Distinction and the ethics of violence

In another lifetime, or so it seems, I wrote a short essay on ‘The death of the civilian’ (DOWNLOADS tab), and I seem to have spent much of the intervening years developing those early ideas.  So I’m thrilled to see an important new paper from Nicola Perugini and Neve Gordon, ‘Distinction and the Ethics of Violence: on the legal construction of liminal subjects and spaces’, available online now at Antipode:

This paper interrogates the relationship among visibility, distinction, international humanitarian law and ethics in contemporary theatres of violence. After introducing the notions of “civilianization of armed conflict” and “battlespaces”, we briefly discuss the evisceration of one of international humanitarian law’s axiomatic figures: the civilian. We show how liberal militaries have created an apparatus of distinction that expands that which is perceptible by subjecting big data to algorithmic analysis, combining the traditional humanist lens with a post-humanist one. The apparatus functions before, during, and after the fray not only as an operational technology that directs the fighting or as a discursive mechanism responsible for producing the legal and ethical interpretation of hostilities, but also as a force that produces liminal subjects. Focusing on two legal figures—“enemies killed in action” and “human shields”—we show how the apparatus helps justify killing civilians and targeting civilian spaces during war.

Their two case studies focus on US drone attacks in Pakistan and the use of human shields in Gaza (the image below, taken from the article, shows the Israeli Defence Force’s ‘Laboratory of Discrimination’ (sic)).

You can watch a video where Nicola and Neve discuss their ideas on the Antipode website here, which also provides a less formal gloss:

[Their paper] examines how militaries actually make distinctions in the battlefield, given that today most fighting takes place in urban settings where distinguishing between combatant and civilian is becoming increasingly difficult.

Their paper shows how liberal militaries are utilizing new technologies that aim to expand that which is perceptible within the fray. Combining the more traditional forms of making distinctions such as binoculars and cameras with cutting edge hi-tech, militaries subject big data to algorithmic analysis aimed at identifying certain behavioral patterns. The technologies of distinction function before, during, and after the fray not only in order to direct the fighting and to help produce the legal and ethical interpretation of hostilities, but also as a mechanism that identifies and at times creates new legal figures.

Focusing on two legal figures—“enemies killed in action” and “human shields”—Nicola and Neve show how technologies of distinction help justify killing civilians and targeting civilian spaces during war. Ultimately, they maintain that distinction, which is meant to guarantee the protection of civilians in the midst of armed conflict, actually helps hollow the notion of civilian through the production of new liminal legal figures that can be legitimately killed.

For more on the intersections between international law, military protocols and the (in)visibility of the civilian, I also recommend the insightful work of Christiane Wilke (see ‘Seeing Civilians (or not)’ here).

MOAB and the moral economy of bombing

In Reach from the Sky, my Tanner Lectures which I’m presently preparing for publication, I sketched what I called a ‘moral economy of bombing’:

It’s the last of these claims that concerns me here: bombing represented as ‘law-full’.  In the lectures I discussed the legal armature of aerial violence – referring to the combined bomber offensive against Germany in the Second World War Air Chief Marshall Arthur Harris famously insisted that ‘In this matter of the use of aircraft in war there is, it so happens, no international law at all’, a claim that was, I suppose, literally true in so far as it applied to the specific application of air power; I tried to show what has (and has not) changed since then, not least through the development of international humanitarian law and the juridification of later modern war – and the insistence that air power is an effective means of imposing a legal order on the nominally ‘lawless’ (a claim registered through colonial ‘air policing’ and continued in the US and Pakistan air strikes on the Federally Administered Tribal Areas of Pakistan: see ‘Dirty Dancing’ (DOWNLOADS tab).

In the ghastly light of the Trump administration’s decision last month to drop (for the first time in combat) what the US Air Force calls ‘the Mother Of All Bombs‘ (MOAB), the GBU-43/B,  on an IS ‘tunnel complex’ in eastern Afghanistan, Michael Weinman has written an excellent essay for Public Seminar on ‘Ordnance as ordinance‘ that elaborates the second part of my claim about bombing being ‘law-full’:

[B]oth the decision to name this weapon MOAB and the decision to deploy it in Afghanistan is tightly linked with what Judith Butler called a “new military convention” begun by Colin Powell when he described the deployment of “smart bombs” during the first Iraq War as “the delivery of ordnance.” In “Contingent Foundations,” Butler noted that Powell “figures an act of violence as an act of law” by substituting “ordnance” (munitions, agents of destructive violence) for “ordinance” (a law or decree). Powell’s speech act, apparently delivered in an unscripted moment during a press conference in January 1991, is an important instance of the “illocutionary force” of language that Butler explores throughout the work she did in the late 1990s and early 2000s — her most impressive and important work in my view. This aerial bombardment of Iraqi installations with technologically advanced munitions, viewable in real time on network and cable TV for the first time, was itself a phenomenon. But it was the declaration that such a display in itself was an act of law enforcement that truly brought us into a new era. An era in which, thanks to Powell and the Bush (41) administration, the alignment of violence and law against a regime that violates international law figures state violence, even where it might be in contradiction of international agreements, as the very agent of law and legitimation. Watching the media response to the recent deployment of MOAB in Afghanistan, it is clear we still haven’t learned Butler’s lesson.

