Proportion and proportionality

PROPORTION AND PROPORTIONALITY: THE ARITHMETIC OF LAW AND DEATH

This is a (I hope final) draft of these musings – rewritten a) to satisfy the uncouth requirements of law journals about how you format footnotes and bibliography and b) to make more sense. Comments, improvements etc are welcomed.

Abstract: Both the Israeli onslaughts on Gaza (in 2010 and 2014) and the continuing campaign of drone strikes across the Middle East have raised the question of the legal principle of ‘proportionality’: what does it mean, and when can it be invoked? Given that, in theory, a breach of proportionality is a war crime, can we assert that breaches have been committed? This article attempts to trace the history of the principle, to understand why it is so little observed, and to propose ways of redressing the balance in discourse of ‘proportion’ imposed by Western nations.

 

 

‘Justice, therefore, is a certain kind of proportion’ – Aristotle[1]

 

THINK OF A NUMBER

 

During the Gaza offensive of last July-August (‘Operation Protective Edge’), many were appalled at the level of civilian casualties, and the apparent disregard for the lives of Palestinians. The term ‘proportionality’ was widely applied, by international organizations and journalists,[2] in a context where the number of dead seemed to have far outweighed the presumed military advantage, whatever it was. What does the word mean – and is there a legitimate application of arithmetic to warfare, as it seems to imply? And (as many suspect) does that application implicitly weaken, or lose its validity when the victims are the West’s ‘others’ – such as Arabs and Asians? Is it only Europeans who count in war’s arithmetic?

 

In the law of war (international humanitarian law), ‘proportionality’ is usually taken to be defined by a 1977 text (the ‘First Protocol’) which reads:

‘[T]hose who plan or decide upon an attack shall…refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.’[3]

This clause is often referred to as the ‘rule of proportionality’, although it doesn’t contain the term proportion. Nevertheless, the idea which underlies it keeps surfacing, when operations in Gaza, in Pakistan and elsewhere – typically by Western countries –  cause major loss of civilian life on a scale which far exceeds the military gain.[4] The protocol’s ban on ‘excessive’ loss of life suggest that there should be some measure – say a number m – of proportion between the number killed and the anticipated gain. If m is too large, then proportionality is breached.[5]

But what can, or should m be? And if it is exceeded, who can bring the transgressors to account? As Esther Shamash, a researcher – for the IDF, indeed -  pointed out in 2005:

I would argue that in order for it [the Protocol] to serve its purpose of protecting civilians, it must be transformed into an applicable rule. The only effective way for it to become applicable is if it actually provides a calculus of how much collateral damage is disproportionate. It must tell us exactly how much is too much.[6]

Shamash’s analysis is thoughtful, and well worth reading, given its semi-official source. As she says, given that ‘no one but the attacker ever knows what exactly the anticipated military advantage was,…the burden of proof to show that the collateral damage of a given attack was proportionate ought to rest on the attacker.’ (p.60)

The idea that one can arrive at an actual figure for the acceptable proportion seems absurd if not obscene; the word ‘humanitarian’ suggests that the commander should aim at zero, even if this is not always possible. And yet we have on record the story of a roomful of Israeli strategists consulting ‘a mathematician’ to arrive at such a figure, in relation to a planned targeted strike on Hamas leaders in Gaza.

‘How many civilian casualties were acceptable? The mathematician whom the military had enlisted had failed to produce a formula. Reisner, who had stipulated that targeted killing was legal “only if all is done to minimize civilian casualties,” served on a seven-member committee that also failed to agree on a standard they could use. The numbers the men had suggested averaged 3.14 civilian deaths per dead terrorist, Reisner recalled. If the civilians were children, the figure was smaller.’[7]

As Weizman has pointed out, the figure the IDF’s averaging process came up with was suspiciously close to p , one of the oldest proportions known (that of the circumference of a circle to its diameter). Considering this anecdote, and recent arguments about the subject of ‘targeted strikes’, we seem to have three schools of thought on the value to give to m:

1. Human rights NGOs and pacifist organizations tend to the ideal: m=0. Why should the attacker, in an age of ‘smart’ weapons, expect any collateral damage at all? (Indeed, why should the target be killed, if it is possible to put him out of action by other means?)

2. As we have seen, more pragmatic strategists quote the protocol in their military handbooks without giving a value for m. We have seen something like p proposed by Israeli experts – there is no a priori reason for preferring this value to another, but it will serve as an example of those who believe there should be some finite number and may, if pressed, give some idea of what they think it should be.

3. Later in this essay, we shall encounter in military or government circles the idea – often acted on, less often voiced – that when fighting ‘terrorism’ there is no practical limit. The original name ‘Operation Infinite Justice’ proposed after 9/11 for the US counter-attack seems to have implied precisely that. If the name was withdrawn in deference to ‘Muslim objections’[8], it seems naïve to suppose that all non-Muslim jurists are happy with the idea. It implies, effectively, that m=∞. The ‘number’ is infinite – there should be no limit on collateral damage, and the protocol says nothing.

 

These three contrasting ideas  can be found throughout the recent and not-so-recent history of collateral death. As we have seen, the IDF in 2003, and Esther Shamash two years later, felt the desirability of a (finite) number; and it might have been useful to have some agreed enforceable limit if only as a measure of ‘how much is too much’, when we consider in contrast what has been happening. Two classic examples illustrate different types of failure in applying the rule in practice.

 

Datta Khel

Here is an often cited ‘targeted’ drone strike from the ongoing U.S. campaign in the Pakistan tribal areas:

‘On the morning of March 17, 2011, the US deployed a drone to fire at least two missiles into a large gathering near a bus depot in the town of Datta Khel, North Waziristan. To this day, US officials publicly insist that all those killed were insurgents.  That position, however, is contradicted by a range of other sources, including the Pakistani military, an independent investigation by the Associated Press, interviews with attorneys, and the testimony of nine witnesses, survivors, and family members gathered for this report. This evidence suggests that at least 42 were killed, mostly civilians, and another 14 injured.’[9]

Clearly there  is a straightforward contradiction between the U. S. Government’s narrative and all other accounts. The incident was the basis of the 2013 decision by the Peshawar High Court that the strikes were a ‘war crime’ (see below §4)[10]; the U.S., who were not a party to the court proceedings, have avoided a direct response to this judgment.

Are we asked to believe that the drones, or their remote pilots, had singled out the 42 victims as militants who deserved death? Not only is this prima facie incredible, but there have been no claims that any particular militants were struck. If (as the term ‘targeted strikes’ implies) there was just one chosen target, then the resulting deaths were clearly disproportionate.[11]

 

Shehadeh

The Hamas commander Salah Shehadeh was the victim of a ‘targeted’ strike (by a one ton bomb) in July 2002 in Gaza City which also killed 14 civilians. The government decided not to open a criminal investigation; and after the Targeted Killings case[12], Israeli human rights organizations petitioned to have this decision reversed[13]. Instead, a ‘Special Investigatory Commission’ was appointed, which reported in February 2011.

