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Remote-Controlled Killing in Dallas

Published on July 19, 2016        Author: 

On 8 July 2016, most likely for the first time in history, Dallas, Texas police used a remotely piloted land vehicle — a type of drone — to bomb a criminal suspect to death. When asked whether the bombing was justified, a former Los Angeles police captain said yes: “This was not a conventional police operation. This was more of a war zone type operation”.

That Dallas could be a war zone for purposes of killing a criminal suspect and that police would use a bomb to do so are new examples of a continuing post-9/11 phenomenon. It is another case indicating the spreading, negative influence of legal arguments developed to weaken the restraints on the use of force. Other examples have been discussed here recently, including legal reasoning to justify the 2003 Iraq invasion and the abusive claims to self-defense in response to terrorism. This post will focus on the artificial war zone and the militarization of police practices.

“War Zones” Beyond War Zones

Just one week before the Dallas bombing, the U.S. Director of National Intelligence (DNI) released drone death statistics from killings “outside zones of active hostilities.” For years the Obama administration has argued for a broader understanding of what constitutes a battlefield, along with attenuated readings of the right of self-defense and of the right of a state to consent to the use of military force on its territory. In a speech at Harvard Law School in September 2011, John Brennan, currently the CIA director, said, “The United States does not view our authority to use military force against al-Qa’ida as being restricted solely to ‘hot’ battlefields like Afghanistan.” These efforts were first motivated to provide legal cover for the use of drones in targeted killing beyond the combat zones of Afghanistan and Iraq. (For an overview of the history, law, and ethics of using drones for targeted killing, see my review essay, Game of Drones.) Since then, the concept of a right to kill beyond a zone of active hostilities or hot battlefields has taken on a life of its own. It has morphed into the thinking and justifications behind killing with means other than drones, against targets other than Al-Qaida members, and by operators other than U.S. military and intelligence personnel, such as the Dallas police and Chinese law enforcement.

The International Law Association (ILA) Use of Force Committee reported at the The Hague meeting in 2010 that international law contains a definition of armed conflict that is integral to the concept of a zone of armed conflict. The Committee of 18 members from five continents and representing perspectives from beyond the major high tech militaries, assessed 65 years of state practice and opinio juris as to the meaning of armed conflict in international law. The evidence was overwhelming that states recognize armed conflict only where there is actual intense fighting — exchange of attacks — by two or more organized armed groups. Because the protection of the right to life is relaxed in the context of armed conflict, any doubt about the existence of an armed conflict is resolved in favor of peace. The presumption of peace is an adjunct of the right to life.

While an armed conflict can exist to some extent spatially beyond zones of actual exchange of fighting, fighting zones must exist for an armed conflict to exist. Moreover, the International Humanitarian Law (IHL) targeting principles of distinction, necessity, proportionality, and humanity, restrict killing even in an armed conflict but outside the conflict’s zones of active hostilities

The U.S., however, has attacked in areas with no association with armed conflict, in armed conflict zones where the U.S. has no legal right to resort to force under the jus ad bellum, and where no active hostilities are occurring as required by the IHL principles. This killing is unlawful. Yet, human rights NGOs are treating the DNI’s distinction between “civilians” killed outside active hostilities and others killed as a legally significant distinction. They have expressed gratitude for the administration’s “transparency”, rather than denouncing the intentional killing of any human being outside an actual armed conflict zone. In doing so, these advocates may well be aiding the illusion that the U.S. is acting under a real legal doctrine that permits the use of military force beyond hot battlefields. Sam Moyn, the Harvard human rights historian, made a similar point about the responsibility of human rights groups in helping sustain unlawful conduct since 9/11 in a comment on Mark Danner’s book, Spiral, Trapped in the Forever War.

No Bombs Beyond War Zones

In this context, Micah Xavier Johnson of Dallas went to war in Afghanistan. He served two tours of duty and acquired sniper skills, allowing him to kill five white police officers and injure seven while only injuring one bystander. He was a black man bent on revenge for the killing of so many black and brown people in the U.S. by police. After his shooting spree, police cornered him in a parking garage and when in the view of the police chief negotiations broke down, the chief authorized using a bomb disposal robot to deliver C4 explosive for the purpose of blowing him up.

The last time a bomb was used by police in the U.S. with the intention to kill was on 13 May 1985. Philadelphia police dropped a bomb from a helicopter on a row house of the Move organization that had created a fortified bunker in the house and were firing down on police from the roof. The bomb triggered a fire that destroyed 61 houses and killed eleven people, including five children. One observer said it was “like Vietnam”. U.S. police forces have not used bombs with the intention to kill since then.

