Wirtz – Life in the “Gray Zone”: observations for contemporary strategists

This month, we have moved on from considering The City and urban warfare. We are now looking at the changing character of war. A number of people have been talking about this recently, and how the 21st century has brought a sea-change along with it. It isn’t clear whether this is a resurgence of behaviours we have not seen for a long time, or a whole new change. This month, we hope to find out!

 

Our first article is “Life in the “Gray Zone”: observations for contemporary strategists” by James J. Wirtz in Defense & Security Analysis, 33:2, 106-114. Available here.

The article covers a number different strategies short-of-war which have been termed ‘Gray Zone’ conflicts (or Grey Zone, if you speak UK English). It is a great overview of different types of irregular warfare displayed below the thresholds of armed conflict, and some options to counter these types of non-conflicts.

 

Here’s what we thought:


 

This articles investigates the concept of the ‘Gray Zone’ (GZ) – a zone of indeterminacy between peace and war. The author asks whether the GZ is new, and what it really is, before taking the discussion back to the more fundamental question of why these GZ operations are taking place in the first place.

The author suggests that one factor is that there are an increasing number of actors who believe the world can handle a ‘little conflict’ (113). This comes in part (it is implied) by the fact that major actors are increasingly reticent about committing to full-scale military action. Clearly, this is cause for major concern, as while the general public may not be willing to accept military action, it does leave the world in a position where GZ actions are going to become more and more likely. The question from my perspective then is: why are the likes of NATO not doing more? How much longer can we continue to be permissive of so-called ‘minor’ incidents on the global stage?

Mike Ryder, Lancaster University


 

I, like a lot of people became really interested in grey-zone conflicts, and ‘hybrid warfare’ after the Russia intervention in Crimea and Eastern Ukraine. But, then, as with a lot of other people, I realised it is just another form of irregular conflict. On one level, all of these grey-zone tactics are just recycled from previous conflicts. But, there does seem to be something different about them. As Wirtz notes, the world is now multi-polar with China, Russia, and Iran being prepared to act on the world stage with less fear of a formerly hegemonic US response. However, as Wirtz alludes to, there are vast numbers of individuals and small groups with high-levels of technological power and know-how who have the ability to create change on their adversaries, whether they be other individuals they dislike, or corporations who they believe to be unethical. However, when it comes to these sorts of attacks of states, it does create the question, of whether states will suffer defeat from ‘a thousand cuts’?

It would seem that it is easier to survive a war of attrition if you know that your adversary is also suffering. But, when there are many adversaries, with an unknown and potentially minimal level of suffering happening to them, it becomes more difficult. Wirtz does suggest counter-strategies for these types of conflicts. They all seem to require states to do more, and work harder. I wonder whether the defence cuts engulfing UK armed forces will stop the Ministry of Defence being able to cover these areas?

Overall, Wirtz gives a really good overview of the grey-zone. I just wish I could have read it 5 years ago!

Joshua Hughes, Lancaster University


 

This article was very useful to learn more about strategy. It was very well structured and easy to read, which is a great accomplishment due to the dense material. I do not know a lot about strategy but have recently started delving more into strategic theory, so this was an excellent addition. However, for someone not versed in strategic theory, not everything was easy to follow. The intended audience of the article is strategists, so the reader is assumed to know more than I do myself. What I still struggle with is why the actions described are placed into a separate category of “short-of-war” strategies, as all these manoeuvres also seem to be found in full-blown war. Proxy warfare might not lead to superpowers taking direct military action, but can very well lead to an extremely violent war in the country in which this takes place. The author claims that multipolarity has led to decreased international management, and therefore control on allies. However, was proxy warfare not a key feature of the bipolar Cold World? Fait accompli seems to be a tactic that can be found in full-blown war as well – take action so quick before the opponent can respond (like the 1998 India-Pakistan Kargil War). I struggle with understanding this logic due to my limited knowledge of strategic theory. Nonetheless it was very informative.