The end result was that the Commission held that ‘the harsh incidental effects of the attack on Shehadeh … retrospectively turned out to be disproportional under the given circumstances’[14], but emphasized that according to the evidence and the testimonies before it, the scope of civilian harm was unintentional and unforeseeable at the time of the operation’s approval and execution – being the result of ‘an intelligence failure’[15]. Accordingly, the Commission found no suspicion of a criminal act on the part of those involved in the operation.

 

These examples show two different problems involved in assessing whether an operation has satisfied the ‘proportionality criterion’. In example 1, the commander (who has never faced a court) is simply not prepared to give a figure for the number of ‘legitimate’ targets, and so to evaluate the excessive or ‘collateral’ damage. We have a complete failure of openness, which is characteristic with the U.S. and NATO forces, operating under an understanding of ‘impunity’ – later we shall enquire into its reasons. In example 2, on the other hand, the Israeli military were apparently quite open, explaining who they were targeting (Shehadeh alone), what the collateral damage was (14 civilians killed and more wounded), and acknowledging that this ratio of 14 to 1 represented a failure in proportionality. However, rather than treating this as a (potential) war crime, the court decided that it was a mistake. Which apparently makes the resulting massacre acceptable.

 

Justice?

Indeed, in Gaza, and in those areas (Afghanistan, Pakistan, Yemen) where a policy of targeted killings is applied by the United States and their allies, it has become clear that there is a proportion being applied which sets a lower value on the lives of Afghans, Iraqis and Palestinians than on those of Westerners.[16] Evidently – what Aristotle does not say – the justice of those international institutions we have turns out in practice to be applied in proportion to power. In the words of Pascal:

‘No doubt equality of goods is just; but, being unable to cause might to obey justice, men have made it just to obey might. Unable to strengthen justice, they have justified might; so that the just and the strong should unite, and there should be peace, which is the sovereign good.’[17]

A subtle and complex thinker, Pascal raises the question of how, if at all, the weak and the poor can achieve justice; and this applies particularly in war situations. When I first encountered a course in international law, I naively asked – what was the point, since judgments (e.g. of the ICJ) could never be enforced? The answer was predictable: for the most part international law (trade, telecommunications, copyright,…) works perfectly well and secures enforceable results. It’s only in securing ‘everyday’ justice for the wretched of the earth, whether bombed by the CIA or robbed by corporations, that it seems to fail.

So what rules does international humanitarian law prescribe, and to whom? And how are they, or might they be enforced? To answer these questions, we shall have to begin  by taking a detour through history, and tracing the origin of the Protocol, what it allows, what it forbids and why. Next we shall consider its history between ratification in 1977 and the Kosovo war of 1999. From 2001, as I shall argue in the following section, it has become clear that use of the category of ‘terrorist’ or ‘unlawful combatant’ has effectively changed the rules. Proportionality is meaningless in the face of power. And this has been underlined by increasing disregard, finessing, or rewriting of the law by the experts of Israel and the United States. Finally, to counterbalance this, I shall draw attention to those lawyers, particularly from the Third World, who have attempted both to highlight this impunity, to combat it, and to reframe the laws of war and their application in a way which applies to all.

 

PROPORTION, LAW, AND WARFARE.

The language of proportion in the justice of civil society has a long history going back (as our opening quote shows) to Aristotle. He was drawing on the theory of geometric proportion or ratio as expounded in Euclid’s difficult book V – usually attributed to Aristotle’s fellow-student Eudoxus:

‘Magnitudes are said to be in the same ratio, the first to the second and the third to the fourth, when, if any equimultiples whatever are taken of the first and third, and any equimultiples whatever of the second and fourth, the former equimultiples alike exceed, are alike equal to, or alike fall short of, the latter equimultiples respectively taken in corresponding order.’[18]

Deliberately using the language of the geometers, (compare the area of a circle to that of a square on the radius, or p again) Aristotle to some extent treats questions of justice as though they can be dealt with in terms of numbers – even cash equivalents. If, in ‘distributive justice’,  one is considering, say, rewards, then, simplifying, the ratio (A’s reward: B’s reward) should be equal to (A’s merit: B’s merit). This, says Aristotle, is just, while a different distribution is unjust[19] (N.E. V.3). It’s worth noting that Eudoxus’ theory, developed partly to deal with geometrical problems of similar areas and volumes, was a puzzle to many of his successors[20]; so that it is the more striking to find Aristotle already applying a rough-and-ready lawyers’ version of it in his own time.

The Ethics is a founding legal text, and it does at the outset acknowledge disagreements about the right measure of proportion – e.g. between democrats and aristocrats. However, this does not lead to the conclusion that the problem of distributive justice is insoluble; and Aristotle’s language had a great influence in the succeeding Muslim ethical tradition[21]. Nasir al-Din al-Tusi for example, incidentally a mathematician, gave in the thirteenth century a prescription for the just:

‘if he nullifies the equality by an inequity or a harm caused to the other person, he should himself be caused an inequity or a harm corresponding thereto..’[22]

As the 20th century Marxist Ernst Bloch sums up the theory:

‘Communicative justice works arithmetically, distributive justice works according to a geometrical proportion’[23]

And Aristotle, al-Tusi and other authorities concur in seeing money – plus human judgment – as the medium by which proportionality can be achieved:

‘a requirement necessarily befalls for a mediator and an adjuster – namely, money. Now, money is a just mediator between men, but it is silently just; and the requirement for a rationally just being [i.e. man] remains…who assists money so that order and adjustment come about.’[24]

It is of course via money that judges are used to assessing value mathematically, e.g. – in tort law -  by assessing damages for harm to the body or the reputation. A hand is worth more than a finger, and a guitarist’s hand is worth more than a shop assistant’s. Class – naturally enough – enters into the law’s version of proportion. In Marxist language, ‘the ruling class regards as just the mode of distribution which benefits itself at the expense of the non-owning class. It espouses a norm of distributive justice that expresses its class interests and prevails over other conceptions.’[25] And when it comes to the assessment of claims for redress,

‘By compensating owners for property damage [tort law] upholds the notion of private property and its concomitant – that a person’s worth (as a tort plaintiff) is proportional to the value of the property he owns. By preserving the income streams of those who suffer physical injury (and of their dependents), tort law affirms the legitimacy of the existing income distribution.’[26]

As one might expect, class weights the scale when the proportions are assessed.

