Going to a town

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Next month will mark 13 years since I’ve become a practicing lawyer. It’s been 13 very, very long years, during which I’ve learnt more about managing the long term effects of sleeplessness than anything else. Every year I reflect on the context of the practice of human rights law, and every year I find myself questioning this commitment, until I reach the same answer: I would never do anything else.

The last 12 months have not been quiet and comforting for this profession. Our colleagues in the magistrature have become enemies of the people. Our friends and peers in Turkey have been arrested and detained in an authoritarian purge. Across the Atlantic, we de facto represent dangerous dissent. Suddenly our work becomes more political than it’s ever been. It means it’s also more than necessary than it ever was.

This little note has been inspired by two conversations on Twitter, a platform of predilection for lawyers it seems, which confirmed two strongly held beliefs of mine: one, we are profoundly unhappy and deeply cynical, as illustrated by a thread on the (otherwise excellent and erudite) Secret Barrister’s timeline, asking practitioners to detail the consequences of their job. The answers ranged from high levels of alcohol intake to breaking down of marriages. Long hours, for some, low fees (yes), sexism, poor to execrable relationships with the press, never ending debates on jurisdiction and uncertainty of political decisions lead to the difficulty to see purpose in fulfilment in the practice of the law. 

In my specific area of practice, counter terrorism, defense and security, we are drowning under the weight of government secrecy on one side, and a culture of disinformation on the other. Few other issues are as inherently manipulative as security, few depend so much on perception and emotive reaction. Our attempt as lawyers not only to carry on with our day-to-day activities, monitoring emergency, accessing suspects in detention, ensuring the compliance of counter-terrorism legislation with transnational and international provisions, no small feat in itself, now also includes a self-imposed duty of information. I say self-imposed because none of us are under any obligation to develop any sort of public profile or to publish on non-academic platforms. There has been a wider desire to understand the inner workings of a system that was evidently destroying lives, to shine a light on principles of accountability at a time when moral outrage isn’t significant enough to effect change.

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I have always maintained, to the dismay of some, that the practice of human rights law is not advocacy. The universal application of norms demands universal enforcement; scrutiny must be exercised on an equal footing; and judicial redress demands unequivocal commitment to the right to truth. Alleging a human rights violation must not be lodged with the purpose of attaining a political score; it isn’t about hammering a rhetorical point home. Human rights, fundamental or derogating, translate into very real protection, in war or in peace, in heightened or low threat, against state power the same as against non-state armed groups. Yet the politicization of those rights, always predictable, too often inevitable, has now completely undermined the enforcement of those norms. If we lawyers can do a better job at explaining our role within the immense machine that are human rights organisations and institutions; if we can provide another element of access to necessary information, and spread knowledge of rights to which every individual is entitled, now is that time. We do not always reach the target, but we place critical tools into the public domain. It’s a priceless endeavour if the goal is to raise support against legal aid cuts, provide financial cushion to provide protection to refugees and asylum-seekers, to highlight changes in legislation that isolate individuals from courts.

While I have often worked alone and would continue to do so, and generally avoid large-scale debate because trained the old-school way, it matters to meet like-minded colleagues that push the practice forward through expertise, respect for the craft, and commitment to values. Public interest academics, professors and all-around commentators such as the invaluable Kevin Jon Heller have proven time and again how irreplaceable their input was. From violation of fundamental rights of refugees in Australia to briefing the Security Council on the ICC’s aggression amendments, Heller is not only contributing to a historical legacy of international criminal law, he is also steering not-so-young lawyers such as myself in the right direction. It is also more than worthy of note that Darragh Mackin, the young solicitor from Newry, whose mind absorbs information and focuses on legal detail in a stunning and breathtaking way, has now been named partner at the seminal legacy and human rights Belfast firm KRW. Few of us can boast of having achieved that level of excellence at his age; the reason why Mackin makes such a difference in the practice of his work is his unparalleled dedication to the people and causes he represents, from the Hooded Men to Ibrahim Halawa. This isn’t about publicity. It’s about the practice of law being a proxy for the maintenance of peace and the access to an equality we are sworn to uphold. It matters that it is being recognized, and that once in a while, perhaps once a year, under the sentimental cover of anniversaries and commemorations, we celebrate that we are part of a much larger group of people that, underneath it all, work towards inscribing change.

To answer that stranger in a strange social media land, yes, I am proud of the way I was educated and trained, I am humbled by the work of my colleagues, most of whom I would have never dreamt to call peers. This follows years of whispering to one another, “it will get worse before it gets better”; there will many more sleepless nights and many deplorable incidents of violence, death, torture, aggression, occupation, before we see a new dawn break, like it happened before. We are vessels; we are, in essence, the evolution of international relations away from belligerent status quo and lethal inequality.

But this is never something we could have done without journalists, without activists, without citizens of the world, without committed representatives. Before the elections in France, Brexit negotiations, peace talks in Syria, disarmament affairs, states of emergency, ad hoc tribunals, access to documentation of torture, mass surveillance, and destruction of hospitals continue to be a staple of our everyday lives, here’s to human rights defenders and those who defend them.

I heard you like black sites

Hey Donald, I heard you were reconsidering CIA  black sites overseas. I have a few notes for you. It will take more than 140 characters or less to explain the obligations of human rights law under counter terrorism, but I am hoping against hope you will pay more attention to this than you do your own intelligence briefings. 

Let us first agree on what we colloquially refer to as a “CIA black site”: those are secret prisons, detention facilities operated by the Central Intelligence Agency in which detainees are held incommunicado (without access to a lawyer, without knowledge for the International Committee of the Red Cross), for indefinite amounts of time, without charge or trial, and subjected to ill-treatment and torture for the purpose of interrogation. Those “black sites” – a shameful collection of legal black holes, where truth, memory and sunlight never shine – were built overseas.

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The reason they were built overseas is because of legality. This is no secret our profession bypassed ethics (albeit successfully, to our greatest dismay and fatal sadness) in the name of a government-led and government-approved definition of security. The Convention Against Torture, adopted by the General Assembly in 1984, holds torture as an absolute prohibition. The reservations emitted by the US Congress during the ratification process in 1992 established a definition that made torture only possible overseas, outside US jurisdiction – physical custody or control of another party. And thus, Donald, if you want to lift the ban on the use of torture on terrorism detainees, you will need partner countries to assist you in reviving a horror that is very much present: 41 men are still held in Guantanamo Bay, after having transited through one of those sites. I am here to tell you that you will not get what you want, at least not from European member-states. See, we have obligations to uphold: we have a Court tasked with trying violations, and an entire supranational Committee which mission is to ensure the enforcement of this Court’s judgments.

In a hearing in that same Court in December 2013, UN Special Rapporteur on human rights while countering terrorism, Ben Emmerson QC, described the CIA Rendition, Detention and Interrogation (RDI) programme as a “vast conspiracy”. It is: the number countries that have assisted the United States illustrate a form of international deference to the war on terror and the damage it spurred, to the detriment of efficacy and human rights. The Parliamentary Assembly of Council of Europe (PACE) has conducted two investigations into states’ collusion with the CIA, one via the rapporteur Dick Marty in 2006, and another via the rapporteur Claudio Fava in 2007. Both yielded reports that represent a seminal work of independent parliamentary scrutiny. In early 2016, the European Parliament closed its investigation, reaching the same conclusion: not only were states aware that this was happening, they chose not to collaborate with investigations, and raised classification issues. All of this works in the Trump administration’s favour. A culture of secrecy largely cultivated under transnational security agreements; his Democratic predecessor’s distaste of judicial scrutiny and accountability; a conflict in Syria that never ends, creating millions of refugees and destabilising the entire region. A celebrity fascist was elected because Americans, on top of being angry, were afraid. Europeans, on top of being afraid, are also angry at what took place in Paris, Brussels, Ankara, and Berlin, to name a few.

Ireland, the United Kingdom, Romania, Poland, Lithuania, Italy, Macedonia did everything from facilitating the CIA jets’ refuel, to building black sites on their own territory. To this day, only Italy has carried out a domestic investigation into its own intelligence services’ collaboration with the CIA, resulting in the conviction of CIA agents in absentia. The case itself is fraught with procedural errors, deliberate smokescreens, and abusive use of state secrets. Poland has been found guilty by the Court, and now finds itself in the position to ensure Al-Nashiri’s trial and sentence. None of those states have disclosed the agreement – called a memorandum of understanding (MoU) – with the Court, presumably to preserve their special relationship to the CIA, invoking the absolute necessity to remain on the US’ good side while they seek to participate in the purported “eradication” of terrorism. All of this, again, works in the US’ favour. Except for this tiny, insignificant, fraction of a detail: the rule of law.

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Now, we know. It’s been a long, painful and traumatic road since the first rumours, investigations, and articles about secret Gulfstream IV jets flying unidentified “detainee combatants” from one secret prison to another first came light. The European Court of Human Rights has issued a judgment that clarifies that, even in the absence of disclosure of those MoUs, there had been enough substantiated and corroborated evidence published in the press and through legal and academic research to make a conclusive finding on a gross violation of human rights law. A report compiled by the Senate Special Committee on Intelligence (SSCI), still classified but with its executive summary released in December 2014, remains an formidable excercise of domestic parliamentary scrutiny. The SSCI report, dubbed the CIA torture report, reveals the location of several black sites, the budget the CIA required to carry out that programme, in addition to recordings of interrogation sessions, legal memos in preparation of the establishment of the policy, and photos obtained through the Freedom of Information Act. The question, at this point, is whether the truth is as objective as it should be, and if its existence can replace accountability.