What I found less satisfying were the recommendations to counter Gray Zone strategies. The author recommends accelerating bureaucratic processes, strengthening alliances, and developing tactics to strengthen deterrence against short-of-war tactics. It is not that I disagree, but the whole problem is what to develop and how to execute this. There are few people who do not want to streamline bureaucratic processes (besides perhaps paper salesmen), but how should this be done exactly, and what should be cut and altered? How this process is changed dramatically affects the outcome. Of course it is great to develop initiatives to strengthen deterrence, but what should be developed exactly and how? The recommendations lack substance, and are therefore not very useful practically.

The author finishes off the article by mentioning the possibility of increasing the likelihood of conflict (by redrawing red lines or actually executing deterrent threats sooner) when international decorum is insulted. The idea is that the risk of actual war is lowered, if the threshold of war is lowered too. This is a very thought-provoking suggestion, but as the author already clearly states, a very dangerous one. It is a gamble that the likelihood of war will actually decrease if you employ this doctrine, and escalation risks increase substantially. Furthermore, it also means that opponents might respond harsher to YOUR short-of-war tactics too. The article is written from a US perspective and mostly describes actions taken by China and Russia, but the USA fully embraces this type of warfare too with drone strikes, black OPS missions , cyber operations, etc. That should also be included when calculating the bigger risk picture. Still, if WW II clearly showed how horrible war is and that it must be avoided at all costs, which led to peace, increased cooperation and prosperity in Europe, did that make it worth it? The fact that WW II followed WW I shows that this is no guarantee, and statistically, prior conflict is one of the key factors in predicting future conflict. Nonetheless it is interesting to think about.

Maaike Verbruggen, Vrije Universiteit Brussels


Life in the Gray Zone” presents a clear account of the “short of war” strategies characteristic of Grey Zone conflicts and provides the reader with an understanding of why such strategies may be on the rise. Something that stood out for me throughout this article was the author’s recurring reference to “enablers” or facilitating factors that are seemingly incentivising short of war strategies.

Wirtz notes that the very fabric of deterrence strategies has an enabling effect on short of war strategies by providing adversaries with an opportunity to exploit the “victim’s desire” to avoid hostilities (p. 107). In addition, it is highlighted that globalisation, the information revolution and the pace of technological change also act as enablers for those seeking to alter the status quo. It is, however, a point made towards the end of the article, as Wirtz considers counter measures to Grey Zone strategies, that stands out the most for me in this regard. The author pertinently highlights that the problem of enabling factors incentivising short of war strategies runs much deeper than those factors previously mentioned – to the bureaucratic processes, slow procurement cycles and drawn-out strategic planning timelines within military establishments – and the fact that these are simply not keeping pace with the rapidity of today’s political, technological and social change (p. 112). This asymmetry of pace creates an exploitable gap; a gateway for short of war strategies to be used effectively.

Although it is clear that policies and strategies must be reimagined to align with today’s short of war reality, I wonder how feasible it might be to implement “continuous reform and reinvention” of deterrence strategies, force structures and doctrines, as Wirtz implies (p. 112). This would entail a very reactive approach that is likely to be in constant flux and therefore potentially unsustainable in the long-run. It seems almost counterproductive given the uncertainty inherent to how short of war strategies will evolve as technological, political and social changes continue to accelerate. The more useful way forward seems to be in defining red lines and identifying coherent ways to respond to short of war strategies, as Wirtz later suggests. Defining red lines is surely the logical first step and the one requiring the highest priority in order to effectively begin to counter Grey Zone activities. Until this happens, thresholds of tolerance will remain just as ambiguous as the short of war methods being used to erode them; further incentivising these approaches to be embraced.

 

Anna Dyson, Lancaster University 


As a novice to the topic, I found the article interesting, clear and informative. The author was able to succinctly define “Gray-Zone” conflicts and elaborate on the three strategies used by those that wish to alter the status quo (fait accompli, proxy warfare, and the exploitation of ambiguous deterrence situations).  I also found that the examples used to present the short-of-war strategies supplemented the theoretical discussion well.

