Tag Archives: international law

Airspace Tribunal

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I’m taking part in the Toronto Hearing of the Airspace Tribunal on 1 November. I’ve written about the project before – see my post here – but here are the basic details:

Online (via Zoom) All times are Eastern Standard Time

The Toronto hearing of the Airspace Tribunal is co-presented by The Power Plant and the Master of Visual Studies program at the Daniels Faculty, University of Toronto.  Speakers from a broad range of expertise, disciplines and lived experience – including Climate Change, Human Rights, Artificial Intelligence, Geopolitics, Contemporary Warfare, Biopolitics, Psychology and Forced Migration – will consider whether we need increased protection from threats from above through the recognition of this proposed new human right.

The hearing will take place over three 2-hour online panel discussions followed by a one 1-hour online summative session. The Power Plant’s Director, Gaëtane Verna, will be the Chair, introducing each session and all speakers. Counsel to the Tribunal, Kirsty Brimelow QC of Doughty Street Chambers (London, UK), will pose questions to the Experts. Members of the audience – our judges – will also be able to ask questions.

The Airspace Tribunal invites representations from experts across a broad range of disciplines and lived experience to consider the case for and against the recognition of a new human right to protect the freedom to exist without physical or psychological threat from above.

You can find out more (and register: it’s free) here.

There are four sessions – you can access the full program via the link above – but here is the panel for the first one (1400 to 1600 EST):

Shona Illingworth is an artist whose video and sound installations and research-led practice investigate memory, cultural erasure and structures of power and their impact on how the future is imagined in situations of social tension and conflict. She is Reader in Arts, University of Kent

Nick Grief was a member of the legal team which represented the Marshall Islands in the International Court of Justice in cases against India, Pakistan and the UK concerning the obligation to negotiate in good faith towards nuclear disarmament. He is Emeritus Professor of Law, University of Kent and practises at the Bar from Doughty Street Chambers, London, UK

Derek Gregory is Peter Wall Distinguished Professor and Professor of Geography, University of British Columbia at Vancouver, Canada. He is completing a new book, Reach from the Sky, which is is a genealogy and geography of aerial violence; his current research concerns medical care and casualty evacuation in war zones, 1914 to the present.

Gbenga Oduntan, Reader in International Commercial Law, Kent Law School, University of Kent

And for the second (on 4 November):

Jairus Grove is Associate Professor, Department of Political Science, University of Hawaii at Manoa, USA.His recent book Savage Ecology: War and Geopolitics at the End of the World develops an ecological theory of geopolitics that argues that contemporary global crises are better understood when considered within the larger history of international politics.

Jack Penashue, Director of Social Health for Sheshatshiu Innu First Nations, Sheshatshiu, Newfoundland & Labrador, Canada

Gabriele Schwab, Distinguished Professor, Comparative Literature with joint faculty appointments in Anthropology, English, European Languages and Studies, and Gender and Sexuality Studies; School of Humanities, University of California — Irvine, USA

And for the third (on 7 November):

Anthony Downey is Professor of Visual Culture in the Middle East and North Africa (Birmingham City University). His current research projects explore digital media, knowledge production, and the relationship between cultural practices and human rights. Upcoming and recent publications include Unbearable States: Digital Media and Cultural Activism (forthcoming, 2021) and Critique in Practice (Sternberg Press, 2020). He is the series editor for Research/Practice (Sternberg Press, 2019–ongoing) and sits on the editorial boards of Third Text and Digital War, respectively

Kwame McKenzie, CEO of the Wellesley Institute; Director of Health Equity, Centre for Addiction and Mental Health; and, Professor, Department of Psychiatry, University of Toronto, Canada

Renata Salecl is a philosopher and sociologist whose work has included radical re-evaluation of notions of liberal theories of democracy to offer new approaches to human rights and feminism. She is professor at the School of Law at Birkbeck College, University of London and senior researcher at the Institute of Criminology at the Faculty of Law in Ljubljana, Slovenia. Her recent book A Passion for Ignorance is an original and provocative exploration of our capacity to ignore what is inconvenient or traumatic.

The fourth session is a plenary, closing session. The Airspace Tribunal hearing in Toronto will be recorded and transcribed. Documentation will be incorporated in a special issue of the Journal of Digital War and contribute to Illingworth’s Fall 2021 exhibition at The Power Plant. It will also contribute to the drafting history, helping to build and refine the case for the proposed new human right to be submitted to the United Nations and other bodies.

Paper trails

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For an update and succinct review of attacks on hospitals and medical facilities in Syria – see also my ‘Your turn, doctor’ here – I recommend the latest fact-sheet from Physicians for Human Rights:

Attacks on health care, in gross violation of humanitarian norms and the Geneva Conventions, have been a distinctive feature of the conflict in Syria since its inception. PHR has documented and mapped 553 attacks on at least 348 separate facilities from March 2011 through December 2018. The reduction in the number of attacks over the past year is a clear reflection of the diminishing intensity of the conflict, which came as a direct result of the Syrian government’s takeover of most opposition-held areas. The systematic targeting of health facilities has been a crucial component of a wider strategy of war employed by the Syrian government and its allies – who are responsible for over 90 percent of attacks – to punish civilians residing in opposition- held territories, destroy their ability to survive, and draw them into government-held areas or drive them out of the country. This strategy of unbridled violence – which in addition to attacks on healthcare has included chemical strikes, sieges, and indiscriminate bombing of predominantly civilian areas – has devastated the civilian population, weakened opposition groups, and translated into direct military gains for the Syrian government.