 

The Law of War

So much for the civil law tradition. The idea of proportionality in warfare has always been less geometrical, and more concerned – as is the Protocol – with a simple avoidance of ‘excess’. Still obviously bound up with race and class; it can be traced back, depending on one’s preference, to the Mahabharata, to the Qur’an, or to Aquinas’ followers and ‘just war theory’. In the Islamic tradition jihad, which could be loosely equated with the Christian just war, is often said to be subjected to a law of proportionality following texts such as Qur’an 16:126:

‘And if you were to harm (them) in retaliation, harm them to the measure you were harmed. And if you opt for patience, it is definitely much better for those who are patient’.[27]

As for Aquinas’ Christian just war theory, its development by the 16th century Salamanca theologians Suarez and Vitoria contained an explicit statement:

‘the method of [war’s] conduct must be proper, and due proportion must be observed at its beginning, during its prosecution, and after victory’.[28]

Just wars, however, are always only just in part; and Vitoria wrote at the beginning of the unequal confrontation between Christian Europe and indigenous America. And there is a problem which has faced Western theorists from the outset – that of war waged by Christian nations against the unchristian or uncivilized. As Koskenniemi and others have pointed out, Vitoria’s treatment of the rules governing war against the Indians in the 16th century was based on a distinction between the rules which applied to the civilized/Christian nations and those which applied to the outsiders – the nonchristians or savages; and this was to have a lasting influence in the practice of the European West.[29]

‘the war waged by the Spanish against the Indians has a special character, a range and intensity that would not occur in wars between European states. War against the Indians was “perpetual and … they can never make amends for the wrongs and damages they have wrought.”’[30]

This could be seen as the first appearance of the doctrine of infinite proportion; and the distinction, as we shall see, was to persist. However (to abridge the history), the various theological or philosophical prescriptions on how to wage war were simple exhortations in the absence of a mechanism for enforcement – which had to wait till the twentieth century and the intricate institutions of international humanitarian law.

 

The Present-Day Framework

The law of war as it stands could be divided into two sections:

(i) the conventions and protocols, guaranteed by the ICRC and almost universally ratified, which define war crimes (the Hague Convention and the Geneva Conventions and Protocols);

(ii) the various ad hoc courts, from Nuremberg in 1945 to the ICC in 2002 via the tribunals of the 1990s (set up to try transgressors in particular conflicts).

However, both the rules and the courts which apply them have been in evolution. The Hague Convention was set up in an established imperialist world to regulate its internal conflicts. By 1945 it was clear that this world could commit major crimes against civilian populations – even white Western ones; while at the same time the more idealistic ‘community of nations’ which formed the new U.N. were anxious to formulate more restrictive rules. The 1977 Protocol is often seen as a major achievement:

‘to have brought the whole of humanity at least theoretically into the fold of the laws of war. In fact, so successful was the Third World that it obtained significant additional benefits that went far beyond the merely mechanical application of equality. If one of the effects of the development of the international laws of war had been to put the emphasis on international violence, the increasingly developed regime of regulation of non-international armed conflict ensured that many conflicts occurring beyond Europe would henceforth fall under the protection of international humanitarian law.’[31]

It is ironical that the 1977 Protocol was ratified at the end of the Vietnam War, which had witnessed so many breaches of its requirements. It could at the time have been seen as a new, hopeful framework in which war could be regulated.

 

THE AGE OF THE TRIBUNALS

The ICTY.

In the space of one year (1993-4), the United Nations decided to deal with alleged war crimes both in former Yugoslavia and in Rwanda, by setting up ad hoc tribunals – whose work is even now not complete. Their proceedings, one might think, provide a good picture of how the international community then thought that war crimes and their perpetrators criminals should be dealt with.[32]

A notable example was the case of the Serbian general Galić[33], in which  the Tribunal’s Chamber assessed a number of instances of alleged breach of proportionality ‘on a case-by-case basis’[34]. The cases included – to give a particular example – the shelling of a football match in which one team consisted of (enemy) soldiers, but the spectators numbered ‘approximately 200, including numerous children’; and the dead numbered six soldiers and five civilians. The defence’s claim that Galić’s men were targeting the football-playing soldiers only was not accepted by the Chamber:

‘Although the number of soldiers present at the game was significant, an attack on a crowd of approximately 200 people, including numerous children, would clearly be expected to cause incidental loss of life and injuries to civilians excessive in relation to the direct and concrete military advantage anticipated.’[35]

The ICTY’s judgment in Galić is a useful and careful examination of how the law stands, or was thought to stand at the time, on proportionality – what it says and what it does not say:

‘in order to establish the proportionality of a military attack, “the anticipated advantage to be gained from the particular military activity” must be weighed against “the probable civilian losses”.’[36]

The test is not whether the actual ‘collateral’ effects of the attack were disproportionate, but whether a ‘reasonable’ commander, in planning the attack, could have foreseen that they would be. This is a more explicit statement than that in the Protocol, or (e.g.) its clarification in texts such as that of Gardam[37]; and this, and a handful of other cases from the ICTY, stand as the main case law to date – 25 years after the signing of the Protocol. It sets the bar relatively high for proof that proportionality has been breached.

 

Kosovo.

In contrast to the above, the papers of Shamash already mentioned, and Waters[38] focus particularly on an investigation which was never pursued – the ICTY’s handling of NATO’s 1999 operations in Kosovo. Here in a number of cases such as the bombing of a train on the Grdelica bridge on April 12 1999 – the pilot bombed the bridge twice, causing ten civilian deaths[39] – there is a very good case for establishing that proportionality was breached.[40] And indeed some action was taken.

‘On May 14, 1999, … the [ICTY]’s Prosecutor “established a committee to assess the allegations and material accompanying them, and advise the Prosecutor and Deputy Prosecutor whether or not there is a sufficient basis to proceed with an investigation into some or all the allegations or into other incidents related to the NATO bombing.”’

However, the end result was that the Committee ‘recommended against investigating any official from NATO or its member states’ (loc. cit.). Their reason was that:

‘In all cases, either the law is not sufficiently clear or investigations are unlikely to result in the acquisition of sufficient evidence to substantiate charges against high level accused or against lower accused for particularly heinous offences.’

For us, a question of particular interest is the stress which the Inquiry puts on the difficulty of applying proportionality (‘One cannot easily assess the value of innocent human lives as opposed to capturing a particular military objective.’)[41]

So, one might ask, why was the Protocol formulated at all? Waters’ robust reply is worth quoting:

‘Yes, this is hard stuff, but it is what courts do; prosecutors are not supposed to stress the difficulty of mounting an investigation under the existing law. Yes, measurement is difficult, and it seems implicit in proportionality, which weighs trade-offs, that no a priori calculus of the loci and limits of liability could ever be derived – indeed, it is implicit in the very notion of disproportionate force that some uses of force are proportionate, that it is sometimes acceptable to take innocent lives for military objectives. Yet equally implicit is the corollary that some number of lives is too many and that this is precisely what the law must determine…’[42]

The Kosovo war marks a dividing line; the ‘international community’, whose courts had developed a procedure for prosecuting Liberian, Rwandan or Serbian generals, found the criteria suddenly too difficult when dealing with those of Britain and the U.S. The problem would not become any easier after the events of 2001.

 

AFTER 9/11.

Drone Warfare

The attacks of September 2001, if they made no difference to the texts and institutions of international law, made all the difference to how those texts and institutions were approached. As the ‘war on terrorism’ got under way and developed its own procedures, questions began to be raised, particularly in relation to assassination as a weapon. Perhaps by coincidence, the rise of the war on terror from late 2001 coincided with the development of UAVs (unmanned aerial vehicles or ‘drones’) as weapons directed against individual suspected terrorists. These, as we’ve seen, deal in theory ideally with the problem of proportionality – at least if we assume that a missile can target one, and only one person.

