The Shift from Proportionality to Necessity and an Indirect Comment on Gaby Blum’s Article

Oh heck, one final comment about the Texas International Law Journal discussion of the model air and missile warfare manual, which does run to Gaby Blum’s article and discussion here at OJ.  It is only somewhat responsive to the article, so I’ll put it below the fold.More than one participant in the TILJ discussion, including folks who do not necessarily share some other important views, noted that the locus of discussion in LOAC issues on the avant garde margin, as it were, is shifting from proportionality to necessity.  I agree that this is where the discussion is headed.  I’ve framed this in the context of targeted killing and drone strikes – and so tried to say so, for example, in a recent Council on Foreign Relations discussion, where that met with some surprise.

But it follows on a couple of things, some of them shifts in views of the law and some of them shifts in the world, including strategy and technology.

I

Start with technology.  The rise of more and more precise targeted killing technology does two things in the legal frame.  First, because it reduces collateral damage, naturally civilians become less of an issue and proportionality less of an issue as well.  One might reject the claim that in fact collateral damage is reduced and continue to say that this perception is factually incorrect.  But without proposing to argue about it here, I’d simply say that the technology is getting more and more precise, and when Panetta says the drone targeted kiling technology is the most precise thing in the history of warfare, I think it is basically right and getting more so with new technological developments.  That is relative, however – relative to the realistic alternatives, not by comparison to zero. It is certainly far from perfect, so please, human rights monitors, don’t start getting eager (or more eager than you already are) to demand zero collateral damage and impose strict liability, overt or “function.”

At least as far as the cutting edge academic and policy community is concerned in the United States, however, I’d say as a sociological observation that “we” have essentially accepted that as true enough that the most important conceptual legal issue is – can afford to be – necessity rather than proportionality.  Which is to say, if proportionality is about civilian damage, then necessity is about the identification of targets and the articulation of a reason why it is necessary to kill them.  Necessity can be answered in the LOAC by a status frame – they’re all combatants and that’s necessity enough.  But in the context of targeted killing using drone technology (at least where the targets are individualized terror suspects rather than, say, a large mass of Taliban in a cross-border camp in Pakistan thinking they are in safety), then necessity might be status or it might be something else, but in any case, it is a bigger question than it is in ordinary overt armed conflict.  That’s the second thing that the technology does.  On the one hand, it makes proportionality less important but, on the other hand and independent of the first, it makes necessity more of an issue.

It is perhaps better to think of this question of identification and articulation of “why X?” as less a question of necessity as a question of distinction.  That might seem peculiar, given that we traditionally think of distinction as requiring targeting by distinguishing among civilians and combatants where we know who the combatant is.  Here the idea of distinction is with regards to the potential target himself – “within” the target himself.  That is, we are seeking to “distinguish” whether the target himself is immune civilian or (speaking generically) targetable combatant. That is an unorthodox use of distinction, granted, but it is probably more accurate than necessity.  Meaning that the process of identifying – distinguishing the lawful targets from those who are not is a different question than the necessity of striking at the target.  That is so even if the lawful answer to the question of necessity is, targetable at any time simply on account of that status, on the one hand, or targetable only on some actionable necessity, on the other.  This latter point engages arguments in several directions, but here the important observation is simply that this controversy is conceptually separate from the question of distinction as identification.

II

But this is driven fundamentally by changes in the technology of weaponry, UAVs, and above all the sensor technology and ability to analyze the data streams from the sensors.  There is a part of this driven by changes in legal fashions or, if one wants to be more neutral, legal sensibility.  It is on the cutting edge of academics and folks in the in-circles of this law and policy, so if you are reading this, you too are part of the avant garde.  The change in legal sensibility is driven by concerns for two oddly opposite groups.

One is a concern for the nuances (beyond the traditional binary) that exist between civilian and combatant, and principally as it attaches to insurgents, terrorist groups, and various non-state actors.  But it also includes the concern by governments, particularly and overwhelmingly the US, over the treatment of its ever increasing numbers and categories of private contractors.  This group is, then, those that have started out life, as it were, as civilians but now maybe are something different.  Without wanting to get off into these areas substantively, this drives the ICRC’s work to articulate new standards and categories on direct participation in hostilities, continuous combat function, and the like.

Second is a concern for those who start out unambiguously as targetable combatants – starting with uniformed soldiers.  Gaby Blum’s work begins to raise ways in which the law should treat them not as a homogenous group, legally targetable through their “status” alone, but instead ask whether principles of actionable necessity, beyond status, should apply to them.  One might differentiate them in their functions, perhaps, or what they are doing at a given time, etc., etc.  The touchstone is that these are soldiers, targetable traditionally by reference to status alone, combatants whose status is their necessity, as it were.

It is striking, I believe, that part of the impetus in the legal discussion arises from a concern for non-state actors, and another part arises from a concern for soldiers.  Yet they head in the same direction – seeking to nuance or blur the lines between those who are “in” and those who are “out” of direct targeting.

III

I should now take up Gaby’s article directly, but unfortunately I am in an airport and don’t have it available.  So instead I will simply add a comment as to my own view on this, with apologies to Gaby.  And very briefly – boarding beginning.  I believe that we have to distinguish between conventional, overt warfare, particularly between states but not limited to it – e.g., the counterinsurgency campaigns in Iraq and AfPak, on the one hand, and targeted killing directed against terrorist suspects, on the other.  In the former case, I do not believe that we can or should move away from homogenous status of combatant; any other standard will overreach the technology now or in the foreseeable future.

