Surface to Air Missiles to be Deployed at the Olympics: One More Step to Dystopia?

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It was recently announced that the security measures for this year’s London Olympics will include the deployment of surface to air missiles in the vicinity of the various Olympic venues. Oddly, there has been very little discussion of the implications that these security measures might have for civil liberties or human rights. Unlike the games themselves, these legal issues are important in the wider scheme of things.

Call me cynical, or at least bitter and twisted, if you like.   I simply have never seen the point of the Olympic Games, unless one sees it as a continuation of politics through sport (which we now have to assume includes synchronised swimming, (see this YouTube clip), or as a nice little revenue stream for construction companies, fund-raisers, and those successful in their chosen sport, or as a laboratory for the development of new undetectable drugs.  With few exceptions, for instance Bannister’s achievement in breaking the four-minute mile, who remembers a world-record-breaking performance once it has itself been broken?  This is an investment in ephemera, and the substitution of chauvinistic public emotion for reason and decorum.

So I, for one, am dreading the descent of the Olympics on London later this summer.  I shall not be waving flags or cheering the athletes on, and that is not simply because there is no Scottish team.  It is bad enough that I cannot look out my office window without seeing the “count-down to the games” revolving around the top of what used to be called the Post Office Tower.  It is a constant reminder of dread.  A dread which has been increased by the press reports of the enhanced security measures currently being proposed—in particular, the deployment of surface–to–air missiles which some reports claim can down a 747 (see here and here).

Perky army types in uniform have stressed that any decision to use missiles against a threat from the air will be taken not by them on the ground, but rather at the highest levels of government.  Security analysts are, of course, claiming that the aim of these draconian measures is to reassure the public and deter potential air attacks.

Oh really?  Even if we assume that the current crop of senior UK politicians might be able to make a sensible decision under extreme pressure, I am not at all reassured by the thought that they might entertain the possibility of shooting down planes over central London.  And all the publicity that has been given to these extreme security measures might simply give rise to the new unofficial Olympic sport of outwitting security in a spectacular manner.  And it too will be televised.  Rather than being a deterrent, this might be seen as a challenge—and if an aerial threat were to be posed by, say, a drone, or those intent on a suicide attack, how could these measures deter in the first place?  Leaving unmanned aircraft to one side, the question that I have not yet seen discussed is the threat that these measures pose to civil liberties and human rights.  Are these, once again, to be swept aside without comment by alleged considerations of “security”?  Is this, once again, politicians goading the public into mute acceptance and aquiescent complicity by ratcheting up a climate of fear?  Is this just one more step to dystopia?

I must admit that I am surprised that lawyers have been silent because we have been here before.  In 2006, the German Federal Constitutional Court ruled that section 14.3 of the 2004 Aerial Security Act was unconstitutional.  This provision empowered the Minister of Defence to order a civilian passenger airline to be shot down by the military if it could be assumed that the aircraft would be used to kill others, and that this could only be prevented by shooting it down.  (See: N.Naske and G.Nolte, “Aerial Security Law.  Case No.1 BvR 357/05.  115 BVerfGE 118″, 101 AJIL 466 (2007); and commentaries in the German Law Journal by O.Lepsius, “Human dignity and the downing of aircraft: the German Federal Constitutional Court strikes down a prominent anti-terrorist provision in the new Air-transport Security Act”, (2006) and F.Muller and T.Richter, “Report on the Bundesverfassungsgericht’s (Federal Constitutional Court) jurisprudence in 2005/2006”, (2008) at 184–193).