In an article in 2003, Doyle McManus describes the CIA’s evolution of what was called ‘a new policy’ regarding drone strikes[43]. He also gives an account of a very early CIA operation in Yemen in the autumn of 2002 CIA which killed six men, including an al Qaeda leader Qaed Sinan Harithi. The operation was virtually perfect, U.S. officials say: strategically successful and, they maintain, legal under international law; and still, the ratio of collateral damage, the figure we have called m, was 5, which seems unacceptably high. Nonetheless, a 2003 report cited by McManus states:

‘The targeted-killing campaign and the CIA’s central role in running it were ordered by President Bush after the Sept. 11 attacks in a secret intelligence finding, a legal document authorizing a covert action.

Under the finding, the CIA has developed a list of Al Qaeda leaders known as “high-value targets” for their roles in past terrorist attacks and their likely planning of future strikes.

The existence of the finding and the target list was reported last year, although both are still officially secret. In the ensuing months, the CIA expanded the list and developed formal rules of engagement for its targeted-killing operations, according to U.S. civilian, intelligence and military officials who all requested anonymity.

They refused to provide details but said the rules are designed essentially to make sure that any covert killings comport with U.S. law and with the “customary rules of armed conflict” that are a recognized part of international law under the 1907 Hague Convention and the 1949 Geneva Convention.’ We can deduce, then, that insofar as the CIA’s killings were planned to conform to international law, this is because there were formal rules of engagement which were themselves secret. If those who plan the operations have placed any limits on them, the public is not allowed to know what these are.

Since this beginning, the number of targeted killings (mainly drone strikes) by the U.S. and its allies, among whom we might include Israel, has increased steadily. And while the programme has been widely condemned both by international lawyers and by human rights activists, this has had no effect on its momentum.  O’Connell has pointed out in an authoritative account of the subject [44] drone ‘pilots’ have operated without proper legal training – in particular without being briefed on the meaning of the distinction and proportionality requirements.

Partly because of her reservations on the legal standing of the war on terror, O’Connell comes close to the position I have described at the outset as ‘proportionality zero’ with respect to drone strikes. This is not an absolute – she would presumably accept collateral damage in on-the-ground military operations. However, she gives a devastating picture both of the failures of drone operators to observe proportionality (of any kind) and of their willingness to dismiss the problem.

To give one significant case, which is often cited:

‘In August 2009, the U.S. attacked a home where an infamous Taliban leader, Baitullah Mehsud, was staying with one of his wives and her parents. He was on the roof of the house, at night, apparently receiving an intravenous transfusion. He is known to have suffered from diabetes and a kidney ailment. His uncle, a medic, was believed to be administering the treatment. His wife was with him. Missiles from a drone tore him to pieces. His wife, parents-in-law, seven men described as bodyguards and one man described as a lieutenant also, reportedly, died in the strike. Presumably only Mehsud was an intended target. The strike killed twelve for one intended target.’[45]

Furthermore, Mehsud was receiving treatment; and

‘The 2005 ICRC study of customary international humanitarian law says,

Rule 47. Attacking persons who are recognized as hors de combat is prohibited. A person hors de combat is: … (b) anyone who is defenceless because of unconsciousness, shipwreck, wounds or sickness. .’[46] In other words – according to O’Connell – not only was the strike in breach of proportionality, with a ratio of twelve killed for one target; but even the targeted killing of Mehsud himself, infamous as he was, was in breach of humanitarian law since he was at the time hors de combat.

 

The Dahiya doctrine

We have seen that the Protocol gave some hope that the ‘rule of proportionality’ might finally relate, even in a distorted form, to conflicts opposing the global North and South. It might not mean that the conflicts were themselves proportional, in any simple sense; but it could be seen as setting some limits on the power of field commanders to inflict damage on civilians. However, the events of 9/11 and the targeted killings policy ushered in a new era in the justification of mass carnage and disrespect for the rule of law[47].  The category of ‘unlawful combatant’ which has been widely used by the U.S., in particular for its prisoners, aims to return to the idea of a group who cannot benefit from legal protection. Unsurprisingly, in terms of ethnicity the unlawful combatants in question are once more those who would, in the past, have been the victims of colonial warfare. In the words of Mégret:

in the wake of the attacks launched on 11 September 2001, a rhetoric has surfaced which, in its structure and tone, bears striking similarities to that of earlier days… the rhetoric of the Bush Administration concerning ‘unlawful combatants’ mimics in every shade the arguments that I have highlighted as being typical of the earlier exclusion of non-Western peoples from the laws of war.[48]

Those conventions which were thought universal and binding for reasons of simple humanity prove not to be so after all when the war is asymmetric. The exclusion was foreshadowed when the Bush administration announced its counterattack with the name ‘Operation Infinite Justice’ – after all, infinity by definition excludes proportionality[49]. And the regions which the law has abandoned – where the drones are permitted to fire freely – are the ‘exceptions’ to the rule of law, Europe’s others[50] (Shaw and Akhter 2012), where, as a newscaster put it after 9/11, ‘people who we don’t know massacred people who we do’[51]. The ‘people who we don’t know’ have as their fault the fact that America does not know them.

 

For much of the Bush era the United States appeared happy to ignore the prescriptions of international humanitarian law, with White House Chief Counsel Alberto Gonzales already in 2002 referring to the Geneva Conventions as ‘obsolete’ and ‘quaint’[52]. There is, however, now a tendency within American and Israeli legal opinion to consider that in the context of a war on terror the rules should be revised, rather than simply disregarded. The logical development of this – in particular the idea that one could use the category of ‘unlawful combatants’ to finesse the requirements of justice – was arrived at in 2006 by Israel’s ‘Dahiya Doctrine’. This is named after a quarter of Beirut which was destroyed by the Israeli army in that year. An ex post facto justification by General Eisenkot elevated the destruction to a policy:

‘What happened in the Dahiya quarter of Beirut in 2006 will happen in every village from which Israel is fired on…. We will apply disproportionate force on it and cause great damage and destruction there. From our standpoint, these are not civilian villages, they are military bases.… This is not a recommendation. This is a plan. And it has been approved.’[53]

The implication is simply, as Halper points out, that international law no longer applies when you are dealing with ‘non-legitimate actors’ – the rules, conventions and protocols which demand humanitarian treatment of the population can be set aside.

The theoretical (‘ethical’) basis for this  – the claim that since you are engaged in a ‘war on terror’ you can to a large extent do away with the rules – has been developed by two experts on ‘military ethics’, Asa Kasher and Amos Yadlin, in a series of articles.[54] Interviewed by Haaretz, Kasher gave a straightforward account of his ‘revisionist’ approach to international law:

‘There are international efforts underway to revise the rules to accommodate the war against terrorism. According to the new provisions, there is still a distinction between who can and cannot be hit, but not in the blatant approach which existed in the past. The concept of proportionality has also changed. There is no logic in comparing the number of civilians and armed fighters killed on the Palestinian side, or comparing the number of Israelis killed by Qassam rockets to the number of Palestinians killed in Gaza.’[55]

Ethics and proportion are linked again, as they were by Aristotle; but once again, proportion varies according to who is concerned. What is most striking in the statement of the new doctrine is that, while Kasher asserts that an Israeli life cannot be equated with a Palestinian one (a fact which Palestinians suspected from the first) he does not commit himself about what the revised proportion is. How many Palestinians is it going to take to equal one Israeli?