The deeper resonance of reading this particular ordnance as a form of ordinance requires that we attend to a different resonance of its chosen acronym, MOAB. Not the “Mother of All Bombs” nomenclature, which bespeaks its terrifying awesomeness — in the literal sense of the term “awesome,” connoting utter sublimity. That is part of the story too, but it is not the heart of it. Rather, continuing Butler’s pursuit of the line of thought by which Saddam (Hussein) was recast as (the Biblical) Sodom,[1] we must turn instead to the Biblical Moab, patriarch of the Moabites. Crucially, we must bear in mind that, within the Hebrew Bible, this people, whose lands lay across the Dead Sea, is cast as a hostile neighboring people — indeed, the Moabites are depicted as the neighboring tribe most inherently in conflict with the people of Israel. Viewed in this light, there is continuing power in Powell’s fantasy that the deliverance of ordnance is the way “we” publicly declare the ordinance that those who defy international law will be vanquished by the synthesis of law and force executed by the United States military as the leader the coalition of the willing. This vision remains the reigning principle behind the self-image of the United States as an actor on the international scene. And this is so because, deeply steeped in an “Old Testament morality” (a morality wherein the enemies of the United States are figured as the ancient enemies of the people of Israel), this vision justifies a view of America as the model exemplar of a “Judeo-Christian” civilization. A civilization that is — as it ever was — waging a war, engaging in a “clash of civilizations.” Of course we would name our most deadly non-nuclear weapon “Moab” (or M.O.A.B., if you like): what other name than that of the oldest and deepest “frenemy” of Israel could the United States military have possibly dreamt up?

There is more that could be said, I think, especially if one stays with Butler and thinks of this episode as a speech-act.  After all – and repeating a line that was repeated endlessly during the Rolling Thunder campaign against North Vietnam – MOAB was originally developed in 2002 for the ‘Shock and Awe’ campaign that heralded the US-led  invasion of Iraq, and the Pentagon claimed that deploying the MOAB was an act of communication (really): it sent ‘a very clear message’ to IS that it would be ‘annihilated‘.  (The message-in-a-bomb line shouldn’t be confused with the terse messages that ground crews have scrawled on bombs in war after war after war, and I suppose it is less grotesque than the description of bombing Syria as a form of ‘after-dinner entertainment‘ for the US President – which sends an even more terrifying message to anyone with a shred of decency or understanding).

If the bombing in Afghanistan did send a message to IS – and to state actors elsewhere in the world – it also sent a message to innocent others in the vicinity of the blast:

“There is no doubt that Isis are brutal and that they have committed atrocities against our people. But I don’t see why the bomb was dropped,” said the mayor of Achin, Naweed Shinwari. “It terrorised our people. My relatives thought the end of the world had come. Every day fighter jets, helicopters and drones are in the area.”

In that vein, and to return to the colonial genealogy I mentioned at the start, the use of the global South as a laboratory for weapons testing and demonstration has a long history, as Scott Beauchamp‘s report here documents:

…the most interesting commentary probably came from former Afghanistan president Hamid Karzai, who tweeted that “This is not the war on terror but the inhuman and most brutal misuse of our country as a testing grounds for new and dangerous weapons.”

He’s got a point. There is a dark history of Western military powers testing novel weapons and strategies on technologically overmatched non-Western (and non-white) populations. It’s a legacy that mixes the brutal arrogance of colonialism with the technological promise of an easy fix. There are of course numerous examples of this cruel dynamic at play in the centuries leading up to the 20th — conquistadors with dogs and swords, gunpowder in general — but the disparity that currently exists between the material advantages of Western countries and the technological capability of enemies abroad continues to be exploited in ways that conform to a recognizable pattern.

PS Much as I’ve enjoyed Michael’s essay, I think Stephen Fry also had a point.

The evolution of warfare

irrc-2016

The latest issue of the International Review of the Red Cross (open access here) focuses on the evolution of warfare:

To mark the 100th anniversary of the First World War, the Review asked historians, legal scholars and humanitarian practitioners to look back at the wars of the past century from a humanitarian point of view. In using what we know of the past to illuminate the present and the future, this issue of the Review adopts a long-term perspective, with the aim to illustrate the changing face of conflict by placing human suffering ‒ so often relegated to the backdrop of history ‒ front and center. It focuses on WWI and the period immediately leading up to it as a turning point in the history of armed conflict, drawing important parallels between the past and the changes we are witnessing today.

Among the highlights: an interview with Richard Overy on the history of bombing; Eric Germain, ‘Out of sight, out of reach: Moral issues in the globalization of the battlefield’; Lindsey Cameron, ‘The ICRC in the First World War: Unwavering belief in the power of law?’; Rain Liivoja, ‘Technological change and the evolution of the law of war’; Claudia McGoldrick, ‘The state of conflicts today: Can humanitarian action adapt?’; and Anna Di Lellio and Emanuele Castano, ‘The danger of “new norms” and the continuing relevance of IHL in the post-9/11 era’.