The Constitutional Court could simply have based its ruling on a separation of powers issue—that, under the German Constitution, the federal government does not have the power to deploy the armed forces domestically except for defensive purposes against military attacks per se—but it also proceeded to rule that the legislation violated the fundamental rights to human dignity and life guaranteed by the Constitution because:

 it allows the armed forces to shoot down aircraft aboard which there are people who are victims of an attack on the security of aviation.  This provision is unobjectionable only so far as measures are directed against unmanned aircraft or against those who are responsible for the attack. (para.118: Naske and Nolte translation, 101 AJIL 467 (2007))

The Court ruled that, under the Constitution, human dignity was a value inherent in everyone which the State could not violate, even when acting in pursuit of the right to life:

the duty to respect and protect human dignity generally forbids making any human being a mere object of the actions of the state.  Any treatment of a human being by the state that—because it lacks the respect for the value that is inherent in every human being—would call into question his or her quality as a subject, [his or] her status as a subject of law, is strictly forbidden. (para.121: Naske and Nolte translation, 101 AJIL 467 (2007))

In reaching this decision, the Constitutional Court implicitly employed a test of proportionality which requires that the measure under scrutiny must be shown to be pursuing some legitimate end, and the means used to do so must be suitable, necessary and appropriate or fair.  The Court found the statutory provision to be disproportionate because it could not achieve the end it claimed to pursue: the information that a passenger aircraft was to be used as a weapon could never be definitive at the time when the Minister of Defence ordered its destruction.  This order could only be given on the basis of a presumption, not a certainty, and this could not justify depriving the passengers of their human rights.

When courts attempt to balance issues of security against the values embedded in human rights norms, one may legitimately wonder if judges are attempting the impossible by trying to weigh incommensurables.  As the Aerial Security Law judgment demonstrates, however, reliance on factual considerations in assessing the efficacy of a proposed measure evaluates it on the basis of its own assumptions and can avoid or negate a conflict between fact and value.  It also throws into relief one facet of cases involving governmental action in response to terrorism and threats to national security: whether these threats exist is essentially a factual, and not a normative, question.

Nevertheless, the judicial scrutiny of national security claims involves inherent difficulties.  As Lord Walker of Gestingthorpe observed in the Belmarsh detainees case,  this process is:

heightened by the secrecy which necessarily attends most issues of national security…a portentous but non-specific appeal to the interests of national security can be used as a cloak for arbitrary and oppressive action on the part of government.  Whether or not patriotism is the last refuge of the scoundrel, national security can be the last refuge of the tyrant. (A (FC) and others (FC) v Secretary of State for the Home Department [2004] UKHL 56, 84, para.193)

No one has apparently claimed that the deployment of surface-to-air missiles as a deterrent measure to “protect” the Olympic Games may be seen as action taken during an armed conflict, for instance, some deemed “war on terror”.  Its legitimacy therefore surely falls to be determined by reference to human rights law.  What seems to underpin this current proposal is some crude utilitarianism—that it is better to shoot down a plane, inevitably killing those on board, in order to prevent greater casualties on the ground.  But two imponderable factors are missing from this calculation.  If a plane is shot out of the sky, then the debris has to fall somewhere.  In December 1988, when Pan Am flight 103 came to earth in or near Lockerbie, which is a small town in an essentially rural area, there were ground casualties.  One should expect that these would be much magnified if a plane were to fall out of the sky over London.  But, apart from these unknown secondary ground casualties, there is an even more profound objection to this utilitarian calculus.  It entails an impossible comparison.  While the deaths of those on board the plane are certain, any ground casualties are contingent—they might be expected, but they are not definite.  As the Federal Constitutional Court ruled, at the time when an order to shoot down a plane must be given, the fact that it is to be used as a weapon is conjectural.

As you may gather, I am not reassured by the deployment of these weapons.  I also fail to see how this might deter, and worry that it only throws down a gauntlet for an unpleasant television spectacular which would, undoubtedly, unofficially close the London Games.

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    JordanPaust says

    May 11, 2012

    I do not agree that a state cannot defend itself and its population, etc. on its own territory as a matter of self-defense under UN 51. If a rather unrealistic domestic law requires certainty, that's quite different (and might prevent swat teams from ever actually protecting hostages in a bank, etc. because of a lack of certainty -- does that really serve human dignity and human rights of the hostages?).
    In the past, legal analysis of self-defense claims regarding some of the incidents involving the destruction of "unidentified" (not fully identified) aircraft seemed to hinge on whether the aircraft had been asked to land and kept coming into a country (e.g., USSRs dowing of an air craft) and whether such aircraft had turned or was otherwise leaving the country's air space (e.g., USSAR downing of the KAL aircraft and Israel's downing of a Libyan airliner -- not reasonably necessary as a self-defense measure). In the U.S., especially after 9/11, if an aircraft keeps traveling toward the White House or Congress, it is likely to be shot out of the air.