In Kasher’s terms, the ‘old-fashioned’ view – which, as we have seen, was always subject to exceptions – that a) one human being had the same value as another, b) killing ten civilians is killing ten civilians too many, is described as ‘blatant’, a strange word. This new proportionality represents the ethics of the Dahiya doctrine. It is not international law according to the texts, but it seems increasingly to be the law we have.

 

The Value of Life

Is a disproportion in human rights, as described above, based on the definition of ‘terrorism’ – or is it ethnically based? We can find some guidance in a disproportion in the value placed on a life. This is again a variable mathematical quantity; but it’s often simply estimated by the amount an army is prepared to pay in compensation for a death for which it admits responsibility.[56] Here is one example of the U.S. Army’s practice:

‘Col. John Nicholson, an Army brigade commander in eastern Afghanistan, met Tuesday with the families of the 19 Afghans killed and 50 wounded when a Marine Special Operations unit opened fire on a crowded stretch of road near Jalalabad after a suicide bomber in a vehicle rammed their convoy. “I stand before you today, deeply, deeply ashamed and terribly sorry that Americans have killed and wounded innocent Afghan people,” Colonel Nicholson said.’[57]

Words are cheap: the upshot of Col. Nicholson’s apology was a payment of $2000 for each death. Indeed, armies and their governments are notoriously resistant to paying any compensation, and mean about how much they pay, with the results (often of strenuous advocacy)[58] varying enormously. In six years, the Ministry of Defence paid an average of £3000 in settlement of claims for the deaths of Afghan civilians; in contrast to an average of £73000 for UK troops injured in combat.[59] If, as we have seen, Afghans are never likely to see ‘justice’ for their losses at the international level, these figures are the best estimate of how British justice values them. The Government of Israel paid £1.8 million to the family of James Miller, shot by an Israeli sniper in Gaza while carrying a white flag[60]; the high price reflects not only Miller’s nationality, but the fact that a British jury had returned a murder verdict, and the Israeli Government wished the matter closed. In contrast, the family of Abir Aramin, the 11-year old schoolgirl killed in 2007 by a rubber bullet in Anata received £277,000 from the Israeli government – after, as usual, a lengthy struggle to establish that she was wrongfully killed.[61] In one recorded case of an out-of-court settlement, the IDF paid NIS 430,000 or £73,054 to the family of two brothers who ‘were shot dead at close range during a cease-fire’ in Khan Yunis in 2009.[62] Most Palestinian victims of the IDF receive nothing : for example in 2014 ‘the Supreme Court … rejected an appeal to try to obtain civil damages for the wrongful death of 22 innocent Palestinians killed by the IDF by accident during Operation Cast Lead.’ In a parallel asymmetry, the US, having allotted funds for compensation, has diverted them from the victims to other ‘charitable’ organizations:

‘The Pakistani Civilian Assistance Fund was modeled after the ones that exist in Iraq and Afghanistan, where money was allocated to help alleviate the suffering of civilians harmed by US military operations as part of a strategy to “win hearts and minds.” In the case of Pakistan, where the CIA operates its drones, the money is supposed to go directly to the families of innocent drone victims, or for needs like medical expenses or rebuilding homes. But Tim Rieser, the long-time staffer for Senator Patrick Leahy who has worked to get this Pakistani civilian assistance fund included in the yearly Foreign Operations budget, expressed his exasperation about the use of the funds. “It’s been like hitting a brick wall every time we push the administration to use these funds for drone victims, since for years they wouldn’t even acknowledge the existence of drone strikes,” said Rieser. “I seriously doubt that any of this money has reached the victims it was intended to help.”’[63]

In the words of a Yemeni whose brother was killed by a drone strike and who has received nothing:

‘In our tribal culture, if someone commits a crime or makes a terrible mistake, they have to acknowledge the wrongdoing, apologize and provide restitution. The US government won’t even acknowledge the wrongful death of my brother, much less apologize and compensate his family. Could it be that my tribal culture is more evolved than the justice system of the United States?’[64]

Indeed, the justice system of the United States is evolving – in a different direction.

 

Towards a Critique

The lawyers of the Third World – and not only its lawyers – have increasingly expressed strong opposition to the United States’ practice, and the theory which has been developed to justify it. Writers such as Anghie (2005), Baxi (2005) and Mégret (2009) argue that the new law being promoted by the leaders of the War on Terror is simply a reframing of the former colonial law, with essentially the same racial divide:

‘There is a past that international humanitarian law would rather forget, but which is coming back to haunt it. This is a past that bears the shameful mark of racism and colonialism. It is a past that hardly ever gets more than a passing reference in the literature, probably because it is viewed as having been largely transcended, but also partly because it does not fit the overwhelmingly progressist narrative of international humanitarian law. Although the above description may overstate the case, there is no doubt that this is a past that is very real — and maybe even very present.’[65]

And, as Marc Herold points out, this racism is reflected in how proportions are considered:

‘I believe the argument goes deeper and that race enters the calculation. The sacrificed Afghan civilians are not ‘white’ whereas the overwhelming number of U.S. pilots and elite ground troops are white. This ‘reality’ serves to amplify the positive benefit-cost ratio of certainly sacrificing darker Afghans today [and Indochinese, Panamanians and Iraqis] for the benefit of probably saving American soldier-citizens tomorrow. What I am saying is that when the “other” is non- white, the scale of violence used by the U.S. government to achieve its stated objectives at minimum cost knows no limits.’[66]

In the terms which we set out in §1, the entry of ‘terrorism’ with its concurrent racism into the argument leads to the abandonment of what we’ve described as finite proportionality; and we can see the practical consequences of this in the field of drone warfare, and most acutely in Gaza.

Is international humanitarian law, then, as the above arguments suggest, bound to be a weapon which can only be used by the strong against the weak, skewed from its origin against those who might wish to use it to counter oppression? As we’ve seen, it’s a widely held view, which is considered carefully by Amy Bartholomew:

’Radical scholars… have argued, as Giorgio Agamben has, in good Schmittian  fashion, that humanitarianism has fostered increased aggression and undermined limitations on war.’[67]

Against this, she a) adduces the numerous examples since 2001 where the U.S. has seriously expressed anxiety that the prescriptions of IHL might be used against it as (in George Rumsfeld’s phrase) ‘strategies of the weak’, and b) appeals to a strategy based on a concept of ‘law’s empire’, quoting Franz Neumann:

‘Faced with a corrupt administration of justice, the reasonable person does not demand a return to the war of each against all, but fights for an honest system. Likewise, when we have shown that international law has been misused for imperialistic aims, our task has begun, not ended. We must fight against imperialism.’[68]

Her claim is that:

‘the counterforce of radical litigation is one possible tactic against the deeply threatening politics of empire. It is, at least potentially, political, not just legal work and as such it should be developed within and connected to the work of the anti-empire and anti-war movements, not eschewed as merely “liberal” justice.’[69]

