
  • This can be reformulated as ‘the law is outside itself’ OR ‘I, the sovereign, who am outside the law, declare that there is nothing outside the law’2
  • Furthermore: ‘The rule applies to the exception in no longer applying, in withdrawing from it.’3

Here, life itself is cast as being worthy or indeed as being ‘human’ relative to the non-human cast within the SoE.

Mike Ryder, Lancaster University

1 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. by Daniel Heller-Roazen (Stanford CA: Stanford University Press, 1998), p. 15.
2 Ibid., p. 15.
3 Ibid., p. 18.

Agamben’s work really is fascinating. Indeed, I was recently at a conference on the ‘State of Exception in the Middle East’ hosted by the Richardson Institute here at Lancaster. The entire day was thoroughly interesting and covered many different experiences and context of states of exception.

I’d really like to see how the ideas in Agamben’s work could be applied to international law governing the actions of states in the international system, rather than its domestic application. I’ve recently been thinking about how customary international law progresses partly through violations, and so in effect, it progresses through exceptionalism. Yet, as this is an accepted part of international law, it is also unexceptional simultaneously.

It’s an area I’d really like to look into further.

Joshua Hughes, Lancaster University


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If You Can’t Beat Them, Kill Them: Complex Adaptive Systems Theory and the Rise in Targeted Killing – Crandall

Here, we discuss ‘If You Can’t Beat Them, Kill Them: Complex Adaptive Systems Theory and the Rise in Targeted Killing’ by Carla Crandall, from Seton Hall Law Review: Vol. 43 : Iss. 2 , Article 3.

It is available here.

The main crux of the article is that from a complexity theory perspective, the ruling that illegal detention of terrorist suspects created the massive and sprawling targeted killing programme we see today.


Here are a few thoughts we had during out reading group:

  • Choosing a particular weapon or tactic makes you responsible for the incidental harm it causes as well as the direct harms.
  • Signature strikes that have been carried out are often unlawful because they have been performed poorly. Not because there is anything inherently unlawful about targeting based upon criteria which signify an enemy, or adversarial threat.
  • Terrorists in Western countries are often stopped by the police, removing the need for militarised counter-terrorism. Conceptually, there is no difference between the police use of a robot with a bomb attached and a drone strike.
  • If a drone can target a terrorist with a bomb, why not use bullets and prevent collateral damage? If bullets can be used, why not use tranquilizer darts and subsequently arrest perpetrators?

On to what we thought individually:

The argument of this complex and detailed paper can be summed up as follows: By closing of detention centres such as Guantanamo Bay the US has as a result been encouraged to increase in drone strikes, for if capture and (often unpleasant) interrogation are out of the question, killing becomes the next best option to eliminate potential threat. The author then argues that in making judgements regarding US detention policies, legislators and policy makers have inadvertently created a situation that has led to more deaths and have incentivised killing over capture.

This is a really useful observation. Philosophically speaking, I am interested here in the notion that we have moved away from the notion that quantity of life trumps quality of life, to the reverse where the quality of life now trumps quantity. I.E.: we now place emphasis on the conditions within which detainees are held and place this above the life expectancy of targets. Thus in this new approach it is far ‘better’ to kill (and thus cut the quantity of life of a larger number of victims [some who may be innocent]) as opposed to capturing fewer individuals and submitting them to sub-human conditions. Though the author does not address this in her paper, there is a major implication here in terms of our wider relationship with life, and how we judge its worth.

Mike Ryder, Lancaster University


Crandalls article linking the abandoning of internment of terrorist suspects to the adoption of targeted killing as a key counterterrorism tool is fascinating. It really gets to the heart of the fact that foreign policy actions always have unintended consequences. It is, however strange that the US opted to even try long-term internment if terrorist suspects. After all, when the UK tried it with IRA members, it simply became a recruiting tool for the terrorists (which makes it additionally worrisome that some apparently security-conscious far-right political parties would happily see a return to internment.)