    Dapo Akande says

    May 11, 2012

    Dear Jordan,

    I wouldn't have thought that the self defence under the jus ad bellum was relevant to the human rights questions that Iain raise. Whether or not a use of force is lawful under the law relating to self defence does not affect whether the use of force violates the human rights of the targets. Although it is true that self-defence is a "circumstance precluding wrongfulness" (i.e a defence) under the law of State responsibility, self defence does not act as a defence to all violations of international law. The International Law Commission was quite clear on this in its commentary to Art. 21 of its Articles on State Responsibility. It stated that:

    "This is not to say that self-defence precludes the wrongfulness of conduct in all cases or with respect to all obligations. Examples relate to international humanitarian law and human rights obligations. . . . Human rights treaties contain derogation provisions for times of public emergency, including actions taken in self-defence. As to obligations under international humanitarian law and in relation to non-derogable human rights provisions, self-defence does not preclude the wrongfulness of conduct."

    (see here http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf , p. 74, para 3)

    jpaust says

    May 11, 2012

    Dapo: I agree with the general point that you make about the relevance of human rights (and pointed to those of victims of a non-state actor bank robbing hostage-taker), but more than human rights are at stake (and I suspect that you agree).
    Also, I know that Europeans have a special issue with respect to the right to life under Article 2 of the European Convention (which lists merely a few examples where life can be "intentionally" taken in para. (2)(a)-(c) -- although the word "intentionally" may be malleable) and would need to derogate in time of war under Article 15(2) with respect to lawful acts of war (unlike those who are not bound by the European Convention and are bound, for example, by ICCPR art. 6 -- which merely requires that death not be "arbitary").
    But, since self-defense is necessarily part of the international legal matrix in this sort of case, does the inherent right of self-defense under Article 51 of the U.N. Charter override a European state's obligation under another treaty because of Article 103 of the Charter? I would conclude "yes." But then what are the human rights protected through the U.N. Charter (which are binding under Article 56, in connection with Article 55(c)) and which are, therefore. also relevant obligations in view of Article 103? I would say that they are the customary global human rights evidenced, for example, in the ICCPR (which, in the case of the right to life, involves the standard "arbitrary").

    jpaust says

    May 11, 2012

    p.s. Iain seemed to assume that since "war" and the laws of war did not apply that the only paradigm was human rights. In any event, if measures of self-defense are permissible in context, such is relevant with respect to interpretation and application of the global human rights standard -- i.e., if lawful self-defense, not "arbitary."

    iain says

    May 12, 2012

    I can see I am going to have to reply to Jordan sometime over the weekend. And I thought I was going to catch flak principally because of my jaundiced views of the Olympics in general, and synchronised swimming in particular. Watch the video. Such is life.

    Tobias Thienel says

    May 14, 2012

    Jordan,

    I'm afraid I fail to see how Article 103 of the Charter is relevant to this issue. Article 51 applies to justify the use of force, inasmuch as shooting down an areoplane registered in a foreign state is regarded as a use of force against that state (which it frequently is, although this is debatable). Article 51 also justifies (or: precludes the wrongfulness of) any other violation of the rights of the plane's state of registration (if there is a use of force, presumably there is a prohibited intervention as well). But as Dapo has rightly - and I think cogently - said, Article 51 does not claim to apply to any infringement of human rights. It therefore does not say positively that the UK has a right under the Charter to shoot down the plane. It says only that if the UK does this, it will not be in violation of the prohibition on the use of force or the principle of non-intervention. The human rights claim discussed by Iain does not conflict with this statement of Article 51. Accordingly, Article 103 cannot apply.

    I think you are right in saying that 'more than human rights are at stake', inasmuch as there are issues under Article 2(4) and the principle of non-intervention. But the fact that these difficulties may be answered by Article 51 does not imply any resolution of the human rights claim. As Dapo has said, Article 51 is silent as to this aspect. Therefore, Article 51 and the ECHR (which I assume to be the source of the relevant human rights) are not in conflict. Article 103 expressly presupposes a conflict; it resolves conflicts between treaties. It is not a shortcut to having the law of the Charter control all other areas of international law.