Of the total number of documented attacks on health facilities, nearly 73 percent were carried out from the air. Nearly 98 percent of attacks on health facilities perpetrated from the air are attributable to the Syrian government and its ally Russian, which entered the conflict in 2015.

The share of attacks on health facilities from the air has grown from 38 percent of the total in 2012 to 90 percent in 2018. The Syrian government became steadily more reliant on airpower as the conflict evolved. Through their air forces, the Syrian government and Russia extended their strategy of collective punishment deep into opposition-held territory and far beyond hardened front lines. The Syrian government and its allies disabled or destroyed hundreds of facilities through aerial bombardment, leaving countless civilians without access to vital medical services.

The latest 20-page report from the Independent International Commission of Inquiry on the Syrian Arab Republic to the UN’s Human Rights Council is here.  I’ve drawn on many of these reports for my continuing work on siege warfare in Syria (see for example here, here and here), and this report – based on investigations carried out from 11 July 2018 to 10 January 2019 – makes for grim reading.  Here is the summary (but you really need to consult the full report):

Extensive military gains made by pro-government forces throughout the first half of 2018, coupled with an agreement between Turkey and the Russian Federation to establish a demilitarized zone in the north-west, led to a significant decrease in armed conflict in the Syrian Arab Republic in the period from mid July 2018 to mid January 2019. Hostilities elsewhere, however, remain ongoing. Attacks by pro-government forces in Idlib and western Aleppo Governorates, and those carried out by the Syrian Democratic Forces and the international coalition in Dayr al-Zawr Governorate, continue to cause scores of civilian casualties.

In the aftermath of bombardments, civilians countrywide suffered the effects of a general absence of the rule of law. Numerous civilians were detained arbitrarily or abducted by members of armed groups and criminal gangs and held hostage for ransom in their strongholds in Idlib and northern Aleppo. Similarly, with the conclusion of Operation Olive Branch by Turkey in March 2018, arbitrary arrests and detentions became pervasive throughout Afrin District (Aleppo).

In areas recently retaken by pro-government forces, including eastern Ghouta (Rif Dimashq) and Dar’a Governorate, cases of arbitrary detention and enforced disappearance were perpetrated with impunity. After years of living under siege, many civilians in areas recaptured by pro-government forces also faced numerous administrative and legal obstacles to access key services.

The foregoing violations and general absence of the rule of law paint a stark reality for civilians countrywide, including for 6.2 million internally displaced persons and 5.6 million refugees seeking to return. For these reasons, any plans for the return of those displaced both within and outside of the Syrian Arab Republic must incorporate a rights- based approach. In order to address effectively the complex issue of returns, the Commission makes a series of pragmatic recommendations for the sustainable return of all displaced Syrian women, men and children.

A report from Elizabeth Tsurkov in Ha’aretz confirms many of these findings.  Describing Assad’s Syria as a police state with rampant poverty’ and a ‘playground for superpowers’, she writes:

Eight years into the crisis, Syria’s economy is in tatters, half of its population displaced, hundreds of thousands of Syrians are dead, many of Syria’s cities and towns lie in ruins. Yet on top of this pile of ashes Assad sits comfortably, quite secure in his grip on power.
In areas reconquered by the regime — or as the regime euphemistically describes it, areas that “reconciled” and whose residents “returned to the bosom of the nation” — the Syrian police state is back, more aggressive than ever…

In 2011, Syrians took pride in “breaking the barrier of fear.” But fear now prevails, as the various branches of the regime’s secret police launch raids and arrest suspected disloyal elements. Many of those arrested are former activists, rebels, health and rescue workers, and civil society leaders. Syrians who wish to prove their loyalty to the regime, obtain power through it or simply settle personal scores inform on others to the regime. Suhail al-Ghazi, a Syrian analyst based in Istanbul, told Haaretz that Syrians are informing on each other “because they have been doing it for years or because they need money or favors from the regime.” In areas recently recaptured by the regime, “some locals were always pro-regime and stayed there to work as informants or just could not leave. Now they have the chance to take revenge on the majority of civilians who apparently held a more favorable view of the opposition,” Ghazi explained.

Most of Syria’s population now lives below the poverty line. Across all parts of Syria unemployment rates are high, as the normal economy has been disrupted by years of war and the mass flight of businesspeople and capital out of the country. Syria’s middle class has largely disappeared — many of them fled to neighboring countries or Europe, while others are now living in abject poverty, along with most Syrians.
A small group of war profiteers linked to the various armed groups have been able to enrich themselves by trading in oil, weapons, antiquities, stealing aid, and smuggling people and goods in and out of the country and into besieged areas, while most Syrians struggle to survive. Nearly two-thirds of Syrians are dependent on aid for their subsistence. Basic services like electricity, cooking gas, clean water and health services are lacking in many parts of the country.