Incidentally, there may be something Darwinian about the trajectory of modern war – but I’m not sure that ‘evolution’ is exactly the right word…

In continent

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Over at the LA Review of Books Will Govinsky has a fine essay on Eye in the Sky called ‘The beauty of an imperial dilemma‘.  It begins with the image of a French gunboat firing shots into the African rainforest from Joseph Conrad‘s Heart of Darkness:

The ship’s absurdly one-sided battle becomes, for Marlow, an emblem of pointless, indiscriminate imperial violence: “[T]here she was, incomprehensible, firing into a continent.”

Will’s point is about the parallel between the anonymity of imperial violence in the African rainforest and the anonymity of the US (un)targeted killing program:

The chilling anonymity of this “targeted” drone program’s victims, crossed with the sanguine official line, again recalls Conrad’s French warship. “There was a touch of insanity in the proceeding,” Marlow says, which “was not dissipated by somebody on board assuring me earnestly there was a camp of natives ­— he called them enemies! — hidden out of sight somewhere.”

Conrad’s critique of European imperial violence moves with notorious swiftness from the opacity of the victim to the opacity at the heart of the colonizer. Marlow does not know who exactly are the victims of the French warship’s shells, but Conrad’s racism, as Chinua Achebe famously argued, precludes his narrator from caring that much. Marlow’s concern is not for the mangled bodies on the receiving end of colonial violence, but for the deplorable madness at the heart of the imperialist himself.

As I’ve described elsewhere, the genealogy can be traced across multiple theatres.  Here, for example, is Arnold Bennett on the Western Front:

Of the target I am absolutely ignorant.001

And here is Frederic Downs describing a US artillery bombardment in Vietnam – Francis Ford Coppola‘s setting for Heart of Darkness – in terms which loop back directly to Will’s (Conrad’s) point about anonymity, impersonality and the madness of it all:

The coordinates for that location and the time for firing would be relayed to the gun crews. At the specified time, the gun crews would be awakened. Perhaps it would be just after midnight. As the minutes ticked closer to a time set by an unknown intelligence the men would load the artillery pieces, anticipating the release of their impersonal death into a grid square. The gun commander would give the order to fire and the night would explode with man’s lightning and thunder. After the prescribed rounds, the guns would cease, the cleanup would begin, and the men would go back to their bunks. Thinking what? Within the range of those guns, within a specified area, the Central Highlands had for a brief moment changed from the jungle it had been for thousands of years into the particular insanity of man.

artillery

In these two cases, clearly, the gunners were firing blind – but what lay behind their guns was a stream of co-ordinates.

This raises two issues that bear directly on the use of today’s remote platforms.

The first is about the ethics of killing at a distance which, as Will notes, also has a (far longer) genealogy.  He cites Chateaubriand‘s question – ‘If, merely by wishing it, you could kill a man in China and inherit his fortune in Europe, being assured by supernatural means that the deed would remain forever unknown, would you allow yourself to form that project?’ – and explains that ‘killing the mandarin’ became shorthand in French for committing ‘an evil action in the hope that it will remain unknown.’

But the US targeted killing program is hardly unknown, and my own preference – which turns out to be closely related to tuer le mandarin – is to turn to Denis Diderot:

Diderot.001

The intimate connection between distance and blindness can be read again and again in accounts of bombing during the Second World War, most directly here:

Distance and blindess.001

But again, what lay behind ‘the distance and the blindness’ was a stream of intelligence.

Recognising the importance of those intelligence streams – and conceding that ‘crunching petabytes of metadata just wouldn’t make for good cinema’ – Will’s key point (and the second issue) is that in its representation of a drone strike in East Africa Eye in the Sky artfully reverses Conrad’s trope:

It asks what we would do if we knew everything. In a taut 102 minutes, the film condenses the ambiguities of drone warfare into a balance sheet of nigh certainties.

eye-in-the-sky

In a fine passage, he suggests the film offers the fantasy

of perfect, visual knowledge — a platform for the terrible beauty of a globe-girdling ethical dilemma. Poised, confident, her silver hair luminescent in the metallic grey-blue glow of her theater-like command center, [Helen] Mirren’s Col. Powell gathers up in her steely 10,000-mile stare the awful knowledge of her options.

But – as I argued in my own commentary on Eye in the Sky – this is indeed a fantasy.  The video feeds from remote platforms do not render the battle space transparent, and the make-believe that they do, Will concludes, renders the film ‘less a representation of drone warfare than a grotesque abstraction of it.’  Hence his brilliantly sobering conclusion:

We need plots that provide the narrative space to ask questions: whether the very terms of our dilemmas are spurious; whether firing into continents, day in and day out, can be anyone’s prerogative, let alone ours.