For all the bragging and boasting about enjoying the infliction of long term and damaging suffering on other human beings, for all the speeches given at Langley on extending covert operations, you have not created anything. You are simply considering lifting a ban on a period of American history that has not seen any closure because of an admission the government had “tortured some folks”. The United States is still in violation of UNCAT for refusing to prosecute officials that have authorized the use of torture. For the lawyers, this has led to successful careers. For the military, “harsh interrogation” is still present in the books. The black sites, meanwhile, enjoy a second life: the building in Temara, Morocco, has been used, once the CIA had left the premises, by the domestic intelligence agency to torture dissidents. Wherever the CIA has visited and stayed, visible scars are identifiable. Wherever the CIA tortured in secret, the impunity is perpetuated. Lifting the ban Obama enforced in 2009 isn’t the hawkish, vicious, cynical, dangerous and violent regime the Electoral College wished into existence. It is a pathetic, weak, ignorant, and self-destructive vision of counter-terrorism.

Torture is not efficient. Torture does not provide reliable intelligence. Torture has never made a country safer. Torture has never facilitated the end to illegitimate political violence. The unlawful detention of hundreds of men, some of them sold to US forces by bounty hunters and acknowledged as having suffered on the basis of false information, testimonies or mistaken identity, has provided ammunition for insurgency, has encouraged the use of imagery for the dissemination of similarly atrocious behaviour, and has stripped the United States and participating countries of any legitimacy in denouncing, and acting against, other states engaging in such horrific operations. It has reawakened the trauma of those same interrogation methods used in Northern Ireland at the height of its own conflict, mentioned in the footnote of a legal memorandum discussing, at length, how much pain can be inflicted on a human being without crossing an admittedly arbitrary threshold. You are not making America great again, Donald. You are simply returning to a very recent place in time when large-scale, international security operations were launched to the detriment of the rights of the victims, circumventing international law and international institutions, in the name of an irrational appetite for vengeance.

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Whatever the domestic framework, if you attempt to hire John Yoo again, will be hindered by the current National Defense Authorization Act (NDAA), through an amendment introduced by Sen. Dianne Feinstein; it will be blocked by the Detainee Treatment Act (DTA), both texts acknowledging the veracity of reports of the CIA’s conduct, and furthering the importance of ECtHR rulings against offending states. But most importantly, torture is an absolute prohibition; a war crime; indefinite detention without charge, the refusal of access to a lawyer, the denial of access to the ICRC, the removal of detainees to a military base, are violations of both humanitarian law and human rights law; several protocols of the Military Commissions Act (2006) violating fair trial rules. Donald, this is simple: the only national security position you are entitled to take in regards to the RDI programme is instructing the Department of Justice to prosecute officials that have created the programme, the private contractors that have devised interrogation methods, the intelligence agents that have supervised it and carried it out, as well as cooperating in every possible way with every request emitted by the ECtHR in order for our organization to respect our own obligations. Anything else would be in violation of international law; and every step of the way, there will be lawyers, legal academics, researchers, and journalists ready to expose the mechanisms you will use, because we know them by now.

You will drown under the weight of lawsuits, and you are already at odds with the medical professionals that had once assisted the 43rd President of the United States. For every government lawyer that will attempt to argue our role, as international human rights lawyers, is illegitimate foreign interference, that we are a fifth column, there will be the survivors of Guantanamo Bay to testify of what they have been through, there will be the families of victims of terrorism that seek fair redress, and there will be judicial oversight of counter-terrorism operations reaffirming that efficiency is a human rights obligation resting upon states. Including the United States. Including you, as the depositary of executive authority.

The only way to rid your administration of those pesky international lawyers such as myself is to comply with international law. There is no way around it. To quote the wonderful Linda Sarsour, a Palestinian-American who marched against you in DC, “I will respect the presidency, but I will not respect this president”. On this note, I bid you good night, Donald, and there is no need to tweet at me at 2 in the morning. 

A lesson in the abuse of information technology

2016 ended with “fake news”, a quite detestable oxymoron describing the onslaught of manipulative agit-prop pieces popping up on emerging – and at times, established news outlets. While this degree of lazy reporting is usually confined to darker corners of the internet or local papers, and concern local policing, this year, it blew to considerable proportions targeting the most significant news items: the US presidential election, the chaos in Syria and Yemen, as well as the role of the EU in the result of the Brexit referendum.

As a result, journalists, routinely targeted and attacked in recent years for doing their job, while reporting from extremely hostile environments across the globe, find themselves discredited at home, mostly in the US and the EU. Despite a vast array of evidence to the contrary, there have been several massacres in Syria, including the large-scale destruction of Aleppo; there have been hospitals hit by bombs in Yemen, civilian casualties in anti-ISIS coalition strikes, an attempted coup d’état in Turkey, Russian involvement in the continuous war in Ukraine, dubious political campaign funding of far-right parties; I could go on.

On this most anticipated New Year’s Eve, as the world prepares to celebrate the end of the annus horribilis, bracing themselves for the difficult years to come, I decided to share 10 of the most interesting, thorough, necessarily complex and salient pieces of journalism I have read this year; that I have relied on in my work as an international lawyer; that I have enjoyed and learned from as an active citizen; that have represented the world as it is to readers, the world as they should know it, work for, but more often than not work against. There has been many, many more that deserve to be highlighted. Those journalists deserve to be supported, followed, relied upon, and their expertise trusted.

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The White Flight of Derek Black, by Eli Saslow (the Washington Post, October 15)

2016 marked the ascent of the far-right in the West, a cyclical event in Europe, and a first in the United States when a bubbling but fringe movement rose to prominence with the election of Donald Trump and his cohorts of white supremacists nominated to key positions in the upcoming administration. This form of extremism, often overshadowed by the omnipresent threat of islamic terrorism, relies on severe indoctrination and threats of retaliation. This long read on the ideological turn-around of a trusted figure highlights mechanisms of belief and violence, as well as strength and courage to refuse.

 

How Do You Stop a Future Terrorist When the Only Evidence Is a Thought? by Rukmini Callimachi (The New York Times, June 21)

Rukmini Callimachi has reported on ISIS like few have before or since; her 2015 on the horror suffered by Yazidi women as they were enslaved by the fighters in Iraq has been seminal story-telling in an era of detachment from the inhumanity of war. Following the events in Paris, the New York Times reporter has travelled across Europe and the Middle East in order to regularly provide, through articles and Twitter updates, an unparalleled insight into the inner workings of the self-styled state, as well as underlining the strategy of the response and its shortcomings. This one studies the difficulty of placing the cursor on a spectrum of radicalization.

 

‘Why did they wait to kill us?’: How the attack on the aid convoy near Aleppo unfolded by Louisa Loveluck and Thomas Gibbons-Neff (The Washington Post, September 24)

The bombing of a UN aid convoy on its way to (partially) relieve the siege of East Aleppo on the outset of the summer has riled up NGOs and organizations across the globe, trying to assess the damage done to the humanitarian cause in failing to help Syria, to the rule of law for targeting UN workers, and most importantly attempting to decipher those responsible. In a blame game that has characterized much of the Security Council debates on the country in 2016, Loveluck and Gibbons-Neff conducted a clinical study of the munitions used, the timing of the attack, collecting witness testimonies and analyzing video footage to provide the only independent report into a defining moment in the battle of Aleppo.

The Hot Land: How a Lime Grower Led an Uprising Against one of Mexico’s Bloodiest Drug Cartels by Ryan Devereaux (The Intercept, September 6)

Often self-effaced, Devereaux has managed to compile a solid body of work since the humble and stumbling beginnings of The Intercept in June 2013. Usually focusing on national security, he traveled to and reported from Mexico for months, working on student disappearances, state repression, and here, on the ad hoc formation of resistance to the dictature of violent drug cartels in a country rife with impunity. At the heart of the destructive war on drugs, Mexico struggles to survive, to shelter its own, and to rise above shadow armies and control through corruption. This specific story, as well as others long reads and photoreportage he issued in the previous months, deserve your attention.

As The Saudis Covered Up Abuses in Yemen, America Stood By by Samuel Oakford (Politico, July 30)

The carnage in Yemen has been denounced as aided and abated by western states, specifically the US, UK and France, arming Saudi Arabia with high range and high precision weapons despite the warnings from humanitarian organizations that those munitions were used in attacks that could amount to war crimes. The silence of most governments in the face of those serious allegations only matched the incredibly, nauseatingly profitable business of arms trade with the Kingdom, the highest recipient of weapons in 2015. As governments now start to wake up to the responsibility, this piece provided a starting point for activism and promotion of arms regulation in the face of atrocities.

The Appearance of Disappearance: the CIA’s Secret Black Sites by Crofton Black and Edmund Clark (Financial Times, March 17)

I first saw Crofton Black as he testified before the European Parliament’s inquiry on CIA rendition in European states. He shared his work on the hidden prison in Antavilliai, Lithuania, a windowless white building in the middle of the forest the Vilnius government said was a “jewelry storage facility”. With photographer Edmund Clark, he released a unique, unprecedented book called Negative Publicity, a remarkable look at the mundane aspect of atrocities, the everyday conversations between perpetrators and their facilitators, a strange, eerie window into the base logistics of the CIA rendition program. Black’s evocative writing conveys the unshakeable discomfort of the silence surrounding those places.

