Rule of Law and Sovereignty Outside the State

State Power and Complex Sovereignties

In his 2016 review essay, “The Rule of Law: Pasts, Presents, and Two Possible Futures”, Martin Krygier identifies “two venerable themes” that remain, he argues, crucial to present interrogations of rule of law (200). These are “arbitrary exercise of power and its institutionalized tempering”; themes, he notes, that are “related to each other as vexed problem and putative solution” (200). In the course of making his compelling argument for the continuing pursuit of rule-of-law ideals, Krygier produces an invaluable mapping and assessment of the ever-expanding field of rule-of-law scholarship. Situating recent analysis in relation to established thought and rule of law’s “unprecedented voguishness” (200), Krygier issues a challenge to those of us wedded to the received notion that the institutionalized tempering of power necessarily involves state power. He writes,

“If society is full of networks, nodes, fields, and orderings that have power over people in and around them, and if arbitrary exercise of power is to be avoided, the conventional assumption, that threats of arbitrariness with which the rule of law is concerned are a state monopoly, needs an argument. I do not know a persuasive one from either the tradition or contemporary writings. The sources, scale, and significance of arbitrary power are empirical matters, answers to which will vary in different societies and at different times. But then why has there been such an exclusive concentration on threats coming from governments, by writers on the rule of law?” (2016, p. 221).

In this short essay, I take up Krygier’s challenge to consider threats coming from sources of arbitrary power other than governments. But in thinking through some of the “networks, nodes, fields, and orderings that have power over people”, I have found myself bumping up against the persistence and constraints of a host of conventional assumptions relating to rule of law, such as sovereignty, jurisdiction, and the distinction between public and private. Guided by Krygier’s maxim—“If there were ever a subject that could benefit from historical awareness and interdisciplinary mixing, it is the rule of law” (222)—I offer here a historically aware and interdisciplinary discussion of a cultural text that in many ways represents law while raising questions of arbitrary power in relation to drone warfare: Gavin Hood’s 2016 film, Eye in the Sky (Eye).

In dramatizing how ordinary civilians encounter threats of arbitrary power from both non-state sources (terrorists) and from an international alliance of states (the US, the UK, and Kenya), Eye depicts complexities of sovereignty in the ongoing War on Terror. In the face of these complex sovereignties, what role is played by rule of law? Before discussing the film however, I would like to contextualise drone warfare through Philip Alston’s 2010 report on targeted killing; a report delivered in his capacity as UN Special Rapporteur on extrajudicial, summary or arbitrary executions. For Alston, the practice of targeted killing is incompatible with the international community adhering to “a normative framework that is consistent with its deep commitment to protection of the right to life, and the minimization of exceptions to that constitutive principle” (2010, p. 3, para 5). By foregrounding the constitutive right to life, Alston effectively highlights how the harm of arbitrary power is most devastating when the constitutive right to life is denied.

But, as Foucault points out, the right to life becomes primarily meaningful with reference to death.

“[I]n the classical theory of sovereignty, the right of life and death was one of sovereignty’s basic attributes. …What does the right of life and death actually mean? Obviously not that the sovereign can grant life in the same way that he can inflict death. The right of life and death is always exercised in an unbalanced way: the balance is always tipped in favour of death. Sovereign power’s effect on life is exercised only when the sovereign can kill” (2003, p. 240).

Sovereignty expressed as the right to kill is at the heart of Eye in that the film’s compelling narrative tension is that a child, Alia, a graceful embodiment of archetypal innocence, is likely to be harmed if a missile is launched at a room occupied by terrorists loading suicide vests with explosives. But if Alia is not risked (sacrificed?) and the terrorists conduct their planned suicide mission, a minimum of 80 civilian deaths is the probable result. With lives at stake, we watch elite, mid- and low-ranking American and British state actors—military personnel, cabinet ministers, the British Attorney General, the Senior Legal Advisor to the U.S. National Security Council—as the decision is made to conduct the targeted killing. In the process, against the urgency of a ticking bomb scenario,Footnote 1 these various lawyers, politicians, and military personnel express competing values and understandings of law and reality.