Speaking on the condition of anonymity, a resident of Latakia — an area where many of the regime’s leadership and their relatives reside — told Haaretz: “You have corruption everywhere. Bribing was common before the war, but now it is endemic.”
He described the ostentatious displays of ill-gotten wealth: “High-ranking officials, they and their families, have more rights. They roam the city in fancy cars and do whatever they want. Half of the country is dying from hunger, while the sons of officials are arrogantly showing off their wealth. With money you can do everything. This is not new, but it has become more obvious because of the lawlessness prevailing in Syria.”

At the sub-regional scale Enab Baladi filed a revealing report last month on conditions in the Ghouta (which it describes as ‘military-ruled ruins’):

Today, Ghouta is living in a state of siege similar to that it witnessed between 2013 and 2018 at the service, relief and security levels, but the difference is that food is available.

With dozens of announcements about the restoration of electricity to areas east of the capital, as well as the restoration of water and communication services, the needs of civilians are still not covered by those services repeatedly announced by the regime.

Enab Baladi spoke to five people from the eastern Ghouta who returned to it, all of whom refused to be identified for fear of the regime prosecution. They described the service situation as “miserable”, especially with regard to the water and electricity services.

According to the five sources, the electricity is continuously cut for five hours, operates for only one hour, and then it is cut again, while water reaches homes one hour a day, and people rely on submersibles and artesian wells which they dug during siege in the previous years to get water.

Some areas of Ghouta also lacked many of the services that were the top priorities of organizations before the regime forces controlled the region, while food today enters without manipulated prices, unlike in the past….

The report describes Eastern Ghouta as riven by checkpoints; an emphasis on demolition rather than reconstruction; and continuing arrests and detentions.

In early August [2018], al-Assad forces launched a campaign of arrests, which has been considered as one of the largest security operations since the regime took over Ghouta, for it has targeted the regime dissidents and activists in the Syrian revolution. The campaign was carried out in the cities and towns of Saqba, Hamuriyah, Duma, Mesraba, and Ein Tarma.

The regime also subjected local activists, civil society workers, and former media professionals, as well as members of local councils and relief agencies, to investigations into the aids they received when the area was held by the opposition.

Security branches launched arrest campaigns targeting members of the former “local council” and other members of Rif-Dimashq Provincial Council in the city of Kafr Batna in central Ghouta, according to Enab Baladi referring to local sources.

Sources affiliated to the council told Enab Baladi that Syrian security forces raided the houses and workplaces of the detainees before taking them to an unknown destination. Other local council members, who preferred to stay in Ghouta rather than go to northern Syria, are detained for the same reasons.

In the face of all that, it’s not easy to find grounds for optimism, but there is a glimmer of hope in a report from Maryam Saleh at The Intercept:

Syrian activists and lawyers are testing the bounds of international law, making two new attempts to bring the government of Bashar al-Assad before the International Criminal Court.

Syrian refugees in Jordan, through London-based lawyers, sent communications to the office of the ICC prosecutor, asking her to exercise jurisdiction over Syria based on a precedent set last year in a case involving Myanmar’s persecution of Rohingya Muslims. The communications are the latest push by Syrian civilians to hold accountable the government whose brutality upended their lives. In recent years, Syrian lawyers and human rights activists have experimented with rarely utilized aspects of international law, succeeding in getting European and American courts to weigh in on atrocities committed in Syria.

“Because of how politicized the war in Syria became, lawyers and those fighting for accountability really had to be creative,” said Mai El-Sadany, the legal and judicial director at the Washington-based Tahrir Institute for Middle East Policy. “The most recent ICC Article 15 submissions” — a reference to communications with the ICC on information about alleged international crimes — “are evidence of this, that there is space for creativity in the accountability space.”

She continues:

Even when the evidence of potential crimes exists, investigations into crimes committed in states that have not ratified the Rome Statute are near impossible because of jurisdictional issues, and U.N. Security Council members are quick to use their veto power to block investigations into crimes potentially committed by their allies.

That’s what makes the various avenues Syrians are pursuing so significant. As of last March, more than two dozen cases had been filed in European courts regarding atrocities committed by the Syrian regime, rebel fighters, and the Islamic State and other fundamentalist militant groups. The family of Marie Colvin, an American journalist killed in 2012 while reporting from the city of Homs, sued the Syrian government in a U.S. district court; in January, the court found Syria responsible for killing Colvin.

Many of the cases in Europe were brought under a legal doctrine known as universal jurisdiction; application of the doctrine varies from country to country, but it essentially allows for courts to prosecute cases regardless of where the crime was committed or whether the accused party has any links to the prosecuting state.

The biggest success so far has been in Germany, where authorities last month arrested a former high-ranking Syrian intelligence officer and two others who are accused of crimes against humanity for torturing detainees in Syrian prisons. Other cases remain pending in France, Sweden, and Spain….