Warning From the Syrian Border: Trump Reminds Us a Bit Too Much of Assad by John Knefel (Rolling Stone, May 12)

Knefel spent a lot of time in Turkey over the last 6 months studying the flow of refugees from Syria and the lack of safety they experience due to a porous border; the foreign fighter phenomenon and the role of the peshmerga in the fight against ISIS; and the human dimension of never be able to leave behind a war that will define a generation in the suffering it has inflicted. In here, a painful but necessary reminder that the 2011 insurrection was a legitimate uprising against an oppressive leader, a thoughtful reflection on the role of dissent, while we still can.

Inside RICU, the Shadowy Propaganda Unit Inspired by the Cold War by Alice Ross, Ian Cobain, Rob Evans and Mona Mahmood (The Guardian, May 2)

Countering extremism, this pseudo science denounced by the UN Special Rapporteur on human rights while countering terrorism in a March 2016 report, has led to unpalatable policies in the United Kingdom, where the main scheme, Prevent, has been criticized for targeting individuals, groups and families with no tangible link to terrorism. A concerted effort was made at European level following the January 2015 attack in Paris to offer a “counter-narrative”, a government-led initiative to lead potential terror recruits away from the path of radicalization. That, too, was doomed to fail.

Les Journalistes, Nouvelles Cibles Préférées des Populistes by Jean-Bernard Schmidt (self-published on Medium, November 20)

Toward the end of the year, as the introduction specified, the lack of trust for any piece of reporting that did not hold to confirmation bias reached a level of surrealism and ignorance that baffled even the most experienced of internet users. French journalist Jean-Bernard Schmidt, who co-founded the investigative outlet Spicee in 2015, worked on a year-long project to debunk conspiracy theories and the role of the new media in propagating them. His opinion, sadly not translated for the non-francophones, explained that truth is the most dangerous weapon to be used against populists; and that as such, they tend to work towards discrediting their critics.  A wonderful and powerful defense of investigative and critical journalism.

Calais Minors Lured From Camp Then Abandoned by Authorities by Lisa O’Carroll, Amelia Gentleman and Alan Travis (The Guardian, October 27

Many have written about the lack of empathy shown to refugees in Europe as the crisis has formed a front of isolationist retreat in Fortress Europa. The evacuation of “The Jungle”, the makeshift camp in Calais where, in October, approximatively 8,000 refugees and asylum-seekers awaited their fate – among which over 3,000 unaccompanied minors – was touted as a success by the French authorities. For weeks, Paris had sought an agreement with London over the fate of children, and to end the constant expansion of tents, shipping containers on dunes, a squalor that even MSF denounced as untenable. Said clearance was rushed, poorly scrutinized, half-botched. It led to some severe violation of basic refugee rights.

 

 

 

 

 

 

 

 

What the hell happens now on Fantasy Island?

 

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Since June 24, I have been going back and forth across more or less visible borders, attending talks, discussions, debates, symposiums, hearings, and other forms of airing of grievances related to the EU referendum in the U.K., in which a very simple question was asked: would British citizens like to retain membership in the European Union?

By the time most readers of this blog sit around a table filled with food prepared and packaged from all corners of the single market, introducing romantic  partners from all over the Schengen area, and exchange gifts paid for in Euros, it will mark six very long months since a vote that defined the future of not just the UK, but the Union as a whole. In an accessible yet outstandingly thorough book, Ian Dunt details that not only were the British people not prepared for the full-bodied outcome of the referendum, neither was their government. It lays out the responsibility at the feet of Theresa May, perceived as broad-shouldered and strong-willed, but just as much bumping in the dark and stumbling upon ideas. Most importantly, what it describes in numerous chapters focusing on economic consequence is that removed from immediate and dire financial payback, the UK is losing more than free trade agreements. Several key ideas are contained within the right to access the single market. Some of those ideas are entirely contingent on EU membership; some of those ideas are tied to freedom of movement.

EU citizens benefit from an incredible amount of privilege, compared to other political systems. The structure of the organisation, not federal but tailored to further integration, allows citizens of all member states to: be represented in a parliament; access specific courts; appeal to a broader consensus; receive grants; be financially supported in academia and the job market; be compensated in the event of an illness; see political, civil and human rights safeguarded. Among those rights, Brexit affects freedom of movement the most. Something very specific to the United Kingdom, however is that this withdrawal from the European Union, no matter how world-altering and overwhelming it is, may not even be the end game. At a talk at LSE Law on 8 December, professor and barrister Conor Gearty of Matrix Chambers explained his position quite clearly: for the Prime Minister, exiting the EU was simply a proxy move towards a repeal of the 1998 Human Rights Act.
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Indeed for many, human rights and the legal obligations contained therein are at bigger fault. It was the ECtHR in Strasbourg most often accused of violating British sovereignty; it was the Human Rights Act accused of forcing the nation to welcome refugees beyond coercively agreed upon quotas; it was principled legislation that formed adherence to a European project the U.K. never felt much a part of. Slowly unveiling its arguments over the summer in a series of videos, “On Fantasy Island” is a compelling collection of all the lies and myths surrounding Britain’s capacity to provide for the safety and liberty of its citizens outside of the realm of international law. It starts with reminding the citizenry that the roots of the European convention on human rights themselves are British; that the history of European construction and expansion has been based on British cooperation; but that mostly, the Strasbourg court, often maligned to the point of needing to be defended in the New York Times, has never been opposed to the United Kingdom so much.

 

Both Dunt and Gearty, while focusing on separate institutions – the EU for the former and the Council of Europe for the latter – are preoccupied with the same question: what will become of England, Wales, Scotland and Northern Ireland once London initiates the process of removing itself from the rest of the world? With humour and quite a rare concern with facts, legal accuracy and political consistency, the issues here are tackled with less doom and gloom that could be anticipated. There is time, although little, to stop the ongoing machine. There are safeguards, although vanishing, to protect what can be saved. There are figures, although drowning in white noise, to provide much needed expertise. Dunt and Gearty are among those. The image of an isolated, alienated Britain on a self-imposed exile adorns the cover of both their books, as we are about to step forward into a year marking the ascent of populism and geopolitical retreat in the name of base fear and incorrect perception of security.

 

One thing is certain: we on the continent must shoulder some of the blame. The most europhile among us must reflect on where the institutions we take so much pride in have failed to appeal across social classes, did not step up in times of heightened worry – about terrorism, about employment, about immigration, even more so about identity. The generation that has entered the job market in 2008 feel entitled to basic labour and union protection, to freedom of movement, to a right to privacy, to access to health care, and to protections against police violence. If the EU has felt like it itself encroached on progressive visions for commerce, on self-determination or has undermined the principles of democratic representation, then it must consider its reaction to the biggest issues of our time: the refugee crisis, the Greek debt, surveillance, freedom of opinion. The EU must take a look, beyond poor communication, at what it forgot to mention about its role in sheltering acquired rights, the permanence of entitlements, and the necessity to keep close to citizens. Otherwise, the Nigel Farage of Europe – Le Pen, Wilders, Five Star – will continue harvesting votes from those who deserve better.

Ian Dunt: Brexit: What the hell happens now? At Canbury Press.

Conor Gearty: On Fantasy Island, at Oxford University Press.

 

The truth about torture: on disclosure and obfuscation

The creation of an international court that could rule over severe crimes, including the absolute prohibition, should function as an effective deterrent for states members to the Convention. The legacy of clear, accessible judgments should provide for a solid cornerstone in order to ensure the respect of the rule of law across its jurisdiction. But when it comes to torture, the entire process of accountability relies on disclosure, that respondent states block each and every step of the way.

Al-Nashiri v Poland

In December 2013, the Court held a seminal hearing in the case of Al-Nashiri and Abu Zubaydah v Poland, one of the first applications lodged regarding member states’ collaboration – collusion – with the CIA in its rendition, detention and interrogation (RDI) program. The two men, still held in Guantanamo Bay, were detained in a black site, a secret prison, on Polish territory, where they were tortured before being sent to the naval base in Cuba. Poland has always categorically denied its involvement in what could come to be known as the torture program. During the hearing, the Grand Chamber repeatedly asked the government of Poland to provide any memorandum of understanding (MoU) that would have been undertaken with the United States. This could shed a much needed light on the extent to which Poland was expected to collaborate and hold responsibility for US intelligence activities on its soil. The hearing, which lasted over three hours, focused on repeated events of denial of access to information and documentation to the appellants and their lawyers. Ultimately, the Court requested Poland to comply.

Poland found itself in a position where documentation that had been submitted to the Court unequivocally pointed in the direction of collusion. It would be unthinkable that a state would allow foreign intelligence activities, especially of such wide-scale logistics – from the use of its airspace, airports, to detention facilities and armed guards – without prior contractual approval. The Court then offered Poland the possibility to submit any MoU under national security classification, provided by clause 33 of the Rule of the Court, so as to receive information on which to base a future decision without the documentation presenting a risk to the state by being disclosed along with the judgment and the rest of the case file. Upon this information being shared, I decided to challenge this classification, arguing that any deliberate collaboration with the CIA despite the actions being performed by agents in black sites – and the MoU perhaps even providing for Polish agents to be present during interrogations – was serious enough to warrant disclosure.

I received a letter a few weeks later from the Registrar’s Office that implied that Poland had not submitted anything despite the offer of the information to be classified, and that in any case, a judgment was forthcoming. Sure enough, the decision was published on July 24, 2014, not only making note that Poland had indeed collaborated in the violation of the absolute prohibition under Article 3, but that the state was found in negative inference with the Court, refusing to provide information with regards to the activities under litigation. In a landmark ruling, the Court decided that evidence collected with media reports, press investigations and gathered by legal investigators was sufficient to make a determination, and would not need government-issued documents. Poland sought to overturn the decision, only to be found trapped between a rock and a hard place: the Court had ordered that it sought assurances, on account of having an agreement with the United States, that Al-Nashiri would not be facing the death penalty. Al-Nashiri is currently facing a troubled military commission for charges carrying a death sentence. Poland either has to detail its relationship with the CIA, or interfere without the possibility of a result.