Entertainment media’s representations of the War on Terror are worth paying attention to because they reveal, to a certain extent, what powerful states want their publics to see and believe. Specifically, when it comes to the US, media scholars highlight the contemporary “intensification of the relationship between the Pentagon and the entertainment industries” (Stahl 2010, p. 3). From at least the 1991 Gulf War, “the locus of battle had migrated from the battlefield to home front. The ingredients necessary for victory…increasingly meant building a sophisticated public relations apparatus, fostering a more compliant press, and placating a nervous and reticent population” (Stahl 2010, p. 21). In addition to the US state’s tighter control of news media’s coverage of war (Stahl 2010, 2018), distinctions between fact/fiction, news/entertainment, and state/non-state have been dismantled by a vast network “across space and time” with “Matrix-like social effects” (Vavrus 2013, p. 103). In his influential scholarship, James Der Derian points to “the military–industrial–media–entertainment network” (2001). When power is exercised through complex webs and relations, the capacity to hold power accountable, indeed, to even be able to identify power in some agentic way, is thwarted. The legal-political fictions that imagine nation-states as bordered, fixed spaces, with legible, visible forms of power subject to popular scrutiny and restraint—these legal-political fictions disintegrate in the face of the vast military–industrial–media–entertainment network pervading our social lives.

Spectacular War

Building on Guy DeBord’s highly influential analysis of the manner in which visual spectacle alters political and social relations, Roger Stahl describes our present as a time marked by spectacular war. With spectacular war, Stahl explains, rather than a political, social, and media environment that “work[s] through appeals, explanations, and justifications to a citizen acknowledged to be in a decision-making position”, a discourse is produced “that dazzles the citizen subject into a submissive, politically disconnected, complacent, and deactivated audience member” (2010, p. 20). For Stahl, “spectacular war does not examine the legitimacy of military action so much as it inserts itself into the momentum of an inevitable conflict” (2010, p. 32).

Spectacular war combines with spectacles of law in Eye. Indeed, law is so explicitly in the texture of Eye that in a review of this film on a public media website, Mark Jenkins characterises this film as interlacing “a thriller with a courtroom drama”.Footnote 2 The spectacle of something very like a courtroom drama is indeed generated in that Eye features lawyers, hierarchies of authority, rules of procedure, and dynamics of adversarial argument in which precedent, rights, and law are invoked.

However, Eye departs from the standard courtroom drama in two important ways. First the role of ‘witness’ is (primarily) scripted for machines. With our weaponised spectatorial eye (Stam 1992, p. 104) framed by a range of differently marked crosshairs, we see what the various drones show us. Indeed, the film’s plot and pace is quickened when the tiny, discreet (and therefore fascinating) beetle-shaped drone reveals two suicide vests being loaded with explosives. In Eye, what the drones show us operates like the incontrovertible facticity of proof in a courtroom drama; a facticity of seeing that distracts us from the questions that are, in Nasser Hussain’s words, eclipsed.

“[T]he accuracy of the drone’s eye structures more than vision; it shapes how we think about, talk about, and evaluate a bombing. We focus in on the target, the moment of impact. We dispute how contained or collateral the damage was, how many civilians died alongside the chosen target. These questions begin to eclipse all other questions about the global military apparatus that makes the strike possible or about civilian injury that goes beyond body counts” (Hussain 2013).

The global military apparatus that makes the strike possible relates to the second key departure from the genre of courtroom drama: events do not unfold in a single courtroom, nor is the contestation enacted primarily between legal professionals. Instead, Eye shows us the inadequacy of conventional legal-doctrinal assumptions pertaining to nation-state sovereignty. In Eye, the ‘courtroom’ is a technologically networked space across many sites, and military personnel are principal advocates. Two sites for this networked courtroom are in England. Colonel Powell runs the operation from Basement Three of the Permanent Joint Head Quarters in Northbrook. A room with no windows, Basement Three features a large wall of screens, and a team of Colonel Powell’s subordinates operating computers and electronic devices too complicated for us to understand. On the wall of screens, however, we see what they see on their various screens, as well as images relayed from other sites around the world. Everyone in this room wears an army uniform.

The second English ‘courtroom’, mimicking perhaps a superior court, is the beautifully appointed Cabinet Offices Briefing Room A. This venue has the slightly sinister acronym COBRA. Sunlight streams through large windows perpendicular to a wall equipped with a screen. Only one person in this room wears a uniform: Colonel Powell’s superior, Lieutenant General Benson. Benson sits at the head of a conference table along with the Attorney General, the Minister of State for Foreign and Commonwealth Affairs, and Angela Northman, the Parliamentary Under-Secretary of State Responsible for Africa; the one woman in the room. On their wall of screens, these elite actors see the same images on the wall of screens in Colonel Powell’s Basement Three room; images which include those relayed from drones managed by the U.S. pilots sitting in the industrial-looking metal box in Nevada that is their ground control station. When the Senior Legal Advisor on the U.S. National Security Council calls in from the White House, we see her on these walls of screens. When the British Foreign Secretary calls in from Singapore to ask, “Gentlemen, what action is being legally recommended?” we see him on these walls of screens too.

