[REVIEW] Drones and International Law: A Techno-Legal Machinery by Rebecca Mignot-Mahdavi

Review by Khalil Dewan, PhD Nomos Scholar on 'Drones and International Law: A Techno-Legal Machinery' by Rebecca Mignot-Mahdavi, Cambridge, United Kingdom: Cambridge University Press, 2023, 283pp. ISBN: 978-1-009-34655-9, RRP 95.00

Rebecca Mignot-Mahdavi’s scholarly contribution is a welcomed edition to the literature on drones and international law and makes a significant contribution to the conceptualisation of drones as a techno-legal machinery. The book covers issues of threat anticipation, military strategy, self-defence, geographical limitations and ‘rituals’ of sovereignty. The entire manuscript compiles the contextual and material traces of the drone programmes of the USA, UK and France, in order to lay bare the infrastructure extending warfare in time and space vis-à-vis (exacerbating) state power. In this review, I focus on the book’s conceptualisation, approach and contribution to the literature as exemplified in selected chapters of the book.1

Unlike most scholarly contributions of the past two decades on drone warfare, Mignot-Mahdavi focuses on the conceptualisation of drone technology, surveillance and targeting suspects of terrorism. The treatment of the book unpacks how drone programmes operate perpetually through geographical landscapes, time and via state power—all of which are valuable for readers on conflict and security law. The book deploys not only a critical doctrinal analysis of international law but also theories and methods for discourse analysis of jus ad bellum and jus in bello justifications for the drone programmes. While not pronounced definitively as part of the methodology, I believe the author unpacked some of the legal justifications of the drone programmes using the concept of state lawfare but did not necessarily cite it. Some authors and academics, in general, view lawfare as a controversial endeavour or concept, when in effect it enables a critical engagement in scholarship. The approach of this manuscript is noteworthy, as there are a very few legal scholars who, as part of their research, have interacted with practitioners, who on behalf of their states engage in drone warfare. Mignot-Mahdavi interviewed French and American drone operators. As a result, it presents research that shows an understanding of how international law is combined with the practice of the use of armed drones. For example, Mahdavi found using interviews that 90% of the drone operators engaged in surveillance, data collection and analysis, while only 10% of the time carrying out strikes. This socio-legal approach leads to greater contextualised understanding, as opposed to pure doctrinal research on drone warfare and international law, which has already been exhausted in the literature. For example, Nils Melzer’s book on ‘Targeted Killings and International Law’ and ‘Targeted Killings: Law and Morality in an Asymmetrical World’ by Claire Finkelstein, Andrew Altman and Ohlin—both authoritative academic works on law, but only offer a doctrinal assessment without any contextualised analysis on drone warfare.2

In Chapter 1, Mignot-Mahdavi delves into the network-centric elements of drone warfare, as well as the signals intelligence infrastructure, which is impressive because the conceptualisation moved beyond to include the technology. The inclusion of technology with the law is a unique perspective in the literature on armed drones. I particularly appreciated the level of analysis of these topics, as I write about the same infrastructure, based on qualitative interviews with signals intelligence engineers who were part of the US drone programme.

The overall approach between the doctrinal, theoretical and empirical aspects conceptualises the law and technology in a compelling and holistic way, previously unseen in the legal literature. More specifically, the legal issues covered include the classification of a battlefield,3 the test for the so-called ‘continuous combat function’,4 forever casus belli vis-à-vis membership of persons suspected to belong to armed groups,5 effective sovereignty6 and, finally, the controversial unwilling and unable doctrine.7

While the book contributes significantly to, and makes visible, the multiple layers of the socio-techno-legal phenomena of drone-targeted killings and surveillance, it regrettably is limited in its application of the practices of counter-terrorism in context. While Mignot-Mahdavi is correct that strikes are taking place in a pre-emptive or anticipatory manner,8 it is even more concerning that ‘hostile intent’ could be a marker for being targeted in a ‘dematerialized’ threat threshold adopted by states.9 This encourages a pre-crime space where individuals are being targeted by sidestepping the law on the use of force or self-defence which would not permit strikes without a ‘material’ armed attack—or at the very least a concrete threat.

Moreover, there is an entire Counter Violent Extremism framework that operates in a pre-crime space to criminalise suspects for showing ‘indicators’ of extreme or hostile intent for terrorism outside of war zones—including beliefs, ideas or opinions. This socio-legal and intersectional approach on counter-terrorism in context is not adequately explored by the author or in general the legal literature.

While the introduction of the book posits that it covers counter-terrorism in context, it only focuses on ‘the end-product’ of drone strikes, namely the targeted killing itself and does not critically assess if there are any other interconnected security methods deployed alongside it. The treatment of the counter-terrorism context or praxis applies a state-centric vernacular of securitisation and national security, as many legal scholars of drone warfare and targeted killings do. For example, the discourse regurgitates an orientalist approach and language of power such as ‘jihadist groups and networks’ and ‘enemy’ in some parts. This undermines the original treatment of the book to unpack the ‘malleable’ ways states use jurisprudence to fulfil their targeted killing campaigns.

