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.
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.