But, what are the unintended consequences of favouring targeted killing? We are currently seeing revelations that questionable targeting choices are being made by soldiers involved in the Global War on Terror, particularly those in special forces. They are not only the ‘tip of the spear’, but are also deployed most often. Indeed, many SF soldiers have essentially been at war non-stop since 9/11. Although increased operational tempo, and policy demands may create situations whereby bending (or breaking) of rules is tacitly accepted, it should not be. Are these any worse than the occurrences of torture and unlawful detention by Coalition special forces in the Iraq War detailed in Jeremy Scahills’ Dirty Wars? No. So, I don’t think we can link these questionable activities to the abandoning of internment tactics. It seems as though this could just be the unintended consequence of shadow wars.

But, we do see an increasing derogation of state sovereignty when a state has terrorists operating on its soil. Indeed, unwilling/unable doctrine has essentially given states given an argument to take actions in any country where the territorial state does not agree with their assessment of a non-state actor. Although notably brought to the attention of international lawyers by a former UK Foreign Office Legal Adviser, it has mostly been seen as a US doctrine. The number of states supporting it has grown to include most of those countries in the US-led coalition in Syria. But, it is also being used by adversaries of the West. Most recently Iran. Potentially, the unintended consequence of favouring targeted killing could be the disintegration of state sovereignty, and the death of Hobbes Leviathan.

Joshua Hughes, Lancaster University


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Information Warfare A Philosophical Perspective – Taddeo

Our final article from Month 1 is Information Warfare A Philosophical Perspective by Mariarosaria Taddeo in Philosophy & Technology, 2012, Vol.25(1), pp.105-120.

The article is available for free here.

Here is our analysis:


Several articles have focussed on the blurred distinction between war and peace in relation to small-scale physical military operations, such as special forces raids, or drone strikes. Yet, this article raises the same question in relation to ‘Information Warfare’, mostly considering cyber conflict. A cyberwar in attack could be strictly limited to military targets, ‘due to the blurring between civil society and military organisations’ (p.117). Nor could it in defence, as military cyber units are being used at the forefront of defending civilian infrastructure from cyber-attacks, whether potentially destructive enough to begin an armed conflict, or merely cyber-disruption.

As most cyber-attacks do not rise to the level of armed conflict, I don’t think we can say yet that cyber-attacks blur the line between war and peace quite like drone strikes. But I think because of those involved, such as US Cyber Command, Chinas PLA Unit 61398, UK Cyber Reserve, and signals intelligence agencies, this does blur the line relating to who is involved. Is it a military domain, or is it the domain of civilian intelligence and police for cyber security. I don’t think there are any easy answers, and it might be that there is no resolution as the capabilities will be required by states in the future, and the distinction about who is doing cyberwarfare or other cyber-related things might not bother to the governments who ask them to do it.

Joshua Hughes, Lancaster University


There seems to be a real definitional issue here surrounding Information Warfare and how we define it. The author here ties robotic weapons and cyber attacks alongside ‘communication management’ (we can assume here she means propaganda), but to take this line of reasoning surely then all warfare becomes ‘information warfare’? Where does one draw the line with technology and the separation between what the author defines as ‘information’ (software, autonomy and remote control) and other forms of weapon that all to some extent or another require an interface, and more often than not, a software intermediary?

For me, this piece doesn’t really tell us anything particularly new, and as a philosophy student, doesn’t really address any of the key philosophical issues at play here, aside from suggestions at the blurring of the border between combatant and civilian – a blurring that has been in existence now at least since WW2, if not before.

Mike Ryder, Lancaster University


Information is the new 5th dimension – an addition to the conventional foursome  of land, sea, air and space .

