“The law is here to protect YOU”
— Legal adviser of the UK military, Eye in the Sky
Eye in the Sky is (unintentionally) a film about law’s profound inhumanity. (*Moderate spoilers to follow, proceed with caution.) Colonel Katherine Powell (Hellen Mirren) commands from the UK a mission to capture a number of high-ranking Al-Shabaab militants in Kenya. Amongst them there are two British citizens, but one of them is somehow ‘special’: she is a white, beautiful young woman with a ‘troubled’ childhood, who converted to Islam and was radicalised through her husband. At a certain level, Eye in the Sky is about killing a white woman in a headscarf. As is the case with young women who choose to join ISIS the female jihadist is the object of fear, anger and wonder for the western imaginary. The contrast becomes even more obvious given that it is another woman, portrayed by Hellen Mirren, who assumes the most proactive role in chasing her down.
But back to our story: this is a joint mission between the US, the UK and Kenya (lest we forget: a former British colony), and even though the ‘targets’ are in Kenyan territory the Kenyans play at best a supporting role. In fact, from the side of the ‘good guys’ the only one who risks his life in the process is a Somali who works for Kenyan authorities.[1. The fact that the spy is played by Barkhad Abdi, Hollywood’s only relatively prominent Somali actor shows the pressing diversity problem of the industry. But that’s a different story. Or, is it?] The global power (and risk) hierarchies – both between the Global South and the Global North and within the Global South – are simply too stark to miss. In any case, a ‘mission to capture’ is abruptly transformed into a ‘mission to kill’ when drone surveillance reveals that two suicide bombers are about to leave the meeting point and presumably cause extensive loss of civilian life.
Eye in the Sky is also a film about a ‘human ticking-time bomb’ scenario and, therefore, it carries all its misconceptions, biases and political objectives. Even though the film was shot before August 2015, its plot echoes the UK government’s version of its drone strike against two UK nationals (Reyaad Khan, from Cardiff, and Ruhul Amin, from Aberdeen) in Syria at the time. Arguing that it acted in self-defence, the UK government is claiming that an attack was imminent against the UK and therefore the act was ‘necessary and proportionate’. Unsurprisingly, no further information has been released about this alleged attack since, meaning that at a very basic level the argument is ‘you need to believe whatever we might tell you’.
When it comes to drone strikes, the object of state violence is a ticking-time bomb itself ready to explode at any time. The problem is that even for the most hawkish between us torture supposedly can be contained to its ‘legitimate’ targets, while aerial lethal force cannot. A small girl (Alia) arrives outside the house of the targets and starts selling her bread. She is a girl that cannot openly play her hula-hoop or do her math homework, due to Islamists, and she is also a child that needs to sell bread to survive, due to global poverty, inequality and (neo)colonial exploitation. In this sense, Alia, like Alan Kurdi in a different yet directly related context, represents the perfect victim. She is the ‘absolute’ civilian, a figure that sits comfortably on the ‘right’ side of international humanitarian law’s distinction between combatants and civilians.[2. For the unsustainability of the distinction: C. Wilke, ‘Civilians, Combatants, and Histories of International Law’ available at: https://criticallegalthinking.com/2014/07/28/civilians-combatants-histories-international-law/ ] To put it bluntly, Eye in the Sky chose a victim whose survival only a sociopath would not wish for. However, perfect innocence is linked to the implicit or even explicit acceptance that less ideal victims are not entitled to our sympathy or to legal, moral and political protection. What if Alia was not a pre-teen girl, but a 17-year-old boy at the early stages of his radicalisation? What if Alia was to grow up and start stocking missiles in the back of her kitchen without, however, participating directly in attacks? Idealised representations of victims only serve the further dehumanisation of actual victims of the ‘war on terror’: living, breathing people with their backgrounds, their shortcomings, even their crimes. No one wants Alan Kurdi dead on beach, but how many are willing to accept that for the Alan Kurdis of this world not to die their less innocent-looking fathers should be granted asylum?
But let’s return to law. Law is omnipresent in this film. The change of the mission from a capture to a kill one is assessed, rejected and subsequently approved through the use of legal language and the application of legal criteria, while the chain of command is religiously followed. Complicated calculations of ‘collateral damage’ are run (and re-run until they reach the ‘correct’ outcome), and Colonel Powell regularly turns to the military legal advisor to make sure she stays on the ‘correct’ side of the law. The film is a visual reproduction of David Kennedy’s Of Law and War: ‘As a result, statesmen, military strategists, and humanitarians may disagree, but they are speaking the same language and playing the same game.… If ours has become a culture of violence, it is a shared culture, the product of military and humanitarian hands.’[3. D. Kennedy, Of Law and War (Princeton University Press, 2006), 156.] Indeed, the proponents of the drone strike forcefully mobilised the language of humanitarianism. They were surely saddened by the fact the strike will endanger the lives of civilians, but if they allow the suicide bombers to leave the building dozens of people will die. All the arguments and fallacies of ‘muscular humanitarianism’[4. A. Orford ‘Muscular Humanitarianism: Reading the Narratives of New Interventionism’ (1999) 10 European Journal of International Law 679.] appear with surprising accuracy. As always, we are urged to see ‘the bigger picture’. Of course, the ‘bigger picture’ only includes what will happen within the next few hours or at best the next few months.