Indeed, the Bush administration’s anxiety about the availability of legal argument to ‘the weak’ was reasonable, as was demonstrated for example, in Hamdi v. Rumsfeld (due process for detainees)[70]. There have also been an increasing number of cases brought contesting the legality of drone strikes – perhaps most notably Al-Aulaqi v. Panetta in the U. S. (the killing of a U. S. citizen and his son in Yemen)[71]. The court’s (ultimately negative) judgment has shown signs of some progress:

‘First, the district court found that the plaintiffs had standing, an improvement over the al-Aulaqi decision. Second, the court decided that the question of al-Aulaqi’s right to life is a justiciable question…Third, while the claims on behalf of other plaintiffs were dismissed (al-Aulaqi’s teenage son and Samir Khan) because they were not specifically targeted, the court found Anwar al-Aulaqi’s substantive due process claim “plausible.”’[72]

Finally, however, the judiciary deferred to the executive branch over al-Aulaqi’s killing (‘In this delicate area of war-making, national security, and foreign relations, the judiciary has an exceedingly limited role’ declared District Judge Rosemary Collyer);

‘Maria LaHood, a lawyer with the Center for Constitutional Rights representing the relatives, said the ruling was a travesty of justice.

“Judge Collyer effectively convicted Anwar Al-Awlaki posthumously based on the government’s say-so, and found that the constitutional rights of 16-year-old Abdulrahman Al-Awlaki and Samir Khan weren’t violated because the government didn’t target them,” LaHood said in an e-mail, referring to Al-Awlaki’s son. “It seems there’s no remedy if the government intended to kill you, and no remedy if it didn’t.”’[73]

This bears explicitly on the demands of distinction and proportionality – and how far the U. S. government can argue its way around them. Indeed the rule of ‘distinction’ is explicitly violated whenever a commander kills non-combatants, as was done in the case of Abdulrahman Al-Awlaki and Samir Khan – a point which seems to have escaped Judge Collyer.

Perhaps more important was the judgment in Pakistan (referred to above) relating to the Datta Khel massacre. In a decision handed down in May 2013,

‘the Peshawar High Court declared the US guilty of war crimes for its use of drones in North West Pakistan, and ordered the Pakistani government to take a series of steps to stop future strikes… In examining the evidence, the Chief Justice found that the majority of victims were women and small children and that claims of precision were undermined by the fact that innocent civilian casualties were a “hundred times greater than those . . . alleged to be militants.”

In light of the Pakistani Government’s constitutional obligations to protect the right to life of its citizens, the court also ordered the Pakistani Government to take immediate action to stop future attacks, including taking the issue to the UN Security Council and if necessary, shooting down the drones.

Finally, the court held that the U.S. Government is bound to compensate all the victims’ families and that the Pakistani Government should take steps to ensure that this happened immediately.’[74] (Reprieve (2013))

This decision is particularly significant in that, for the first time, courts in the victim countries have taken the initiative. International law enters because of the dubious ‘sovereignty’ exercised by the Pakistani Government, which claims to condemn the strikes, yet is impotent to stop them. The court is demanding that they should defend their citizens against the United States’ onslaught. It’s a reasonable demand, but one which may be hard to fulfil.

 

That ‘due proportion’ which is demanded by (for example) the Geneva Protocol is ignored every day with impunity by certain states, notably the United States, the U.K., and Israel. Worse, this is universally recognized, and there is no agency which can intervene against it even if the movement to combat impunity is gaining momentum, from activists, from NGOs (Reprieve, Amnesty, Human Rights Watch) and from the UN and the ICRC. Is there – we could ask – any hope for the dispossessed to achieve justice against those who attack, burn, kill their populations indiscriminately, almost without a second thought?

It would be foolish to attempt to give a single answer; and (as in Algeria and Vietnam) the injustice of the powerful may from time to time be countered by a greater force mobilized by the powerless. All the same, this road, as described in the works of Fanon[75], is not certain and can be enormously costly. In the meanwhile, out of the frustration of those who have tried to bring war criminals to account, we are seeing the rise of legal ‘counter-institutions’:

1. First, there have been attempts to apply the doctrine of ‘universal jurisdiction’ so as to prosecute agents of Israel and the United States in third countries – which had limited success in some European countries, notably Spain in the Shehadeh case.[76] There are accordingly moves to prevent prosecutions under universal jurisdiction, e.g. in the U.K.

2. Most recently the 2014 Russell Tribunal on Palestine[77] is a deliberate attempt – arising out of last summer’s operation – to discuss the cases against a powerful nation, in this case Israel , which would be struck down in most courts on procedural grounds. To recall the terms of reference of the original 1966 tribunal on Vietnam:

‘The Russell Tribunal has no legal status but acts as a court of the people, a Tribunal of conscience, faced with injustices and violations of international law, that are not dealt with by existing international jurisdictions, or that are recognised but continue with complete impunity due to the lack of political will of the international community.’

The words still resonate fifty years later. These tribunals have no force but the force of their evidence, their documentation and their verdicts. If their judgments begin to carry any weight in international law, the moral failure which has prevented any progress in bringing relief to the victims of imperialist warfare may be overcome.

More broadly,  if we look at the vicissitudes of ‘proportionality’ over the last fifty years, it seems hard to claim that we have made any advances. It would be a start if the institutions of society, civil and military, were forced to acknowledge the equivalent value of all lives and the need to respect that value. The conventions constantly repeat that lethal force should be avoided (as a means of eliminating an adversary) if an alternative is available; and that if it is used then the means should be chosen so as to minimize civilian casualties. This, the ‘zero option’, is the humane heart of the texts, rarely even considered much less observed. To claim (as U. S. and Israeli spokesmen routinely do) that this is in fact their practice without ever addressing the detailed evidence of clear and continual breaches simply makes  evident the racist disproportion at the heart of international law.

 

 

 

 

 

 

 



[1] Aristotle,  The Nicomachean Ethics, tr. J Sachs. (Newburyport MA: Focus, 2002) V,3, 84.

[2] See the UN Secretary-General, available at http://www.un.org/sg/statements/index.asp?nid=8120; special rapporteur Makarin Wibisono, available at https://www.middleeastmonitor.com/news/americas/17688-senior-un-officials-slam-israeli-human-rights-abuses (24/03/15); and reports by Amnesty, HRW and B’tselem, available at http://www.btselem.org/download/201501_black_flag_eng.pdf).

[3] Geneva Additional Protocol, ICRC, 1977, available at https://www.icrc.org/eng/resources/documents/misc/additional-protocols-1977.htm  art. 57.2 (iii). The 1977 First Additional Protocol from which this extract comes has not been signed by (in particular) the United States or Israel. However, it is generally accepted as part of what’s called ‘customary international humanitarian law’. The literature on proportionality is vast. See in particular J Gardam, ‘A Role for Proportionality in the War on Terror’, 74 Nordic J. Int’l L. (2005) 3.