What links ICT deployment is disruptive intent. The key idea within the paper is that IW is transversal  in regards to (1) environment, (2) agents involved and (3) modes of combat; and the transversality of IW is what produces the policy-related and  ethical problems.  For instance there is a slippery conceptual, coding and material-digital slide between a DdoS attack that could stop water supplies for an hour , to a cyber-attack that could  shut down a power station for a day, to a cyber attack that could destroy or explode an enemy missile in situ.   Moreover, the agents involved in such an attack can be ontologically varied: they could be soldiers who slot in thumb drives to enemy computers, or digital-beings such as automated, digital –sphere roaming viruses which seek vulnerabilities, or code-savvy civilian operators who work remotely from offices in civilian areas, or even from their homes.  Where is the command centre, who is the enemy? Pre-emption of such attacks may require extensive surveillance of populations to identify hostile actors – a reduction in human right to privacy that in itself brings ethical problems.

The paper is heavy with acronyms and sometimes feels as if it is having to cram its ideas into a very limited space. The paper’s  concentration on the nature of Information warfare is useful; its main concept – that of IW’s transversal nature – seems its most pungent point.

Peter Kalu, Lancaster University


 

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Imagining Warfare – Khan

Our third reading from month 1 is ‘Imagining Warfare‘ by Paul Khan in European Journal Of International Law, 2013, Vol. 24(1), pp.199-226.

The abstract and paper are available here.

Without further a-do, let us get into the discussion.


Brief Summary of the article: Map + constitution/laws = nation state. Put another way, if attacking the map, you are an enemy, if breaking the laws you are a criminal. The difficulty that drones have exacerbated (drones being an incremental change not a paradigm shift) is that they travel along all the fault lines of this traditional schema. They transgress borders yet attack those who are not clearly marked as combatants – the targets are not suited, booted soldiers. The crones’ controllers, if thee drones are nto fuly automated, are far away from the target so here is no reciprocity of risk. Drones are (as things stand predominantly) under the control of a nation state rather than any supra-national law enforcement body such as the United Nations etc. This all tends to the collapse of conventional definitions of war and peace, and brings to our attention the need for a new imagining, a new understanding of political violence and how it does and will occur in the future.

The article is excellent on the paradoxes involved in the oscillations in the political imaginary between criminal and enemy and explores these switches tellingly in the dissection of meanings around for instance ‘suicide bomber – sacrifice bomber’. The article outlines a ‘regime of disappearance’ that has arisen as a response to asymmetrical advantage. This regime may drag us back to the pre Human Rights era of rightless individuals. If so, the age of Human Rights may be passing.

Having mulled over the article I found myself thinking about the following:

  • Semantic collapse (1971 Arthur Schlesinger):  the way in which the objectification of the targets of the drones is achieved.  From humans to objects to things, to something less than things  (see ‘Thing’ theory’).
  • The Deconstructionist approaches of Derrida et al: the impossibility of a simple symbolic correlation between sign and signifier: eg how many meanings the word ‘war’ can generate etc.
  • I was particularly thrown by the USA generated article’s use of the first person plural ‘we’ to mean the West, or Americans.  I had reflexively read that ‘we’ to mean the targets of the drones.

Peter Kalu, Lancaster University


Khan’s work on imagining warfare is not my usual fare for academic reading.  However, it did give me a number of ideas. Firstly, its focus upon the blurred line between war and peace, and the sovereign action to declare war, did make me wonder whether the drive to outlaw war in the UN Charter and other initiatives following WWII have resulted in the state of quasi-war, quasi-law enforcement that we now find ourselves studying? The capabilities of modern weapons allowing a sovereign to go beyond their borders and exercise their sovereign powers extraterritorially, without real recompense from the international community do, perhaps, show a fraying of the framework outlawing war, with drone killings and counterterrorism as the alternative when the sovereign has chosen its enemy.

Secondly, Khans’ words about legal regulation of soldiers being quite different from what is ‘ordinary and everyday’ (p.214) reminded me of the recent case of Alexander Blackman, aka ‘Marine A, who executed an injured Taliban fighter in 2011. Despite Blackman clearly, and knowingly breaching the Law of Armed Conflict, many members of the public do not recognise this, but instead, refer to him as a hero who was doing his job of killing enemies. The fact that particular method of killing has been outlawed by the international community seems to be irrelevant to his supporters. (His conviction for murder was recently reduced to Manslaughter.)