Drone observations

I’m just back from a lovely week at Dartmouth, so there’s lots to catch up on.  This post is confined to (yet more) notes on writing about drones.  It’s selective, partly because I’m sure I’ve missed all sorts of important recent contributions – and if I have please let me know – but partly because so many supposedly critical interventions retrace familiar steps unburdened by substantive research.

This is far from the case with this one.  Part of the purpose of my stay in Dartmouth was to spend time with Kate Kindervater, one of the first cohort of five post-docs at Dartmouth’s new Society of Fellows (selected from 1700 applicants!).   She completed her PhD at the University of Minnesota last year on ‘Lethal Surveillance: Drones and the Geo-History of Modern War‘.

Interdisciplinary both in scope and method, my dissertation, Lethal Surveillance: Drones and the Geo-History of Modern War, examines the history of drone technology from the start of the 20th century to the present in order to understand the significance of the increasing centrality of drones to current American military engagements and security practices more generally. Much of the scholarship on drones and many other contemporary military technologies tends to view the technology as radically new, missing both the historical development of these objects as well as the perspectives and rationalities that are embedded in their use. For this research, I focused on three main periods of drone research and development: the early years of World War I and II in the UK, the Cold War, and the 1990s. In studying this history of the drone, I found that two key trends emerge as significant: the increasing importance of information to warfare under the rubric of intelligence, reconnaissance and surveillance; and a shift toward more dynamic, speedier, and individualized targeting practices. I argue that the widespread use of drones today thus represents the culmination of attempts in war to effectively link these two trends, creating a practice I call lethal surveillance — with the armed Predator effectively closing the loop between identifying and killing targets. The concept of lethal surveillance, which in my dissertation I place squarely within the histories of modern scientific thinking and Western liberal governance, allows us to see how techniques of Western state power and knowledge production are merging with practices of killing and control in new ways, causing significant changes to both the operations of the state and to practices of war. Framing the drone through the lens of lethal surveillance, therefore, allows us to see the longer histories the drone is embedded in as well as other security practices it is connected to.

We had lots of really good conversation, and while I was at Dartmouth Kate had a paper published at Security dialogue, drawing from her thesis: ‘The emergence of lethal surveillance: Watching and killing in the history of drone technology’:

This article examines the history of the development of drone technology to understand the longer histories of surveillance and targeting that shape contemporary drone warfare. Drawing on archival research, the article focuses on three periods in the history of the drone: the early years during World Wars I and II, the Cold War, and the 1990s. The history of the drone reveals two key trends in Western warfare: the increasing importance of intelligence, surveillance, and reconnaissance (ISR) and the development of dynamic targeting. These trends converge today in a practice of lethal surveillance where ISR capabilities are directly linked to targeted killing, effectively merging mechanisms of surveillance and knowledge production with decisions on life and death. Taking this history of lethal surveillance into account not only reframes current debates on drone warfare, but also connects the drone to other practices of security and control.

Kate is absolutely right to trace through the trajectories of ISR and dynamic targeting, and I applaud the way in which she doesn’t move directly from colonial ‘air policing’ and ‘pilotless bombing’ (in the case that interests her the most, in Iraq in the 1920s) to today’s remote operations but insists on the pivotal importance of the Cold War and, post-1989, Kosovo.  Kosovo is particularly interesting, I think, and here is my own summary take on developments there:

Predator precedents in Bosnia.001 Predator precedents in Bosnia.002 Predator precedents in Bosnia.003

Another exceptionally interesting paper is Cara Daggett‘s ‘Drone disorientations: how unmanned weapons queer the experience of killing in war’, which appeared in the International journal of feminist politics 17 (3) (2015) 361-379:

Killing with drones produces queer moments of disorientation. Drawing on queer phenomenology, I show how militarized masculinities function as spatiotemporal landmarks that give killing in war its “orientation” and make it morally intelligible. These bearings no longer make sense for drone warfare, which radically deviates from two of its main axes: the home–combat and distance–intimacy binaries. Through a narrative methodology, I show how descriptions of drone warfare are rife with symptoms of an unresolved disorientation, often expressed as gender anxiety over the failure of the distance–intimacy and home–combat axes to orient killing with drones. The resulting vertigo sparks a frenzy of reorientation attempts, but disorientation can lead in multiple and sometimes surprising directions – including, but not exclusively, more violent ones. With drones, the point is that none have yet been reliably secured, and I conclude by arguing that, in the midst of this confusion, it is important not to lose sight of the possibility of new paths, and the “hope of new directions.”

There have been several commentaries that take the ‘un-manning’ of remote operations literally and seriously, and I drew on several of them in accounting for the moral economy of bombing in my Tanner Lectures last month: the (hideous) claim that bombing is, in all sorts of ways, virile and manly – so that, by extension, those who fly today’s Predators and Reapers are neither since they are never in harm’s way.  It’s an alarming argument, since it inadvertently legitimates (and even celebrates) the masculinism of conventional bombing, misses the new reality of today’s air wars, and ignores a crucial observation made by Robert Gates [the slides below are from my Tanner Lectures]:

Unopposed air war.001Unopposed air war 2.001

Cara’s argument is much more artful than that, and well worth thinking through.