In arguing the bombing was justified in Dallas, commentators are pointing out the distinction with Philadelphia. The police had the situation in Dallas under control. They had been negotiating with Johnson for hours, knew he was wounded, raving, and claiming to have explosives. Police knew no police or bystanders would be harmed in any way by their bomb. They also knew that any explosives Johnson had were not on his person or near by, or else they would not have risked bombing him. In other words, police had no immediate need to kill Johnson.

If they did, they would not have used a bomb. If Johnson was threatening a hostage or tried to shoot his way out of the police trap, a bomb could have harmed someone other than Johnson. Bombs are too imprecise to meet the law enforcement standards for the use of force. The European Court of Human Rights (ECHR) judgment in McCann v United Kingdom still sets out the conditions for police use of lethal force. It may only be used if “absolutely necessary in the defence of persons from unlawful violence”. Bystanders may not be put at risk as on a battlefield.

The use of the device with the intention to kill is a critical factor. In 1993 law enforcement personnel used a bomb against the compound of the Branch Davidians in Waco, Texas. That use was not unlawful per se because the bomb contained tear gas intended to force the group out, similar to the chemical agents used by Russia in the theater siege case, adjudicated in Finogenov by the ECHR in 2011.

The Johnson case can be contrasted with the police killing of James Boulware, also in Texas in 2015. Boulware was in his own vehicle. He had unleashed a barrage of gunfire at a police station, was ramming police cars, and when police got through to him by phone he, too, claimed to have explosives. When police believed negotiations were breaking down and Boulware was about to take off again, they shot him. The case has parallels to the decision by authorities to shoot the truck driver in Nice as he mowed down human beings by the dozen, as well as the shooting of Gavin Long in Baton Rouge while in the acting of killing police.

It is not clear in the Dallas case why Police Chief Brown said police “saw no other option but to use our bomb robot” to kill the gunman. Brown also said he was concerned that “at a split second, [Johnson] would charge us and take out many more before we would kill him.” This seems unlikely as police had Johnson in a position where their negotiators felt safe enough to talk with him for hours. The ease of killing with a drone in a situation that did not appear to call for a sharpshooter likely played a role. Johnson had been taunting the police about how many he had killed. He had shot a dozen, including one at close range — all while police were guarding a protest critical of police. Emotions, fatigue and fear are all reasons for clear, firm rules restricting lethal force, and training on those rules.

On 17 July 2016, in Baton Rouge, Louisiana, an Iraq war veteran killed three police officers and wounded another three before he was shot. He, too, was apparently angry about excessive force by police.

Since the police killing of Michael Brown in Ferguson, Missouri in 2014, the on-going debate in the U.S. has concerned the militarization of the police. President Nixon’s “war on crime” started the trend. But the turn to military solutions for all manner of problems really kicked off at the end of the Cold War. Police since then are often trained to be “warriors”, not guardians. In turn, the militarism at home influences foreign and security policy abroad.

The United States Constitution lacks an express provision protecting the right to life. American courts have creatively interpreted the Fourth Amendment protection on “unreasonable searches and seizures” to find restrictions on police use of lethal force. Thus, instead of assessing lethal force in the context of a fundamental human right, U.S. courts employ a balancing test, weighing up or counting the indicators they find for a determination whether deadly force by police was reasonable or not. This is done in the context of “built-in measure of deference” to law enforcement.

Hillary Clinton has called for a discussion over a national police standard for the use of lethal force. Such a standard already exists in international human rights law. It distinguishes the use of force in war and peace. It restricts killing in peacetime to the immediate need to save life. This standard should be instituted in the United States, a task where the efforts of human rights NGOs are badly needed. The UN Special Rapporteur on Extrajudicial Killing, Christof Heyns, responded after the Dallas drone attack: “Militarised policing – detonating a bomb remotely to kill a sniper rather than alternatives – treats the public as enemies, as in war”. That needs to end.

Conclusion

International lawyers bear some responsibility for the acceptance of violence as a means of change that has grown over the decades. Oscar Schachter and Detlev Vagts taught the job of international lawyers, especially those advising governments, is to be as clear, dispassionate, and a-political as possible. We should be straight about what the law actually says. It is not our role to please politicians who are seeking to win public support by appearing to take bold action, which so often means military action these days.

The post-9/11, post-Cold War legal reasoning at issue here is aimed at pleasing politicians. That is why it continues despite the growing evidence that it is not ameliorating the problem of terrorist and other mass violence. It is supporting military solutions that are proving counter-productive. According to the Global Peace Index, violence in the world has grown steadily in the last decade. Social science data traces this growth in part back to the use of military force, including drone attacks. Military force does nothing to solve the underlying grievances that lead to the rise of organized violence. Indeed, military force often increases the desire to avenge and empower victims of unlawful military force.