[4] Most recently, (during ‘Operation Protective Edge’), the number of civilian casualties in Shejaiya at the end of July and Rafah in early August drew widespread condemnation. See also Amnesty International ‘Afghanistan: No justice for thousands of civilians killed in US/NATO operations’, available at http://www.amnesty.org/en/news/afghanistan-no-justice-thousands-civilians-killed-usnato-operations-2014-08-11, and ‘Document – Israel and the Occupied Palestinian Territories’ (2014), available at http://www.amnesty.org/en/library/asset/MDE15/017/2014/en/5b79b682-8d41-4751-9cbc-a0465f6433c3/mde150172014en.html 2014); and L May, ‘Targeted Killings and Proportionality in Law: Two Models’, 11 JIntl CJ (2013) 47, M Wells-Greco, ‘Operation “Cast Lead”: Jus in Bello Proportionality’, 57 Netherlands International Law Review  (2014) 397.

[5] Commentators often point out that the Protocol says nothing about comparing the actual losses on the two sides, as the naïve observer might think. This point has been made in particular by Israeli spokesmen during successive operations in Gaza.

[6] E. Shamash, ‘How much is Too Much? An Examination of the Principle of Jus in Bello Proportionality.’ 2 IDF Law Review (2005), 3. The irony of this article is that its examples are drawn from  former Yugoslavia; and the Middle East nowhere appears.

 

[7] Silverstein, R., (2006), ‘Washington Post Paean to Israeli Policy of Targeted Killings’, (Tikkun-Olam); available at http://www.richardsilverstein.com/2006/08/30/washington-post-paean-to-israeli-policy-of-targeted-killings/, cited by E Weizman, ‘Legislative Attack’, 27 Theory, Culture & Society (2010), 11.

[8] A Roy, (2001) ‘The algebra of infinite justice’, The Guardian 29 September 2001.

[9] J. Cavallaro, S. Sonnenberg and S. Knuckey. Living Under Drones: Death, Injury and Trauma to Civilians from US Drone Practices in Pakistan, (Stanford CA 2012), chapter 3. To give a context: the Bureau of Investigative Journalism estimates that 2550 people have been killed in drone strikes over ten years.

[10] Report available at http://www.independent.co.uk/news/world/asia/pakistani-court-declares-us-drone-strikes-in-the-countrys-tribal-belt-illegal-8609843.html.

[11] It may be unclear exactly what law applies to remote killings in the tribal areas of Pakistan; but some law is clearly applicable. It seems simplest to follow D Akerson  ‘Applying Jus In Bello Proportionality to Drone Warfare’, (August 2013) available at http://works.bepress.com/david_akerson/1/, 7, who ‘assumes that an armed conflict exists and IHL is applicable to UAV warfare in the traditional  sense of armed conflict (two organized militaries pitted against each other) and in the case of an organized military using UAVs to target irregular militants in “friendly” or lawless states.’

[12] The Public Committee against Torture in Israel et al. v. The Government of Israel et al., (‘Targeted Killings’), 14 December 2005, (HCJ 769/02), available at https://www.law.upenn.edu/…/targetedkilling/…/IsraeliTargetedKillingCase. pdf. In this case, the Israeli supreme court ruled that the IDF’s practice of targeted killings was not per se a breach of human rights law, but gave guidance on how such killings should be carried out.

[13] Yoav Hess and others v. the Judge Advocate General and others, HCJ 8794/03, available at http://www.adh-geneva.ch/RULAC/pdf_state/HCJ-decision-8794-03-1-.pdf.

This case report gives the facts of the 2002 strike; see also S Weill, , ‘The Targeted Killing of Salah Shehadeh: From Gaza to Madrid’, 7 J. Int. Criminal Justice (2009), 617.

[14] Report of the Israeli Ministry of Foreign Affairs (2011), (‘Shehadeh Report’), §10; available at http://www.mfa.gov.il/MFA/Government/Law/Legal+Issues+and+Rulings/Salah_Shehadeh-Special_Investigatory_Commission_27-Feb-2011.htm?DisplayMode=print

[15] ‘Shehadeh Report’, §12. This view is widely contested, certainly outside Israel, and led to a prosecution under ‘universal jurisdiction’ in the Spanish courts – which did not succeed. For a contrasting view (the Commission erred in claiming the deaths were disproportionate, given the threat which Shehadeh posed) see ‘N.*’ (2012) ‘The Disproportion in the Shehadeh Commission’s Proportionality Test’, ALMA forum, available at www.alma-ihl.org/…/the-disproportion-in-the-shehadeh-commission-s- proportionality-test

 

[16] M Herold, ‘Matrix of Death: A new dossier on the (im)precision of U.S. bombing and the (under)valuing of Afghan lives’ (2008), Online at http://www.rawa.org/temp/runews/2008/10/06/the-imprecision-ofus-bombing-and-the-under-valuation-of-an-afghan-life.html.

This type of (essentially) imperialist war, which has existed for a long time, today goes among strategists under the name of ‘asymmetric conflict’. See e.g. I Arregui-Toft, How the Weak Win Wars: A Theory of Asymmetric Conflict (Cambridge University Press, 2005). The term stems from a Western complaint that – as in Vietnam – the weak may win because they are more willing to make sacrifices.

[17] B Pascal, Pensées, (2006), Project Gutenberg, available at http://www.gutenberg.org/files/18269/18269-h/18269-h.htm#SECTION_V. 299

 

[18] Euclid, Elements, tr, T Heath (Greenlion Press, 2002), Def. V.5.

[19] Aristotle (note 1), V.3.

[20] There is a long history of ‘misunderstanding’ of this theory in the West, cf. J Murdoch, 1963), ‘The Medieval Language of Proportions’, in A Crombie, (ed.), Scientific Change. New York: Basic Books.; it’s supposed to have been understood by al-Jayyani (11th century) and Isaac Barrow (17th century), and not many others.

[21] And in the West, from Grotius to Rawls (for example).

[22] Nasir al-Din al-Tusi, The Nasirean Ethics (London: Routledge, 2011), 96.

[23] E Bloch, Natural Law and Human Dignity (Cambridge MA: MIT Press 1986), 40.

[24] al-Tusi, 97.

[25] Z Husami, ‘Marx on Distributive Justice’ 8 Philosophy & Public Affairs, (1978) 26.

 

[26] R Abel, ‘A Critique of American Tort Law’, 8 British Journal of Law and Society (1981)199, at 206. Abel’s article is an exceptionally clear critique of the inequalities practiced by capitalist tort law, in assessing damages and elsewhere.

[27] N Shah, ‘The Use of Force under Islamic Law’, 24 EJIL (2013) 343, at 361.

[28] Cited in R Cumming, The African-American Challenge to Just War Theory: A Christian Approach. (London and New York: Palgrave Macmillan 2013), 108.

[29] For the evolution of this distinction see M Koskenniemi, ‘Legal Universalism’, in Cheng, S. (ed.) Law, Justice and Power: Between Reason and Will, (Stanford CA: Stanford University Press. 2004), at 49-50; and ‘Colonization of the “Indies” – the Origin of International Law?’ Talk at Zaragoza University, available at http://www.helsinki.fi/eci/Publications/Koskenniemi/Zaragoza-10final.pdf

[30] A Anghie, (2005), ‘The War on Terror and Iraq in Historical Perspective’, 43 Osgoode Hall Law J. (2005) 45, at 62; also B Bowden,(2005), ‘The Colonial Origins of International Law’, 7 J. Hist. Int’l Law (2005), 1.

