The new reality

Reaper UAVThe fascinating dissertation I wrote for my MA in Defence Studies in 2012 discussed the tricky grey area where morals, technology and military necessity overlap.  The premise was that, for the last ten years at least, technology has pushed military capability far beyond that which society at large understands, or, in many quarters, would accept if they knew what was happening. The chief baddie and the easiest thing to point a finger at as an example of this challenge to the norms of international law, I suggested, is the drone.  So I have been following with interest the fall out from the RAF’s drone strike which killed Reyaad Khan and Ruhul Amin, two British nationals, in Syria. And I think that this incident, although not new militarily, will go down as the watershed moment for nudging forward society’s understanding of the legality or otherwise of targeting civilians with lethal force.

The debate about whether such a strike is legal or not comes down to differing interpretations of the laws governing war. Broadly speaking, military professionals use the term ‘Law Of Armed Conflict’ (LOAC) whereas the humanitarian and human rights community prefers ‘International Humanitarian Law’ (IHL). As Matthew Evangelista noted in his book Law, Ethics and the War on Terror, the choice of words indicates how the groups regard the sources and purpose of law in the international system. Crucially, both are overarching terms for the same laws just with a different emphasis, so there shouldn’t be much room for disagreement, right?

As you might expect, no, not right. The fundamental difference is the understanding of the relationship between the individual and the state; a condition further impacted by the introduction of Human Rights Law (HRL). Does LOAC trump HRL? Or are human rights always present, even on a battlefield? And what if the battlefield is Paris, London or Madrid and the adversary is a civilian who believes himself to be at war with the state? HRL suggests the individual has rights; LOAC suggests he has responsibilities. Most importantly, HRL says rights are given to everybody, at all times, regardless of the situation; LOAC links many of its protections to status, differentiating between civilian and combatant. Neither can be proved to be correct, or legal; it is all about interpreting the situation and the response.

To be completely accurate, as the UK is not a participant to the armed conflict in Syria the RAF strike was conducted in national self defence in line with Article 51 of the UN treaty. The British government said the individuals were involved in planning a terrorist attack that amounted to an imminent armed attack by non-state actors against the UK.  As the Syrian government was either not inclined or not capable of taking the appropriate action within its borders, the British government decided the circumstances of necessity and proportionality justified the action.

The International Committee of the Red Cross (ICRC) is the de facto guardian of International Humanitarian Law. It has drawn up a series of guidelines delineating civilians from combatants and suggests circumstances under which civilians can be targeted with lethal force. Encouragingly, most countries have adopted the ICRC’s position. The ICRC says that a civilian cannot be targeted unless he or she has taken a direct participation in hostilities. This direct participation is expressed in a number of ways which collectively describe an individual who is very closely linked to hostile acts of significant violence (usually lethal). So, a man planting a road-side bomb would lose his protection as a civilian as the bomb is likely to be an immediate risk to life and it wouldn’t be a threat but for the direct involvement of the man burying it. Conversely, civilians working in armaments factories continue to enjoy protection from harm even though, cumulatively, over the course of their working lives they would have created or assembled a huge number of devices which would cause harm to an enemy This is because each individual act, or day’s work, is not significantly, and immediately, harmful to an enemy.

But when does this ‘direct participation’ cease? Consider the following scenario: a targeted person on the ground sees and hears a drone and makes obvious signals of surrender: raising hands, perhaps displaying a banner. As a civilian or combatant subject to the rules of war, displaying a clear intention to surrender renders an individual protected from attack. But for the party operating the drone to not carry through the attack would be to give the individual on the ground a very easy way of never being targeted.

This is the heart of the issue governments are grappling with as they try to combat terrorism perpetrated by individuals who are combatants one minute and civilians the next. For how long after putting down the rifle can an individual (now a civilian once again) be targeted? One minute? One day? Never? And if a military force has identified a civilian as routinely taking part in hostilities and there is nothing to suggest he is about to change his ways, is he targetable when going about his business farming his fields or sleeping in his house?

Technology now allows lethal action to be employed at great distance against civilians known to be directly participating in hostilities. Unfortunately, society’s awareness of international law has not kept pace with military capability. The laws are sound, but society has yet to discuss in sufficient detail the ethical and legal issues thrown up by this brave new world. If, as the British government explained, the two jihadists were directly participating in hostilities and were so influential that they provided an immediate and grave threat to the UK, then their killings were legal under international law. Many will be uncomfortable with that reality. But make no mistake; it is the new reality and we will see a lot more of it.

Man versus Machine

reaper“We have not let technology run away with our ethics.”  So says a senior British Army Officer in the UK’s Ministry of Defence when quizzed about drones; the catch-all descriptor for unmanned aerial vehicles. But his comment hints at a nervousness in senior political and military circles of an erosion of public support due to the state’s perceived heavy-handed use of technology.

Drones have been getting a bad press lately.  Once hailed as the antidote to messy ground-holding military deployments they now epitomise that sensitive and contested area where technology and ethics overlap.  The Bureau of Investigative Journalism claims drones were responsible for between 282 and 535 civilian deaths in President Obama’s first three years in office.   But politicians, wary of a public prone to rapid judgements when flag-draped coffins fill the front pages and impatient for “quick wins” as Philip Hammond, the former British Defence Secretary, explained to the Munich Security Conference on February 1st 2014, regularly hail a technology deemed invulnerable and, more importantly, precise.

But there are two problems with claims of precision.  First, in a military context it implies infallibility.  True, technical sophistication has resulted in a marked increase in the use of so-called precision guided munitions (PGM): in Operation Desert Storm in 1991 8% of US aerial attacks employed PGMs; in Iraq in 2003 it was 68%.  But they do not always land where intended as much can influence a munition in flight.  Weather, faulty technology and human error in the construction of the weapon, weapon platform or targeting equipment can all influence where a payload lands, regardless of how stable the cross-hairs have been held on a target.

The second problem is the suggestion that the West marks its own homework when it comes to accounting for the employment of lethal technology.  The military uses the term Circular Error Probable (CEP) to describe precision, defining it as a circle radius around a target within which 50% of weapons should fall. Modern PGMs have very small CEPs, usually less than 13 metres, achieving an accuracy military planners have long desired.  But the significant downside to PGMs is the unwritten part of the definition: half the munitions will not land in the CEP and the margin they will miss by is unquantifiable. In other words, they can land anywhere and still be described as a ‘precise’ weapon.  Critics say this qualification lets politicians and the military off the ethical hook too easily and is a significant factor in the anger felt by those subject to such bombardment.

However, public anger towards drone strikes is as nothing compared to the outrage generated by the NSA and GCHQ cyber-spying revelations by Edward Snowden, the exiled former NSA contractor wanted for espionage in the US. But the real threat to the US and UK administrations from these allegations of global-scale mis-use of technology is that it has united the political left and right: left because of the affront to civil liberties, right due to the perceived scant regard for Congressional or Parliamentary oversight. Politicians abhor ceding the agenda, particularly where national security is concerned. Gisela Stuart, a British MP and member of the House of Commons Defence Select Committee, is all for the ethical use of lethal technology – she led a recent Parliamentary debate into drones – but is forthright in her defence of its ultimate purpose: “At the end of the day I don’t want you to give me a hanky to wipe away the blood, I’d prefer you to make sure it’s not there in the first place.”  The arms race between ethics and technology looks set to continue for some time yet.