Al-Nashiri v Lithuania

The investigation of the black site in Lithuania, that arose with the case of Al-Hawsawi, has has considerable political ramifications at domestic level. It did not stop lawyers for the state to argue for a curious interpretation of state responsibility at a hearing before the Chamber in June 2016, denying the veracity of press reports, the substance of prior investigations, the role of EU rapporteurs in previous inquiries, but never the body of work compiled by the US Senate in a report which executive summary was released, partially redacted, in December 2014. The extent of the denial was perhaps even more egregious than that of Poland, in light of two years worth of media coverage of EU states’ collaboration in rendition, acknowledging detention of several detainees that could be identified, even recalling the specific methods of torture to which they were subjected. In a harrowing book, journalist Crofton Black, who testified about his years-long investigation to the EU Parliament inquiry into CIA rendition, talks about the various contracts undertaken to build the black site in Antaviliai, a small village ten miles north of Vilnius.

 

Past and present officials gave testimony; requests for information were filed with ministries, the State Security Department and the Border Guard, the Customs, the Civil Aviation Administration and airports. The press, pundits and politicians commented loudly from the sidelines, speculating and sniping. Daily, contradictory stories emerged, like ripples expanding and interfering with each other, tell-tale signs of an unseen shoal beneath the surface. While some spectators were eager for scandal, others remained sceptical. ‘Anything can happen, but why do we have to believe that this has happened?’ asked the former head of the military, Major General Jonas Kronkaitis. ‘There are many people who think that little green men arrive in Lithuania from Mars, but do we then carry out an investigation? No, we leave it alone.’

Even after the hearing, the denial was maintained in the face of unequivocal coverage. Black carried on releasing information, from photographs to court transcripts, in stark contrast with the arguments put forward by the Lithuanian government, for whom the activities of a foreign state on its sovereign territory may as well be fortuitous at best, and at the very least exempt from scrutiny. Interference from intelligence holds a very specific history in Central and Eastern Europe, the epicenter of the Cold War, for decades satellite of a surveillance state, later chosen to be host to NATO bases and post-German reunification deployment. It seems that, in Lithuania like in Romania, Estonia or Poland, a relationship with the CIA holds more power than adherence to legal requirements under international human rights law. Exposure to the suffering endured by former detainees, and the role played even by facilitating detention if not directly organizing it, leaves a mark on public opinion, supporting ongoing investigations. Evading the scrutiny of the Strasbourg court and the committee of the Council of Europe tasked with verifying the enforcement of its judgments can only diminish the country’s standing within the organization, perhaps not to the point, however, of weighing significantly enough against the foreign interests inherent to a special relationship with the United States.

Ireland v UK

 When the legal advice supporting the use of torture by the CIA post 9/11 was declassified, a footnote jumped at the face of many observers: Bybee, advising the government, issued a long opinion on the threshold between ill-treatment and torture, and based his decision on a 1978 judgment from the ECtHR. According to him, the final ruling in Ireland v UK, which application was lodged in 1974, endorsed the CIA’s interrogation methods as “harsh” or “enhanced” interrogation techniques, never crossing the threshold into the absolute prohibition. That an international court could have ruled so decisively back then surely reassured the US government, then proceeding with experimentation of some techniques on one of it earliest detainees, Abu Zubaydah. It was later found that some of the methods had not been sanctioned by the Office of Legal Counsel (OLC). Nevertheless, the existence of that threshold and the use of this justification to approve of what would have come to define abuses under counter-terrorism law in our generation was a jarring find.

Forty years onwards, new elements have emerged after decades of investigation through British archives. The team of surviving men detained during the Internment in 1971, colloquially referred to as the “Hooded Men”, have petitioned to have their case reopened before the Strasbourg Court. A judicial review was underway in Belfast, during which a judge found himself playing referee between requests to release documents and government lawyers arguing first that documents didn’t exist, then that more time was necessary to field through the archives and release them in the appropriate conditions. The frustration over access to the truth and the duty of investigation as interpreted through Article 2 of the Convention is palpable, and has journeyed all the way to Strasbourg, where the Court has granted a second extension to the British government in regards to justifying their position on one crucial point: deliberate omission.

The documents that were submitted by the British Government after the application was declared admissible were found to be incomplete. The respondent state had deliberately hidden parts of its research and activity logs in order for the evidence submitted by the appellants to fall underneath the threshold of torture; the Court, ruling the methods of interrogation were cruel and unusual punishment, in violation of article 3 still, did not make a finding of torture. Somehow, such an outstandingly infliction of suffering, not being an absolute in nature, did not carry the same weight, did not yield the same outrage, did not demand the same amount of responsibility. There is no impunity for a violation of Article 3, but that threshold, thus manufactured by a partial look at a complex picture comprised of state control of colonized territories and the irrational fear provoked by terrorism, seemed to somehow help the British government escape the obligations resting upon it for perpetrating acts of torture, namely, the prosecution of those responsible.

The broadcast of “The Torture Files” on Irish public channel RTE led to an awkward dance between Dublin, London, and Strasbourg, the complexity and political meanderings of inter-state cases being weighed down even more by the unwillingness to provoke any form of conflict in Northern Ireland, “rock the boat” in a way that could be perceived to jeopardize a hard-won, fragile stability. Uncovering a lie, no matter how blatant, has the potential to rattle, to unsettle, to generate mistrust. In the face of the abuses that have been committed between 2002 and 2009, and constantly threatened to reemerge by political candidates capitalizing on fear, disclosure is not only essential – it remains an obligation. Appearing before an international court which duty is to examine the degree to which domestic investigations are satisfactory should be in itself a signal that the rule of law has been coopted in the name of political power, corrupted by an executive necessity that the court exists to curb. Lying before the ECtHR is not just disregard for the most fundamental of obligations; when it comes to the absolute prohibition, it constitutes more than negative inference. It is obstruction.

Are there any consequences?

Beyond monitoring the implementation of the Court’s judgments via the relevant committee, it is difficult to assess whether the existence of such a jurisdiction has enough of a deterrent effect against human rights abuses committed in the name of counter terrorism. The political impact of possibly violating understandings and otherwise enshrined intelligence relations far outweighs the legal consequences of breaching the prohibition of torture; the argument of necessity, constantly debunked and dismantled by observers but always influential, seems somehow still opposable to fundamental rights. As the threat of terrorism comes and goes like the tide in a rapidly evolving world, as international law seeks to catch up with modified conflict paradigms, the trend is to separate the concept of national sovereignty from that of supranational accountability, to supersede the right to self-defense, to create a considerable and unbridgeable difference between intelligence activities and judicial transparency.

The outrage provoked by long lasting claims in the United Kingdom to withdraw from the Convention and a recent bill passed by the Duma to reserve the state the right to ignore the Court’s judgments is not enough. Education about the role of the Convention, its place in EU history and construction, the systems it implements and the political relations it has spurred and governed is paramount. Most importantly, it is not necessarily the Convention as an instrument, but education about human rights as a whole, the reasoning and faith behind the prohibition of torture, the evolution behind installing it as the unjustifiable crime, and the values that tie us together as an international community that can ensure the perennial role of the Court’s judgments against torture. The transparency that comes with an investigation requested under the right to a fair trial and the obligation to adjudicate will continue to shed light on why such work is crucial, essential for the respect of human rights worldwide.

The war on fundamentals: UNSC Res 2286

Very few question whether the concept of a just war is appropriate or necessary. There are the pacifists, those who believe that war, intrinsically, goes against humanism. There are the pragmatists, who argue intervention can be justified. There are the realists, who contend that no nation state can survive without entering a state of conflict at some point in its cyclical history. There are the opportunists, for whom war is merely a means to an end. Whether war can be just, whether war can hereby be justified, approved, and conducted in a certain manner has been left to legal philosophers, the authors of conventions. Those conventions have evolved with time, with an ever-changing political landscape, but most importantly with technology. Certain principles however have not changed, and should never be the subject of compromise. They are fundamental in nature, and are currently under attack.

Operation Protective Edge, the name given to the 2014 Israeli assault on Gaza, signalled a new low in warfare. In the name of said protection, Israel killed over a thousand civilians, a third of them children. Images of scattered young body parts on beaches made the cover of newspapers. Accounts of dead bodies stored in ice-cream freezers for lack of burial capacity, appeared cautiously next to Israeli arguments for the necessity of the attack: stories of children turned into the most feared individual of the year, the military aged male, of the danger posed by Qassam rockets fired from United Nations schools and hospitals, of relatively small numbers of Israeli casualties, could not erase the atrociously disproportionate response to a threat always imminent but never factually existential. Journalist Max Blumenthal walked among the ruins of Shujaiyah, and provided a harrowing testimony of the profound disdain for human life that he witnessed that summer. One specific night comes back to the forefront: in the darkened Gaza night, among the low hum of a few remaining electrical generators, missiles screeched through the sky, and fell on the buildings left standing. Two years later, Gaza is still under attack; reconstruction has barely started; children under the age of 12 suffer from post-traumatic stress disorder; young boys try to commit suicide. The tears of a UN official, on TV, captured worldwide attention. Gaza had become the untouchable strip of foreign land; it had become a frontier behind which everything was fair game, every human body fit to kill; it evaded and escaped not just humanitarian law, but also emergency humanitarian relief and the principles of humanitarian access, hindered not just by Israel, but also by Egypt. Gaza was located beyond the protective edge.

