Achieving compliance in the use of force: the production and maintenance of an imminent threat in an aerial targeting operation
| Published date | 01 December 2023 |
| Author | ALEXANDER HOLDER |
| Date | 01 December 2023 |
| DOI | http://doi.org/10.1111/jols.12459 |
DOI: 10.1111/j ols.12459
ORIGINAL ARTICLE
Achieving compliance in the use of force: the
production and maintenance of an imminent
threat in an aerial targeting operation
ALEXANDER HOLDER
School of Law & Social Justice, University
of Liverpool, Liverpool, England
Correspondence
School of Law & Social Justice, University
of Liverpool, Liverpool, L69 7ZR, England.
Email: A.Holder@liverpool.ac.uk
Abstract
This article provides a socio-legal analysis of the ways
in which military personnel orient to the laws of war
as they seek to produce and maintain lawful targets for
the use of force. In order to further empiricize debates
surrounding the United States’ (US) controversial inter-
pretations of core concepts in the laws of war,the article
takes up the concept of ‘imminence’ – which is fun-
damental to the doctrine of anticipatory self-defence –
and details its consequential role within a civilian casu-
alty incident that occurred in Afghanistan in 2010. By
analysing the talk of personnel involved in that opera-
tion, the article details the ways in which a drone crew
and Special Forces team constructed the ‘here-and-now’
meaning and relevance of imminence in order to ensure
the lawfulness of the strike. In doing so, the article
demonstrates that the US’ contemporary orientations to
the laws of war expand the scope for lawful violence.
1 INTRODUCTION
Since the turn of the millennium, we have witnessed the acceleration of a ‘law-makingenterprise’
by which the United States (US) and others – most prominently Israel and the United Kingdom –
have sought toshift consensus on the accepted interpretations of fundamental concepts in the laws
of war.1Aspart ofefforts to expand the scope of the lawful use of force in the aftermath of the 9/11
1C. Jones, The WarLawyers: The United States, Israel, and Juridical Warfare (2020) 3.
© 2023 The Author.Journal of Law and Society © 2023 Cardiff University Law School.
J. Law Soc. 2023;50:433–454. wileyonlinelibrary.com/journal/jols 433
434 JOURNAL OF LAWAND SOCIETY
terror attacks, the US has worked steadily to develop a legal paradigm structured around ‘coun-
terterrorism’that seeks to establish the legitimacy of warfare conducted against non-state groups.2
Though this project has been defended on the grounds that the laws of war arepoorly equipped to
regulate conflicts of this kind, the legal paradigm associated with the US ‘War on Terror’ has gone
beyond simply re-establishing the legal foundations necessary for combatting modern threats to
US security. Instead, the law-making enterprise has constituted a process by which legal justifi-
cations have been established for forced disappearance,3torture,4and targeted killing;5by which
the rules that govern targeting and the use of force have been rendered increasingly permissive;6
and by which war itself has been restructured as being both spatially and temporally boundless.7
Crucially, the architects of this enterprise havenot rejected the laws of war so much as they have
strategically re-oriented themselves to the terms of their regulatory authority. In this way, their
project has been an interpretive one, wherein the goal has been to ‘deny the applicability of IHL
[international humanitarian law] rules and norms to counterterrorism warfare’.8As Craig Jones
succinctly puts it, ‘[t]he assault through international law does not dispense with international
law; instead, it strategically employs and deploys its vocabulary and content in order to wage and
win wars’.9
That the US’ contemporary orientations to the laws of war seek to expand the scope for law-
ful violence has been the subject of increasing scrutiny in recent years,10 and this article seeks to
extend and diversify investigationsof the US law-making enterprise by providing detailed descrip-
tions of the concrete and observable ways in which military personnel orient to core concepts
in the laws of war during actual instances of the use of force. By analysing the materials sur-
rounding a specific civilian casualty incident, I explore the ways in which the US’ controversial
interpretation of ‘imminence’ – a core concept within the doctrine of anticipatory self-defence in
international law – provided US personnel with an expanded capacity to lawfully destroy three
vehicles driving in close proximity to a forward deployed US Special Forces team. By analysing
transcripts of real-time talk recorded during the incident, I show that the individuals involved
2L. Hajjar, ‘The Counterterrorism WarParadigm versus International Humanitarian Law: The Legal Contradictions and
Global Consequences of the US “War on Terror”’(2019) 44 Law and Social Inquiry 922.
3J. Hafetz, Habeas Corpus after 9/11: Confronting America’sNew Global Detention System (2011).
4Human Rights Watch, ‘Getting Away with Torture? Command Responsibility for the US Abuse of Detainees’ (2005) 17
Human Rights Watch 1.
5N. Melzer, Targeted Killing in International Law (2020).
6Jones, op. cit., n. 1; R. Brooks, ‘Drones and the International Rule of Law’ (2013)28J. of Ethics and International Affairs
83; V.Badalič, ‘The War against Vague Threats: The Redefinitions of Imminent Threat and the Anticipatory Use of Force’
(2021) 52 Security Dialogue 174.
7D. Gregory,‘The Everywhere War’ (2011) 177 The Geographical J.238.
8Hajjar, op. cit., n. 2, p. 924. Proponents of this interpretiveproject have termed it ‘lawfare’, which refers to ‘the use of
law as a weapon of war’: see C. Dunlap,‘Law and Military Interventions: Preserving Humanitarian Values in 21st Century
Conflicts’ (2001) Paper presented at the Humanitarian Challenges in Military Intervention conference, 2, at <https://
people.duke.edu/∼pfeaver/dunlap.pdf>.
9Jones, op. cit., n. 1, p. 13. See also J.D. Ohlin, The Assault on International Law (2015).
10 Harvard Law School International Human Rights Clinic, Tackling Tough Calls: Lessons from Recent Conflicts on Hos-
tile Intent and Civilian Protection (2016), at <https://www.justsecurity.org/wp-content/uploads/2016/03/Tackling-Tough-
Choices-Hostile-Intent-HLSIHRC-2016.pdf>;E.L.Gaston,WhenLooks Could Kill: Emerging State Practice on Self-Defense
and Hostile Intent (2017), at <https://www.gppi.net/media/gaston_2017_hostile-intent_web.pdf>; E. D.Montalvo, ‘ When
Did Imminent Stop Meaning Immediate? Jus in Bello Hostile Intent, Imminence, and Self-Defense in Counterinsurgency’
(2013) 8 Army Lawyer 24.
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