What role should the military, or military methods, have in law enforcement?

John Lea explores the increasingly blurred boundary between crime control and warfare in the context of police shoot to kill and drone killings of terrorist suspects

LeaphotoJohn Lea, Honorary Professor of Criminology

 

At a recent public seminar at the LSE participants discussed the pros and cons of the militarisation of the ‘war’ against organised crime in the global south. Many of the themes, such as the very different skill sets of military and police with regard to communities, the tendency of the military to ride roughshod over human rights, and the counter-productive role of ‘war on crime’ rhetoric were familiar enough. But one theme I thought was crucial: how should the state respond when organised crime itself comes armed to the teeth with military-grade weaponry? In Mexico and many Brazilian favelas, for example, militarised police and drug traffickers battle it out, while criminal justice issues such as arrest and due process are reserved for the few survivors who come out with their hands up.

The issue of militarisation is of course about more than equipment and training. It is about aims. However heavily armed the police may be, a key aim of police work is to arrest offenders, gather evidence and prosecute. Violence is a last resort after warnings have been given. The aim of military action is, by contrast, to identify enemy assets, assess the risk they present, target and neutralise them with armed force. Violence is a first resort and pre-emptive action is legitimate. In historical practice the two paradigms are of course blurred, as various traditions of paramilitary public order policing illustrate.

Today they are merging in new ways. While military deployed in armed conflict zones often find themselves fulfilling a diversity of roles including policing, domestic criminal justice agencies increasingly adopt strategies which predispose us to accept military-style thinking when dealing with criminality. Pre-emptive action based on risk assessment of likely future activity is one example. ‘Pre-crime’ strategies range from anti-social behaviour injunctions to computerised ‘predictive policing’ popular in some US cities. In Chicago individuals on a computer generated Strategic Subjects List considered to be at risk of gun violence are referred to local police commanders for ‘preventive intervention’. But a key driver of risk-based pre-emptive policing is undoubtedly the ‘risk of catastrophic success’ in terrorist activity.

Counter-terrorism brings into the frame a much harder and more straightforward adoption of military methodology: ‘shoot to kill’. There is a history of ‘shoot to kill’ policies not only in British colonial policing, but also in the still clouded history of the ‘The Troubles’ in Northern Ireland as shown by the fate of the Stalker Inquiry. The shooting of Jean Charles de Menezes as a mistaken terrorist suspect in London in 2005 raised questions about whether such a policy has ever been adopted by anti-terrorism policing in mainland UK. The shooting of Mark Duggan in 2011 raised similar issues

Nevertheless, ‘shoot to kill’ has become overt UK government policy: though not yet in the UK itself – except obviously in cases where terrorist action is underway. With the defeat of Islamic State in Iraq and Syria the UK government has been contemplating the prospect of British Jihadis returning to the UK with combat and bomb making experience intent on causing havoc in our cities. Killing them by missiles fired from drones while they are still in the Middle East is now accepted policy. The US has been doing this for some time and so has the UK. In 2015  the British Jihadi Mohammed Emwazi, known as ‘Jihadi John’ was killed by in a drone strike over Syria. Around the same time Reyaad Khan and two other alleged British ISIS fighters were killed by RAF drones.

In early November (2017) the new UK Defence Secretary, Gavin Williamson, told The Sun newspaper he was “insisting we must carry on using drones to hunt down and kill any Brit-born IS jihadis bent on wreaking havoc.” Similar sentiments were voiced by International Development minister Rory Stewart. Earlier in the year the Attorney General, Jeremy Wright called, in a speech to the International Institute for Strategic Studies, for the ‘updating’ of international law on the issue. Meanwhile it might be asked who puts together the ‘kill list’. The key decisions are apparently being made by the National Security Council chaired by the Prime Minister. At the time of the 2015 killings a spokesperson for the NSC said “It was about what action we should be taking to protect British people here in Britain.”

Such action to protect us is justified by two arguments. Firstly, the chaos in the Middle East makes conventional law enforcement and extradition impossible. Secondly, internet communication makes terrorist conspiracies which would have previously taken months to hatch organisable in a matter of days. So the ‘risk of catastrophic success’ has shifted such that traditional police action – allowing the conspiracy to develop to a certain stage to yield evidence of intent –  is far too risky and it is deemed necessary to take pre-emptive action before the plot has matured sufficiently to yield the type of evidence of criminal conspiracy that would stand up in a normal criminal court.

Such arguments have been around for some time. In the immediate post 9/11 period they were used as justification for pre-emptive arrest or restrictions on liberty by anti-terrorist control orders. Now they are being used as a justification for pre-emptive action against individuals by military forces: the RAF acting in Syrian airspace.

There is no doubt a political assumption being made that the British public will put up with such killings as part of the general chaos in the Middle East. Allowing the Jihadis to return to the UK would make such pre-emptive killing unacceptable. The individuals would rather have to be subject to Terrorist Protection and Investigation Measures (under 2011 legislation) and closely watched for evidence of terrorist-related activity. This would be, so the argument goes, expensive, time consuming and not fail-safe.

Drone killings have of course been the subject of widespread criticism, not to say outrage.  Quite apart from the moral issue of extra-judicial assassination there is also the question of inaccuracy. Military hardware is not designed to kill individuals but groups of enemy soldiers. Rarely is collateral damage avoided. In the US case, according to the website The Intercept, “Between January 2012 and February 2013, U.S. special operations airstrikes killed more than 200 people. Of those, only 35 were the intended targets” and to cover this up the US military were designating all dead as EKIA – enemy killed in action. There is no reason to assume that UK operations are any more precise.

So the military become corrupted by corrupt methods. The corruption of the military was one of the interesting themes which came up at the LSE seminar on the role of the military in the ‘war on drugs’. It was noted how in Mexico the army began as a force against the drugs cartels but then lost its bearings and sections peeled off and collaborated with the traffickers. The ‘clandestine policing’ of terrorist suspects by drone killing contains its own quite different pressures which nevertheless may lead to a loss of bearings by military operatives. Anyone who has seen films like ‘Eye in the Sky‘ or ‘Good Kill‘ will know what I’m talking about.

So what is the alternative? The critique of the ‘war on drugs’ is focused on de-criminalisation and the shift to a harm-minimisation approach.  Such policy is at least relatively straightforward and is gathering momentum, including in Latin America. It is naive to image, however, that it will remove organised crime as a major actor.

It is far more complex and controversial to devise an alternative to the ‘war on terror’ . To publically admit its failure and indeed counter-productive role takes political courage. Even more so to call for amelioration of the socio-economic conditions that give rise to terrrorism. Nevertheless perhaps a revival of the idea of an ‘ethical’ UK foreign policy based on democracy and human rights in the Middle East is now overdue. Maybe Labour will deliver on this? Meanwhile in domestic social policy, working to integrate rather than effectively criminalise the communities in which terrorists may seek sanctuary – the equivalent of a ‘harm minimisation’ approach – remains highly controversial.

 

Contact

John Lea is Honorary Professor of Criminology at the University of Roehampton UK. He has written widely on criminological theory, criminal justice, crime and war. His publications include (with Jock Young) What Is to Be Done about Law and Order? (1984); Crime and Modernity (2002)

John.Lea@roehampton.ac.uk

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