Joshua Hughes, Lancaster University


In ‘Imagining Warfare’ Paul Kahn provides a broad overview of the social imaginary construct of warfare in the modern world, with particular reference to the use of drones in armed conflict. Kahn is particularly interested here in targeting, and the definition of the enemy compared to that of the criminal. War is no longer between organised state militaries, and this has some major implications for the way warfare is carried out, and the way it is constructed in the social imaginary. Previously, there was a distinction made between property and territory, where the criminal was associated with property, and the enemy was associated with territory. However this distinction no longer holds as wars are no longer fought over marked boundaries by uniformed combatants with clearly defined goals. Now it would seem, we need a new category, for the modern terrorist is forcing us to redefine our view of warfare, and drone strikes in states with whom we (the West) are not directly at war is one such side effect of this changing nature of conflict in the 21st century.

Mike Ryder, Lancaster University


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The international law framework regulating the use of armed drones – Heyns, Akande, Hill-Cawthorne and Chengeta

In our first review, we have looked at  ‘The international law framework regulating the use of armed drones’ by Christof Heyns, Dapo Akande, Lawrence Hill-Cawthorne and Thompson Chengeta in International and Comparative Law Quarterly vol 65, October 2016 pp 791–827.

It is currently available for free from CUP. See here.

The article was recently presented at the International and Comparative Law Quarterly annual lecture at BIICL by Dapo Akande and Lawrence Hil-Cawthorne. It was a great event and generated some fascinating questions and discussion.

The article is a greatly expanded version of a report on presented to the UN in his former role as Special Rapporteur on extrajudicial, summary or arbitrary executions. His 2013 report is available here.

It also builds upon the BIICL event on drones last year. The event summary for which is here.

This post is the first for our research network. We are hoping to generate ideas, comments, and hopefully collaboration between group members and beyond. Please feel free to use the comment box below, or if you would like to get involved in the network, send an email to admin@ttac21.net.

The article is rather long, and network member Maziar Homayounnejad (KCL) has written a summary of the article. Following the summary will be a few thoughts on the article from network members.


Summary:

In their article on the regulation of the use of armed drones, Heyns et al. put forward a holistic framework encompassing three distinct branches of international law (IL).

  • Jus ad bellum, which regulates the resort to military force, only allowing this where there is consent from the territorial State; in lawful self-defence against an actual or imminent armed attack; or pursuant to Security Council enforcement action.
  • Jus in bello, also known as international humanitarian law (IHL) and the law of armed conflict (LoAC). This regulates the actual conduct of hostilities and offers expanded (belligerent) rights to kill without warning, based on enemy status and civilian conduct. It also permits a ‘non-excessive’ number of civilian deaths, so long as these are ‘collateral’ and not directly targeted.
  • International human rights law (IHRL), which applies during peacetime to regulate police and law enforcement IHRL restricts the right to use lethal force to where it is absolutely necessary to protect against an imminent threat to life; and proportionate in that it is the bare minimum force required to achieve its legitimate aim and strictly tailored to circumstances.

The authors argue that armed drones are different to traditional weapons of war in that they are used to inflict low-level violence, drawn out over a long time period and often spanning several countries (including those which are far away from any contact zone). Accordingly, legal analysis of drone strikes cannot be limited to any one branch of IL, but must be shown to satisfy all three; the requirement of holistic application of IL is a constant theme to which the authors keep returning. Not least because States should be prevented from cherry-picking the framework in which they can demonstrate legal compliance, while ignoring the ones they may be violating. Preventing such tendencies has an important role in preserving the exceptional nature of war and, consequently, the right to life (RtL), which is more effectively protected under IHRL.

Equally important is to avoid confusing and conflating common terms, which may appear under two or more legal frameworks but have vastly different meanings under each one – ‘imminence’ and ‘proportionality’ being two such examples. Again, this prevents both cherry-picking and inappropriate increases in the incidence of war and loss of life.

