The Shift in Focus from Proportionality to Necessity in the Law of War, and the Incentives Created by the Shift from Equality of Legal Obligation to “Capabilities”

More than one participant in the Texas International Law Journal discussion that I posted on earlier (including leading scholars who do not necessarily share some other important views on the laws of war) broadly agreed that the locus of discussion in law of armed conflict issues, those issues on the avant garde margin, as it were, is shifting from “proportionality” to “necessity.”  I agree that this is where the discussion is headed. I’ve framed this shift occasionally in the context of targeted killing and drone strikes – and so tried to say so, for example, in a recent Council on Foreign Relations discussion, where I’d say it met with some surprise.

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

I: Technology

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

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

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

II: Law

But this is driven fundamentally by changes in the technology of weaponry, UAVs, and above all the sensor technology and ability to analyze the data streams from the sensors. There is another part of this driven by changes in legal fashions or, if one wants to be more neutral, legal sensibility.  Law and not simply technology.  It is on the cutting edge of academics and folks in the in-circles of this law and policy, so if you are reading this, you too are part of the avant garde. The change in legal sensibility is driven by concerns for two oddly opposite groups.

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

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

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

III: What use of force paradigm is suited to individually tailored targeting?

In evaluating this shift in legal locus of discussion, we need to distinguish between conventional, overt warfare, particularly between states but not limited to it – e.g., the counterinsurgency campaigns in Iraq and AfPak, on the one hand, and targeted killing directed against terrorist suspects, on the other.  The latter can generally be referred to as “intelligence” driven uses of force, to distinguish it from either conventional overt conflict or law enforcement uses of force.  In the former case, conventional conflict, I do not believe that we can or should move away from homogenous status of combatant; any other standard will overreach the technology now or in the foreseeable future.

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

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

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

IV: Lawfare and the “capabilities” debate over the laws of war

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

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

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

The legal side is this. The self-appointed referees, lacking themselves skin the game, do not hesitate to move the legal goal posts once technology moves.  And that is with regard to technologies that they themselves might at some point have earlier opposed and even called illegal.  The capabilities approach, to which I imagine the US will haphazardly but quite foolishly acquiesce over time, as much through inattention and incoherence as anything, is the juridical statement of that.

Talking about setting the legal obligations of a side to a conflict according to its supposed capacity or lack of capacity to adhere to the legal rules, as reflected in its weaponry, technology, training, etc., so that the side that has developed greater capacities is held to a higher standard commits the classic move of imposing a rule of liability upon a side based upon its past activity and assuming that it will have no impact on its future behavior.  Incentives matter, both to the side that has perceives that it pays a price for having developed, for example, more discriminating weaponry – and the side that perceives both that it has inflicted a price on its enemy by not having developed such and by finding new ways in which to leverage up the demands placed upon the enemy to compensate.

The human rights movement is making a profound bet that imposing liabilities based upon past investments in discriminating weaponry will have no impact on such behavior in the future; alternatively put, a profound bet that a change in the rule of liability today will somehow not impact the incentive to engage in the now-more-costly behavior tomorrow; that supply of good LOAC behavior by the “good”guys is inelastic; and a flat denial of the ordinary principle that if you make an activity more costly, you’ll get less of it.  Perhaps there is something special about this activity – the US will do this simply because it is good and right, perhaps, even if it is a chump? – but it is not the generally observed reaction to taxing an activity, especially doing so in ways that change the rules of liability that were assumed to be in place when the activity was undertaken. Tax an activity and you’ll get less of it; do it in ways that violate legitimate expectations about the liability rules and you’ll also ratchet up uncertainty and produce even less of it.  That’s how behavior normally works, and if there’s something special about producing ever more discriminating weapons technology and deploying it in very expensive ways, it would be special indeed.

V: A human rights monitoring bet that incentives don’t matter

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

What seems to me much clearer is that the US’s incentives to come up with the technological fixes at all are reduced at the margin by the willingness to move the goalposts … Greg Mankiw’s 10 principles of economics, number 3 (or is it 4?), “people make decisions at the margins.” If you shift the margins, well, don’t be surprised if people make their decisions differently.

Now, that sounds dire as a possible outcome for the human rights advocates – the US might simply stop trying to improve its discrimination technology. But not necessarily bad on another metric for those same advocates. After all, the shift in the margin also reduces the incentive for the US to engage in uses of force at all, and for many of the outside groups and advocates, that might be a perfectly good outcome, so on these terms it might well count as an excellent marginal move from their point of view. But, still, one should be clear that the move to redefine the basic standards of law away from the equality of sides to a capabilities approach has important implications for the marginal behavior of the US – and as we get further and further away from 9/11, and as budget crunches loom even for the Pentagon, and as the Obama administration finds ways to disengage from the Bush era wars, the margin is more likely a real one and not merely an intellectual construction.

(I might go back later and make corrections, no time to read this over, as about to board a plane.)

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