I suppose that one could imagine that in the very special circumstances of the Israeli-Palestine conflict, one could see on both the sides of regular soldiers and non-state actors, it would be possible to imagine a genuinely necessity based standard, beyond the fact of status.  But I do not believe that can be applicable to the US conflicts, now or in the future, or many other situations in the world.  The fact of living cheek by jowl, a conflict going on for generations, a relatively enormous amount of intelligence available for purposes of making meaningful determinations in a limited geographic space on a limited population – it is all fantastically sui generis, and I believe quite inapplicable and irreplicable elsewhere.  I can understand why one might think it another natural and justified step in the special “mixed” paradigm of the Israeli-Palestinian conflict (in which the idea of judicial approval of things quite inapplicable in the US constitutional system or US wars, for example, is unremarkable) – and very possibiilty it is, in that circumstance.

I would also wonder how it is not simply another one-way lawfare street – the articulation of a legal standard that is supposed to provide more nuance for both nonstate actors and soldiers, but in actual application merely means that the human rights monitors demand more from the Israelis in the name of “necessity” in treating non-state actors, but the reciprocal obligations elaborated for soldiers turn out to mean nothing, as usual.  In any case, it does not seem to me to travel outside this special circumstance.

In the case of targeted killing using drones or special forces, in counterterrorism rather than part of a conventional overt conflict, or outside the overt parts of it, however, I think it is a useful and important discussion.  Necessity and distinction take center stage, because the status is not self-defining through uniforms or such.  So that is part of the discussion necessarily, even if only to establish status.  And this is a discussion driven by legal considerations – if one is engaged in targeting people who are not on the conventional or overt battlefield, or wearing uniforms, or in a camp, or what have you, then it is necessarily far more “intelligence” driven as a form of using force.  The intelligence has a strategic use, of course, but it also has a legal function – necessity and, in the special sense I have used it here, distinction.

III

We also need to add the other, lawfare part, as well as the effects of a shift from the equality of obligations upon the sides to a differentiated “capabilities” approach.

To start with, the technology driving these changes in the “intelligence” conflict – as distinguished from the “conventional” armed conflict or “law enforcement” paradigm, to finally get all three relevant use-of-force ideations on the table – did not come about all on its own account.  In considerable part, the development of these new technologies represents an attempt to respond technologically to behaviors of the other side – unlawful behaviors, to be precise.  The reason why status is not clear is because the enemy want it to be unclear, sometimes in lawful ways and often in unlawful ones.  This has a consequence for the technological side and one for the legal side.

The technological side is something I’ve said many times before, here and in print.  It is possible in theory but highly unlikely in fact that technological “fixes” to behavioral innovations in the form of newly nuanced methods to hide status through unlawful means will manage to keep up.  Technology will lag behind behavior, partly because unlawful behavior has the initiative and partly because technology takes time.  The persistent narrative I often encounter among the NGOs and press and academy on the poor Davids scrambling to find a way to protect themselves against the American or Israeli Goliath is wrong – it is, rather, a powerful actor bound by scruple and sensitive to reputational concerns sufficiently to give up reciprocal responses scrambling, only marginally successfully, to find a technological deus ex machina.  It might be the morally right thing to do and might even be strategically right, too – hearts and minds, the happy, if in the history of warfare arguably surprising, coincidence of moral perfection and military necessity – but it seems more likely that it is a matter of tradeoffs.  But mostly a game of catch-up, because it is easier to come up with new behaviors to violate the laws of war than it is to come up with technological fixes.

The legal side is this.  The self-appointed referees, lacking themselves skin the game, do not hesitate to move the legal goal posts once technology moves.  The capabilities approach, to which I imagine the US will haphazardly but quite foolishly acquiesce over time, as much through inattention and incoherence as anything, is the juridical statement of that.

But those urging the capabilities approach – which amounts to a further move away from reciprocity – had better be clear that, whether they understand it or not, they are actually making a serious bet about incentives. It seems to me a bet that in a world in which the US has increasingly straitened defense budgets, and China is by comparison indifferent to these issues and their advocacy, but increasing its military might and reach, the US will nonetheless continue to invest in trying to find new technological fixes.  Technological fixes that allow the monitors to move the goal posts, and the insurgents and terrorists to figure out new ways to exploit the newly created categories of ever more nuanced behaviors and activities, so to put the US in the position having to come up with new technological fixes, in a standard arms race.  It is possible as a technological matter that the US faces diminishing returns on investments in technology, but that is unclear.

What seems to me much clearer is that the US’s incentives to come up with the technological fixes at all are reduced at the margin by the willingness to move the goalposts … Greg Mankiw’s 10 principles of economics, number 3 (or is it 4), “people make decisions at the margins.”  If you shift the margins, well, don’t be surprised if people make their decisions differently.  Now, that sounds dire as a possible outcome for the human rights advocates – the US might simply stop trying to improve its discrimination technology.  But not necessarily bad on another metric for those same advocates.  After all, the shift in the margin also reduces the incentive for the US to engage in uses of force at all, and for many of the outside groups and advocates, that might be a perfectly good outcome, so on these terms it might well count as an excellent marginal move from their point of view.  But, still, one should be clear that the move to redefine the basic standards of law away from the equality of sides to a capabilities approach has important implications for the marginal behavior of the US – and as we get further and further away from 9/11, and as budget crunches loom even for the Pentagon, and as the Obama administration finds ways to disengage from the Bush era wars, the margin is more likely a real one and not merely an intellectual construction.

And now, to the plane!  Gaby, congratulations on an excellent article.  I have not in any way done it justice, and have freely run together stuff from several of your articles and conversations you and I have had at one time or another.  (I might go back later and make corrections, no time to read this over.)