The cubicle warrior: the marionette of digitalized warfare – Royakkers and van Est

This article on ‘cubicle warriors’ became a key text early in the debates on drones, particularly regarding the pilots themselves. The idea of them being morally disengaged and nobody really thought about those on the ground who are subject to drone strikes was a powerful part of early debates. Thoughts on drones have since moved on a little to consider the idea that responsibility is dispersed through a large network of decision-makers, rather than simply being absent. Still, we thought it important to review this piece.

 

It’s available here.

UPDATE:

Here’s what we discussed about this piece in our reading group:

  • This article was an early investigation into the drone pilot mentality. The high levels of PTSD experienced by drone pilots and operators show that this is not simply a game, it has real psychological impact upon the pilots themselves.
  • However, the targeted recruitment of gamers for drone operations does indicate that the ‘playstation mentality’ has become a significant meme in the minds of almost everybody who thinks about drones. This recruitment could be seen as playing on this idea and manipulating recruits into performing real life acts. Indeed, ISIS use the same tactics in their propaganda ‘Just like in GTA, but in real life’.

 

  • Thoughts on individual responsibility for drone strikes seems to have changed from the idea that the technology and distance removes real responsibility from the pilot/operator to diffusing responsibility throughout the network of people watching drone operations across the world.
  • The bureaucracy involved in drone operations could be seen as providing an alibi for wrongdoing, purposeful blurring and obscuring of those responsible for actions.
  • The diffusion of responsibility and the significant bureaucracy involved in targeted killing arguably makes effective accountability impossible.
  • The massive bureaucracy of targeted killing implies that ‘tactical generals’ who are above drone operators in the chain of command may have access to greater sources of intelligence than the operators themselves. This makes it difficult for operators to deny the requests of superiors if there is an assumption that they have greater knowledge. This fundamentally alters the relationship between the operator and the moral decisions they are required to make. They no longer take the role of moral agent themselves, if partially direct by a superior. Yet, if an operation went wrong, they could be forced to take all responsibility.
  • This raises the question of if a soldier would be willing to die for a successful operation, and is required to trust in their superiors that they would not die in vain, would they also be willing to go to prison if a commander asked them to knowingly commit a crime for the same reasons?

 

  • The use of drones in targeted killing can be seen as an attempt to get towards ‘perfect’ distinction and individualised targeted. The fact that bad intelligence has often been used, and poor decisions have resulted in bad outcomes such as civilian deaths do not make targeted killing unlawful per se, nor something that should not be pursued.
  • Perceptions of a ‘cowboy’ mentality amongst drone operators is present amongst almost all critics of drone strikes.
  • The secrecy of the US targeted killing programme has meant that the US ‘got away with’ mistakes for years, they are now being exposed as wrongful.

 

  • The fact that all data from drones is recorded can not only potentially create retrospective responsibility, but also retrospective morality.

 

  • The fact that drones are used is not surprising. People sue the technology available to them. Indeed, the principle of precaution could be seen as requiring drone use, as there is no legal reason to risk personnel on your own side.
  • The ‘reach’ of the Western militaries to kill on the other side of the world without full-scale deployments is disturbing, but not a new issue, considering the history of colonialism and counter-insurgency wars following the colonial period.
  • Lack of accountability is the real issue with drone strikes, in that nobody has been brought to book for an apparently high number of civilian deaths. The public understand and accept secrecy when required, but do demand accountability for wrongdoing.
  • McNeal suggests that there is accountability in the drone programme, but it is a mixed bag of political, professional, public, and legal accountability that is unconvincing to some as there are no transparent and distinct legal sanctions for wrongdoing. Greater transparency does not necessarily create greater accountability, but displays the accountability that is present for the public to believe in.
  • Although accountability would not necessarily prevent drone strikes from happening, it would prevent poor decision making, and use of bad intelligence which seems to be the reason for most of the questionable strikes.

 

  • It can be argued that location results in accountability. A drone strike in the Middle-East is uncontroversial due to moral distance. A US drone strike in Belgium, where counterterrorism police have not been 100% competent would be seen as an atrocious breach of sovereignty despite being performed for identical reasons.
  • The images and context of something happening in a nearby country, whether a drone strike or terror attack can be seen as a ‘selfish connection’ to nearby countries because people often do not care as much about events far away.
  • Yet, for people in Britain, 9/11 is still a major event that is memorialised annually despite being far away. 7/7 is almost a footnote in the Britain memory of terror attacks. Although one would expect feelings of ‘it could have been me’ to be more prevalent in relation to 7/7, 9/11 was so iconic and changed everything. Perhaps this is why it is remembered in a larger way than 7/7.