These attempts are possible in part due to an unprecedented level of documentation of crimes in Syria. The victims in some of the cases were identified from a trove of 28,000 photos of people killed in Syrian detention centers, smuggled out of the country by a military defector codenamed Caesar. The U.N. General Assembly, in December 2016, took the step of creating the International, Impartial, and Independent Mechanism to investigate crimes in Syria since 2011. The IIIM, as the body is known, does not have independent prosecutorial authority, but it exists to collect information that could later be provided to courts or tribunals with jurisdiction over the crimes. Last year, 28 Syrian nongovernmental organizations committed to collaborating with the IIIM on its work.

This is heartening in its way, but whenever I’ve been asked about attempts to enforce accountability in relation to the systematic attacks on hospitals, I’ve had to say that the hideous intimacy between torturer and tortured allows for an identification and assignment of culpability that is much more difficult in the case of the extended ‘kill-chain’ involved in bombing.

But that doesn’t mean it’s impossible: we know, from the courageous work of activists cited in Maryam’s report, that Assad’s security apparatus fetishized record-keeping, and that many of those records have been smuggled out of Syria so that they can now serve as testimony and evidence  (For other testimonies, see the work of Forensic Architecture on Saydnaya Prison that I described here: scroll down).  To sharpen the point, hare some of the slides from a presentation I once gave around precisely these questions:

If my work on bombing in other theatres of war is anything to go by, there will also be extensive trails (paper or digital) that animated the air strikes: though how they can ever be exposed is another question.

Another Grey Zone

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New from Bloomsbury – though, desperately sadly, at a ruinous price, a collection of essays edited by Mark Lattimer and Philippe Sands, The Grey Zone: The Grey Zone
Civilian Protection Between Human Rights and the Laws of War:

The high civilian death toll in modern, protracted conflicts such as those in Syria or Iraq indicate the limits of international law in offering protections to civilians at risk. A recent conference of states convened by the International Committee of the Red Cross referred to ‘an institutional vacuum in the area of international humanitarian law implementation’. Yet both international humanitarian law and the law of human rights establish a series of rights intended to protect civilians. But which law or laws apply in a particular situation, and what are the obstacles to their implementation? How can the law offer greater protections to civilians caught up in new methods of warfare, such as drone strikes, or targeted by new forms of military organisation, such as transnational armed groups? Can the implementation gap be filled by the growing use of human rights courts to remedy violations of the laws of armed conflict, or are new instruments or mechanisms of civilian legal protection needed?

This volume brings together contributions from leading academic authorities and legal practitioners on the situation of civilians in the grey zone between human rights and the laws of war. The chapters in Part 1 address key contested or boundary issues in defining the rights of civilians or non-combatants in today’s conflicts. Those in Part 2 examine remedies and current mechanisms for redress both at the international and national level, and those in Part 3 assess prospects for the development of new mechanisms for addressing violations. As military intervention to protect civilians remains contested, this volume looks at the potential for developing alternative approaches to the protection of civilians and their rights.

 

I’ve written about attempts to ‘eliminate the grey zone’ before, but this is a different one, as the Contents make clear:

 

Part I: Rights
1. Who Is a Civilian? Membership of Opposition Groups and Direct Participation in Hostilities
Emily Crawford
2. The Duty in International Law to Investigate Civilian Deaths in Armed Conflict
Mark Lattimer
3. Protection by Process: Implementing the Principle of Proportionality in Contemporary Armed Conflicts
Amichai Cohen
4. Regulating Armed Drones and Other Emerging Weapons Technologies
Stuart Casey-Maslen
5. The Globalisation of Non-International Armed Conflicts
Pavle Kilibarda and Gloria Gaggioli
6. Administrative Detention in Non-International Armed Conflicts
Françoise J Hampson
7. The Crime of Rape in Military and Civilian Jurisdictions
Lois Moore and Christine Chinkin

Part II: Remedies
8. The Right to Reparation for Victims of Armed Conflict
Carla Ferstman
9. Arguing International Humanitarian Law Standards in National Courts-A Spectrum of Expectations
Sharon Weill
10. The Death of Lex Specialis? Regional Human Rights Mechanisms and the Protection of Civilians in Armed Conflict
Bill Bowring
11. Extraterritorial Obligations under Human Rights Law
Cedric Ryngaert
12. What Duties Do Peacekeepers Owe Civilians? Lessons from the NuhanovicCase
Liesbeth Zegveld
13. Civilian Protection and the Arms Trade Treaty
Blinne Ní Ghrálaigh

Part III: Developments
14. A Path Towards Greater Respect for International Humanitarian Law
Valentin Zellweger and François Voeffray
15. The Responsibility to Protect and Non-State Armed Groups
Jennifer M Welsh
16. Protecting Civilians by Criminalising the Most Serious Forms of the Illegal Use of Force: Activating the International Criminal Court’s Jurisdiction over the Crime of Aggression
Carrie McDougall
17. Elements and Innovations in a New Global Treaty on Crimes Against Humanity
Leila Nadya Sadat

Mark introduces the project (and en passant makes clear its relevance to my continuing work on Syria) over at Justice in Conflict here:

As armed conflicts continue to metastasize in many world regions, is the existing international law protecting civilians fit for purpose, or are there gaps in protection? The answer of most lawyers of armed conflict to this question has long been that the gap lies not in the substantive law but in its implementation.