    Our disagreement, in a nutshell, relates to your positing a general 'right of self-defence'. That right exists, but not vis-à-vis human rights claims, because Article 51 does not extend to them.

    Iain,

    Still no criticism of your view of the Olympics. Sorry to disappoint.

    However, I have just re-read the German case you have mentioned, if only in the slightly unfortunate English translation published by the Court (http://www.bverfg.de/entscheidungen/rs20060215_1bvr035705en.html). I'm afraid I disagree with your understanding of the judgment.

    The ratio of the case under the constitutional rights of respect for human dignity and human life, as I understand it, is not that the factual prerequisites could not be definitively established. This point is, admittedly, made at paras 123 to 127 of the judgment, but that would be subject to the facts of each individual case, and para 128 makes it clear that the main problem is

    'that the legislature may not, by establishing a statutory authorisation for intervention, give authority to perform operations of the nature regulated in § 14.3 of the Aviation Security Act vis-à-vis people who are not participants in the crime and may not in this manner qualify such operations as legal and thus permit them.'

    This point is made under Article 1(1) of the Basic Law, which enshrines the absolute inviolability of human dignity (see paras 119 to 122 of the judgment). Article 1(1) has been interpreted to mean that a person must not be made a mere object of the actions of the state. The state must always be mindful of the autonomy of the individual. But if a plane carrying innocent passagers as well as terrorists is shot down, the innocent passagers are treated as mere objects, because the treatment given to them by the state bears no relation to their own self-determined actions. As the Court explains:

    The desperateness and inescapability which characterise the situation of the people on board the aircraft who are affected as victims also exist vis-à-vis those who order and execute the shooting down of the aircraft. Due to the circumstances, which cannot be controlled by them in any way, the crew and the passengers of the plane cannot escape this state action but are helpless and defenceless in the face of it with the consequence that they are shot down in a targeted manner together with the aircraft and as result of this will be killed with near certainty. Such a treatment ignores the status of the persons affected as subjects endowed with dignity and inalienable rights. [Being killed in order to save others], they are treated as objects and at the same time deprived of their rights; with their lives being disposed of unilaterally by the state, the persons on board the aircraft, who, as victims, are themselves in need of protection, are denied the value which is due to a human being for his or her own sake.

    There is no proportionality test here. Indeed, there can be no proportionality test under Article 1(1) of the Basic Law, that fundamental provision being just as absolute as Article 3 ECHR.

    It follows that Jordan's point regarding a SWAT team and hostages in a bank does not meet the Court's actual reasoning. Hostage-takers can be shot in order to save others, even under German constitutional law. But that is because such treatment is based on the hostage-takers' own actions. They are not rendered mere objects at the disposition of the state. They are killed, but their status as self-determined individuals is not denied or taken away. Indeed, that is why the Court had no problem with aeroplanes carrying only terrorists being shot down where that is necessary to protect lives on the ground (paras 138 et seq of the judgment).

    Incidentally, I recall a German friend telling the then head of the Royal Air Force (Chief of the Air Staff, Air Chief Marshal Sir Glenn Torpy) about this judgment of the German Federal Constitutional Court, and asking whether similar difficulties might prevent the RAF from executing an order to shoot down an aircraft. The Air Chief Marshal had no such qualms.

    Dapo Akande says

    May 14, 2012

    Jordan,

    I would like to add one more point to Tobais' point that Art. 51 and the ECHR (or other human rights obligations) do not conflict and therefore Art. 103 of the Charter would not apply to this situation. If you are right in suggesting that Art. 51 displaces all other principles of international law by virtue of the operation of Art. 103, why does Art. 51 not displace international humanitarian law/law of armed conflict. If a State exercising the right of self defence is free from all treaty obligations, would it not be free from the obligations under the Geneva Conventions and Additional Protocols? We know that the answer to that question is in the negative so it cannot be right that an invocation of Art. 51 means that a State is thereby free from all treaty obligations.