 

  • The article seems to be from a moral/ethical perspective. Yet, states will almost always only use legal arguments to justify their actions.

 

  • Drone operators are often seen as displaying less courage than ground troops, as they are not at risk of physical harm during operations. They are, however at risk of being singled out for terrorist assassination, and at significant psychological risk. Perhaps drone operators should be required to perform a role with inherent risk first in order to instil the memory that operations really are life and death, and in no way a game. However, it is the responsibility of commanders to make sure their subordinates understand what they are doing and what the ramifications of their actions are.
  • The high turnover of drone pilots through psychological burnout could suggest that whilst troops at physical risk can be seen as sacrificing themselves physically , drone operators could be seen as sacrificing themselves psychologically.
  • This continuing psychological injury that could be caused to all drone pilots and operators creates a greater burden for the state following conflict as they should provide care for them, unlike a physical military confrontation where man personnel do not return.

 

  • Use of the term ‘marionettes’ in the article implies those involved in drone operations are just puppets with a lack of agency. This raises the question of who is really in control. Ian Shaw suggests in his book Predator Empire that no one is really in control of the US targeted killing programme.
  • There is a lack of trust towards drone pilots who are assumed to be video game players without much aeronautical experience, Yet we trust 19-year olds to go to a front line with a rifle and only basic training.
  • The potential training of drone operators thorugh simulations can be seen as extending the ‘gamification’ of warfare. Potentially, this would be desirable for states who would rather employ cold-blooded killers to achieve policy aims, rather than real people with weaknesses, whether psychological or physical.
  • People who do exactly what they are told may as well be robots, increasing the desire of states to possess autonomous weapon systems in the future.
  • This raises issues of whether military personnel require empathy with their targets. The moral distance of drones reduces the potential for empathy, which would be further reduced through autonomous weapons. Yet, even through a completely human system Adolf Eichmann was still able to remove empathy and ‘just follow instructions’, as autonomous systems would.

 

 


This excellent article explores some of the issues surrounding the responsibility (or not) of drone operators – what the authors call ‘cubicle warriors’. Here, the authors argue that responsibility can only be tied to control and whether the operator is ‘in control’ of his or her behaviour. With the increasing depersonalisation of warfare through a computer screen, the authors argue that the operators cannot be held reasonably responsible due to their moral disengagement (295).

This is a powerful argument, and one that really requires much further scrutiny both in terms of the actions of drone pilots, and also soldiers on the ground. Can any warrior be truly responsible for his or her actions? If a warrior is trained (or ‘programmed’) to behave in a certain way, is any error or moral disengagement then not a product of their training or indoctrination, rather than their own personal failings? After all, they did not design the rule, and hindsight is often a wonderful thing. There is also then the danger associated with technology driving use. Philosophically speaking, we can see here how the tool (the weapon) becomes an extension of the body such that the two are in a reciprocal relationship. The warrior controls the weapon, but the weapon also controls the warrior in turn.

Finally, I’d like to add here brief mention of the use of drones and their association with systems analysis in assessing the ‘success’ or otherwise of a mission. When there is no possible way to effectively determine the ‘guilt’ or otherwise of a target and any collateral casualties, it seems to me here the only way of judging success is through body count. And yet US experience in Vietnam tells us that such an approach is only ever destined for failure. While it may certainly be more publicly palatable to think of far off drones ‘killing the terrorists’ while friendly forces remain safe from harm, the long term impact of judging success based on body count is surely only ever going to encourage killing for killing’s sake – an excess of violence where it may not strictly be necessary to protect the State from harm.

Mike Ryder, Lancaster University


I find that this article spawned the idea of the ‘playstation mentality’, that drone operators treat piloting an armed aircraft like it is a game. This all seems to come from one quote from Peter Singers book ‘Wired for War’: ‘‘It’s like a video game. It can get a little bloodthirsty. But it’s fucking cool’’ – Unfortunately this quote from one young pilot appears to have started off a massive assumption amongst academia, the public, and policy that the ‘playstation mentality’ is real and true.