As both writers know, the use of military drones is not confined to targeted killing (though so many continue to write as though that were the case).  That said, Laurie Calhoun‘s We kill because we can: from soldiering to assassination in the drone age (Zed Books, 2015) is as deft an examination of the issues that you can find:

Welcome to the Drone Age. Where self-defense has become naked aggression. Where courage has become cowardice. Where black ops have become standard operating procedure. In this remarkable and often shocking book, Laurie Calhoun dissects the moral, psychological and cultural impact of remote-control killing in the twenty-first century. Can a drone operator conducting a targeted killing be likened to a mafia hitman? What difference, if any, is there between the Trayvon Martin case and the drone killing of a teen in Yemen? We Kill Because We Can takes a scalpel to the dark heart of Western foreign policy in order to answer these and many other troubling questions.

CALHOUN We kill because we canPreface
Introduction

Part I: Find
1. Drone Nation
2. From Black Ops to Standard Operating Procedure
3. The Logic of Targeted Killing
4. Lethal Creep

Part II: Fix
5. Strike First, Suppress Questions Later
6. The New Banality of Killing
7. The Operators
8. From Conscience to Oblivion

Part III: Finish
9. Death and Politics
10. Death and Taxes
11. The Death of Military Virtue
12. Tyrants Are as Tyrants Do

Conclusion
Postface
Appendix: Drone Killing and Just War Theory

You can find an extended interview with Laurie here.

Finally – and as you’ll soon see from an upcoming post – I can’t seem to stop wandering through the nuclear wastelands.  I described the role that drones played in the early development of Strategic Air Command (through its “Project Brass Ring”) and in monitoring US atomic tests in the Marshall Islands in my “Little Boys and Blue Skies” presentation at Toronto last fall (see DOWNLOADS tab and the extended post here), which I reworked for one of my presentations at Dartmouth.  Over at Bard College’s Center for the Study of the Drone, Dan Gettinger replays the same little-known story – though he doesn’t play it forward to the atomic tests that took place at the Nevada Proving Grounds and the role of Indian Springs as a base for those early drone missions in the continental United States.  Indian Springs is now Creech Air Force Base, of course, one of the central nodes for today’s remote operations.

Collateral damage

A gracious note from Antipode prompts me to add that today is also a day to remember the countless others who are victims of war and military/paramilitary violence.  And so to a new book due at the end of the month from Frederik RosénCollateral Damage: a candid history of a peculiar form of death (Hurst/Oxford University Press):

ROSEN Collateral damageThe dilemmas precipitated by the unintentional killing of civilians in war, or ‘collateral damage’, shape many aspects of military conduct, yet noticeable by its absence has been a methodical examination of the place and role of this phenomenon in modern warfare. This book offers a fresh perspective on a distressing consequence of conflict.

Rosén explains how collateral damage is linked to ideas of authority, thereby anchoring it to the existential riddles of our individual and collective lives, and that this peculiar form of death constitutes an image of what it means to be human.

His investigation of collateral damage is notable too for how the death of non-combatants sheds light on some of today’s critical challenges to war and global governance, such as the growing role of non-state actors, mercenary contractors and the impact of military privatization.

In the ethical realm those who successfully prove that collateral damage has occurred also enter the debate about which institutions may exert authority and thus how a truly decentralized world might be organized. This is why the in many ways underrepresented victims of collateral damage appear on closer inspection to have experienced a most significant form of death.

Contents:

Introduction
1. The Third Category of Death
2. Urban Warfare and Collateral Damage
3. Collateral Damage and the Question of Legal Responsibility
4. Collateral Damage and Compensation
5. Lifting the Fog of War and Collateral Damage
6. How Bad Can Be Good
7. A Death Without Sacrifice
8. Collateral Damage or Accident?
9. A Private Call for Collateral Damage?
10. A Place Between it All

This is a good moment to remember Patricia Owens’ classic and still vitally important essay, ‘Accidents don’t just happen: the liberal politics of high-technology “humanitarian” war’, Millennium 32 (3) (2003) 596-616, and to reflect on what is surely a classic-in-the-making: Emily Gilbert‘s brilliant new essay, ‘The gift of war: cash, counterinsurgency and “collateral damage”‘, Security dialogue (online early).

Then there is the intentional killing of civilians in war….

Reach from the Sky

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I’ve been invited to give the annual Tanner Lectures in Cambridge on 13-14 January 2016. The Lectures are given in parallel at nine universities in the UK and the USA: Cambridge, Oxford, Harvard, Princeton, Stanford, Yale, Berkeley, Michigan and Utah.

Appointment as a Tanner lecturer is a recognition for uncommon achievement and outstanding abilities in the field of human values. The lecturers may be elicited from philosophy, religion, the humanities, the sciences, the creative arts, and learned professions, or from leadership in public or private affairs. The lectureships are international and intercultural and transcend ethnic, national, religious, and ideological distinctions.

