Juridification of Warfare and Limits of Accountability

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.

• AbbreviationsList of Figures and TablesAcknowledgements1 Introduction1.1 The Juridification of Warfare as an Empirical Phenomenon1.1.1 Post-Cold War Developments1.1.2 Civil Law and Victims’ Rights to Compensation1.1.3 Relations of War and Law1.1.4 Analysing and Assessing Scenes of Combat1.2 Overview of the Chapters2 Civilian Deaths and Legal Responsibility2.1 The Kunduz-Airstrike2.1.1 Military, Political and Legal Investigations2.1.2 Enduringly Contested Details: Defensive-Offensive Strike2.1.3 Unjustifiable at First Sight2.1.3.1 Scandalisation: The Airstrike as a Turning Point in the National Afghanistan Debate2.1.3.2 From Non-War to War: Redefinition of Military Engagement2.1.4 Mistakes and Violation of Rules2.2 Knowing Civilians2.2.1 Combat(ed) Categorisation: The Colonel’s Account2.2.1.1 The Setting2.2.1.2 Decision-Making as Mental Process and Categorial Certainty2.2.1.3 Correlation of Word and Image: The Video Material as a Telling Source2.2.1.4 Auxiliary Collections and Translations2.2.1.5 Visible Signs of Taliban and Everyday Performance of Distinction2.2.1.6 Errors as Normal Part of Work2.2.2 Criminal Investigations3 Legal Assessments and the Study of Organised Action3.1 Law and Action3.1.1 The Home of Law and Motivated Compliance3.1.2 Ethnomethodology: Rules and Situated Sense-Making3.1.3 Law and Categories3.2 Rule-Following in/of Organisations3.2.1 Accountability of (Organised) State Action3.3 Procedurally-Organised Work and Procedural Cultures3.3.1 Procedural Decision-Making3.3.2 Funnelling and Procedural Cultures3.4 From Object Fromation to Organised Action3.4.1 The Co-Structuring Object3.4.2 Organised Action as a Turn in Law/War3.5 Studying Procedural Work3.5.1 Two Temporal Orders3.5.2 Discursive Materials in Document-Based Environments3.5.3 tsa as a Methodological Sensitising Device4 Judging Military Action4.1 Studying Court Work4.2 Cross-Procedural Turn-Taking: The Civil Lawsuit4.2.1 Complaint: The Video Material Evidence against Klein4.2.1.1 Recognition of the Reconstructed Events on the Sandbank4.2.1.2 Visible Categories4.2.1.3 Careful Average Soldier4.2.2 Defence Brief: Interpretative Restraint4.2.3 Hierarchy of Issues4.3 Seeing Like the Military4.3.1 Analytic Approaches to the “Military Viewer”4.3.2 Hearing: The Staging of Competence4.3.2.1 What Everyone Can See4.3.2.2 The Military Experts4.3.2.3 The Afghanistan Expert4.3.3 The Military Viewer and His Special Competences: Professional Vision4.4 Military Situation and Legal Significance4.4.1 Undoing the Legal Capacity of the Military Object4.4.2 The Subsequent Turns: Preferences within the Viewer’s Maxims4.4.2.1 Plaintiffs: Viewer’s Maxim of Caution4.4.2.2 Court: Viewer’s Maxim of Hostility4.4.3 Standards of Military Reconnaissance4.5 Constellating Dispute5 Collaborative Accountability of Legal Targeting5.1 Cohesion and Rule-Following5.1.1 Fighting for Precision5.1.2 Precision and Legality as Collaborative Achievement5.2 Data and Research5.2.1 The Transcribed Situation and the Process of Target Development5.2.2 Transcript and Process5.3 Collaborating in Targeting5.3.1 Audio-Video Material and the Transcript5.3.2 Target Handover5.3.3 Identification Work5.3.4 Work on Open Issues upon Arrival – Business as Usual5.3.4.1 Friendlies: Opening Issue by Standard Procedure5.3.4.2 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 Ground5.3.5.1 New People: Adjustment of the Target5.3.5.2 Declaring Target to Be Time-Sensitive5.3.6 Pilot Seeking Clarification on Two Issues5.3.6.1 Target Definition5.3.6.2 Drivers5.3.7 Problem Solving Activities for “RoE Issues”5.3.7.1 In Accordance with RoE: Target Category and Clearance Authority5.3.7.2 Show of Force and Target Selection: This Is What We Like to Do5.3.7.3 Show of Force and Target Selection: Working with Some RoE Issues5.3.7.4 Situation on the Ground5.3.8 Switch of Interaction System5.4 Legal Targeting and the Suspension of Doubts5.4.1 Disobedience and the (In)Capacity to Know What Is Wrong5.4.2 Funnelling: Working the Temporal Order of Targeting5.4.3 Between “collaborating for precision” and “authoritarian positing”6 Conclusions Organised Action and the Assessment of Legality6.1 Legal Action Unlimited6.2 Members’ and Researchers’ Analysis of Action6.3 Producing Legality6.3.1 Neutralising Alternatives6.3.2 Radical Ways of Producing Certainty6.4 The Reproducibility of Assessments6.5 Re-Assessing Legal Targeting6.5.1 Collaborative Accountability6.5.2 The Legal Capacity of the Target6.6 Progressing LawAppendix 1 Map Kunduz Area with German Camp and Place of BombingAppendix 2 Redacted Transcript of Cockpit Communication Recorded in One of the F-15 FightersReferencesIndex