Over at ESIL [European Society of International Law] Reflections [5 (7) 2016], Jochen von Bernstorff has a succinct commentary on ‘Drone strikes, terrorism and the zombie: on the construction of an administrative law of transnational executions‘.
His starting-point is the UK report on the government’s policy on the use of drones for targeted killing that was published in May 2016 in response to the killing of Reyad Khan in Syria last August: you can find more in REPRIEVE’s report on Britain’s Kill List (April 2016) and in two commentaries at Just Security from Noam Lubell here and Kate Martin here.
In Jochen’s view, the UK has effectively endorsed the policies of the Obama administration and in doing so has hollowed out fundamental legal regimes that supposedly constrain state violence.
First is the concerted attempt to legitimise the unilateral killing of suspected terrorists outside ‘hot’ battlefields – in the Federally Administered Tribal Areas of Pakistan, for example – as a new form of pre-emptive self-defence to be invoked whenever the state whose sovereignty is transgressed is ‘unwilling or unable’ to take appropriate counter-measures. I discuss other dimensions of this in ‘Dirty dancing’ (DOWNLOADS tab), and pay attention to its colonial genealogy, but Jochen emphasises another even more starkly colonial inflection:
‘The main protagonists in this discursive effort take it for granted that the new legal regime will not be applied among us, which is among Western states and the five permanent Security Council members. There will be no US-drone attacks in Brussels or Paris to kill ISIS-terrorists without the consent of the Belgian or French government, even if these governments proved to be unable to find and arrest terrorists. The new regime is a legal framework for what can be called the “semi-periphery”, consisting of states that do not belong to the inner circle or are not powerful enough to resist the application of the regime.’
Second, and closely connected, is the claim that armed conflict follows the suspect – that the individuation of warfare (‘the body becomes the battlefield’, as Grégoire Chamayou has it) licenses the everywhere war: simply, wherever the suspect seeks refuge s/he becomes a legitimate target of military violence. But there is nothing ‘simple’ about it, Jochen contends, because this involves a wholesale exorbitation of the very meaning of armed conflict that completely trashes the role of international human rights law in limiting violence against those suspected of criminal wrong-doing.
Finally, Jochen concludes that the arguments adduced by the UK and the USA (and, I would add, Israel) demonstrate that international law is so often transformed through its violation: in Eyal Weizman‘s ringing phrase, ‘violence legislates‘. Here is Jochen:
‘The Zombie is created by a fundamental reconceptualization of the notion of self- defence and armed conflict in international law with the aim to get rid of all legal constraints on state violence imposed by the law enforcement paradigm. Is this a new legal regime? Are we really moving towards an administrative law of transnational executions? It is an inherent problem of international legal discourse that measures of Great Powers violating the law will often be reformulated as an evolving new legal regime and legal scholars should be extremely sceptical of any such claims, since whoever says “emerging” in an international legal context very likely wants to cheat.’