Yet, whenever I have read or seen an interview with a drone operator, when questioned about the ‘gamification of war’, they respond that this is a serious business and most definitely not a game. The larger mass of evidence about the mentality of drone operators does not agree with Royakkers and van Est’s claims that:

 

“[the knowledge condition that pilots know what they are doing] is not fulfilled if the depersonalization of war by dehumanizing the enemy incites cubicle warriors to subconsciously believe that they are playing a video game. Consequently, cubicle warriors neither are able to reliably identify targets, nor are they able to comprehend what happens to the targets when lethal force is deployed…”

 

Indeed, in an interview with Dronewars.net, a current RAF drone pilot ‘Justin Thompson’ answered this question from Chris Cole:

 

CC: What about the ‘PlayStation mentality’ idea that the remoteness and the distancing makes it easier for pilots to launch weapons?

 

JT: “There is the potential for you to feel that what you are doing isn’t real and there are no direct consequences. But I think that would only occur for someone who had not themselves sat in an aircraft and been shot at.

For me, what I was seeing on the screen was very real. In addition to that for me it was more than just two-dimensional. My mind very easily perceived a three-dimensional scene that extended out of the side of the image. Whether that was because I was used to sitting in a cockpit and seeing that sort of picture I don’t know. Someone whose only background is flight simulators or playing computer games may have a different view. I relate it to sitting in an aircraft and flying it, others may relate it slightly differently. It’s difficult to say.”

 

Additionally, this short documentary gives the same view (here)

As Beth Maundrill points out, even drone pilots who have never before piloted a conventional manned military aircraft are required to do so before piloting a drone. The aeronautics of flying an aircraft unmanned are the same as flying one manned, so the idea that drone pilots and sensor operators just turn up having played some video games and then start killing people is such a misconception, it is frankly, laughable.

Clearly, Royakkers and van Est are trying to get to something much deeper than this shallow ‘video game drone killers’ idea, but it does seem to have caused a great misconception for many people who really should know better.

Also, you can find out a bit more about the work of Dr. Peter Lee and his research on drone pilots here. Book out next year.

Joshua Hughes, Lancaster University


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What is the most significant counterterrorism trend of the 21st century so far?

We decided that constantly reviewing books and articles was getting a bit on the monotonous side, so we decided to look at answering questions to be a bit more thought-provoking and generate a bit more discussion.

We’ve also decided to incorporate the points made at our face-to-face reading groups into the main posts, rather than a separate post.

 

Considering that counterterrorism has shifted considerably since the beginning of the ‘Global War on Terror’ from being an almost exclusively police affair, with a bit of military support, to having military forces at the forefront of the fight against international terrorism, we thought it was something we needed to think about.

 

Here’s what we talked about at our reading group, followed by some individual thoughts from members:


  • The larger role of military counterterrorism seems to have been the biggest trend.
  • Anthony Dworkin suggests that military counterterrorism used to be similar to counterinsurgency, where the winning of hearts and minds was as important at neutralising ‘irreconcilable adversaries’. However, due to there being zero political will for boots on the ground in order to carry out the required role in winning hearts and minds, only the targeted killing of irreconcilables can be carried out.
    • This approach of stopping key adversaries, but not having the power, or political will, to affect a societal change in order to eliminate the root causes of terrorism has a parallel with organised crime. Police forces often ‘keep a lid’ on organised crime so that they do not grow too powerful, but cannot eliminate it completely because it is expensive in both manpower, cash, and political backing. Also, the risk that when one organised crime group is removed, other will then fight for their territory, businesses and power can be too great – it seems a similar approach is being taken towards international terrorist groups.

 

  • The rhetoric of the ‘Global War on Terror’ immediately put Al Qaida and Osama Bin Laden into a war with the US, rather than being seen as criminals. This gives them more perceived power, as they are in a war with the US which gives them a greater platform, and possibly an assumed equal playing field. This doesn’t reflect the truth in that Al Qaeda were, although effective, just a small group of relatively poor and ill-equipped ex-mujahedeen fighters.
  • In terms of language, both Osama Bin Laden, and George W. Bush used very similar rhetoric to persuade people to join their side.

 

  • The use of the term ‘loser’ for terrorists by President Trump is, although blunt, probably an accurate description for what are often just young disaffected young men with no prospects and no hope – whether through their own failures, or structural difficulties in their societies. This links in with greater global challenges surrounding the role of men in modern societies, which many young men are struggling to deal with.
  • For some of these people, being subject to targeted killing could become a ‘badge of honour’, in that they have managed to make such a mark with their actions that a foreign government is out to kill them.