    jpaust says

    May 14, 2012

    Tobias: Regarding the ECHR as the supposed "source of relevant human rights," this misses the point that even Eurocentric European states are bound by the United Nations Charter, including Article 56, which is necessarily conjoined with Article 55(c), which picks up global customary human rights law as UN Charter-based human rights through Articles 55(c) and 56. If a European state's obligations under the ECHR are in "conflict" with obligations under the UN Charter, those under the Charter necessarily prevail as a matter of Charter law. U.N. art. 103.
    I would also prefer the primacy of the ICCPR as such, i.e., as a global human rights treaty in contradistinction to a regional treaty, but this is not beyond debate. The customary law reflected therein can prevail through the abovementioned articles of the UN Charter. And, of course, the customary jus cogens rights/obligations reflected therein will prevail in any event.
    Again, Article 51 is relevant because lawful measures of self-defense are not "arbitrary" within the meaning of relevant global customary and treaty-based human rights law. Interpretation of the word "arbitrary" demands a contextually aware and policy-serving approach to interpretation.
    Dapo: and Article 51 does not "displace." Permissible standards and outcomes under Article 51 are relevant to adequate interpretation of the global human rights standard of "arbitrary." Secondly, laws of war do not generally inhibit use of lawful measures self-defense, but it they did I would look for claims based on an Articles 51 and 103 override. Laws of war jus cogens would, however, be a higher law than that based on a treaty (even if the treaty is the UN Charter).
    In my opinion, this exchange has been quite important in at least outlining relevant legal norms and choice points.

    Tobias Thienel says

    May 14, 2012

    Jordan,

    May I now understand you as saying that the conflict for the purposes of Article 103 is that between the ECHR and the human rights law of the Charter? (Whereas you previously said that the conflict was between the right of self-defence and non-Charter HR law.) If so, why is there any conflict between a human right that outlaws only 'arbitrary' killing and a more generous right? Surely the efficacy of the former right is not compromised by the fact that there is a second, more generous right. Accordingly, there is no need for Article 103 to apply.

    I would also doubt that Article 51 has any relevance at all to the 'arbitrariness' test under Article 6 ICCPR. The distinction between the jus ad bellum and the jus in bello is, of course, basic. The fact that a state may be acting in self-defence does not affect the legality of its conduct in war. Article 6 ICCPR obviously refers to conduct in war, not to the use of force as such. Therefore, its standards will not be those of the jus ad bellum. If you disagree, I wonder where you draw the line. Which killing in a self-defence campaign, illegal under the laws of war, is still not 'arbitrary' in your book?

    (Incidentally, phrases like 'contextually aware' and 'policy-serving' have a very strong potential of clouding the issue. Any direction to consider 'all the factors' - or similar phrases - may lead one to consider the wrong ones. As Lord Hoffmann put it in Secretary of State for the Home Department v JJ [2007] UKHL 45, [2008] 1 AC 385, para 46, such phraseology 'simply says that the judge must take everything into account and decide the question, without saying what the question is'.)

    In your reply to Dapo's point, I don't see you engaging with the question of a 'conflict' at all. To repeat, Dapo and I say that because Article 51 is silent as to human rights and IHL claims, there is no conflict on which Article 103 could bite. I assume you stand by your claim of a positive right of self-defence that applies vis-à-vis any prohibition. Dapo has quoted the ILC on this point.

    Finally, I think your statement that 'laws of war do not generally inhibit use of lawful measures self-defense' is intuitive but factually wrong. Of course it would be more effective to hit the enemy in any way that is physically possible, disregarding the laws of war entirely. It's just not done because the laws of war are generally accepted, and because they apply equally to acts of self-defence.