Three specific types of putative war crimes have reemerged in recent years, attributed, depending on who one asks, to the changing nature of conflict – the proliferation of non international armed conflicts, the growing number of non-state armed groups – or the changing nature of political and legal commitment to the laws of war.  The danger lies not only in asserting that the fundamentals of the laws of war no longer apply; it lies in removing them from the legal framework, hereby leaving a gaping hole where protections should apply. International human rights law would not suffice; areas where the two paradigms do not overlap, specifically the threshold of the right to life, would lead to rampant abuses. Those abuses have however already taken place. From the bombing of hospitals in Afghanistan and Yemen; from the assimilation of civilians to combatants due to sole demographics; and the resurgence of medieval methods of collective punishment, now, perhaps more than ever, is the time to reaffirm commitment to the fundamentals of the law of war, their blood-stained roots, and perhaps demand more of the Security Council than the base expectations. Of the five permanent members of the revered institution, three are currently assisting a country accused of war crimes; one has consistently used its veto against humanitarian assistance; another used this same right of veto against its twin body, the Human Rights Council’s demand for independent investigations into possible war crimes. Four are currently involved in proxy in the deadliest conflict since World War II. Perhaps the laws of war are not obsolete, relics of a bygone pacifist age, impossible to implement, or incapable of evolving with military technology. Perhaps what the Geneva Conventions need is a body entrusted with keeping peace and security actually vested in peace and security as opposed  to its own financial and/or political interests.

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Attacks on hospitals: Afghanistan, Yemen, and the threshold of intent

Nothing has perhaps highlighted the blatant violations of fundamental humanitarian principles than the October 3, 2015 attack on the MSF-supported hospital of Kunduz, in Afghanistan. While the fighting was raging between the Taliban and the US-supported Afghan army, MSF doctors and surgeons were working tirelessly in the hospital, which coordinates had been communicated with the belligerent, to tend to the wounded, children and adults alike. A blast at 2am led to frantic phone calls to the headquarters of the coalition to communicate that a missile had fallen on a hospital, a protected building. An account of what followed in the early hours of that fateful day is nothing short of blood-curdling. Dr. Kathleen Thomas told The Guardian:

But tomorrow never came for most of those patients. Nor did it come for most of the ICU staff working that night. When the US military’s aircraft attacked our hospital, its first strike was on the ICU. With the exception of one three-year-old, all the patients in the unit died. The caretakers with the patients died. Dr Osmani died. The ICU nurses Zia and Strongman Naseer died. The ICU cleaner Nasir died. I hope with all my heart that the three sedated patients in ICU, including our ER nurse Lal Mohammad, were deep enough to be unaware of their deaths – but this is unlikely. They were trapped in their beds, engulfed in flames. (…)

Our colleagues didn’t die peacefully like in the movies. They died painfully, slowly, some of them screaming out for help that never came, alone and terrified, knowing the extent of their own injuries and aware of their impending death. Countless other staff and patients were injured; limbs blown off, shrapnel rocketed through them, burns, pressure-wave injuries of the lungs, eyes and ears. Many of these injures have left permanent disability. It was a scene of nightmarish horror that will be forever etched in my mind.

Dr. Thomas’ account is one of many survivors’ stories that have scarred the public opinion. Atypically, US authorities decided to launch an investigation into the strike, that had killed 42 people that day, staff and patient alike. Photos of the damage done to one of the few hospitals left standing in the region were breathtakingly horrific. There was no escape from the dust and rubble; it would however be the first of many outraged and infuriating moments for Doctors Without Borders, a fearless, deeply respected organization that was told by the local head of the NATO coalition, “I will pray with you all” before the second blast hit.

But the investigation yielded little to no result; MSF decried the fact it had been conducted by one of the parties accused to be responsible for what amounts to a war crime. Indeed, the US exonerated itself of any war crime accusation by claiming the threshold intent had not been met. In the Guardian still, Spencer Ackerman writes:

At the Pentagon, Votel said the strike did not rise to the level of a war crime since striking the hospital was not an “intentional act” – something John Sifton of Human Rights Watch called “simply wrong as a matter of law”.

Interviews with Kunduz residents and relatives of the victims indicate a belief that the US purposefully targeted the hospital. Some rejected the commander’s apology as insincere and urged harsh punishment for the perpetrators.

Votel, a former special operations commander, said the investigation determined the hospital never served as a staging ground for attacks by the Taliban, nor did any enemy fire come from the hospital, as MSF has long said and in contradiction to Afghan officials.

The narrative on Kunduz shifted so many times that, unless an independent investigation is carried out, little will be known of the exact conditions of the multiple strikes that devastated a MSF-supported hospital, and those of Shiara in Yemen on January 10, as well as the destruction of Al-Quds pediatric hospital in Aleppo on April 28. The level of intent with which the US military attacked the wrong building, as the Pentagon report laid out, is not clear. Whether this is a war crime is not, to this day, entirely clear. That is because the criteria of intent for the law of armed conflict differs. For US authorities, there is no war crimes because the killing of civilians – and the targeting of a civilian building – was accidental. If there was no purpose of attacking the building, then the responsibility lies within the knowledge portion – a violation of the principle of distinction. This is where MSF differs with the Pentagon assessment: they maintain all belligerent parties knew of the location of the hospital; that phone calls had been placed after the first missile hit to inform the NATO coalition that they had hit a hospital; in spite of all these efforts, the bombing did not cease. A battle of wits between Jens David Ohlin and Kevin Jon Heller offers a conversation on the level of intent that doesn’t blur the lines as much as it blurs the possibility of accountability for Kunduz. Despite the chain of awful errors outlined by the Pentagon report, there is still much to debate on whether the intent threshold for a war crime was met. After a priceless argument on the two material elements of intent – conduct and consequence – Heller concludes:

In the absence of the consequence element, however, this situation does not exist. As long as the defendant whose attack harms a civilian population meant to attack only a legitimate military objective, his knowledge that the attack would incidentally harm a civilian population would not qualify as the war crime of intentionally directing attacks against a civilian population. He would be guilty of that crime only if he meant to attack the civilian population itself.

Kunduz will therefore add itself to the pile of incidents in which the responsible party never intentionally attacked civilians, denounces the presence of civilians, refuses independent investigators access to determine the civilian status of the deceased or the attacked object, or, worse yet, claims the civilians killed were not even civilians in the first place. Initially, US authorities had claimed Taliban had taken up post in the hospital, firing at Afghan soldiers. In Gaza, the Israeli Defense Forces claimed that Hamas members were hiding inside UN schools, firing rockets from over the heavily guarded borders. It took months to establish evidence of the presence of military objects in UN offices in Gaza; MSF has strongly denied that any weapon had been lodged or hidden in the hospital. In Syria, the damage on Al-Quds, which also killed one of the last pediatricians left in the city, is again on a long list of possible war crimes committed by all parties to the conflict. In Afghanistan, the longest war ever waged by the United States, accountability has always been thin. In Yemen, countries assisting Saudi Arabia in its assault against the destabilized and feudal nation raise their hands in the air, insisting their help is only logistics.

For Afghanistan, for humanitarian organizations such as MSF, this lack of established liability due to lack of effort, or willingness, to investigate, means not just a lack of accountability, but impunity. In the aforementioned Guardian piece, the belief that the US targeted the hospital on purpose is spreading like wildfire – and could have devastating consequences:

The anger may stem from a widespread belief in Kunduz that the US military targeted the hospital on purpose. Nobody the Guardian spoke to seemed to believe that a military with such sophisticated equipment and surveillance would mistake a hospital.

“I don’t know why they targeted the hospital, but there were white Taliban flags on all the buildings around it, so why didn’t they target them?” said Hamdullah Salarzai, a worker at the hospital who was injured in the attack, and whose uncle, Aminullah, was killed.

As of the date of publication of this piece, there is no other planned investigation into the attack. The matter was further complicated thanks to an in-depth, on the ground investigation conducted by reporter Matthieu Aikins for the New York Times which leads to the conclusion that Afghan forces deliberately misled their American allies, targeting the hospital due to mistrust of MSF’s duty of neutrality. This is perhaps even more sombre than any contingency: the very principles underlying the fundamental protections of war are now perceived and interpreted as, in fact, taking sides, protecting belligerents over the fate of others. In this specific case, MSF, seeking to build and practice from remote, Taliban-held areas, were seen by the Afghan forces are taking the side of the Taliban, tending to their wounded the way they would their own soldiers, civilians, or other members of coalition forces. This is however what the humanitarian duty of neutrality, that MSF has always maintained even in the face of litigation possibly benefiting them, and what they ought to maintain at all costs. The level of distrust of any foreign intervention even for humanitarian purposes has become a fixture of the war on terror, in which the paradigm has shifted from what we believed was acquired and safe to utter uncertainty and unreliability, even to the extent of questioning what the protection of civilians could be – when one does not know who is considered a civilian.

Attacks on civilians: the end of by-default protection

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The undeniable consequence of 15 years of the so-called war on terror was the redefinition of concepts we had come to think as familiar, of ideas that we had firmly held as self-evident, and of the respect of legal requirements that we, as an international community, lawyers, journalists and activists alike. The most contested and controversial one is the persistent myth of the “military-aged male”, any target fitting those vague and broad criteria that determine that they could very well be militants, and not civilians. Of course, the requests that belligerent parties were identifiable uniforms allowing observers to identify them as military, and therefore legitimate targets, could no longer apply and/or become a receivable argument for the proliferation of non-state armed groups in the conflicts emerging in the 21st century. Increasingly, battlefields became centers of guerilla warfare, those very same battlefields were also not always officially declared as such, turning rules of emergency applicable to the troops deployed in the area difficult to obtain, if at all, and remaining malleable due to the ever changing nature of the landscape. As a result, even with the rapidly changing surveillance technology, that has made considerable strides in the last decade, could not always determine with a degree of certainty that was reliable enough, whether a given individual in a crosshairs was a civilian or a belligerent.