President Obama has attempted to respond to the growing mass violence in the United States by instituting sensible gun control. He has had no success. What he can do that will succeed is to reinstate the Reagan executive order banning assassination and support it by withdrawing the targeted killing memos written during his administration, replacing them with new memos written by people as expert and independent as possible.

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9 Responses

  1. Nicolas

    Interesting article but the deliberate mix between totally unrelated legal questions (the legality of the killing of Johnson and lawfulness of the use of drones in non war zones) weakens the entire article.

    The way Dallas Police killed the criminal suspect is irrelevant. Since no bystander was killed or injured in the process, how is the use of a robot to bring an explosive device any different (legally speaking) from a sniper shot or from a grenade tossed trough a window? It is not. It made it easier for the police but it doesn’t have any impact on its legality.

    In the end, I agree with the author when he says “We should be straight about what the law actually says.”, but I’m afraid that the moral debate on the use of drones/robots is clouding commentators’ judgement in cases like Dallas.

  2. Jordan

    Mary Ellen: we disagree on some issues regarding permissible use of force in self-defense against NSAs, but could you give some examples of US targetings that you consider were outside law of war contexts and outside of self-defense contexts.
    If bin Laden had been targeted by drone-based weaponry while he was actively involved in planning and authorizing the killing of US soldiers in Afghanistan and elsewhere, as you know, I have written that he would have been DPH and targetable under the law of war paradigm, and that the de facto theatre of war migrated right over his head, and that he was a direct participant in ongoing armed attacks and was also targetable under the self-defense paradigm.

  3. Mary Ellen O'Connell Mary Ellen O'Connell

    Jordan, Thanks for the question. Before answering–may I ask whether you support my final recommendation that President Obama re-instate the Reagan EO banning assassination?

    It was first modified by Bill Clinton to use drones for targeted assassinations–ones that could kill not only the target by bystanders as well. Clinton and Bush tried to keep these killings secret.

    President Obama either knowing he could not keep so many killings through military force secret or to support his prominence of transparency has attempted to characterize them as either occurring in armed conflict zones or when that was not flying, as Article 51 self-defense.

    Interestingly when it came to OBL, even CIA Director John Brennan understood that the recently developed arguments around self-defense, armed conflict zones, and consent would not work to justify his killing. Peacetime law enforcement rules prevailed in Abbottabad, Pakistan in May 2011. Recall Brennan stated to the press that the commando unit had orders to attempt to capture, killing only if OBL resisted arrest.

    The same conditions prevailed in Yemen in September 2011 when Anwar al Awlaki was killed. No armed conflict hostilities were occurring, certainly none in which the U.S. was participating, and no basis existed for the use of force in self-defense by the U.S. on the territory of Yemen. And Yemen’s leadership, such as it was, had no right to consent to the intentional killing of a criminal suspect.

    See Olivier Corten’s posts of the last several days on Abusive Self-Defense and consider that the dangers arguments developed for drones are now being misused by police forces. President Obama can begin to reverse trend with a renewal of the EO banning assassination and public release of new legal advice. Let’s return to the high bar against killing before the next president takes over.

    Mary Ellen

  4. Jordan

    I note that “assassination” is outlawed treacherous killing even under the laws of war, HC IV, annex, even in a theatre of war (e.g. FM 27-10). Similary unlawful absent a legitimate claim of self-defense. However, from a legal persoective, “assassination” is a coclusion.
    As noted, bin Laden was DPH and DPAA (a direct participant in a process of armed attacks). From what is known, AAA was also DPAA even though you and I disagree with the US claim to be at “war” with AQ and its affiliates.
    I support the continued ban on “assassination.”
    P.s. I applaud your effort to push inquiry into lawfulness of police domestic use of force where it is not reasonably necessary, as well as that of Hillary to have a more nuanced dialogue.

  5. Jordan

    As part of the dialogue, human rights obligations certainly exist within the US in connection with customary jus cogens (“arbitrary” deprivation of life and the absolute prohibitions of t,
    c, i, d treatment); customary human rights guaranteed universally through 55(c) and 56 of the UN Charter; human rights absolutely self-operative in the US through article 50 of the ICCPR (which include all of “the provisions” of the Covenant); customary human rights reflected in the American Declaration of the Rights and Duties of Man that are binding through the OAS Charter, etc.
    However, the human right to life standard, unlike interpretations of the ECHR, is “arbitrary.” That is why human rights to live binding on the US are less protecting than other legal paradims, like those requiring contextual inquiry into reasonable necessity and prportionality.
    Robotics are “with us” and better guidelines and brakes need to be developed (like a prohibition of fully autonomous killing robots).
    That is why Mary Ellen’s call for dialogue and restraints is so important.