After introducing the applicable legal frameworks and the relationships between them, the authors analyse in some detail jus ad bellum, IHL, and IHRL. Three particularly interesting points stand out from this. The first relates to the Tadic criteria for political violence qualifying as a non-international armed conflict (NIAC); namely, a) protracted armed violence and b) organisation of Parties. This has come under strain as far as individual drone strikes are concerned, in that it is doubtful that such isolated acts (if not in the context of a pre-existing armed conflict) will meet the required threshold of violence to invoke belligerent rights under IHL. If so, then the more restrictive IHRL regime will apply exclusively because an individual drone strike is unlikely to constitute protracted armed violence (unless a number of strikes can be aggregated as a ‘workaround’ to meet this threshold). By contrast, it is worth noting that autonomous weapon systems (AWS) are expected to pose challenges in relation to the second criterion (organisation of parties). This is because autonomous capabilities are more likely to enable protracted armed violence to occur with a relatively small number of persons and a looser organisational structure[1]. Of course, AWS used for targeted killings may also raise challenges in relation to the required threshold of violence, just as remotely-piloted drones do; this is worth bearing in mind as drones become progressively more autonomous over time.

A second and complementary point that the authors make relates to the expansive interpretation of the applicability of IHRL. The traditional approach to human rights required a clear geographical nexus, hence the mantra ‘on your territory and subject to your jurisdiction’. Now (and certainly over the past 20 years or so) IHRL has evolved and extended into areas of armed conflict, where courts have reconsidered the proper scope of governmental authority, and have deemed certain aspects of a hostile environment (e.g. occupation, detention, etc.) as falling within that scope. In addition, there is now a ‘divide and tailor’ principle, whereby the State’s positive obligation to protect and enforce human rights is separated from its negative obligation to refrain from arbitrarily depriving someone of their rights. The authors argue that the former requires territorial control and ‘jurisdiction’, but the latter merely requires ‘authority or control’ over the specific individual concerned. By definition, this invokes IHRL whenever a terrorist suspect is unilaterally pursued and lethally targeted abroad. Hence, the authors describe IHRL as the ‘default’ regime in such circumstances, whether or not an armed conflict exists; whether or not the NIAC threshold is satisfied. Of course, where there is no NIAC or other armed conflict, IHRL applies exclusively to impose both positive and negative HR obligations, both in relation to those targeted and those who may be caught in the crossfire. Where a NIAC does exist, IHRL applies in limited form to impose only the negative obligations on State action.

Thirdly, and again complementary to the above, the authors warn against any liberal aggregation of violence, such that we easily and frequently arrive at the conclusion that a NIAC exists. This is because when IHL is invoked, not only do less protective rules apply to those targeted, but it also means unsuspecting communities far away from any contact zone may lawfully be ‘significantly’ affected; indeed, so long as collateral deaths are not ‘excessive’, the IHL principle of proportionality allows them. This concern is echoed by other authors (such as McDonald, 2015), who point out that drone strikes in areas that are putatively in peacetime effectively deprive unsuspecting civilians of the option of seeking refuge abroad, in order to separate themselves from violence that would otherwise kill them. Not to say that being a refugee is desirable, but if the choice is between a) refugee status and b) the risk of life-changing injury or death, most civilians would likely opt for the former. Yet, drone strikes far away from an established contact zone effectively deprive them of that choice. Thus, in ambiguous circumstances we should not be quick to ‘aggregate violence’ in order to allow State action to benefit from IHL belligerent rights.

The authors sum up by reminding us of three things. Firstly, the long-standing legal framework for maintaining international peace and the RtL is both coherent and well-established, and has stood the test of time. Yet, States are using drones to exercise a police / law enforcement function to counter potential threats from allegedly new forms of conflict, which originate abroad; this poses a danger to the protection of life because the usual tools of policing (e.g. capture) are not available and the more permissive IHL framework is often relied upon instead. However, the long-standing framework mentioned above need not and should not be abandoned on account of terrorism and ‘new’ forms of conflict. On the contrary, the framework and its standards should be more diligently applied, especially in light of the increasing number of States accessing this technology and putting further pressure on the RtL.