While the need for implementation is plain, it is also clear that the contemporary face of conflict presents aspects which the framers of the Geneva Conventions and their 1977 Protocols – as well as the major human rights treaties – could hardly have envisaged. The growth of transnational armed groups such as Al-Qaeda and ISIS means that a ‘non-international armed conflict’ can now be fought in many states simultaneously or even, according to some proponents, globally. New technologies in warfare, from armed drones to autonomous weapons systems, radically alter the circumstances under which information is made available to commanders and with it the scope and accountability of decision-making….

Just looking at the fundamental conflict activities of killing and detaining, the grey areas appear to be wide. With conflict conducted in areas of high population density, there are a number of practical problems in distinguishing civilians from combatants or fighters, but also legal ones. Civilians lose their immunity from attack when directly participating in hostilities, but how is direct participation defined and how long does it last? In Iraq and Syria individuals have been targeted on account of their membership of ISIS or Jabhat al Nusra. But what of members of armed groups who do not engage in combat? What of the driver, the cook, or the recruiter? The treatment of ISIS members and their families is a sensitive subject in Iraq, but it appears to encompass the targeting and/or punishment of those who had no combat function.

The growth in armed conflict jurisprudence from human rights and monitoring bodies has in many cases recast the headline question: rather than identifying gaps in the law, the challenge is to determine which set of laws or legal regimes apply. Should it be human rights law or the international humanitarian law (IHL) applicable in armed conflict? Or indeed both?

Outlawing war

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An vitally important book by Oona Hathaway and Scott Shapiro: The Internationalists: how a radical plan to outlaw war remade the world (Penguin/Simon & Schuster).  Hailed by Philippe Sands as ”A clarion call to preserve law and order across our planet”, it is all too timely:

A bold and provocative history of the men who fought to outlaw war and how an often overlooked treaty signed in 1928 was among the most transformative events in modern history.

On a hot summer afternoon in 1928, the leaders of the world assembled in Paris to outlaw war. Within the year, the treaty signed that day, known as the Peace Pact, had been ratified by nearly every state in the world. War, for the first time in history, had become illegal the world over. But the promise of that summer day was fleeting. Within a decade of its signing, each state that had gathered in Paris to renounce war was at war. And in the century that followed, the Peace Pact was dismissed as an act of folly and an unmistakable failure. This book argues that that understanding is inaccurate, and that the Peace Pact ushered in a sustained march toward peace that lasts to this day.

The Internationalists tells the story of the Peace Pact by placing it in the long history of international law from the seventeenth century through the present, tracing this rich history through a fascinating and diverse array of lawyers, politicians and intellectuals—Hugo Grotius, Nishi Amane, Salmon Levinson, James Shotwell, Sumner Welles, Carl Schmitt, Hersch Lauterpacht, and Sayyid Qutb. It tells of a centuries-long struggle of ideas over the role of war in a just world order. It details the brutal world of conflict the Peace Pact helped extinguish, and the subsequent era where tariffs and sanctions take the place of tanks and gunships.

The Internationalists examines with renewed appreciation an international system that has outlawed wars of aggression and brought unprecedented stability to the world map. Accessible and gripping, this book will change the way we view the history of the twentieth century—and how we must work together to protect the global order the internationalists fought to make possible.

You can read an extended essay by Oona, adapted from the book, via the Guardian here:

Today, perhaps more than at any time since 1945, the prohibition on use of force that has been the backbone of the international order for most of the last century is under attack. Indeed, it is in danger of collapsing – and taking the order it upholds down with it….

But international rules regarding the use of force are not a minor feature of the world we live in – and the fact that these rules have often been broken should not obscure how important they remain.

They are at the heart of some of the most beneficial transformations of the past 70 years, from the global decline in interstate conflict and combat deaths to the rising wealth and health that peace has allowed. With these rules at risk, the international community is facing a crisis of extraordinary proportions. Yet few people appreciate how serious and imminent the crisis is. Fewer still understand where these rules came from: a now-almost-forgotten agreement known as the Paris Peace Pact of 1928 that was eventually signed by all the nations of the world and had the immodest goal of outlawing war. In order to appreciate the magnitude of the threat, we must return to a world very different to our own, one in which the rules that we currently take for granted did not exist. The risk we face is reverting to this world, where might was right and war was legal.

You can read Louis Menand‘s extended review at the New Yorker here.

The fulcrum of the book is the Kellogg-Briand Pact (‘the Peace Pact’) of 27 August 1928; I opened my essay on ‘War and Peace’ [DOWNLOADS tab] with this extraordinary attempt to make war illegal, but I confess I knew little enough about it and now I see that my understanding was also spectacularly inadequate.  Read this book to find out why, but more importantly to think with the intellectual architect of the Pact, Salmon Levinson:

“The real disease of the world is the legality and availability of war.  We should have, not as now, laws of war, but laws against war; just as there are no laws of murder or of poisoning, but laws against them.”

Transnational war and international law

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New from Hurst: Jack McDonald‘s Enemies known and unknown: Targeted killings in America’s transnational war:

President Obama was elected on an anti-war platform, yet targeted killings have increased under his command of the ‘War on Terror’. The US thinks of itself as upholding the rule of international law and spreading democracy, yet such targeted killings have been widely decried as extra-judicial violations of human rights. This book examines these paradoxes, arguing that they are partially explained by the application of existing legal standards to transnational wars.