Towards the end of the book in Chapter 7, the author argues that the rituals of sovereignty as regards drone programmes alter the behaviour of the populations on the ground.10 This is encouraging to see as a critique of the drone programmes, and while others have covered the effects on burials, community trust, economic impact and mental health, they did not necessarily make the legal argument on extraterritorial applicability of human rights treaties as put forward by Mignot-Mahdavi.11

1. Individualisation of warfare

One of the central arguments of the book that should stand out to the conflict and security law readership is the emerging norm of ‘individualisation of warfare’, which troubles international law because states are no longer entirely focused on targeting non-state armed groups but individuals, as is apparent from the USA and UK justifications for targeted killings in pre-emptive or anticipatory strikes. There are three scholars that argue the emergence of the norm to use force against individuals, giving examples on drone warfare and night raids—Mignot-Mahdavi did not reference or mention their scholarly positions.12 I agree with the emerging norm as I have documented it in my own fieldwork on the USA and UK targeted killings. I add to its scope by arguing that it also manifests itself in the law enforcement context through a journey of ‘threat anticipation’ via state counter-terrorism practices, more precisely outside the context of armed conflict.

Furthermore, the book in Chapter 7 contributes to the extraterritorial applicability of international human rights treaties. It claims that the presence of drones not only causes trauma but also changes the behaviour of the population on the ground, thereby demonstrating the existence of effective control over the said population by the state using the drones. While others have focused on the context and effects of drone warfare on the civilian population’s mental health and everyday behaviour due to surveillance, they did not make the legal argument that Mignot-Mahdavi puts forward, namely that such behavioural changes equate to effective control to trigger human rights treaties. Unfortunately, while Mignot-Mahdavi brings up this point and discusses the emerging norm and practice of ‘individualisation of war’, she does not extrapolate the targeting of ‘terrorism’ suspects, which is the main issue at hand.

The book does not cover the new military technologies seen over the Ukraine–Russia conflict, but it triggers techno-legal imagination on drone-swarm technology, targeting and its impact on the population. There is not much literature on the method of swarm attacks, or its impact on international law, and this manuscript provides a good foundation for further work.

Finally, given Mignot-Mahdavi’s journey of developing her legal opinion, the book misses an opportunity to add reflexivity and positionality. This is particularly the case since it comes across as a critical scholarship, despite experience as a Research Fellow at the Institute for Strategic Studies (IRSEM), the French Ministry of Defence’s Research Centre during her thesis project which awarded her a Research Excellence Prize.13 Thus, how Mignot-Mahdavi’s views may have changed during the scholarly project would have provided an interesting insight, particularly for a book that draws upon socio-legal approaches. Yet, this scholarship offers and triggers the legal imagination, and offers a foundation for plenty more questions to be asked as drone warfare morphs into artificial intelligence and autonomy.

The review was originally published by Journal of Conflict and Security Law, Oxford University Press. https://academic.oup.com/jcsl/article/29/1/189/7455853

Footnotes

1. I contributed to Rebecca Mignot-Mahdavi’s book launch with scholars from SOAS University of London, University of Amsterdam and the Asser Institute, hosted and available online at the European Society of International Law (ESIL). Book Launch by Interest Group on International Law and Technology – “Drones and International Law—A Techno-Legal Machinery” by Rebecca Mignot-Mahdavi (26 June 2023) Last accessed 03/10/2023 <https://esil-sedi.eu/ig-on-international-law-and-technology-book-launch-drones-and-international-law-a-techno-legal-machinery/>

2. Nils Melzer, Targeted Killing In International Law,(First edition, Oxford University Press 2008) ; Claire Finkelstein, Jens Ohlin , Andrew Altman, (eds), Targeted Killings: Law and Morality in an Asymmetrical World, First Edition (United Kingdom: Oxford University Press 2012)

3. Rebecca Mignot-Mahdavi, Drones and International Law: A Techno-Legal Machinery, Cambridge University Press, P159—176

4. Ibid at Chapter 7 at p.200

5. Ibid (n3) at Chapter 5 at p.139

6. Ibid (n3) at Chapter 7 at pp.182-196

7. Ibid (n3) at Chapter 4 at p.96

8. Ibid (n3) Chapter 6 at page 180

9. Ibid (n3) at Chapter 3 at p.53 and Chapter 4 at p.103

10. Ibid at Chapter 7 at p.184

11. International Human Rights and Conflict Resolution Clinic (Stanford Law School) and Global Justice Clinic (NYU School of Law), Living under drones: death, injury, and trauma to civilians from US drone practices in Pakistan (September, 2012)

12. Samuel Issacharoff, Richard H. Pildes, and Craig Jones

13. Institute for Strategic Studies (IRSEM) at the French Ministry of Defence, Last Accessed 07/11/2023> https://www.irsem.fr/en/