As a result, the determination often became circumstantial or contextual. With the development of surveillance drone, the rapid fluidity with which signal intelligence is exchanged and stored between preferred partners, the pattern of a given situation emerges with better clarity than it would have in the days of counter-insurgency and counter-terrorism at a time when recruitment of informants – and hereby the use of human intelligence in addition to phone tapping – was the only way to obtain an incomplete but verifiable picture of the insurgent group in the crosshairs. In the absence of several layers of verifications, or missing information on the direct, immediate identification of a civilian, often on the move, the decision was based on contextual information: the company the individual kept, the nature of his presence in the area, but most importantly, the area itself. An area under heavy counter terrorism scrutiny and chosen as a battlefield of intense value – such as North Waziristan, at the border between Pakistan and Afghanistan – the difficulty to identify a local tribal elder from a Taliban leader became impossible for US forces, so little was the cooperation on the ground, so eager were they to strike, that it was decided as a matter of policy that a “military aged male”, meaning 19-60, and male, able-bodied, could possibly be a recruit of a local or global terrorist or insurgent organization – hereby becoming a target solely due to the fact that violent activity was recorded in the area; this sounds more like guilt by association, than it is averred risk assessment before a strike peddled as so surgically precise it considerably reduces the odds of a knowingly unlawful strike. This slides from the civilian-by-default of the Geneva Convention, in which no one easily identifiable as a belligerent had to be protected until further information or investigation could determine its status; it became the default status for may young and less young men in those non-declared battlefields, in areas were intelligence was difficult to gather, but where the necessity to ask took precedence over caution.

An excellent illustration of this issue is Operation Haymaker, a two-year campaign in the Hindu Kush to destroy elements of the Taliban and Al-Qaeda between 2011 and 2013. Analysis documents he obtained, national security reporter Ryan Devereaux takes a close look (1) at the elements that, together, form the larger picture of a targeted killing program that has resulted in more non-combatant casualties than the concept suggests and puts forward. The confidence resulting from the appeal of being able to select and identify a specific target then removing them from the battlefield – by capturing them but, more often than not, killing them – has formed in large part the presumptive successes of the war on terror. The determination of the status of those casualties is left to intelligence and military sources, in a situation in which independent verification is close to impossible. By February 2013, towards the end of Operation Haymaker, Devereaux says thirty-five “jackpots” – the actual target – had been reached, with over two hundred others, not directly identified, were also killed, dubbed “enemies” without further additional information.

In the complex world of remote killing in remote locations, labeling the dead as “enemies” until proven otherwise is commonplace, said an intelligence community source with experience working on high-value targeting missions in Afghanistan, who provided the documents on the Haymaker campaign. The process often depends on assumptions or best guesses in provinces like Kunar and Nuristan, the source said, particularly if the dead include “military-age males”(…) Certainty about the death of a direct target often requires more than simply waiting for the smoke to clear. Confirming that a chosen target was indeed killed can include days of monitoring signals intelligence and communication with sources on the ground, none of which is perfect 100 percent of the time. Firing a missile at a target in a group of people, the source said, requires “an even greater leap of faith” – a leap that he believes often treats physical proximity as evidence.

This is not a problem solely confined to US drone warfare. Israel’s assault on Gaza has often referred to hordes of Hamas fighters invading UN-run schools, UN-run hospitals and other protected buildings; Gaza, the most densely populated area in the world, also its youngest, could then be flooded with recruits – or potential recruits, which would justify a preemptive strike – and become justifiable and legitimate targets. We are seeing the end of non-engagement; the end of hors-de-combat; women and children become fair game. In the name of an overwhelming principle of precaution, preemption takes over determination, and targeted killing becomes led by a threshold of near certainty heavily contested by legal organizations, but most importantly, the targeting system itself has revealed itself flawed despite the combination of both evolving HUMINT and SIGINT, with the reliability of what was deemed actionable intelligence put into question through heavy meddling of intelligence agencies, the lack of definition of terrorism, the opacity of the legal policy of the targeted killing, and in the case of the UK, the complete absence of a reliable chain of command upon which lies the burden of making a decision that could very well later amount to a violation of the right to life.

The Geneva Conventions, however, remain clear. They also belong to an era where soldiers wore uniforms, where guerilla warfare was contained to small, localized insurgencies, where wars were fought on frontlines, trenches, and other clearly visible areas. By extending a battlefield to any place where a KST might be, the war reached civilian structures, facilities, protected personnel and other non-targetable objects. Not only are clear, known targets difficult to pinpoint regardless of the advancement of technology, but deliverance of ordnance through the air carries an inherent risk of additional casualties. International humanitarian law does take it into account; what is at fault here is the immediate and uninformed classification of those collateral bodies as enemies, legitimizing every aspect of the strike, endorsing the targeted killing program as a flawless, surgical weapon of war that, instrinsically, makes the extension of the war zone both lawful and legitimate, because necessary and proportionate. Advocates of a reform of IHL that would fit the paradigm of the war on terror seem to consider that this end of default protection of civilians – an acceptance of an enemy status automatically extended to whomever happens to be in an area. By Devereaux’s conclusion, confirming the death of a target is difficult; assessing the status of a casualty can be just as difficult. The advanced destruction of the bodies hit by missile, often charred beyond recognition, make a positive identification by the family impossible, or have their word be weighed against the impossibility of scientific determination. It isn’t that the law is inadequate, doesn’t adapt to the new context of counter-terrorism. It’s that the convenience of giving in to the utmost secrecy of an intelligence-led operation prevails over the demand for accountability.

The myth of disarmament

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The 71st General Assembly of the United Nations will open on September 13th in New York City, with an agenda largely focusing on peace and security, the spectre of several wars leading to unprecedented humanitarian crisis looming over the large building dominating the Upper East Side. The damage caused by those wars was, to some extent, preventable. The horror wrought upon Syria and Yemen is compounded by paralysis for the former, and profit for the latter. If the situation in Syria is extremely complex and deserves an essay of its own, addressing disarmament without addressing the facilitation of potential war crimes in Yemen would risk unsubstantiality. As of right now, the coalition led by Saudi Arabia aiming at “restoring legitimacy” in Yemen following the overthrowing of the government by the Houthis has displaced millions of civilians, left just as many without access to food or basic aid, and the constant bombing of medical facilities pushed MSF to pull out of northern Yemen entirely.

Saudi Arabia could not wage this war alone. The kingdom does not manufacture weapons; it relies on arms imports for everything from fighter jets to missiles, and has become the first beneficiary of arms transfers for 2015. Generating relevant databases via SIPRI (the methodology of which can be accessed here) shows a very disturbing picture given the extent of the carnage in Yemen. It also considerably illustrates the issue of the Security Council’s inaction over the two-year conflict, trapped between the responsibility of being a permanent member and the significant domestic profit that can be ramped up by war.

The role of weapons manufacture and arms transfers has been denounced as early as late 2014 by anti-war organizations. In two countries specifically, the UK and Canada, the issue of the efficacy of the application of domestic legislation regulating arms trade has been raised by Amnesty International over the alleged war crimes in Yemen. Two reports detailing the destruction of civilian facilities have been released, leading to calls for suspension of arms trade with Saudi Arabia. It is difficult to argue for the respect of human rights when arms trade is so profitable for states. France, for instance, struggling with national debt, has closed a contract worth €3bn with Saudi Arabia; codenamed DONAS, the contract concerns the proxy arming Lebanon, paid for by the kingdom. Canada has modified its own regulation methods in order to balance it with what leadership considers it to be national interest, helping current Prime Minister Justin Trudeau to accept a $15bn deal at the peak of the horror in Yemen.

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Database generated on SIPRI on August 20, 2016: top 10 arms suppliers, numbers in trend-indicator value, the TIV, known production cost of the weapons instead of core financial value.

From this table, we can see the top 5 arms suppliers in the world consist in 4 of the 5 permanent members of the Security Council, in charge of maintaining peace and security. The 5th member is listed close, taking the 6th spot. While the United States is far, far ahead of its cohorts, it is striking that the world order is left in the hands of those who have more to profit from war.

Disarmament has been a long standing goal of the United Nations, and first focused on nuclear disarmament, which continues to be underway and has taken a considerable step forward thanks to the diplomatic negotiations around the Iran deal. The regulation of other types of mass and non mass destruction weapons is now covered by the Arms Trade Treaty, which entered into force on December 24th, 2014. For the United Nations, regulation of arms trade is a core principle to prevent humanitarian crisis and uphold the protection of civilians in war:

Inadequate controls on arms transfers have led to widespread availability and misuse of weapons. One serious consequence: the disruption of life-saving humanitarian and development operations because of attacks against staff of the United Nations and other humanitarian organizations. In many areas of work, the United Nations faces serious setbacks that ultimately can be traced to the consequences of the poorly regulated arms trade. We see weapons pointed at us while maintaining international peace and security, in promoting social and economic development, supporting peacekeeping operations, peacebuilding efforts, monitoring sanctions and arms embargoes, delivering food aid or helping internally displaced persons and refugees, protecting children and civilians, promoting gender equality or fostering the rule of law. That is why the adoption of the Arms Trade Treaty is so significant for the UN system as a whole.