Critics argue that the kind of war the US claims to be waging — transnational armed conflict — doesn’t actually exist. McDonald analyses the concept of transnational war and the legal interpretations that underpin it, and argues that the Obama administration’s adherence to the rule of law produces a status quo of violence that is in some ways more disturbing than the excesses of the Bush administration.

America’s interpretations of sovereignty and international law shape and constitute war itself, with lethal consequences for the named and anonymous persons that it unilaterally defines as participants. McDonald’s analysis helps us understand the social and legal construction of legitimate violence in warfare, and the relationship between legal opinions formed in US government departments and acts of violence half a world away.

No shortage of books on targeted killing, I know, but this one stands out through its focus on the entanglements between law and violence in the very idea of transnational war and its interest in the individuation of later modern war.  Here’s the Table of Contents:

Introduction: The Balkan Crucible

1. The Cleanest War
2. The Lens of War
3. In Washington’s Shadow
4. Lawful Annihilation?
5. Unto Others
6. Individuated Warfare
7. Killing through a Monitor, Darkly
8. The Body as a Battlefield
9. Gyges’ Knife

That said, I do have reservations about the claim that the US ‘thinks of itself as upholding the rule of international law’ – or, more precisely, about the reality that lies behind that rhetoric.

As I continue to work on ‘The Death of the Clinic‘, and the assaults on hospitals and healthcare in Syria and beyond, I’ve been drawn into debates that circle around the selective impotence of international law and appeals to the International Criminal Court.  In the Syrian case, the geopolitics of international law are laid bare: the jursdiction of the ICC is limited to acts carried out in the territory of a state that is party to the Rome Statute [Syria is not] unless the crimes are referred to the ICC by the UN Security Council – where Russia has consistently exercised its veto to protect its ally/client.  But it is important not to lose sight of what Patrick Hagopian called ‘American immunity’; based on a close reading of Korea and Vietnam he shows how the United States has consistently sought ‘to police a system of law universally binding on others from which it reserves the right at any moment to exempt itself.’  Similarly, Jens David Ohlin has traced a persistent American scepticism towards international law that was redoubled in the years after 9/11 and, as I’ve suggested before, the US is by no means alone in what Jens identifies as a sustained ‘assault on international law‘.

I don’t say this to detract from Enemies known and unknown: it’s just really a promissory (foot)note to my continuing work on spaces of exception in Syria (where it isn’t intended to give succour to the legions of Putin/Assad trolls inside and outside the academy either – on which see this long overdue, forensic take-down of one of the most egregious offenders by Brian Slocock here).

Zombie law

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Britain's Kill List cover JPEGOver 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.’

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 here, here, 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.

Law, ethics and drone warfare

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SCHELLER Kill-chain

The infographic above was produced by Alissa Scheller for an Investigative Reporting Workshop on Drones, and specifically an article by Tara McKelvey on Harold Koh and the legal armature that the Obama administration has sought for its nominally covert program of targeted killing.

Since then (2012) there has been a cascade of essays around these legal and ethical issues; much of the spikiest writing is to be found on the indispensable ssrn, but here are some other essays I’ve just caught up with that readers might also find helpful:

Special issue: ‘Legal and ethical implications of drone warfare’, in International Journal of Human Rights 19 (2) (2015) including:

Michael J. Boyle, ‘The legal and ethical implications of drone warfare’ (pp 105-126)

Stephanie Carvin, ‘Getting drones wrong’ (pp. 127-141)

Craig Martin, ‘A means-methods paradox and the legality of drone strikes in armed combat’ (pp. 142-175)

Daniel R. Brunstetter & Arturo Jimenez-Bacardi, ‘Clashing over drones: the legal and normative gap between the United States and the human rights community’ (pp. 176-198)

David Whetham, ‘Drones to protect’ (pp. 199-210)

Caroline Kennedy & James I. Rogers, ‘Virtuous drones?’ (pp. 210-227)

Symposium: ‘Towards a drone accountability regime‘, in Ethics and International Affairs 1 (2015) with a major contribution from Allen Buchanan and Robert O. Keohane —

From a moral standpoint, lethal drones are intrinsically no worse as a means of warfare than bombing or sending commandos to kill enemies. From the perspective of their users, they have six major advantages over more conventional weapons: they are often cheaper; their use can be more readily concealed; they allow for more precise targeting, with the potential for less “collateral damage”; their use can involve less serious infringements of sovereignty than invasion by troops; and they may be less likely to provoke widespread hostile reactions by the population of the country in which they are used than military operations involving troops on the ground. But these advantages generate three major risks: of violating sovereignty, of over-using the military option, and of making it more difficult to identify violations of constraints against targeting noncombatants. To deal with these risks, a Drone Accountability Regime is needed that imposes obligations on states, which in turn would be required to impose them on their agents. Since it would be infeasible to negotiate a treaty-based legal regime at present and for the foreseeable future, the Drone Accountability Regime should be informal and should involve transnational actors as well as states. Its key principle should be transparency, helping enable civil society to hold states accountable, and its central agent would be an Ombudsperson with broad authority to investigate situations and publicize her findings. No institution can ensure that states, or operators, are held fully accountable to appropriate standards of conduct, but such a regime could increase the degree of accountability for the use of lethal drones.