 


Profiling and surveillance are two key areas that have seen massive growth in the 21st century. Harnessing cloud computing and big data, these technologies have given law enforcement agencies access to tools that make them more effective and more efficient at what they do.

And yet these technologies come with great risks. The biggest perhaps is an overreliance on technology, and a prevailing sense of confidence that the technology will always come out on top. This technology has also given successive governments an easy method to justify cuts, relying on the greater efficiency of these new systems, while neglecting the need for community engagement and responding to community concerns.

Mike Ryder, Lancaster University

 


Manhunting/ Kill or Capture. Although these tactics have been around for a long time, they were never the main strategy of fighting the enemy. Yet, in today’s modern counter-terrorist conflicts, it seems that this is all there is. There’s no expansion into counter-insurgency, and trying to win hearts and minds, just the killing of the ‘irreconcilables’. Potentially, the ‘outsourcing’ of the friendly parts of COIN to parts of the state such as DFID make it too great a distance for people to see the link between being nice and not having to fight future wars. Also, the number of aid workers at DFID, rather than defence people mean that the running of international aid could be focussed on helping those in need, rather than those we want to dissuade from becoming adversaries – although this is, of course, a good aim. As long as the military doesn’t do any nation building, and there isn’t the money available for any sort of mass re-building, pure lethality might be the only thing on the table.

 

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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Drone Theory – Chamayou

For our first book review, we have chosen Drone Theory by Grégoire Chamayou.

It has become quite influential in the study of drones, and really set the tone for a lot of the early research on drones. At the recent conference Drones and Lone Wolves, every participant referred to this book, so we are glad to finally review it. Our thoughts are below:


Grégoire Chamayou’s Drone Theory is an interesting book, and a great ‘first read’ for the new TTAC21 research group. While it is published for the general public, and so suffers from a lack of academic rigour in some areas, it does draw attention to a number of issues pertinent to the drone warfare discussion. One of the most significant for me is the concept of ‘pattern of life’ and the way in which computer algorithms are being used to assess the ‘threat’ or ‘potential threat’ of individuals being monitored by these armed drones. The implications here for not only warfare but criminality and the definition of the criminal are quite staggering, the logical consequences of such pre-emptive action reading increasingly like a work of dystopian science fiction.

From my own research, another discussion that I found quite interesting in Drone Theory is the part where Chamayou raises the question of humanity, and how soldiers see themselves in the soldier vs assassin debate. For Chamayou, there is something fundamentally quite human in the decision not to shoot the exposed enemy who might be smoking or taking a break, when they are not directly taking part in the conflict. Though logic and orders may suggest you should shoot said exposed soldier, there is a moment there in which the soldier risks becoming an assassin: ‘It is a matter not of duty by of becoming. The crucial, decisive question is not “What should I do?” but “What will I become?”’ (199).

Mike Ryder, Lancaster University


In my comment on Drone Theory, I wanted to pull something specific out, Chamayou mentions a difference between ‘fighting’ and ‘killing’ (p.199). He exemplifies this be referring to the fact that soldiers are legally allowed to kill their enemy simply because they are the enemy (in an International Armed Conflict), whether they are ‘naked, dishevelled, disarmed, smoking a cigarette, or even asleep.’ Although this doesn’t take into account those who could be hors de combat (see Art.41 of Additional Protocol 1 to the Geneva Conventions), it does raise an interesting point regarding autonomous weapon systems.

When we think of killing in warfare, we think about the ‘kill or be killed’ of high-intensity combat in which people close and kill the enemy. But, the issue Chamayou raises forces us to think about killing when the enemy is not a direct threat. A human solider may choose to take an enemy in such a position as a prisoner. A drone pilot may choose to wait until a target actually poses a threat to civilians or friendly forces. However, an autonomous weapon system programmed to fire at anything it calculates is an enemy would not stop, and consider the ethical implications of firing at a target that is sleeping. Perhaps, an autonomous weapon system really, is not a fighting robot, but a killing machine.

Yet, I seem to remember a documentary on the Falklands War where Maj. Chris Keeble who took command on 2nd Battalion the Parachute Regiment at the battle of Goose Green following the death of Lt-Col. H Jones, describe the battle as ‘pure killing’ – raising the issue of the military as ‘cold-blooded killers’. However, Keeble managed to negotiate a peaceful Argentine surrender during a lul in the battle. No autonomous weapon system could do this, it would remain a killing machine.

Joshua Hughes, 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.


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