The purpose of the Tanner Lectures is to advance and reflect upon the scholarly and scientific learning relating to human values. This intention embraces the entire range of values pertinent to the human condition, interest, behavior, and aspiration. The lectures are published in an annual volume.

The Tanner Lectures were established by the American scholar, industrialist, and philanthropist, Obert Clark Tanner. In creating the lectureships, Professor Tanner said, “I hope these lectures will contribute to the intellectual and moral life of mankind. I see them simply as a search for a better understanding of human behavior and human values. This understanding may be pursued for its own intrinsic worth, but it may also eventually have practical consequences for the quality of personal and social life.”

It’s a huge honour, and thoroughly intimidating when I look at the roster of previous speakers and those delivering the other lectures in 2015-16, and I’m thrilled – though so far I’ve only got as far as a title: ‘Reach from the Sky: aerial violence and the everywhere war‘.  The clock is ticking, so watch this space for progress reports…

Legal battles

DoD Law of War ManualFollowing up my comments on the Pentagon’s new Law of War Manual, issued last month: commentaries are starting to appear (it’s not surprising these are taking so long: the new version runs to 1200 pages).

Just Security is hosting a forum on the Manual, organised by Eric Jensen and Sean Watts.  They are both deeply embedded in the debate: Eric is a Professor at Brigham Young Law School and was formerly Chief of the Army’s International Law Branch and Legal Advisor to US military forces in Iraq and Bosnia, while Sean is a Professor at Creighton University Law School and on the Department of Law faculty at the United States Military Academy at West Point; he is also Senior Fellow at the NATO Cooperative Cyber Defence Centre of Excellence and served in the US Army’s Judge Advocate General’s Corps.

In the opening salvo, Sean focuses on the Manual‘s identification of three core principles:

“Three interdependent principles – military necessity, humanity, and honor – provide the foundation for other law of war principles, such as proportionality and distinction, and most of the treaty and customary rules of the law of war.”

The implications of this formulation are more far reaching than you might think.  Necessity, proportionality and distinction have long been watchwords, but the inclusion – more accurately, Sean suggests, the resurrection – of ‘humanity’ and ‘honor’ is more arresting: in his view, the first extends the protection from ‘unnecessary suffering’ while the second ‘marks an important, if abstract revival of good faith as a legal restraint on military operations’.

Watch that space for more commentaries, inside and outside the armed camp.

Others have already taken a much more critical view of the Manual.

Claire Bernish draws attention to two particularly disturbing elements here.  First, like several other commentators, she notes passages that allow journalists to be construed as legitimate targets.  While the Manual explains that ‘journalists are civilians’ it also insists there are cases in which journalists may be ‘members of the armed forces […] or unprivileged belligerents.’   Apparently, Claire argues,

‘reporters have joined the ranks of al-Qaeda in this new “unprivileged belligerent” designation, which replaces the Bush-era term, “unlawful combatants.” What future repercussions this categorization could bring are left to the imagination, even though the cited reasoning—the possibility terrorists might impersonate journalists—seems legitimate. This confounding label led a civilian lawyer to say it was “an odd and provocative thing for them to write.”‘

Other commentators, mindful of incidents in which the US military has been accused of targeting independent (non-embedded) journalists, have read this as far more than provocation.  Like other claims registered in the Manual, this has implications for other armed forces – and in this particular case, for example, Ken Hanly points out that ‘what is allowed for NATO and the US is surely legitimate for Israel.’

This is not as straightforward as he implies, though.  Eric Jensen agrees that

‘[T]he writers had to be aware this manual would also be looked to far beyond the US military, including by other nations who are formulating their own law of war (LOW) policies, allies who are considering US policy for purposes of interoperability during combined military operations, transnational and international organizations such as the International Committee of the Red Cross (ICRC) who look to such manuals when considering the development of customary practice, and even national and international tribunals who adjudicate LOW questions with respect to the criminality of individual actions.

While Eric acknowledges ‘the inevitable use of [the Manual] in the determination of customary practice.’ however, he also argues that the authors of the Manual go out of their way to preclude this possibility: they ‘wanted to be very clear that they did not anticipate they were writing into law the US position on the law of war.’

Second, Claire draws attention to a list of weapons with specific rules on use’ (Section 6.5.1), which includes cluster munitions, herbicides and explosive ordnance, and a following list of other ‘lawful weapons’ (Section 6.5.2) for which ‘there are no law of war rules specifically prohibiting or restricting the following types of weapons by the U.S. armed forces’; the list includes drones and Depleted Uranium munitions.  These designations are all perfectly accurate, but Claire’s commentary fastens on the fact that at least two of these weapons have been outlawed by many states.  She draws attention to the hideous consequences of DU and cluster bombs, and explains that cluster bombs:

‘are delineated in the manual as having “Specific Rules on Use”— notably, such weapons’ use “may reflect U.S. obligations under international law” [emphasis added]. While this is technically apt, cluster bombs have been banned by the 2008 Convention on Cluster Munitions—which was agreed to by 116 countries around the world. The U.S. stands out in joining infamous human rights violator, Saudi Arabia, in its refusal to sign. These insidious munitions leave unexploded ordnance for months, or even decades, after the originating bomb was dropped. Children are often maimed or killed when they unwittingly mistake them for toys.’