Because not every arms transfer necessarily falls short of regulation, let alone is in blatant violation of domestic and international regulation, a closer look at the obligations resting upon states having ratified the ATT sheds a light on the situation of Yemen and the persistence of arms trade with nations known or suspected to commit war crimes. An implementation toolkit, released for states about to ratify, includes various modules, the fifth one concerning the prohibition of transfers. The first two sub-categories regard the prohibition of transfers to states under UN-imposed embargo; the second, on illegal trafficking; the third one finally tackles transfers despite knowledge of the use of those weapons to commit grave breaches of the Geneva Conventions:

Where a State Party has knowledge, at the time of the authorization, that the items subject to a transfer authorization would be used to commit genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party, the State Party must prohibit such transfer.

If it authorizes the transfer, the State Party would not only be in non‐compliance with the ATT, but it could also be responsible under the law of state responsibility for aiding or assisting in the international wrongful act. Article 16 of the Articles on Responsibility of States for international wrongful acts provides: “A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) That State does so with knowledge of the circumstances of the internationally wrongful act; and (b) The act would be internationally wrongful if committed by that State”.

Canada, mentioned above as having modified domestic legislation in order to facilitate the transfer of arms to Saudi Arabia, is not a state party to the ATT (it is currently seeking to accede it, after previous Prime Minister Harper refused to sign in 2013). The United States has signed the treaty, but has not ratified it. France was among the first 54 state parties praised by the General Assembly. In the United Kingdom, also a state party, an investigation has been requested from the Ministry of Defence (MoD) in order to evaluate how much was known by British authorities of the use of those weapons by Saudi Arabia at the time of transfer; how much had been communicated by Saudi Arabia as to how those weapons would be used; and how the MoD had assessed news reports of war crimes allegations knowing arms transfers were pending.

The ATT’s prohibitions on transfers seem self-evident, but require several factors of investigations from state parties that are perhaps deemed too complex to comply. The political interests of a state party seem to prevail over its legal obligations under international law. A parliamentary debate taking place in June 2016 in the House of Commons considering the suspension of arms transfers with Saudi Arabia has led to this statement by conservative MP Sir Alan Duncan:

The thing about Yemen—the hon. Lady did not mention this at all—is that we are in conflict for a reason. The conflict started because a legitimate Government were displaced by highly armed Houthi rebels who had raided heavy weapons stores and used those weapons against the legitimate Government. They pushed them out of Sana’a and headed down towards Aden. The hon. Lady did not mention the human rights violations committed by the Houthis. They have rounded up teenagers, put them in rooms and blown them up (…) There are very different sorts of weapons. In Yemen, every teenager has a rifle on their shoulder. That is the sort of country we are dealing with. I question the hon. Lady’s bold assertion that there has been deliberate targeting of civilians. That is a very serious accusation.

The debate later continued, from the opposition side of the bench,

It is clear that the UK Government will not conduct their own investigations into the issue. That was confirmed on the BBC World Service in an interview with an MOD official, who said:

“We are not launching an investigation”.

I have written to the Prime Minister to ask what the position is. Are we having an investigation, or are we not? I am waiting for a response from both the Ministry of Defence and the FCO on this matter. There is absolutely no doubt that the evidence suggests that this merits an investigation. I simply do not know what the Government are waiting for to justify that.

It will require more than just one state to suspend arms transfers to Saudi Arabia to help stop the terrifying onslaught on Yemen. Not one state is entirely responsible of being in violation of regulation. Generating a database on states providing Saudi Arabia with weaponry provides a similar, but more complex vision:

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Database generated on August 20, 2016, exports to Saudi Arabia, 2014-2015, expressed in TIV via SIPRI.

Despite five exceptions, exports to Saudi Arabia have increased from 2014 to 2015; the war intensified, violence increased, the humanitarian disaster revealed figures that “dwarfed Syria’s”. A long, detailed analysis by reporter Samuel Oakford details the dysfunction and hypocrisy to the US and Saudi Arabia deafness to calls to respect international law. And why would they: there is virtually no attempt that could be remotely successful at enforcing any resolution. Responding to MSF’s withdrawal from northern Yemen, Saudi Arabia commented to Reuters that they “deeply regret” the move, feel “concerned” and “appreciate” the work the leading humanitarian organization has carried out for the Yemeni people – without mentioning they have been performing it under considerable strain and danger, recording unsustainable losses. Saudi Arabia is operating outside of any framework applicable to any other member state; is fully aware of the impunity somehow extended to its actions – and can afford to release statements to the press about seeking to reach out to MSF to help them maintain the operation centers they have themselves bombed. Earlier, writes Oakford,

In September, as the civilian toll in Yemen continued mounting, Zeid had called for an independent, international inquiry into the conflict. At the Human Rights Council in Geneva, Dutch representatives introduced a resolution that would have created such a body, only to see their support melt away in the face of intense pressure from the Saudis and their allies. Instead, the council passed a Gulf-authored resolution endorsing a national investigation controlled by the exiled Hadi government. That inquiry was widely seen as biased and unequipped, and moreover had no access to most of Yemen.

According to diplomats, the U.S. was largely quiet during negotiations over the text, allowing the Saudis to bully the Netherlands—literally sitting with them at a coffee table and crossing out sections of the resolution the U.N. human rights chief wanted.

The Arms Trade Treaty is a strongly worded covenant that has been long in the writing, and in enforcing. The commitment to disarmament, a core principle of the United Nations, that had an opportunity to cease being an unattainable dream at the end of the Cold War, feels strained in an increasingly polarized world, a vision of western political leadership conflated with the use of force, a wave of regime change in the Middle East – the Arab Spring – that has led to either fragile stability or military rule, the constant presence and expansion of terrorism, and the slow realisation that collective security had always been seen through the prism of national interest. While incendiary weapons engulf Syria and burn it to the ground, while photos of young children carrying heavy artillery circulate from Yemen, Turkey builds cemeteries for traitors and Russia enforces a parallel narrative on its non-presence and non-action following its non-annexation of sovereign territory. More than ever, the United Nations has been facing the test of whether it was capable of enforcing peace and security. More than ever, the United Nations becomes a sum of its member states’ parts, instead of an autonomous supranational organization. The Security Council can not vote on an arms embargo to Saudi Arabia while every single one of its permanent members are directly cashing the financial rewards of arms transfers, civilians be damned. War has come to define the institution more than peace and diplomacy ever did.

When we fail to protect

The legitimacy of the United Nations is being increasingly questioned in activists’ circles; the self-preserving ways of the super powers is being criticized during general assembly, with nations from Africa and Asia seeking access to seats of power they do not deserve to share on a rotating basis due to a world order that is over 70 years old. The two main organs, the Security Council in New York and the Human Rights Council in Geneva, appear to be at odds over the constant gridlock that was illustrated in the latest Gaza war. The passing of UNSC Resolution 2286 is one of those instances when the strong wording and the reiteration of commitment to basic principles rings even more shallow in the face of the conflicts that are perpetuated by the states represented at this very council. The question of whether the Security Council continues to embody shared, common values is now all over newspaper, justifiably arguing that the post-war supremacy of the organization has outstayed its welcome.

There is much the UN can do. The politicization of human rights and the struggle between national interest and collective security are not new concepts, new issues, new empirical political and legal conflicts. Just like everywhere else, the role the UN plays on the international scene is best exemplified by its leadership. In 2014, shortly before the end of her term as High Commissioner for Human Rights, Navi Pillay  issued a statement of significance on the role of the Security Council at a time when the worst conflicts of this year were emerging, and global chaos already felt endemic. Her interpretation of this specific climate of conflict was clear: it was in part due to the inaction of the Security Council.

The Council’s interest in human rights has increased markedly during my tenure. But despite repeated briefings regarding escalating violations in multiple crises – by OHCHR and other human rights mechanisms – there has not always been a firm and principled decision by Members to put an end to crises. Short-term geopolitical considerations and national interest, narrowly defined, have repeatedly taken precedence over intolerable human suffering and grave breaches of – and long-term threats to – international peace and security. I firmly believe that greater responsiveness by this Council would have saved hundreds of thousands of lives.

The role of member states within the UN apparatus must be understood through a realist perspective. It is evident that the global ideology that holds the organisation together is a western one, and those shared values around shared legislation that has been drafted and enacted by those member states. The universality of human rights may be questioned not in their principles, but in their enforcement, in the application of accountability, in the consistency with which we, as an international community, denounce violations of human rights as they occur. But self-preservation is a much bigger instinct, and alliances form at the UN the way they form everywhere else, in turn preserving a status quo supposed to be dismantled or at least challenged by the very institution sustaining it. In a scathing criticism of UN shortcomings, Dr Rosa Freedman writes that (2), because Global North country retain considerable control of UN human rights bodies, it also controls the positions and decisions those bodies are tasked with undertaking.

While that slowly is changing, with more independent experts coming from universities from other regions, and indeed from NGOs and private practice, the imbalance still remains. (…) The legal and political infrastructure more clearly reflects Western ideologies than those of Eastern Europe or beyond. This frequently assists the US when it comes to scrutiny by those experts. Russia and China, then, rely on greater number of allies while the US relies on stronger allies who are better equipped to navigate the UN infrastructure. The end result is the same. All three countries are protected from UN action despite committing serious human rights abuses. Realist power-politics win when it comes to the most powerful states. Their might on the world stage affords near-impunity when it comes to violating human rights.