Secondly, to reiterate, the legal paradigm applied to drone strikes makes an important difference to its permissiveness, hence an assumption of global NIAC makes it easier to justify lethal force than if IHRL becomes the dominant legal framework. Yet, the global NIAC concept is controversial: even if accepted in principle, it must be assessed against objective legal criteria, not subjective self-interest; even if it applies in a given situation, it should not be assumed to modify IHRL, even less so to displace it. As an afterthought, the authors remind us that IHL permissibility does not automatically mean desirability or wisdom: to protect the RtL, it is important to maintain the idea that force remains the exception. This is especially true for unsuspecting civilians located far away from any contact zone, who may find themselves incidentally injured without prior warning or the effective choice to seek refuge.

Finally, considering the controversy and debate surrounding the above, the authors conclude there is “an urgent need for the international community to gain greater consensus on the interpretation of the constraints that IL in all its manifestations places on the use of drones.” This is important not just for those being targeted, but also for the unsuspecting civilians mentioned above; and it is, more broadly, in the interests of keeping intact a viable and strong system of international security where the rule of law is a central feature. Drones should follow the law, not vice versa.

To begin the search for greater consensus on the regulation of armed drones, the authors propose seven fundamental principles:

  1. The current IL framework is adequate to govern drone strikes;
  2. The RtL can only be adequately protected if all IL constraints on use of lethal force (UoLF) abroad are complied with holistically; that is, individual and cumulative compliance with jus ad bellum, IHL (where applicable) and IHRL;
  3. IL norms on UoLF must not be abandoned or modified to suit the current use of drones;
  4. Any extra-territorial drone strike must comply with jus ad bellum;
  5. Where a drone strike takes place within the narrow confines of international armed conflict or NIAC (a factual question governed by objective legal criteria), it is governed by both IHL and IHRL;
  6. Outside those narrow confines, any killing is governed solely by IHRL and must meet the relatively stricter necessity and proportionality requirements developed in that jurisprudence; and
  7. There should be transparency surrounding all drone operations to enhance accountability.

[1] Stuart Russell, a leading computer scientist, illustrates the point with a (perhaps dramatised) example:

“A million Kalashnikovs can kill an awful lot of people, but only if carried by a million soldiers, who require a huge military-industrial complex to support them…

A million autonomous weapons, on the other hand, need just a few people to acquire and program them – no human pilots, no support personnel, no medical corps. Such devices will form a new, scalable class of weapons…they tip the balance of power away from legitimate states and towards terrorists, criminal organizations, and other non-State actors.”

While Russell’s comment may sound like a distant and dystopian future, modern developments in swarm technologies are certainly moving in that direction, with the US Navy’s LOCUST programme running successful trials of eight-drone swarms controlled by a single person penetrating sophisticated ship defences. The aim is to increase this to 50-drone swarms controlled by a single operator, all at a lower cost than a single Harpoon anti-ship missile. Should these Navy plans prove successful, they will enable significant violence to be inflicted with progressively less need for command and control of the battlespace. Furthermore, the miniaturisation involved will increase the likelihood of capture, reverse-engineering and proliferation to non-State actors. Accordingly, it may become more difficult as a matter of law for non-State actors acquiring these technologies to qualify as an ‘organised’ armed group.

 


Now, we move onto comments on the pieces from network members.

Mike Ryder, Lancaster University

Very interesting for me, as a non-Law student, is the question here of the obligation and responsibilities of the state in which ‘terrorists’ (be they criminals/enemies) are taking refuge.According to the authors, states are bound to their own human rights obligations preventing violations to the right to life of those within its borders (822), but there surely then remains the question of the state’s role in also policing itself internally and protecting the rights of others both internally and among the wider global population. Should the USA (for example) expect such states to assist in the tracking and detainment of suspected terrorists, or is the use of drones a signal that the normal situation of international law has broken down; that the state in question is incapable of policing its population effectively, and as such it is for others to take the law into their own hands?Does this then mean that the states in question, housing these ‘terrorists’ are not really true states at all? (NB: I used inverted commas for their guilt is not clear.) 