Meanwhile, also at Just Security but seemingly not part of the Forum, Adil Ahmad Haque has attacked the Manual‘s discussion of ‘human shields’:

The Defense Department apparently thinks that it may lawfully kill an unlimited number of civilians forced to serve as involuntary human shields in order to achieve even a trivial military advantage. According to the DOD’s recently released Law of War Manual, harm to human shields, no matter how extensive, cannot render an attack unlawfully disproportionate. The Manual draws no distinction between civilians who voluntarily choose to serve as human shields and civilians who are involuntarily forced to serve as human shields. The Manual draws no distinction between civilians who actively shield combatants carrying out an attack and civilians who passively shield military objectives from attack. Finally, the Manual draws no distinction between civilians whose presence creates potential physical obstacles to military operations and civilians whose presence creates potential legal obstacles to military operations. According to the Manual, all of these count for nothing in determining proportionality under international law.

If true, this would dramatically qualify the discussion of ‘humanity’ and ‘honor’ above; but, not surprisingly, Charles Dunlap will have none of it.  He objects not only to Adil’s reading of the Manual, but also the logic that lies behind his criticism:

Killing those who do the vast majority of the killing of civilians can save lives. It really can be that simple.

Experience shows that well-meaning efforts to curb the use of force can have disastrous effects on civilians. Think about the restrictions on airstrikes imposed by Gen. Stanley McChrystal in Afghanistan in mid-2009. The result? By the time he was fired a year later in June 2010, civilian casualties had jumped a heart-rending 31% entirely because of increased killings by anti-government forces. (In addition, casualties among friendly troops hit an all-time high in 2010.)

McChrystal Tactical Directive 1

[The unclassified section of McChrystal’s Tactical Directive (above) is here]

When Gen. David Petraeus took command in mid-2010, he took a different, more aggressive approach. While still scrupulously adhering to the law of war, he clarified the rules of engagement in a way that produced a tripling of the number of airstrikes. The result? The increase in civilian casualties was cut in half to 15% by the end of 2010. Under Petraeus’ more permissive interpretation of the use of force against the Taliban and other anti-government forces, the increase the following year was cut almost in half again to 8% (and losses of friendly troops fell 20%). To reiterate, although counterintuitive to some critics, restricting force by law or policy can actually jeopardize the lives of the civilians everyone wants to protect.

Michael O’Hanlon at the Brookings Institue makes exactly the same argument about the Manual here (scroll down), but Dunlap’s sense is much sharper: the Manual, he says, ‘is designed to win wars in a lawful way that fully internalizes, as it says itself on several occasions, the “realties of war.”’  This is immensely important because in effect it acknowledges that neither the Manual nor the laws of war are above the fray.  If the Manual ‘is designed to win wars in a lawful way’ that is precisely because law is in the army’s baggage train, fully incorporated into the juridification of later modern war.  Law is at once a powerful weapon and a moving target.

Butler and bodies in alliance

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I’ve been inspired by Judith Butler‘s work in all sorts of ways – most recently by her discussions of performance, performativity and bodies in spaces that helped me make sense of the events that unfolded in Tahrir Square (see here and here).  I now have news of a new book from Judith that addresses these themes in more detail: Notes Toward a Performative Theory of Assembly, due from Harvard in November.

Judith Butler elucidates the dynamics of public assembly under prevailing economic and political conditions, analyzing what they signify and how. Understanding assemblies as plural forms of performative action, Butler extends her theory of performativity to argue that precarity—the destruction of the conditions of livability—has been a galvanizing force and theme in today’s highly visible protests.

Butler broadens the theory of performativity beyond speech acts to include the concerted actions of the body. Assemblies of physical bodies have an expressive dimension that cannot be reduced to speech, for the very fact of people gathering “says” something without always relying on speech. Drawing on Hannah Arendt’s view of action, yet revising her claims about the role of the body in politics, Butler asserts that embodied ways of coming together, including forms of long-distance solidarity, imply a new understanding of the public space of appearance essential to politics.

Butler links assembly with precarity by pointing out that a body suffering under conditions of precarity still persists and resists, and that mobilization brings out this dual dimension of corporeal life. Just as assemblies make visible and audible the bodies that require basic freedoms of movement and association, so do they expose coercive practices in prison, the dismantling of social democracy, and the continuing demand for establishing subjugated lives as mattering, as equally worthy of life. By enacting a form of radical solidarity in opposition to political and economic forces, a new sense of “the people” emerges, interdependent, grievable, precarious, and persistent.

butler_overviewThe book is based on Judith’s three Mary Flexner Lectures, ‘Bodies in Alliance‘, delivered at Bryn Mawr College in 2011:

‘Gender politics and the right to appear’

‘Bodies in alliance and the politics of the street’

‘Towards an ethics of co-habitation’

Asymmetric law

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Breaking the Silence has just published a major report into the Israeli military’s tactics during its most recent offensive against Gaza and its people, so-called ‘Operation Protective Edge’ (see my posts herehere, here and here).