Academic applause for the Libyan intervention as the long-awaited implementation of responsibility to protect or pronouncements that the Kosovo intervention was ‘illegal but legitimate’ indicate that this peculiar understanding of the ‘broader picture’ is another commonality between lawyers, humanitarians and interventionists.1Amongst (too) many: B. Simma ‘NATO, the UN and the Use of Force: Legal Aspects’ (1999) 10 European Journal of International Law 1; A. Cassesse ‘Ex iniuria ius oritur: are we moving towards international legitimation of forcible humanitarian countermeasures in the world community?’ (1999) 10 European Journal of International Law 23; A. Peters ‘The Security Council’s Responsibility to Protect’ (2011) 8 International Organizations Law Review 1. In this context, even the staunchest believer in the virtues of (international humanitarian) law could see that law and violence were far from a zero-sum game. Rather, the two existed in a continuum, but also in a relationship of mutual dependency. Law rationalises (or even humanises) violence offering legitimacy, and violence establishes law, it gives it meaning and social relevance. The young legal advisor stands silent and embarrassed toward the end of the film. He probably believed he would join to make a difference, or even ‘to change the system from within’. Still, moments later we was shouting at Helen Mirren that ‘law is here to protect YOU’ only to go on and murmur ‘and those you engage with’. The convergence between law and violence is happening fast, and it makes them indistinguishable.
What seems unquestionable throughout the film is that international humanitarian law (perhaps with some infusion of human rights) is the applicable law, since the UK is at war. The language of war is employed time and again and no one seems to be raising an eyebrow. ‘Never tell a soldier that he does not know the costs of war’, declares Alan Rickman before proceeding to collect a doll for some child waiting for him at home and making his way back. The fact that the UK is not at war with Kenya and that Al-Shabaab operates at the horn of Africa appears to be totally immaterial. This is particularly ironic given that the UK only a few decades earlier was willing to allow hunger strikers to die instead of granting them the privileges of prisoners of war and, therefore, acknowledging that a (non)-international armed conflict was taking place in its territory.[6. In fact, the UK did not ratify Additional Protocol I to the Geneva Conventions until 1998 when the most heated phase of the conflict in Norther Ireland was over. The reason for the delay was that the Protocol under the influence of post-colonial states classified armed struggles for national liberation as international (and not as non-international) armed conflicts.] If in the 1980s war at home was a taboo, war is now omnipresent and eternal. To return to David Kennedy:
The point about war today, however, is that these distinctions have come unglued. War and peace are far more continuous with one another than our rhetorical habits of distinction and our wish that war be truly something different would suggest.[7. Kennedy (supra note 3), 3.]
In this context, proportionality tests do not measure ‘collateral damage’ against ‘military necessity’, but against the potential occurrence of a suicide bombing and the corresponding extensive loss of civilian life. Apart from the fact that this reflects the ‘lay’ understanding of proportionality in international humanitarian law, it is in my view a further step in the conflation of international humanitarian law and international human rights, or even the general convergence between military and humanitarian language. A decade after the release of Kennedy’s book the convergence and conflation between war and peace (and their laws) has evolved further. The idea and the materiality of permanent, global belligerency is increasingly acceptable, even self-evident. In this context, the lawyers and humanitarians willing to engage with the military have attempted to humanise warfare, while accepting or even applauding the ‘forever war’.[8. S. Moyn ‘Toward a History of Clean and Forever War’ available at: https://www.justsecurity.org/26697/sanitizing-war-endlessness/ ]
The solution perhaps lies in one of the remarks of the attorney-general in the film: there is a legal argument on why we should and another on why we should not strike, you need to make a decision. Otherwise put, whoever is looking for solutions in law is simply trying to conceal or rationalise their preferences, political choices or geopolitical or economic interests. Rather, both as citizens and as lawyers our duty remains ‘locating a moment of responsible political freedom’.[9. Kennedy (supra note 3), 171.] Eye in the Sky was a film about law, and it was also a kitsch film, in the sense Kundera understood the term and Koskenniemi introduced it into the vocabulary of international lawyers:
Kitsch causes two tears to flow in quick succession. The first tear says: How nice to see children running on the grass! The second tear says: how nice to be moved, together with all mankind, by children running on the grass. It is the second tear that makes kitsch kitsch.[10. M. Kundera, The Unbearable Lightness of Being (Harper Collins, 1999), 248 cited in M. Koskenniemi International Law in Europe: Between Tradition and Renewal (2005) 16 European Journal of International Law 113,121.]
It is the self-indulgence of this second tear that Eye in the Sky is seeking. And that self-indulgence we must resist.