The other question here that arises for me is the question of the enemy vs the criminal.According to this paper, terrorists are ‘non international’ actors, so the conflict with them is a ‘non-international armed conflict’ (805). However for this to be the case, the enemy group must be organised: it requires a headquarters, strategy, and single voice (808). How then can any conflict with terrorists be ‘non-international armed conflict’ if often the success of terrorist organisations based on their diffuse, non-crystallisable nature? For me, this position seems to fail to understand the nature of the modern terrorist.

 


Joshua Hughes, Lancaster University

This article by Heyns et al is a great overview of the current legal framework governing drones, and notes a large number of issues that are being dealt with, and need to be by the international community. However, as Sir Michael Wood questioned at the ICLQ lecture, why just focus on drones? Most of this assessment could be applied to special forces counterterrorism raids.

As the authors note in the article (and restated by Akande at the ICLQ lecture about the same article), the biggest issue in relation to use of armed drones in targeted killing is the blurring of the line between war and peace, potentially resulting in a perpetual war (p.792). Which of course is a result of the current political situation where NATO states do not wish to openly risk the lives of their soldiers in potentially politically damaging operations in the middle-east. However, questions about the potential use by law enforcement (p.793) could result in blurring of the line from the law enforcement side, rather from the military. Of course, this line has been blurred in the past during proxy guerrilla wars as part of the cold war, and also in the post-colonial era, however the use of drones means that state can exploit this ‘grey-zone’ (p.794) without the need to co-opt native forces. Further in terms of blurring the line, the articles holistic approach to using all three relevant bodies of law simultaneously (p.795), rather than as discreet and separate bodies could potentially result in a legal blurring as well. This seems to be have happened in relation to drones strikes under Obama, where justifications seem to use language from all three bodies of law.

Also relating to this blurring is the prevention of combatting long-term security threats with long-term military deployments under self-defence justifications (p.801). There is not a problem with this position in law, but the point at which military forces hand over to law enforcement is tricky in practice (UNSC). Handing over to police who may not be able to handle a situation may result in a back-and-forth over the armed conflict threshold, further blurring the line. Also, such a situation would require law enforcement to be able to deal with violent NSAs who may try to retake power or position, and therefore be ‘militarised’ to some degree (as seems to be happening in Afghanistan after the pulling out of most NATO forces). It seems that, whilst perpetual war is of course undesirable for all, the point at which this type of conflict ends may require that blurring for some time longer.

 


Peter Kalu, Lancaster University

The article posits the triple lock of laws that surround the use of armed drones ( Just War laws /ius ad bellum; international humanitarian law; international human rights law) are sufficiently robust to deal with the changes that use of armed drones brings.

In relation to ius ad bellum, issues of consent and imminent threat, of the idea of war being an exceptional state not a “normal” activity are explored. In particular, the article accepts that armed drones decay the idea of war being an exceptional state.

Regarding IHL, there is an examination of the meaning of protracted armed violence by non-State groups, including tests such as whether inter alia such groups are organised and have a clear command structure. Two highly important areas are scrutinised: (1) the principle of distinction vis a vis determining civilians from combatants. and (2) whether aggregation of  non-state armed groups is permissible  when seeking action against armed groups who are spread over several States. IHRL is also explored, particularly the way it combines with ius ad bellum and IHL as a protective shield of the right to life.

The problem with all such analyses is that such law can be ignored or avoided with impunity by state actors who have the ability to create fake information, to render processes opaque and to evade transparency or fake it. The biggest example of this, indeed the elephant in the room in this area, is the manipulation and avoidance by USA and UK around the ‘weapons of mass destruction’ case for intervention in Iraq. This renders arguments around whether any laws apply similar in their scholastic irrelevance to the ‘how many angels can dance on a pinhead’ debates of the Middle Ages. The authors allude as much when, in examining the question of a State’s the right to attack hostile non-State actors abroad even without the consent of the ‘host’ State, they admit:  ‘the law on this matter appears to have changed’.  It’s worth quoting this in full so the problem can be laid bare:

“Nonetheless State practice relating to the use of force against non-State actors since 2001, is now broad and extensive, and indeed it extends beyond the immediate post 9/11 context. Following this practice, and despite academic controversy, the law on this matter, appears to have changed.”

