Alexander Holder, University of Liverpool
It is an unremarkable observation to note that the lawfulness of military activity is a product of the actions of military personnel. With that being said, there has yet to be a sustained engagement with the notion that producing and maintaining targets for the lawful use of force is a practical skill. That is to say, where military personnel are oriented towards the lawfulness of their own activities, they exhibit an eminently practical concern for finding ways to do whatever need be done within the rules which govern their conduct. However mundane, this observation is one which has strong implications for recent critical engagements with the evolving place of law in contemporary conflict.
In recent years, there has been a growing body of critical research concerning the efforts of a number of states – particularly the United States (US) and Israel – to reinterpret core principles within the laws of war in order to expand the circumstances under which military personnel can engage in the lawful use of force. Through the creative and strategic employment of the vocabulary of international law, this ‘interpretive law-making project’ has seen states re-orient to the laws of war as a ‘force multiplier’, i.e., a capability which increases the combat potential of military forces rather than placing restraints upon it.
In seeking to further empiricise these critiques, my work has elaborated on the practical methods by which military personnel employ legal concepts as part of the production and maintenance of lawful targets for the use of force. In doing so, I have shown that the macro-level interpretive law-making project – which has been carried out by lawmakers, lawyers, and senior military figures – is mirrored by an essentially local enterprise whereby military personnel must interpret the meaning and relevance of legal concepts on every occasion in which they are called to use them.
In my JLS article, Achieving Compliance in the Use of Force: The Production and Maintenance of an Imminent Threat in an Aerial Targeting Operation (forthcoming in the Winter 2023 issue), I articulate the ways in which Bush-era alterations to the United States’ interpretation of ‘imminence’ – a core concept in the doctrine of anticipatory self-defence – provided US personnel with an expanded set of resources for lawfully engaging perceived threats. By taking up the materials associated with a civilian casualty incident which occurred in Afghanistan in 2010, the paper uses transcripts of the real-time talk to demonstrate that a permissive interpretation of imminence imbued concepts like ‘flanking’ and ‘tactical manoeuvring’ with new legal significance. Accordingly, US personnel were able to strategically employ these concepts in order to (erroneously) establish that three unidentified vehicles driving in close proximity to a Special Forces team constituted an ‘imminent threat’ which could be lawfully targeted in anticipatory self-defence.
In one sense, the paper proceeds by empiricising and reinforcing the claim that permissive re-interpretations of the law place civilians at increased risk during periods of armed conflict. In another, the paper demonstrates that ensuring compliance with the laws of war is something that military personnel can be good at. Equipped with a strong understanding of the rules which govern their conduct, military personnel possess a capacity to – as Egon Bittner put it – “find in the rules the means for doing whatever need be done”. Whilst this is a natural orientation towards rule-following, detailed descriptions of the material practices by which lawful targets for the use of force are produced and maintained ultimately reveal a range of considerations which appear to place legal compliance above meaningful considerations regarding the protection of civilians.
Looking outwards, it should be noted that investigations of the practical methods by which practitioners ensure their activities are compliant with the law need not be restricted to military contexts. Undoubtedly, investigations which explore the ways in which orientations towards compliance structure the activities of practitioners could be conducted in an enormous range of domains, particularly where such efforts are tempered by other organisational imperatives. Though research of this kind of is not unheard of in socio-legal studies, my hope is that my forthcoming article might spark renewed interest in the utility of empirical investigations of compliance as a phenomenon unto itself.