As can be seen clearly in Crimea, “Gray-Zone” conflicts are a serious threat to international peace and security. Therefore, countering “Gray-Zones” is an important consideration for military strategists. Wirtz refers to some courses of action that can deal with the daunting challenges of “Gray-Zones” but only very briefly and without great substance. I would have enjoyed reading more detailed discussion on what can be done to mitigate the challenges posed by “Gray-Zone” conflicts.  Additionally, it would have been beneficial for Wirtz to acknowledge how realistic it is for his suggestions to be adopted by those seeking to counter short-of-war strategies.  If the suggestions are unlikely to be utilised then why is this the case? Why are the relevant actors not already implementing actions to counter short-of-war strategies? Perhaps, actions have been taken or are in the process of being implemented. Considering the seriousness of “Gray-Zone” conflicts, I would have assumed the article would have provided more focus on countering “Gray-Zone” conflicts. Perhaps this will be the focus of future research.

Liam Halewood, Liverpool John Moores University


us know what you think below

The everywhere war – Gregory

Here, we discuss ‘The everywhere war’ by Derek Gregory, The Geographical Journal, 177: 238–250. It’s available here. The piece is open access, so you can read it for free. Please let us know what you think of it, and if you agree/disagree with any of our thoughts.

This paper, along with Gregory’s blog, have become quite influential in social science discussion of drones, and post-9/11 conflict. Also having great impact is Chamayou’s ‘Drone Theory’, both of these are seen by some as the basis for analysis of the phenomenon of drone warfare and global US counter-terrorism. Indeed, it is difficult to find an article from the social science about either subject that does not reference Gregory’s work.

Without further ado, here is what network members think of the piece.


In this paper Gregory builds on Foucault and others reflecting that the battlefield is now much rather the ‘battlespace’, and there is a blurring of boundaries as technologies and methods of warfare change. I was quite interested in the postcolonial angle Gregory adopts here, pointing as he does to the blurring of the (colonial) distinction between ‘our wars’ and ‘their wars’, with ‘our wars’ being supposedly advanced, surgical and sensitive, though on occasion becoming much less so (239). However Gregory doesn’t really address that ‘their wars’ as it were (i.e. the terrorists) have never been surgical and precise – and surely that is the point, their deliberate MO, and something we still need to come to terms with both militarily and as a society.

One interesting point that did stick out for me in this paper was the emphasis on the CIA being created in the 1940s specifically as a civilian agency to counter-balance the influence of the military (241). But from its inception onwards, from the end of WW2 to Vietnam and now the modern day, its actions have been anything but ‘civilian’. Given the ever-present blurring of the distinction between soldier and civilian, we should ask why do we maintain this distinction at all? Is the distinction a legal and social anachronism?

On a related note, I would like to discuss the Hersh quote Gregory refers to towards the end of the paper where he asks ‘If the military is operating in cyberspace, does this include civilian computers in American homes?’ (247). This for me, seems to reach right into the heart of the military / civilian problematic. Is the internet a civilian or a military space? In one respect the internet emerged from military interests to preserve information in the context of a nuclear war, but has been turned over to the civilian. And yet if the military is operating in cyberspace, would that then suggest a kind of ‘martial law’? The problem here of course is that in a practical sense, martial law is something to be enforced by an authority with the power to deliver real violence (or the threat of violence). In cyberspace however, the military does not have the same asymmetric advantage that it has in the case of martial law. In the world of cyberspace, a lone teenager in a bedroom can hack into NASA and more often than not, can exercise more power than the largest of organisations. At what point then does the lone teenager become a military threat, and indeed a military target? To play devil’s advocate here: if every citizen is a potential guerrilla/partisan fighter, either acting on behalf of a State or indeed for their own personal motivations, should civilians ever be classed as illegitimate targets? Why do we maintain the facade that civilians and soldiers are ever separate entities?