    jpaust says

    May 14, 2012

    Tobias: I thought that my first response to Dapo pointed to a potential conflict between Article 2(a)-(c) of the ECHR and the ICCPR's standard of "arbitrary," and that lawful U.N. Article 51 self-defense targetings would not be "arbitrary." Moreover, there can be a conflict between Article 2 of the ECHR and UN Article 51, one that should be resolved by UN art. 103.
    In any event, the word "arbitrary" has to be interpreted and I see no reason why relevant customary and treaty-based international law should not be useful in that regard, especially in view of Vienna Convention on the Law of Treaties, art. 31(3)(c). We may differ on the basis of jurisprudential preferences and some may wish to think merely in a box, or in merely one of two Latinized labelled and theoretically completely distinct boxes (which, for me and many others, are not competely separate -- for example, with respect to cross normative influence and consideration of general principles that can condition violence, such as the customary principles of distinction and proportionality).

    jpaust says

    May 14, 2012

    p.s. re: the latter points, see also Thomas M. Franck, On Proportionality of Countermeasures in International Law, 102 Am. J. Int’l L. 715, 719-21 (2008) (noting the I.C.J.’s ability to use proportionality first, to determine whether there is a right to use force in self-defense (jus ad bellum), and second, “whether the level of countermeasures deployed is permitted by law; whether it is proportionate to the attack itself and to the needs of self-defense (jus in bello)”). An interrelated use of the same general principle in both "boxes".

    Tobias Thienel says

    May 15, 2012

    Just very quickly: We can obviously agree that the principle of proportionality applies in the jus ad bellum and in the jus in bello. But in my view, that does not prove that the two bodies of law are not separate. Proportionality is a general principle of law and applies in any balancing of conflicting objectives. In the jus ad bellum, the degree of force used (overall) must be proportionate to the attack against which it is used in self-defence. In the jus in bello it applies to the relationship between the military objective (whether that be self-defence or not) and the particular interests affected by a specific use of force (such as the lives of civilians). The principle of proportionality is the same, but its application is different.

    JordanPaust says

    May 23, 2012

    Tobias: sure.
    With respect to a draft Air and Missile Warfare Manual and proportionality, distinction, etc. under the laws of war, see new critical appraisal in the Tex. J. Int'l L. -- http://ssrn.com/abstract=2062568
    comments on the article welcomed.

    Jason says

    May 27, 2012

    Hi all,

    sorry to but in late, I was awaiting Iain's response before adding my own. Mine is threefold:

    1. Commenting on the contradiction between Professor Paust's condescending "European Eurocentric belief" that the ECHR is a source of norms.

    2. On the nature of the surface to air missiles as a technique of self-defence

    3. on UN Charter art 103

    1. Of course the ECHR is a source of norms for the UK. Despite little Englander protests, the UK is a European state, and a party to the ECHR. As such, of course it is legally bound by the ECHR and ECtHR jurisprudence.

    Also, there seems to be a logical conflict between Professor Paust's dismissal of this idea and his reference to US conduct/law as a relevant normative source. It seems to me that precisely this claim that US standards are a source of PIL is at the core of many European objections to the US (exceptionalist) understanding of PIL.

    2. It seems clear, as Iain pointed out, that this 'defence' is completely pointless: protect those in the stadia by sacrificing those who live nearby (and are on the planes). These missiles are not deployed to protect 'us' but to remind us we are at risk; that there are 'bad guys' who hate us/our freedoms and our rights and their (nationals') security must be undermined for 'our' protection.

    3. UNC art 103 deals with conflicting obligations. However, UNC 51 concerns an "inherent right" of self defence. As Hohfeld taught us so long ago, obligations are not rights, and rights are not obligations (in fact, the two, deontologically, stand in opposition). Under no argument is self defence an obligation under the UNC. Consequently, art 103 does not come into play.

    Ian Henderson says

    August 1, 2012

    Apologies for coming to this topic late.

    The discussion on the UN Charter leaves out the fact that not all airborne threats with come from aircraft registered outside the State -- purely domestic airborne threats need to also be considered.

    The location of the missile battery is also driven by its missile engagement zone. The battery might be close to the point to be defended, but the engagement might occur many kilometres out (or miles in the UK!).

    Also, the threat might be from a light aircraft. In such a circumstance, engaging the singe/dual seat light aircraft, even with the risk to those on the ground, might be resonable compared to watching it crash into a full stadium.

    The missile battery needs to be thought of as part of the layered defence strategy and as providing an option depending upon the circumstances/threat presented.