Based on interviews with 65 IDF soldiers, the report includes Background, Testimonies (‘This is how we fought in Gaza‘), and a media gallery.

Writing in today’s Guardian, Peter Beaumont reports:

Describing the rules that meant life and death in Gaza during the 50-day war – a conflict in which 2,200 Palestinians were killed – the interviews shed light for the first time not only on what individual soldiers were told but on the doctrine informing the operation.

Despite the insistence of Israeli leaders that it took all necessary precautions to protect civilians, the interviews provide a very different picture. They suggest that an overarching priority was the minimisation of Israeli military casualties even at the risk of Palestinian civilians being harmed….

Post-conflict briefings to soldiers suggest that the high death toll and destruction were treated as “achievements” by officers who judged the attrition would keep Gaza “quiet for five years”.

The tone, according to one sergeant, was set before the ground offensive into Gaza that began on 17 July last year in pre-combat briefings that preceded the entry of six reinforced brigades into Gaza.

“[It] took place during training at Tze’elim, before entering Gaza, with the commander of the armoured battalion to which we were assigned,” recalled a sergeant, one of dozens of Israeli soldiers who have described how the war was fought last summer in the coastal strip.

“[The commander] said: ‘We don’t take risks. We do not spare ammo. We unload, we use as much as possible.’”

“The rules of engagement [were] pretty identical,” added another sergeant who served in a mechanised infantry unit in Deir al-Balah. “Anything inside [the Gaza Strip] is a threat.  The area has to be ‘sterilised,’ empty of people – and if we don’t see someone waving a white flag, screaming: “I give up” or something – then he’s a threat and there’s authorisation to open fire … The saying was: ‘There’s no such thing there as a person who is uninvolved.’ In that situation, anyone there is involved.”

“The rules of engagement for soldiers advancing on the ground were: open fire, open fire everywhere, first thing when you go in,” recalled another soldier who served during the ground operation in Gaza City. The assumption being that the moment we went in [to the Gaza Strip], anyone who dared poke his head out was a terrorist.”

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You can find an impassioned, detailed commentary on the report by Neve Gordon – who provides vital context, not least about the asymmetric ethics pursued by supposedly ‘the most ethical army in the world’ – over at the London Review of Books here, and a shorter commentary by Kevin Jon Heller at Opinio Juris here.  Kevin notes:

The soldiers’ descriptions are disturbingly reminiscent of the notorious “free fire” zones in Vietnam and the US government’s well-documented (and erroneous) belief that signature strikes directed against “military-age men in an area of known terrorist activity” comply with IHL’s principle of distinction. The testimonials are, in a word, stunning — and put the lie to oft-repeated shibboleths about the IDF being “the most moral army in the world.” As ever, the stories told by the IDF and the Israeli government are contradicted by the soldiers who actually have to do the killing and dying.

The legal and ethical framework pursued by the Israeli military – and ‘pursued’ is the mot (in)juste, since its approach to international law and ethics is one of aggressive intervention – is in full view at a conference to be held in Jerusalem this week: ‘Towards a New Law of War‘.

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‘The goal of the law of war conference,’ say the organisers, ‘is to influence the direction of legal discourse concerning issues critical to Israel and her ability to defend herself. The law of war is mainly unwritten and develops on the basis of state practice.’

You can find the full program here, dominated by speakers from Israel and the US, but notice in particular the session on ‘Proportionality: Crossing the line on civilian casualties‘:

CIvilian Casualties

As this makes clear, and as Ben White reports in the Middle East Monitor, law has become the target (see also my post here):

After ‘Operation Cast Lead’, Daniel Reisner, former head of the international law division (ILD) in the Military Advocate General’s Office, was frank about how he hoped things would progress.

If you do something for long enough, the world will accept it. The whole of international law is now based on the notion that an act that is forbidden today becomes permissible if executed by enough countries….International law progresses through violations.

Similarly, in a “moral evaluation” of the 2008/’09 Gaza massacre, Asa Kasher, author of the IDF’s ‘Code of Ethics’, expressed his hope that “our doctrine” will ultimately “be incorporated into customary international law.” How?

The more often Western states apply principles that originated in Israel to their own non-traditional conflicts in places like Afghanistan and Iraq, then the greater the chance these principles have of becoming a valuable part of international law.

Now Israel’s strategy becomes clearer… Israel’s assault on the laws of war takes aim at the core, guiding principles in IHL – precaution, distinction, and proportionality – in order to strip them of their intended purpose: the protection of civilians during armed conflict. If successful, the victims of this assault will be in the Occupied West Bank and Gaza Strip, Lebanon – and in occupations and war zones around the world.