— and critical responses from Neta Crawford, Janina Dill, and David Whetham.

Bianca Baggiarini, ‘Drone warfare and the limits of sacrifice’, Journal of international political theory 11 (1) (2015) 128-44

M.J. Boyle, ‘The race for drones’, Orbis 59 (1) (2015) 76-94

Lindsay Cohn-Warrior, ‘Drones and targeted killing: costs, accountability and US Civil-Military relations’, Orbis 59 (1) (2015) 95-110

Jelena Pejic, ‘Extraterritorial targeting by means of armed drones: some legal implications’, International review of the Red Cross (2015) (online early)

Lauren Wilcox, ‘Drone warfare and making bodies out of place’, Critical studies on security 3 (1) (2015) 127-131

John Williams, ‘Distant intimacy: space, drones and Just War’, Ethics and International Affairs 1 (2015) 93-110

And to widen the discussion and give it substantive depth, see Craig Jones, ‘Lawfare and the juridification of late modern war‘, Progress in human geography (2015) (Online First):

Processes of juridification are a defining feature of late modern war. But geographic accounts of war have generally not considered the role that law plays in shaping its conduct. This paper explores the juridification of war using the concept of lawfare. Lawfare may signal an intensification and shift in the relationship between war and law, but I argue that understanding the nature and extent of these changes requires a careful examination of the historical geographies of war, law and lawfare. Drawing from critical legal approaches I offer a preliminary geographical and historical theorization of lawfare so that we may better understand the relationship between war and law today.

Legal geographies and the assault on international law

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I suspect anyone interested in international/transnational legal geographies will know of Jens David Ohlin‘s work already (he’s Professor of Law at Cornell and recently co-edited Targeted Killings: Law and Morality in an Asymmetrical World [Oxford, 2012]).  If not, check out his page on ssrn for recent papers; I’ve found three particularly helpful in thinking about US air strikes in Afghanistan and Pakistan and, more recently, the Israeli offensive against Gaza (more on this and the space of exception soon, I promise):

Targeting and the concept of intent (2013); Acting as a sovereign versus acting as a belligerent (2014); and The combatant’s privilege in asymmetric and covert conflicts (2014)

I’ve just received news of his new book out early in the New Year, whose relevance will be apparent from its title: The assault on international law.

OHLIN Assault of international lawInternational law presents a conceptual riddle. Why comply with it when there is no world government to enforce it? The United States has a long history of skepticism towards international law, but 9/11 ushered in a particularly virulent phase of American exceptionalism. Torture became official government policy, President Bush denied that the Geneva Conventions applied to the war against al-Qaeda, and the US drifted away from international institutions like the International Criminal Court and the United Nations.

Although American politicians and their legal advisors are often the public face of this attack, the root of this movement is a coordinated and deliberate attack by law professors hostile to its philosophical foundations, including Eric Posner, Jack Goldsmith, Adrian Vermeule, and John Yoo. In a series of influential writings they have claimed that since states are motivated primarily by self-interest, compliance with international law is nothing more than high-minded talk. Theses abstract arguments then provide a foundation for dangerous legal conclusions: that international law is largely irrelevant to determining how and when terrorists can be captured or killed; that the US President alone should be directing the War on Terror without significant input from Congress or the judiciary; that US courts should not hear lawsuits alleging violations of international law; and that the US should block any international criminal court with jurisdiction over Americans. Put together, these polemical accounts had an enormous impact on how politicians conduct foreign policy and how judges decide cases – ultimately triggering America’s pernicious withdrawal from international cooperation.

In The Assault on International Law, Jens Ohlin exposes the mistaken assumptions of these ‘New Realists,’ in particular their impoverished utilization of rational choice theory. In contrast, he provides an alternate vision of international law based on a truly innovative theory of human rationality. According to Ohlin, rationality requires that agents follow through on their plans even when faced with opportunities for defection. Seen in this light, international law is the product of nation-states cooperating to escape a brutish State of Nature–a result that is not only legally binding but also in each state’s self-interest.

Michael Sfard

But not all assaults on international law derive from the United States and from professors hostile to its philosophical foundations.  I urge you to read Michael Sfard‘s coruscating Op-Ed from Ha’artez on 4 August, ‘A “targeted assassination” of international law‘ (which is also available here if it disappears behind a paywall).  Michael is an Israeli human rights lawyer, specializing in international humanitarian law and dealing directly with the Israeli occupation of Palestine, and he is also the legal adviser to Yesh Din: Volunteers for Human Rights:

Israelis are surprised. Did I say surprised? Downright shocked. Even before the dust from the fighting has settled, even before this “most just of all wars” has ended, even as the most moral army in the world is still mired in Gaza – there is already talk of war crimes and an international investigation.