When to this is added the high degree of blur including in the ‘political imaginary’ that drones bring to so many areas (too great a subject to set out briefly here) the problems compound.


Liam Halewood, University of Liverpool

This article is a great overview of the relevant issues of the use of armed drones, issues that will become more common with the proliferation of armed drones. I am particularly interested by the applicability of the European Convention on Human Rights (ECHR) to targeted killings and would like to add a comment in relation to this aspect of the article (essentially pages 822-825). The article rightly mentions the concerns regarding the applicability of the ECHR to drone strikes:

“one of the key difficulties posed by drones is that the attacking State can engage in targeted killing without exercising effective control over territory or without having the individual in custody, leading to question over whether such persons fall within the ‘jurisdiction’ of the attacking State for the purposes of their human rights treaty obligations”

This statement is a direct reference to the concept of jurisdiction that has developed through the jurisprudence of the European Court of Human Rights (ECtHR) and reflects the concern that targeted killing by drones would not be within the jurisdiction of the ECHR (A viewpoint shared by the UK Government).

The subsequent discussion on how the positive/negative obligations in human rights treaties should apply is interesting but does not represent the law as it stands (see how words such as “should” and “likely” are used. It is an argument rather than a legal position). Essentially, the argument is that the negative obligation to respect the right to life should be territorially unbound and therefore any State killing is within the jurisdiction of the relevant human rights treaty. This is a conception of jurisdiction that I support but it is a legal argument rather than a current legal position. The reference to Milanovic is appropriate because his work on the extraterritorial applicability of human rights treaties is highly regarded but even Milanovic acknowledged recently that drone strikes are “off the table” in regards to being regulated by the ECHR.  For the positive/negative obligation theory to be adopted by the ECtHR, it would take a great expansion of the reach of the ECHR, which the Court has not yet endorsed and has been clearly reluctant to do so.

Nonetheless, it is my view that there is scope to argue that targeted killing by drones would fit within the current conception of jurisdiction under the ECHR. If perceptions of targeted killing by drones change to recognise the technological characteristics of drones to find and track a target (control over an individual), whilst also acknowledging that a targeted killing is a unique counter-terrorism security operation (public powers), then perhaps targeted killings can be regulated by the ECHR, without requiring a drastic expansion by the ECtHR to make it so.


We will be adding further comments from group members as they come in. If you would like to join TTAC21, please e-mail admin@ttac21.net. If you don’t want to join the network, but just want to leave a comment about the article, or respond to the thoughts from group members, please do so in the comment box below.

Readings, Month 1

 

We have chosen readings from across disciplines, so there should be something for everybody. We think it would be really interesting if you could review pieces from your own fields, as well as others.

The readings for this month are:

Articles:

  • Christof Heyns, Dapo Akande, Lawrence Hill-Cawthorne and Thompson Chengeta – The international law framework regulating the use of armed drones, International and Comparative Law Quarterly vol 65, October 2016 pp 791–827
  • Selmer Bringsjord and John Licato – By Disanalogy, Cyberwarfare Is Utterly New, Philosophy & Technology, 2015, Vol.28(3), pp.339-358
  • Mariarosaria Taddeo – Information Warfare A Philosophical Perspective, Philosophy & Technology, 2012, Vol.25(1), pp.105-120
  • Paul W. Kahn – Imagining Warfare, European Journal Of International Law, 2013, Vol. 24(1), pp.199-226

Book:

  • Grégoire Chamayou – Drone Theory, Penguin Books, 2015 (translated by Janet Lloyd). Feel free to review it in the original French, if you prefer.

Film:

  • Kathryn Bigelow – Zero Dark Thirty (2012)

We look forward to hearing what people have to say.