  6. Gus Waschefort

    Hi Mary Ellen,

    Your post raises a number of interesting questions. One which has long fascinated me is the extent of authority for police to use lethal force. One approach would be to say that the extent of inherent authority is the same as is the case for self/private defense: ie there is an attack which causes an imminent threat to your or another’s life, and lethal force is required to subdue the attack. Of course many feel that police require additional authority to use such force. However, I think all of us will agree that that additional authority should be provided for clearly in terms of the law.

    It is interesting that many countries’ municipal law seemingly does not provide explicitly for the the extent of lawful lethal force by law enforcement officers, and those that do, very often exceed the permissible threshold of even the most basic IHRL right to life standards. For instance, Nigeria has legislation in place (unless it has recently been repealed) that provides that that police may use lethal force to prevent a person suspected of committing a felony which carries at least a seven year prison sentence from escaping, and the same state provides that it is a felony that carries a potential seven year sentence to escape police arrest. Go figure…

    I should make it clear that I am not speaking to the US example specifically, but the broader question of authority to use lethal force.

    Kind regards,

    Gus

    P.s. I hope to see you in Johannesburg for the ILA conference in a few weeks.

  7. Mary Ellen O'Connell Mary Ellen O'Connell

    One way that police use of force has been contained is through limitation on weapons. Since bombs and missiles are designed for area control, they have been considered inappropriate for police use–the Philadelphia case I describe in the post is was an exception that proved the rule.

    My concern is that with robot technology, the same seductive pull to use technology and re-shape the law to permit it is now influencing police. Gus describes a weakness in domestic police use of force rules where interest in new weapons technology can be exploited. If police do not have control of an area, under IHRL they cannot use a bomb to gain it because of the risk to bystanders and property destruction. If police do have control of an area, a gun is in line with IHRL.

    Bullets are significantly different from bombs and missiles.

    As to Wes’s point that I am mixing unrelated areas–my concern is that the Dallas police just treated a peacetime law enforcement situation as a war zone. They have heard for 15 years that there are battlefields beyond “hot battlefields” where bombs and missiles may be used lawfully. Re-establishing the legal distinction between the exceptional zones of armed conflict hostilities and everywhere else is imperative. I welcome Wes’s clarity on this.

    And, yes, I will be at ILA and look forward to discussing how we can reverse dangerous departures from the jus ad bellum, IHL and IHRL.

    Mary Ellen

  8. Nigel Rodley

    Thanks to Mary Ellen for initiating this interesting discussion.

    Pity the Dallas police and Mary Ellen get into the ‘war zone’ discussion. It clearly wasn’t relevant here. The only legally relevant questions under international human rights law (the only applicable law in the situation at hand) are whether the use of intentional lethal force was both the minimum necessary and not disproportionate. These tests of necessity and proportionality are strictly required by the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, which have been consistently cited and applied by the European and Inter-American Courts of Human Rights, the UN Human Rights Committee and successive UN Special Rapporteurs on extrajudicial, summary or arbitrary executions, in cases concerning the use of lethal force in law enforcement. Unless the tests are met, the killing will constitute an arbitrary deprivation of life and so violate the right to life.

    Given the lethality of the suspect’s activities, the response was palpably not disproportionate. On the other hand, Mary Ellen’s argument that his dangerousness to life had been contained (as evidenced by the involvement of the negotiators) may indeed suggest that the use of lethal force may not have been the minimum, or even at all, necessary to prevent an imminent threat of the use of lethal force by the suspect. That is a question of fact, not law.

    Whether the killing was effected by a robot or a sharpshooter is neither here nor there. Robots can only be ruled out if we can say that there could never be any circumstances in which a robot would be more capable than human beings to apply the necessary force to protect life against an imminent threat, while reducing risk to the life or limb of others.

  9. Mary Ellen O'Connell Mary Ellen O'Connell

    Dear Nigel,

    This is an excellent restatement of the law with which I almost entirely agree. One concern: I have been researching targeted killing with drones since the November 2002 killings by the U.S. in Yemen and find there is something different about lethal robotic technology. It creates a distance between the operator and the individual targeted. Just as in the case of terrorism suspects and national leadership, we need to investigate drone killings where no member of the police believed the case required him or her to pull a trigger to end a life but could countenance a drone doing so.

    Invoking the language of war and emergency makes the decision that much easier.

    Mary Ellen