Mike Ryder, Lancaster University

 


Gregory builds on an existing body of literature on the changing nature of warfare, discussing how the spatial and temporal delineations of warfare have blurred. In this paper he argues that US military operations are now being conducted in the “shadowy borderlands.”

The cases are very different, with varying causes, consequences, means and methods. Within each case, he references snippets of many different existing debates in those fields. This large variety of issues makes it very difficult to actually make any significant conclusions or assessments about the US operations, besides that they are conducted in the “borderlands.” That leads to the article providing limited explanatory value or new insight on the question of borderlands, as the variety of issues are too diverse to extract higher meaning.

Additionally, I find the inclusion of cyberwarfare highly questionable. Cyberwarfare is difficult to conceptualize within the existing frameworks of international security, and there are arguments to make about cyber being its own separate domain. However, in my opinion, it is mainly a technology, more than a location of military activity.

Finally, I have some problems with the methodology of the article. The different cases are very descriptive, with a lot of information adding little value to the narrative. Furthermore, as he is incorporating so many different academic debates, it ends up with highly selective sourcing. This is evidenced most clearly in the discussion of cyber, where he builds the argument on the opinion of one USAF colonel.

Maaike Verbruggen, Stockholm International Peace Research Institute (SIPRI)


Gregory’s use of ‘borderlands’, and ‘grey-zones’ are present throughout this piece, and blend into each other. His conception of pace of the borderland makes me think of potential future operations for (semi-)autonomous weapon systems (AWS).

In literature on AWS, two broad categories of operations are highlighted, the ‘classic’ example of a system operating in an area that could only be a place for the enemy, when civilians are unlikely to be present, ala the Iraqi desert in 1991 and 2003 conflicts. Often, this is contrasted to the ‘complex’ example of terrorists/militants dressed in civilian clothes and fighting a terror campaign/insurgency in an urban environment, ala the Battle for Falluja, or Mogadishu.

For Gregory (and Duffield), such conflict would still both be ‘borderland’ wars, because the potential deployment of AWS is likely to be performed by technologically advanced Western powers. Indeed, it seems that the conception of the borderland here does not depend upon the amount of civilisation in the area of operations. International law scholars working on the issues of drone strike often talk of ungoverned spaces, i.e. those where territorial government has no control and no ability to prevent terrorist activities occurring – The Federally Administered Tribal Area of Pakistan is a good example. This leads to states acting extraterritorially to protect themselves from foreign terrorists (known as unwilling/unable doctrine). Again, this links back to Gregory’s idea of the grey-zone between war and peace  – although legally a state using force on the territory of another state without invitation, consent, or UN security council authorisation has started an intentional armed conflict with the territorial state.

Joshua Hughes, Lancaster University


After reading this article, I did not feel that anything ground-breaking was argued. However, this article was published in a geographic journal as opposed to a legal journal and therefore I can see why the points made in the article would be rather unique for that audience. Nonetheless, the suggestion in the abstract that “much of the discussion of 9/11 has debated its historical significance, but it is equally important to explore the geographical dimensions of the wars that have been conducted in its shadows” is misleading.

Firstly, the historical insignificance of 9/11 is not really debatable for a number of reasons and I doubt that much ‘discussion’ on the historical importance of the event has occurred because it seems totally unnecessary. Secondly, the global war on terror dominates so many international legal topics that it is totally incorrect to suggest that the geographical dimensions of counter-terror wars have not been explored.

One of the major concerns of the war on terror is that the US policy creates a global battlefield and the boundaries between war and peace are blurred. The fundamental argument within the article that the planet is increasingly militarised is one that has been made for a decade prior to the publication of the article.  This does not mean that Gregory cannot add to the arguments and bring new perspectives but the suggestion that the discussions about the militarisation of the planet are not ongoing seems to dismiss years of work that scholars conducted post 9/11.

Liam Halewood, Liverpool John Moores University


As always, please feel free to comment, and if you would like to join the network, please check the contact tab.

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


As always, if you would like to join please contact admin@ttac21.net

We look forward to hearing your comments.

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.


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