In spilling beyond the container of a courtroom, Eye dramatizes planetary jurisdiction; representing perhaps the 9/11 Commission Report’s assertion, “the American homeland is the planet”.Footnote 3 In connecting events and people across four continents—Africa, Europe, North America, and Asia—Eye shows us something of what this means. As a corollary of planetary jurisdiction, just as the military officers, politicians, and lawyers in the film invest trust in images on screens relayed from multiple places, our (spectator-consumer) sense of the total picture comes from watching. The single screen that we watch repeatedly multiplies into the film’s many screens. Eye is a film that mirrors our act of watching such that the familiar tropes of liberal legality—adversarial argument relating to precedent and rights, lawyers invoking rules of procedure—these tropes become entwined with spectatorship and virtualisation. With Eye, images—“the equivalent of an ammunition supply” (Virilio 1989, p. 1) in industrialised war—eclipse key rule-of-law issues (the constitutive right to life; the restraint of arbitrary power) even as these images reconfigure law and war.

The spectatorship and virtualisation of watching Eye is like looking into a befuddling set of many reflecting mirrors: we engage in spectatorship and virtualisation; the film shows us others engaging in spectatorship and virtualisation; and the film convinces us that a transnational technological network of spectatorship and virtualisation is central to the functioning of a secretive form of warfare imperative to our safety. Part of what dazzles us into submissive acceptance is the message that the technological apparatus and nation-state alliances of drone warfare and the War on Terror are all too complex for any single, civilian, non-expert individual to comprehend. In its geographic scope alone, the film convinces us of a spatial and technological complexity beyond our grasp. In short, technology’s capacity to almost-instantaneously span space and time, alongside the dynamics of spectatorship and virtualisation, become part of the enmeshments of law and spectacular war inherent to Eye.

Responsibility to Protect

In Eye, the al Shabaab terrorists surveilled and targeted are in Kenya but the legal, political, and military actors who constitute the counterterror network are an alliance of Kenyan, US, and UK state actors. In dramatizing a form of international administration “premised upon the separation of title to and control over territory in the decolonised world” (Orford 2011, p. 199), and in its depiction of the spaces, technologies, and expertise of contemporary global security, does Eye narrate and legitimise the controversial international law concept, responsibility to protect? Anne Orford writes,

“Conceptually, the responsibility to protect asserts that the lawfulness of authority—both local and international—flows from the factual capacity and willingness to guarantee protection to the inhabitants of a territory. This argument for the lawfulness of authority does not prioritize self-determination, popular sovereignty, or other romantic or nationalist bases for determining who should have the power to govern in a particular territory. Rather, it asserts that authority, to be recognized and respected, must be effective in guaranteeing protection” (2012, p. 29).

In its depiction of an urgent desire to protect Alia while also protecting the probable 80 civilian victims of a double suicide bombing, Eye represents a decolonised nation-state with responsibility to protect’s triggering condition: the factual incapacity to guarantee protection to its inhabitants. In Eye, the territory in which the targeted killing will take place is, technically, Kenya. But Kenyan territorial sovereignty is fractured: Alia’s family lives in a neighbourhood controlled by al-Shabaab extremists in which all the inhabitants we see appear to be Somali refugees and al-Shabaab militants.

As cultural text, Eye shows how the contemporary imperialism of US-scripted planetary jurisdiction combines with spectacular war to convince us—a globalised, mediatised, spectator-audience—that the preemptive logics of ‘security’ in the ongoing War on Terror must displace the constitutive right to life. When the “networks, nodes, fields, and orderings that have power over people” (Krygier 2016, p. 221) include the elusive yet pervasive “military-industrial-media-entertainment network” (Der Derian 2001), how are rule-of-law ideals to be upheld? Perhaps one way to approach the dilemma of restraining arbitrary power—state and non-state—in a world of complex sovereignties is to adopt Krygier’s urging to attend empirically to the “sources, scale, and significance of arbitrary power” (2016, p. 221). And it is at this juncture that Achille Mbembe’s analysis of sovereignty may be especially helpful.

Sovereignty Outside the State

In his essay “At the Edge of the World”, Mbembe disaggregates the category ‘sovereignty’ through a detailed, empirical consideration of the actors “dominating space and putting it to different uses” (2000, p. 260). Mbembe shows how multinational corporations, international aid organisations, neighbouring states, Western and Middle Eastern states, religious organisations, paragovernmental entities, state and non-state militias are among the host of actors are engaged in exercising sovereignty in Africa. Almost as if Mbembe presciently anticipated Krygier’s frustration with a narrow focus on state-generated arbitrary power, Mbembe points to how “a confusion between power and fact, between public affairs and private government” are implicated in “forms of violence (of which war is only one aspect) contribut[ing] to the establishment of sovereignty outside the state” (2000 p. 260). Sovereignty outside the state occurs when “the material deconstruction of existing territorial frameworks goes hand in hand with the establishment of an economy of coercion whose objective is to destroy “superfluous” populations and to exploit raw materials. The profitability of this kind of exploitation requires the exit of the state, its emasculation, and its replacement by fragmented forms of sovereignty” (Mbembe 2000, p. 284).