We, who didn’t carpet-bomb even though we could have, who dropped fliers and made phone calls and knocked on the roof; we, who agreed to the humanitarian cease-fire that Hamas violated; we, who took more precautions than any other nation would have done – we are once again being accused of war crimes. Once again, the same old song is being sung: decisions about opening an international investigation, talk of the International Criminal Court, fear of arrests in Europe. And we don’t understand why we deserve all this.

It is possible to console ourselves by accepting the explanation that the television journalists keep repeating to us: that the world is anti-Semitic and two-faced and supports Hamas. But this would constitute a regrettable evasion of the tough questions. It would constitute an effort to flee the pointed discussion Israeli society ought to be holding about the way we have waged armed conflicts with our enemies over the last decade.

Since the Second Lebanon War of 2006, the Israel Defense Forces has adopted an extremely problematic combat doctrine for conflicts that take place in urban areas with dense civilian populations, and in which the enemy is seen as an illegitimate terrorist entity (Hezbollah in Lebanon and Hamas in Gaza). This combat doctrine is supported by a legal theory developed by the IDF’s international legal division, which interprets the laws of war in a manner that is shockingly different from their accepted interpretation by experts in the field worldwide. Its direct result is massive civilian casualties and the destruction of civilian neighborhoods.

This combat doctrine consists of two elements, each of which is a declaration of war against the fundamental principles of the laws of armed combat. The first element redefines what constitutes a legitimate target for attack, such that it now includes not only classic military targets (bases, combatants, weapons stockpiles and so forth), but also facilities and objects whose connection to the enemy organization is nonmilitary in nature….

The second element is even more far-reaching: It holds that when fighting in urban areas, we are entitled to treat the entire area as a legitimate target and bombard it via air strikes or artillery shelling – as long as we first warn all the residents of our intention to do so and give them time to leave. The IDF first used this method in Beirut’s Dahiya neighborhood during the Second Lebanon War. Before bombing, the army dropped fliers telling the residents to leave. Then the bombs were dropped, and most of Dahiya’s houses were destroyed.

This doctrine was applied, to varying degrees, in Operations Cast Lead and Protective Edge as well, primarily in Gaza City’s Shujaiyeh neighborhood. It does not take into consideration the question of whether the prior warning given the population is effective – i.e., whether the population can in fact leave, whether solutions have been found for the elderly, the ill and the children. Nor is it accompanied by the creation of a safe corridor through which people can flee to someplace that won’t be fired on, and where civilians have what they need to survive.

The terrifying result of this combat doctrine, in both Cast Lead and Protective Edge, was piles of bodies of women, children and men who weren’t involved in the fighting….

The IDF’s lawyers, who provide legal support for this combat doctrine, are conducting a “targeted assassination” of the principles of international law: the principle of distinction, which requires differentiation between military targets (which are legitimate) and civilian targets (which aren’t); the principle of proportionality, which forbids attacking even a legitimate target if the anticipated harm to civilians is excessive in comparison to the military benefit from the target’s destruction; and the need to take effective, rather than merely symbolic, precautions.

More soon.

Legitimate targets?

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I’ve been thinking about the description of Gaza as a space of exception in my last post, and I will elaborate (and qualify) that discussion shortly: in many ways the Israeli offensive against Gaza reinforces Achille Mbembe‘s arguments about necropolitics but, as I’ll try to show, suggests the need for a reworking of Giorgio Agamben‘s claims about the exception.

En route, I’ve been greatly taken by the work of Janina Dill (Politics and International Relations, Oxford) – particularly her discussion of Israel’s development of ‘Lawfare 2.0’ in relation to Gaza – and, as I say, I’ll have much more to say about that shortly.  But I’ve also discovered she has a book due out from Cambridge in the fall which, like her (I imagine summary) chapter in The American Way of Bombing, speaks to my own work on genealogies and geographies of bombing: Legitimate Targets? Social construction, international law and US bombing.

DILL Legitimate targets?Based on an innovative theory of international law, Janina Dill’s book investigates the effectiveness of international humanitarian law (IHL) in regulating the conduct of warfare. Through a comprehensive examination of the IHL defining a legitimate target of attack, Dill reveals a controversy among legal and military professionals about the ‘logic’ according to which belligerents ought to balance humanitarian and military imperatives: the logics of sufficiency or efficiency. Law prescribes the former, but increased recourse to IHL in US air warfare has led to targeting in accordance with the logic of efficiency. The logic of sufficiency is morally less problematic, yet neither logic satisfies contemporary expectations of effective IHL or legitimate warfare. Those expectations demand that hostilities follow a logic of liability, which proves impracticable. This book proposes changes to international law, but concludes that according to widely shared normative beliefs on the twenty-first-century battlefield there are no truly legitimate targets.

Introduction
Part I. A Constructivist Theory of International Law:
1. The challenge
2. The theory
Part II. The Definition of a Legitimate Target of Attack in International Law:
3. Positive law
4. Customary law
Part III. An Empirical Study of International Law in War:
5. The rise of international law in US air warfare
6. The changing logic of US air warfare
7. The behavioural relevance of international law in US air warfare
Part IV. An Evaluation of International Law in War:
8. The lack of normative success of international law in US air warfare
9. The impossibility of normative success for international law in war
Conclusion.