This system of alliances is exactly what Samuel Oakford exposed as having been practiced by Saudi Arabia. The position of the UN Secretary-General, Ban Ki-moon, has been to finally come clean about the interference, stopping short of calling it illegitimate, and seeking to remove Saudi Arabia from advisory panels in which they would be in position to directly influence decision-making. But this, assuming it could be done, would not end the reign of financial dominance that plays in bilateral relations between nation-states that translates into UN backchannel deals; if former High Commissioner Navi Pillay ended her farewell speech by demanding adherence to the Arms Trade Treaty, violations of its terms by any state party must be followed by immediate investigation of the circumstances in which the obligations were breached, and referral to the competent jurisdiction. There is no reliable assurance that this would be performed. Dr. Freedman continues,

Comparing the most powerful countries with the ‘pariah states’, such as Israel and apartheid-era South Africa, demonstrates how world politics is crucial when it comes to the UN protecting and promoting human rights. The same power-politics than enable disproportionate scrutiny of some countries also allow powerful states to continue to behave as they wish. Unlike Sudan and even Italy and Greece, the most powerful countries do not need to provide excuses or justifications for their violations. Instead, their positions of power protect them from scrutiny and from any action being taken by UN human rights bodies. While the UN is mandated to protect rights across all member states, one might be forgiven for thinking that the most powerful countries commit violations that require UN action.

By reinforcing the legitimacy of non-elite positions, by supporting the work of independent experts, and by shaming permanent members of the Security Council can we end this reign of impunity – but the enforcement of the rule of law must either shift away from the Council, or demand reform of the Council. Either way, the last three biggest conflicts that resulted in the worst possible form of horror for civilians were a failure of collective security, a failure that has come to define our current era.

 

(1) In The Assassination Complex, Jeremy Scahill and the staff of the Intercept, pp. 156-157. 2016.

(2) in Failing to Protect, Rosa Freedman, pp. 94-95. 2014.

Article 51 and the convenient use of the self-defence argument

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British Reaper drone

 

Targeted killing and signature strikes have become the preferred counter-terrorism method, facilitated by drone warfare and increasing in numbers from 2009 onwards. We are far from a legal consensus, however: article 51 does not provide enough for states to rely upon as a clear interpretation. The fight against terrorism and the role of the Security Council in providing support to states taking the fight where terrorists are, in response to an ever expanding threat, has turned from a relative ban on the use of force to restraint being the exception. Professor Christian Tams, writing on self-defense for the European Journal of International Law in 2009, claims:

More controversially, the international community during the last two decades has increasingly recognized a right of states to use unilateral force against terrorists. This new practice is justified under an expanded doctrine of self-defence. It can be explained as part of a strong international policy against terrorism and is part of an overall tendency to view exceptions to the ban on force more favourably than 20 years ago. Conversely, it has led to a normative drift affecting key limitations of the traditional doctrine of self-defence, and increases the risk of abuse.

The danger here is for states to use Article 51 loosely. To simply consider it as a obligation to inform the Security Council that a strike had been launched, that had resulted in casualties, and that internal reports had deemed lawful. While targeted killing has long been a preferred counter-terrorism method, Philip Alston, the UN Special Rapporteur on extrajudicial executions, mentions it involves “the displacement of clear legal standards with a vaguely defined licence to kill, and the creation of a major accountability vacuum.

On August 21st, an attack carried out by a Reaper drone taking off and controlled from unknown location(s) launched a missile on a vehicle in Raqqa, Syria. Two British citizens were killed, Reyaad Khan and Ruhul Amin. It is said that the target of the strike was Khan himself, not Amin, and that the UK acted on intelligence that “required a quick response”. In a letter to the UN Security Council dated September 8th, the UK informs the UN that it is invoking individual self-defence under article 51 of the UN Charter for this strike. Cameron, a week later, defended the position: “We took this action because they was no alternative. In this area, there is no government we can work with.”

On September 27th, six jets, five of which being French Rafale, bombed a fenced building near Deir Ezzor in Syria. The camp in Deir Ezzor was completely destroyed, and, according the Syrian Observatory for Human Rights, resulted in 50 casualties, including foreign fighters from the Maghreb, but also 12 child soldiers. On October 8th, France carried out a second strike, near Raqqa. The target would be French citizen Salim Benghalem, though the claim was not confirmed by the French government.[1] According to reports, the recruitment leader would still be alive. No information has been publicly released by the French government on the intelligence leading up to the strike or the identities of those who were killed. Still, France invoked Article 51 of the UN Charter under collective self-defense.

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In October, Russia released dramatic drone footage of battles in Damascus amid a propaganda drive.

The issue here is who the target of those strikes are; they are foreign fighters, supposedly one day coming home to bring the jihad to European soil. Whether the targets are who states say they are, whether their activities constitute what states say they do, and whether those camps are hosting what states say they do is a matter that no one can entirely verify. The letter from the UK to the UN reads as follows (emphasis mine):

On 21 August 2015, armed forces of the United Kingdom… carried out a precision strike against an ISIL vehicle in which a target known to be actively engaged in planning and directing imminent armed attacks against the United Kingdom was travelling. This air strike was a necessary and proportionate exercise of the individual right of self-defence of the United Kingdom.

The worrisome trend is that states participating in this makeshift coalition against ISIS terrorism all act in self-defense, everywhere, all the time. The issue of foreign fighter recruitment has terrorized both France and the UK, the latter constantly repeating that the island has never faced a greater threat in its entire history –that encompasses three decades of IRA bombings. This is pre-emptive self-defense, the most ubiquitous yet legally dubious concept used in the war on terror.

In the absence of clear, declared identities of the targets – let alone any information about their activities – the legal justification for preemptive action starts to unravel. If it has become customarily accepted that the war on terror is more than political rhetoric, but actually provides a war paradigm for action, the distinction between combatants and non-combatants still applies under international humanitarian law. ISIS fighters, if clearly identified as such, do constitute combatants, but their immediate or imminent threat to the state carrying the strike under self-defense is not clear. In 2003, a policy paper authored by Lt. Col. Westphal for the US Army War College warned that the policy would place the US at risk of seeing its retaliation delegitimized, and placed under scrutiny:

Although preemption is a legitimate use of military power, it may not be in the best interests of the United States to establish preemption as the universal principle of all nations. There must be a clear and unacceptable threat to a nation and the world prior to conducting preemptive strikes. Anticipatory military attacks to forestall or prevent hostile acts by our adversaries will come under greater scrutiny, review and challenge to ensure that the preemptive strike was necessary. Any unjustified use of preemption will lead to world condemnation, sanctions and response within United Nations and world capability.

Later, assessing preemptive strikes as a security measure with great power of deterrence – as it takes the enemy “by surprise” – the concept of legitimacy as its source of support from the international community, as opposed to the legality of targeting combatants without due process or judicial review – Westphal urges restraint:

If preemptive strikes are not measured, or if the policy of preemption is not protracted, then U.S. credibility and the use of preemptive strikes as a deterrent will be minimized. The principle of legitimacy focuses on internationally sanctioned standards, as well as the perception that authority of a government to govern is genuine and effective and uses proper agencies for reasonable purposes. If the international community believes that the reason for conducting preemptive strikes is legitimate then the international community and the world will be generally supportive of preemptive strike use.

Le Monde’s article recalls a previous statement from French Foreign Minister Laurent Fabius claiming that strikes in Syria would have no legal basis. The french paper of record then asks the French government to be transparent, and prove the strike was conducted against a target that constituted an imminent threat. Across the Channel, legal NGO Rights Watch UK has launched a legal challenge against the UK government to obtain the legal opinion that had authorized the strike against Reyaad Khan. The skepticism is welcome, and should be permeating every branch of politics – from a rarely consulted Parliament to justifiably adversarial lawyers. But this level of scrutiny should extend to all uses of Article 51 strikes or else risk never to yield anything worth suspending the policy until further investigation.

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It is easy to flout legal obligations to justify the entire basis for the action when it relies on information that is inherently classified. Unless a legal challenge to the government is launched, it is impossible to know whether the executive has engaged in a justifiable use of force. Even under judicial review, the intelligence shared and submitted may not be accessible. In matters of counter-terrorism, we are required to trust that the action is necessary and proportionate – but proportionate to a risk we can not see, a threat we can not evaluate. The fact that states can, in the name of self-defence, kill their own citizens abroad in non-declared battlefields in which they are not expressively authorized to intervene should be more unnerving. On November 12, the US launched a drone strike near Raqqa aimed at killing Mohammed Emwazi, also known as ‘Jihadi John’. Emwazi is not yet confirmed as dead, and whether the strike will pose a significant blow to ISIS operations in Syria is yet to be known. There is no question that, for the extreme distress posed by ISIS execution videos, knowing Emwazi is no longer in position of killing is a relief. The question of whether it would be legally preferable to capture him and try him on UK soil has been solved: the context of the conflict against ISIS is a paradigm of war, in which Emwazi’s actions – and his participation in the execution of two other British citizens – have made him a legitimate target.

But for all the easily identifiable targets, those whose role within ISIS is clear and documented, there are countless others: nameless and often without bodies left to recover, who traveled with them. If legality and legitimacy only appear together in an ideal world of constant compliance, lack of the former yields the disappearance of the latter. Without judicial review for drone strikes conducted outside of the battlefield and on identified citizens, the precision of those strikes and their degree of accuracy, as well as the full picture of the intelligence that guided the lethal hand of the executive’s inherent right to the use of force, we may keep moving. But it remains uncertain that we’re moving forward.

[1] The article from Le Monde, authored by Jacques Foullorou, precises that the information on the intended target comes from his own sources ; later, questions posed to French Prime Minister Manuel Valls on the question of the target of the strike are not returned : « the Prime Minister refused, just like the Defense Minister did, to answer any questions. »