.

 

[31] F Mégret, ‘From “savages” to “unlawful combatants”: a postcolonial look at international law’s “other”’, in A Orford (ed) International Law and its Others (Cambridge UP, 2006), 23.

[32] The tribunals have been widely criticized as selective in their decision to prosecute, etc. e.g. D Harland, ‘Selective Justice for the Balkans’, New York Times 7December 2012. This, however, is not our primary concern here; they did institute an agreed procedure, hearing evidence, pronouncing verdicts and passing sentence.

[33] ICTY (2003), Prosecutor v. Stanislav Galić (§387) (‘Galić‘). Available at http://www.icty.org/x/cases/galic/tjug/en/gal-tj031205e.pdf.

[34] D Akerson (note 11), 17-18

[35] Galić, loc. cit.

[36] Galić, §37.

[37] Supra note 3

[38] T Waters, ‘Unexploded Bomb: Voice, Silence, and Consequence at the Hague Tribunals, A Legal and Rhetorical Critique’, 35 N. Y. U. J. International Law and Politics (2003) 1017.

[39] Shamash (note 6), 47-8.

[40] See also Waters p.1047. The point here is that the attack was, as Amnesty claimed, prima facie gravely disproportionate, but the case was never discussed due to Prosecutor Carla Del Ponte’s decision to exonerate NATO. (p. 1027-8).

[41] ICTY (2000), ‘Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, ICTY Doc. PR/P.I.S./510-E, June 13 2000’, §48.

[42] Waters supra note 34, p.1060.

[43] Doyle McManus, A U.S. License to Kill, a New Policy Permits the C.I.A. to Assassinate Terrorists, and Officials Say a Yemen Hit Went Perfectly. Others Worry About Next Time, L.A. Times, Jan. 11, 2003. Available at http://articles.latimes.com/2003/jan/11/world/fg-predator11

[44] M O’Connell, ‘Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004-2009’, Notre Dame Law School, 2010. Available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1501144, at 7-8.

 

[45] O’Connell, at 11.

[46] Ibid., at 26.

[47] Originating in the Military Order of November 2001 (The White House, 2001), this category has consistently been applied to detainees in the ‘war on terror’, despite successive challenges in the U.S. courts. For a critique in terms of the ICRC’s frame of reference see e.g. Dörmann (2003).

[48] Supra note 27, 24.

[49] Roy, supra note 8.

[50] See I Shaw and M Akhter, (2012) ‘The Unbearable Humanness of Drone Warfare’, 44 Antipode (2012), 1490.

[51] Roy, loc. cit.

[52] Boorstin, R. (2004), ‘Memorandum on the Geneva Conventions’, Center for American Progress, available at https://www.americanprogress.org/issues/terrorism/news/2004/05/18/753/memorandum-on-the-geneva-conventions/

 

[53] J Halper, ‘Globalizing Gaza: How Israel Undermines International Law Through “Lawfare”’, Counterpunch, August 18 2014, available at http://www.counterpunch.org/2014/08/18/globalizing-gaza/.

[54] See e.g. A Kasher, and A Yadlin, ‘The Military Ethics of Fighting Terror: An Israeli Perspective’, 4 Journal of Military Ethics,(2005) 71

[55] A Harel, ‘The philosopher who gave the IDF moral justification in Gaza’, Haaretz 6 Feb. 2009.

 

[56] Often cited, if not strictly comparable, is the average of $1.8 million (£900000) compensation awarded to the families of victims of the 9/11 strikes.

[57] D Cloud, ‘U.S. Pays and Apologizes to Kin of Afghans Killed by Marines’ New York Times, 9 May 2007.

[58] It’s worth recording the case of Marla Ruzicka, who tirelessly ‘pushed a bill for $17.5 million compensation for Afghan and Iraqi civilian victims’ through congress in 2005 before she was herself killed on the road to Baghdad airport. How much of that sum (the equivalent of just ten 9/11 payouts) did the victims see? See J Hyndman, ‘Feminist Geopolitics Revisited: Body Counts in Iraq’, 59 The Professional Geographer, (2007), 35.

[59] B Brady, ‘MoD paid £3,000 compensation for Afghans killed by UK military’ Independent 22 September 2013, available at http://www.independent.co.uk/news/uk/politics/mod-paid-3000-compensation-for-afghans-killed-by-uk-military-8833059.html.

 

[60] T O’Loughlin, ‘Israel’s £1.8m for family of Briton killed in Gaza’, Guardian, 23 April 2008.

[61] H Sherwood, ‘Israel to pay family compensation over killing of Palestinian girl’ Guardian 26 September 2011.

[62] A Hass, ‘Israel to compensate Palestinian family whose sons were killed in Gaza war’, Haaretz, 10 September 2012.

[63] M Benjamin, (2013)’$40 million allocated for drone victims never reaches them’, available at http://www.commondreams.org/views/2013/10/23/40-million-allocated-drone-victims-never-reaches-them

 

[64] Benjamin, loc.cit.

[65] Megret (note 27), 4.

[66] Herold (note 15), 4; see also L Wilcox (11 December 2009), ‘Body Counts: The Politics of Embodiment in Precision Warfare’, available at www.polisci.umn.edu/…/Body%20Counts%20Theory%20Colloquium.doc.

[67] A Bartholomew, ‘Strategies of the Weak: Contesting Empire’s Law through International Humanitarian Law’, in N Andersson, et al., (ed) International Justice and Impunity: The Case of the United States. (Atlanta GA: Clarity Press 2008), 214.

[68] F Neumann, Behemoth: The Structure and Practice of National Socialism 1933-1944. (Lanham MD: Ivan R. Dee 2009).

 

[69] Bartholomew (footnote 62), 216

[70] Yaser Esam Hamdi and Esam Fouad Hamdi as next friend of Yaser Esam Hamdi, Petitioners v. Donald H. Rumsfeld, Secretary of Defense, et al. (2004), available at http://www.law.cornell.edu/supct/html/03-6696.ZX.html

[72] R Meyer, ‘Al-Aulaqi v. Panetta: A Mixed Bag of Bivens’, Practicum, 17 July 2014, available at http://practicum.brooklaw.edu/articles/al-aulaqi-v-panetta-mixed-bag-bivens.

 

[73] E Pettersson, ‘Drone Strike Suit Over U.S. Citizen Deaths Dismissed’, available at http://www.bloomberg.com/news/articles/2014-04-05/drone-strike-suit-over-u-s-citizen-deaths-dismissed.

[74] Reprieve, ‘Pakistan court orders Government to stop ‘war crime’ drone strikes’, 9 May 2013, available at http://www.reprieve.org.uk/press/2013_05_09_drone_strikes/.

 

[75] F Fanon, The Wretched of the Earth, (London: Penguin Modern Classics,2001).

[76] S Kern, ‘Spain Rethinks Universal Jurisdiction’, 31 January 2014, available at http://www.gatestoneinstitute.org/4149/spain-universal-jurisdiction.

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