At the heart of rule-of-law’s traditional insistence on the scrutiny and restraint of power is a recognition of the asymmetrical nature of power in society. Distrust of power animates democratic values like transparency, and the expectation that power should be exercised in a manner that is visible, accountable, and public. Rule-of-law analysis typically does not contest the legal-political fiction through which nation-states are understood as sovereign and autonomous; bearers of the monopoly on (legitimate) violence. But, as the brief discussion of Eye above shows, planetary jurisdiction is a contemporary form of neo-imperialism layering upon histories and dynamics of colonialism. Concepts like responsibility to protect, and the operations of planetary jurisdiction, add to the forms of “dominating space and putting it to different uses” (Mbembe 2000, p. 260); conditioning the complex sovereignty at work in the world today. Perhaps one way for rule-of-law scholars to meet the Krygier challenge and attend to threats from state as well as non-state sources, is to map—closely, attentively, empirically—sovereignty outside the state.

Notes

  1. 1.

    The ticking bomb scenario has been characterized as “one of the most vexing issues of the torture debate”; a scenario that has been deployed to justify torture, and the discarding of legal safeguards for suspects and detainees “when the public is in danger” (Lokaneeta 2011, p. 61). With Eye, there is a deft transplantation of the ticking bomb scenario from the torture debate to the uncertainties surrounding the limits on, and scrutiny of, state power in drone warfare. This transplantation is troubling for the way it deploys fear and posits a state omniscience relating to the future. The arc of Eye’s narrative legitimates an expansive, secretive, state power in drone warfare through the compelling need to protect innocent publics by preventing the unfolding suicide bombings.

  2. 2.

    https://ww2.kqed.org/arts/2016/03/18/a-war-seen-in-unnerving-close-up-from-eye-in-the-sky/.

  3. 3.

    At 2004: 362 of the Report. Although the language of “planetary jurisdiction” is specific to the 9/11 Commission Report, a US foreign policy twinned to global militarization and technologies of representation dates from (at least) the Cold War (e.g., Virilio 1989, p. 17: Masco 2014).

References

  1. Alston P (2010) Report of the Special Rapporteur on extrajudicial, summary, or arbitrary executions. https://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf. Accessed 26 July 2019

  2. Der Derian J (2001) Virtuous war: mapping the military–industrial–media–entertainment network. Westview, Colorado

    Google Scholar 

  3. Foucault M (2003) Society must be defended (translated by David Macey). Penguin, London

    Google Scholar 

  4. Hussain N (2013) The sound of terror: phenomenology of a drone strike. Boston Review. http://bostonreview.net/world/hussain-drone-phenomenology. Accessed 26 July 2019

  5. Krygier M (2016) The rule of law: pasts, presents, and two possible futures. Annu Rev Law Soc Sci 12:199–229

    Article  Google Scholar 

  6. Lokaneeta J (2011) Transnational torture: law, violence, and state power in the United States and India. New York University Press, New York

    Google Scholar 

  7. Masco J (2014) The theater of operations: national security affect from the cold war to the war on terror. Duke University Press, Durham and London

    Google Scholar 

  8. Mbembe A (2000) At the edge of the world: boundaries, territoriality, and sovereignty in Africa. Public Cult 12(1):259–284

    Article  Google Scholar 

  9. Orford A (2011) International authority and the responsibility to protect. Cambridge University Press, New York

    Google Scholar 

  10. Stahl R (2010) Militainment Inc: war, media, and popular culture. Routledge, New York

    Google Scholar 

  11. Stam R (1992) Mobilizing fictions: the gulf war, the media, and the recruitment of the spectator. Public Cult 4(2):101–126

    Article  Google Scholar 

  12. Vavrus MD (2013) Lifetime’s army wives or I married the media-military-industrial complex. Women’s Stud Commun 36:92–112

    Article  Google Scholar 

  13. Virilio P (1989) War and cinema: the logistics of perception. Verso, New York

    Google Scholar 

Download references

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Rajah, J. Rule of Law and Sovereignty Outside the State. Hague J Rule Law 11, 493–499 (2019). https://doi.org/10.1007/s40803-019-00106-1

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