Juridification of Warfare and Limits of Accountability

An Ethnomethodological Investigation into the Production and Assessment of Legal Targeting

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The book provides an empirical account of the laws that regulate today’s scenes of armed conflict by looking into the details of one particular military incident and its ex-post legal accounting. Empirically, the book focuses on a highly controversial airstrike in Afghanistan (2009), in which large numbers of civilians were identified as combatants and killed as such. The incident lends itself to reflect upon the relation between the violation of procedural rules and the violation of the international laws of armed conflict. The ethnomethodological Law-in-Action research investigates the practical details of legal accountability and explores how the event shaped and specified the legally required protection of civilians in armed conflict. Exploring the collaborative and systematic work that goes into the ‘application of law’ at the military and the judiciary site, the study develops an empirical respecification of the concept of ‘juridification of warfare’.
Copyright Year:
2022
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978-90-04-47244-0
Publication:
18 Jul 2022
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978-90-04-47243-3
Publication:
21 Jul 2022
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Martina Kolanoski, Dr.phil., is a research associate and lecturer at the Faculty of Social Sciences, Goethe University Frankfurt/Main. She is also a Visiting Fellow at the German Institute for Human Rights, Berlin, where she is part of the working group Climate Change and Human Rights. Between 2016 and 2020, Martina was a Visiting Fellow at the University of Liverpool, School of Law and Social Justice, where she collaborated on topics related to this publication.
Abbreviations

List of Figures and Tables

Acknowledgements

1 Introduction
 1.1 The Juridification of Warfare as an Empirical Phenomenon
 1.1.1 Post-Cold War Developments

 1.1.2 Civil Law and Victims’ Rights to Compensation

 1.1.3 Relations of War and Law

 1.1.4 Analysing and Assessing Scenes of Combat


 1.2 Overview of the Chapters


2 Civilian Deaths and Legal Responsibility
 2.1 The Kunduz-Airstrike
 2.1.1 Military, Political and Legal Investigations

 2.1.2 Enduringly Contested Details: Defensive-Offensive Strike

 2.1.3 Unjustifiable at First Sight
 2.1.3.1 Scandalisation: The Airstrike as a Turning Point in the National Afghanistan Debate

 2.1.3.2 From Non-War to War: Redefinition of Military Engagement


 2.1.4 Mistakes and Violation of Rules


 2.2 Knowing Civilians
 2.2.1 Combat(ed) Categorisation: The Colonel’s Account
 2.2.1.1 The Setting

 2.2.1.2 Decision-Making as Mental Process and Categorial Certainty

 2.2.1.3 Correlation of Word and Image: The Video Material as a Telling Source

 2.2.1.4 Auxiliary Collections and Translations

 2.2.1.5 Visible Signs of Taliban and Everyday Performance of Distinction

 2.2.1.6 Errors as Normal Part of Work


 2.2.2 Criminal Investigations


3 Legal Assessments and the Study of Organised Action
 3.1 Law and Action
 3.1.1 The Home of Law and Motivated Compliance

 3.1.2 Ethnomethodology: Rules and Situated Sense-Making

 3.1.3 Law and Categories


 3.2 Rule-Following in/of Organisations
 3.2.1 Accountability of (Organised) State Action


 3.3 Procedurally-Organised Work and Procedural Cultures
 3.3.1 Procedural Decision-Making

 3.3.2 Funnelling and Procedural Cultures


 3.4 From Object Fromation to Organised Action
 3.4.1 The Co-Structuring Object

 3.4.2 Organised Action as a Turn in Law/War


 3.5 Studying Procedural Work
 3.5.1 Two Temporal Orders

 3.5.2 Discursive Materials in Document-Based Environments

 3.5.3 tsa as a Methodological Sensitising Device


4 Judging Military Action
 4.1 Studying Court Work

 4.2 Cross-Procedural Turn-Taking: The Civil Lawsuit
 4.2.1 Complaint: The Video Material Evidence against Klein
 4.2.1.1 Recognition of the Reconstructed Events on the Sandbank

