Drones, targeted killings and the limitations of international law

16 October 2015, 1901 EDT

Last month’s announcement that a Royal Air Force drone was used to kill two British citizens in Syria has reignited debates about the legality of targeted killings, but there is always a danger that something gets lost within this legal frame. Questions about the geographical boundaries of contemporary conflict and the legal status of those being targeted are clearly important and should not be ignored but we should also be aware that other equally important issues are being pushed to the margins of debate. As I argue in my recent article for International Political Sociology, the rather dry, disembodied and technical language of international law tends to ignore the pain and suffering experienced by those targeted and the detrimental effects drone operations are having on the communities living below. As such, these legal debates have failed to contest the notion that this technology provides a more efficient, more effective and more humane way of waging war.

One of the reasons that this incident has caused such a stir is that it is the first time that the British have used a drone to carry out an extra-judicial killing. In a statement to the House of Commons last month, David Cameron confirmed that a British drone had been used to carry out a deadly attack in Syria despite the fact that MPs had previously voted against military operations against Bashar al-Assad. The victims –Reyaad Khan, Ruhul Amin and a third unidentified man – were killed when their car was hit as it travelled through the northern city of Raqqa. They were targeted, Cameron argued, because Khan was plotting a series of ‘barbaric attacks against the West’ and ‘actively recruiting ISIL sympathisers’ to carry them out. The Secretary of State for Defence, Michael Fallon, provided some additional details the following day, telling the BBC that months of ‘meticulous planning [and] careful surveillance’ had gone into this attack and that the government ‘wouldn’t hesitate to do it again’. Indeed, he went on to suggest that the British might adopt a US-style hit list, prompting a fierce rebuke from human rights groups.

Downing Street is clearly convinced that the drone target was lawful but others are not so certain. Preempting concerns about the legitimacy of the attack, Cameron confirmed that the attorney general had been consulted prior to the attack and was certain that ‘there would be a clear legal basis for action in international law’. This was, Cameron argued, ‘the only feasible means of effectively disrupting the attacks planned and directed by this individual’. Britain’s envoy to the United Nations echoed these sentiments in his letter to the Security Council, in which he stated that the operation was a ‘necessary and proportionate exercise… of self-defence’. Despite these assurances, many legal commentators remain unconvinced about the use of drones outside of established areas of conflict. In the days following the announcement, Conservative MP David Davis called an emergency session of the cross-party parliamentary group on drones, telling reporters that the lack of subsequent arrests drove a ‘coach and horses’ through the government’s legal case. Keir Starmer MP, who previously served as the director of public prosecutions, argued that the strike took place within an ‘accountability vacuum’ (see also) and Philippe Sands QC suggested that the legal argument had been made ‘on the hoof’. Elsewhere, the UN Special Rapporteur on extrajudicial, summary and arbitrary executions Christof Heyns warned that the operation set a dangerously low threshold for the use of force outside of a warzone.

I do not want to suggest that the legal concerns about targeted killings are unimportant or that the legal armature cannot be used effectively. Indeed, the Green Party has already joined forces with the human rights group Reprieve to call for a judicial review on the use of drones for these purposes. My point is simply that the decision to frame the issue solely as a legal concern comes at an expense because it inevitably means that certain kinds of questions and certain types of inquiry will be privileged at the expense of others. As Judith Butler reminds us, the political sphere is constituted through certain kinds of exclusion: images that cannot be seen, words that cannot be used and voices that cannot be heard. And it is this politics of framing that constitutes what kinds of questions can be asked, what kinds of inquiries can be pursued and what kinds of issues will be debated within the political sphere.

In the case of drones, there are a number of issues that seem to have fallen to the wayside in the debate about the legality of targeted killings. My concerns focus on three specific areas. The first is the rather obvious point that the legal armature is much more permissive than many people seem to assume. The notion that the laws of armed conflict or international human rights law acts as an external constraint on the violence enacted on the battlefield fails to appreciate the myriad of ways through which these law enable, legitimise and normalise the death and destruction caused by war. As Derek Gregory has warned:

Law and war have always been intertwined, and international law is often re-made through war—in fact operating at the margins of the law is one of the most powerful ways of changing it—and the UAV strikes in Pakistan are evidently no exception. They seek at once to expand the battlespace and to contract the legal armature that regulates its constitution.

The second problem with targeted killings is that the harm caused by drones often exceeds legal concerns about matters of life and death, destroying the human body to such an extent that it is no longer recognizable as a human body. Research on the everyday effects of drones in the Federally Administered Tribal Areas of Pakistan, for example, have shown that loss of life and physical injuries are only part of the problem with these weapons systems. The constant hum of drones flying overhead and the fear that a missile may be fired without warning is having a detrimental impact on the lives of those living on the ground. Classrooms are empty because parents are too afraid to send their children to school, business are going bust because people are worried about congregating in large crowds and funerals have been cancelled because people are scared that they may be mistaken for something more sinister. Moreover, the rhetoric about putting ‘warheads on foreheads’ cannot mask the fact that civilians continue to suffer as a result of these attacks. Although no civilians were killed in the attack on Khan and Amin, concerns have been raised about the unintended consequences of airstrikes in Syria and in drone strikes more generally.

My final concern about relying too much on the language of international law to assess the violence inflicted by drones is that it tends to mask the devastating effects of these attacks on the human body. The dry and technical nature of these debates has done little to contest the clean and disembodied language used by those responsible for authorising them. John Brennan famously argued that drones allow the military to target enemy combatants with ‘surgical precision’, using their ‘laser-like focus to eliminate the cancerous tumor [without causing] damage to the tissue around it’. As well as glossing over the mounting civilian death toll, the notion of a surgical strike presents a very sanitised view of war.

When the same scenes of destruction are looked at from below, a very different picture emerges. Relatives have spoken about having to gather bits and pieces of their loved ones because their bodies have been so totally destroyed that they are unsure whether or not they have collected all the right parts from all the right people. Even doctors are having trouble identifying the victims of these attacks, with one physician telling investigators that he could not tell the difference between flesh belonging to human beings and flesh belonging to cattle because the skin was so badly burnt. The language of international law seems strangely inept when it comes to assessing the ethical implications of a violence that ‘overshoots the elementary goal of taking a life and dedicates itself to destroying the living being as a singular body’.