 4.2.1.2 Visible Categories

 4.2.1.3 Careful Average Soldier


 4.2.2 Defence Brief: Interpretative Restraint

 4.2.3 Hierarchy of Issues


 4.3 Seeing Like the Military
 4.3.1 Analytic Approaches to the “Military Viewer”

 4.3.2 Hearing: The Staging of Competence
 4.3.2.1 What Everyone Can See

 4.3.2.2 The Military Experts

 4.3.2.3 The Afghanistan Expert


 4.3.3 The Military Viewer and His Special Competences: Professional Vision


 4.4 Military Situation and Legal Significance
 4.4.1 Undoing the Legal Capacity of the Military Object

 4.4.2 The Subsequent Turns: Preferences within the Viewer’s Maxims
 4.4.2.1 Plaintiffs: Viewer’s Maxim of Caution

 4.4.2.2 Court: Viewer’s Maxim of Hostility


 4.4.3 Standards of Military Reconnaissance


 4.5 Constellating Dispute


5 Collaborative Accountability of Legal Targeting
 5.1 Cohesion and Rule-Following
 5.1.1 Fighting for Precision

 5.1.2 Precision and Legality as Collaborative Achievement


 5.2 Data and Research
 5.2.1 The Transcribed Situation and the Process of Target Development

 5.2.2 Transcript and Process


 5.3 Collaborating in Targeting
 5.3.1 Audio-Video Material and the Transcript

 5.3.2 Target Handover

 5.3.3 Identification Work

 5.3.4 Work on Open Issues upon Arrival – Business as Usual
 5.3.4.1 Friendlies: Opening Issue by Standard Procedure

 5.3.4.2 Show of Force: Not Now but Later?

 5.3.4.3 The Drivers: Settled or Open Issue?


 5.3.5 Responding to Developments on the Ground
 5.3.5.1 New People: Adjustment of the Target

 5.3.5.2 Declaring Target to Be Time-Sensitive


 5.3.6 Pilot Seeking Clarification on Two Issues
 5.3.6.1 Target Definition

 5.3.6.2 Drivers


 5.3.7 Problem Solving Activities for “RoE Issues”
 5.3.7.1 In Accordance with RoE: Target Category and Clearance Authority

 5.3.7.2 Show of Force and Target Selection: This Is What We Like to Do

 5.3.7.3 Show of Force and Target Selection: Working with Some RoE Issues

 5.3.7.4 Situation on the Ground


 5.3.8 Switch of Interaction System


 5.4 Legal Targeting and the Suspension of Doubts
 5.4.1 Disobedience and the (In)Capacity to Know What Is Wrong

 5.4.2 Funnelling: Working the Temporal Order of Targeting

 5.4.3 Between “collaborating for precision” and “authoritarian positing”


6 Conclusions Organised Action and the Assessment of Legality
 6.1 Legal Action Unlimited

 6.2 Members’ and Researchers’ Analysis of Action

 6.3 Producing Legality
 6.3.1 Neutralising Alternatives

 6.3.2 Radical Ways of Producing Certainty


 6.4 The Reproducibility of Assessments

 6.5 Re-Assessing Legal Targeting
 6.5.1 Collaborative Accountability

 6.5.2 The Legal Capacity of the Target


 6.6 Progressing Law


Appendix 1 Map Kunduz Area with German Camp and Place of Bombing

Appendix 2 Redacted Transcript of Cockpit Communication Recorded in One of the F-15 Fighters

References

Index

International lawyers and ethnomethodologists. Scholars and postgraduate students from sociology, sociology of law, military studies, peace and conflict research and political science.

The book may spurn the interest of legal, political and civil society actors who are involved in the investigation and evaluation of the military violence. In the young legal field of international criminal law, the actors have a genuine interest in questions of legal development, to which they explicitly attend, e.g. through strategic litigation.

Empirically, the book focuses on an airstrike which was part of an international military engagement, it included US-soldiers and Afghan citizens, and became an international matter of concern. The description of the legal casework in a German court provides a crucial example of the case-based specification of international rules by (local) national courts. The application of the international law of armed conflict and the specification and further development through casework is therefore equally important for German and international readers. The study adds new dimensions to transnational and interdisciplinary debates about the deployment of the military and the role of law, both during the armed violence itself but also as a resource for assessing its appropriateness afterwards. Next to international scholars from the subject areas named above, I see a potential readership in the environment of places like the International Criminal Court and the UN as well as in the international master programs that offer a specialization in international criminal law.
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