Biopolitics GTMO and targeted killings

Jason Ralph

Nick Vaughan-Williams is to be congratulated for his article ‘The generalised bio-political border? Reconceptualising the limits of sovereign power’, which appears in the latest issue of Review of International Studies.  I usually approach articles with ‘biopolitics’ in the title more in hope than expectation. This I know is because I haven’t invested the proper time, but I do hope for the occasionaly breakthrough.  This time I was not let down.  Vaughan-Williams’ article is important because it is accessible and I shall be revisiting it and his footnotes for further research.  There is a lot that will be relevant only to those that have followed literature on Agamben but there is also a clear account of how his thought relates to the war on terror, in particular the camp at Guantanamo Bay and the issue of targeted killings, specifically the de Menezes case.  Vaughan-Williams’ contribution is interesting but I have several problems with the use of these cases and what they say about the post-structuralist view of terrorism and the liberal state.

First, Vaughan-Williams offers a clear definition of bare life, which is drawn from the Aristotelian distinction between zoe (natural life) and bios (public or political life).  He disabuses us of the idea that bare life is simply natural life.  Rather it is ‘something that is actively produced by sovereign power for sovereign power’.  It is, he quotes Agamben, ‘a product of the machine and not something that pre-exists’.  We’re then told that

“sovereign power depends upon creating and exploiting zones of indistinction in which subjects’ recourse to conventional legal and political protection is curtailed: a technique of governance … is illustrated by the status of detainees held indefinitely in Guantanamo Bay. … Guards who stand watch over the detainees in Guantanamo confront a peculiar form of ‘human life’.  Stripped of political and legal status, it bears no resemblance to Aristotle’s conception of man as [a political animal] in the public sphere of bios.  Yet, neither does this life in any simple way conform to what the Greeks would have called zoe.  Rather, the life confronted by the guards is a life that scrambles these Aristotelian co-ordinates: we no longer have any idea of the classical separation between zoe and bios in this context.  It is bare life produced by the sovereign practices of the camp that is caught in a zone of indistinction between zoe and bios: a life that is mute and undifferentiated.”

Now, this is interesting because it potentially maps on to the debate in the international legal literature concerning the detainees’ legal status.  The structure of that debate mimics the private/public/zone of indistinction on display here.  Thus as a public actor with a recognised right to use violence the detainee should be accorded POW status and be immune from prosecution (unless war crimes were committed) and protected by GCIII.  Or, as a private individual the detainee should be protected by human rights law, have access to a lawyer, be able to contest his detention in a court of law and be released if not charged with a crime.  What the sovereign power did was to ‘scramble these co-ordinates’, to use Vaughan-Williams’ nice phrase.  It took a third category – unlawful combatant – which is a concept of domestic law and applied it to this new kind of borderless conflict as a way of denying a) the private/civilian rights and b) the political/combatant rights of the detainee.  The problem with this parallel, however, is that in Vaughan-Williams’ account we’re led to believe that sovereign power sees the detainees as bare life that is ‘mute’.  I’m not entirely certain, what this means but it might be a reference to the idea that sovereign power depoliticises bare life by criminalising it.  If this is the meaning, then it can only apply to the detainees at Guantanamo Bay in a qualified way.  By labelling the detainees as ‘enemy combatants’, the US is recognising their political status – see John Yoo’s Insider Account on this.  However, by also criminalising that status the US is reasserting hierarchies of just combatants into the laws of war, thereby reversing Westphalian process that saw combatants as equal (sovereign) before the law.  This might be what Vaughan-Williams means, but then that needs to be illustrated with reference to the legal discourse surrounding these cases.  This, however, raises a problem for Vaughan-Williams.  He cannot engage in this kind of analysis because the sovereign is meant to strip the detainees of ‘political and legal status’.  While the concepts of zoe, bare life and bios may promise insight, therefore, they ultimately lead us to miss the fact international law not being suspended, nor is it necessarily dividing the world into zones of civility and exception.  Rather it is being adapted in ways that reassert hierarchical conceptions of just war.

Now, in a way this fits with the central argument of the article, which is that the biopolitical order does not rest on inside/outside or territorialised representations of sovereignty and exception.  Rather there is a generalised bio-political order.

This concept refers to the global archipelago of zones of indistinction in which sovereign power produces the bare life it needs to sustain and notions of sovereign community. … Thinking in terms of the generalised bio-political border unties an analysis of the activity of sovereign power from the territorial limits of the state and relocate such an analysis in the context of a bio-political field spanning domestic and international space.

To illustrate this, Vaughan-Williams highlights the case of the Jean Charles de Menezes shooting on 22 July 2005.  We’re told that the de Menezes shooting was

“an arbitrary decision that did not occur in a particular zone or space designated for exceptional practices.  On the contrary, the shooting took place within what is usually considered to be the ‘normal’ juridical-political space of the state.  Yet, Menezes, a Brazillian citizen working in the UK, was produced as bare life within the ‘normal’ space: not safeguarded by the rule of law but subjected to the whims of the CO19 who, as temporary sovereign, assessed his description and demeanour, considered his identity to be that of a bomber suspect, and concluded his annihilation would not constitute a crime.  In this case, Menezes had effectively been banned from – or rather abandoned by – the law.”

This we are further told gives added ‘credence to Agamben’s otherwise seemingly sensationalist claim that ‘we are all (virtually) homines sacri’.

This is both compelling and problematic.  I’ve come to agree with Vaughan-Williams that we should rethink the conception of borders and inside/outside imaginaries are unhelpful.  However, I find this depiction of the Menezes incident troubling.  Firstly, to say that Menezes was ‘abandoned by the law’ and to suggest the police officers were ‘temporary sovereigns’ making ‘arbitrary decisions’ to kill, is potentially misleading.  It certainly understates the pressure that the police were facing at that time.  To point this out is not to claim that the police action in this case was justified or that any policy of targeted killing can be justified.  It does however highlight the importance of situation and urge sensitivity to the difficulties faced in counter-terrorism operation.  But perhaps my more significant question is what is the practical implication of Vaughan-Williams’ analysis?  It suggests to me that  an absolute commitment to human rights law is the antidote to biopolitical power.  Is this right?  If so it is reassuring (I think), but at the same time I’m wondering what exactly it is that biopolitics contributes to this otherwise familiar conclusion.

 While I am reassured by the liberal message that flows from this article, the realist in me is still somewhat troubled.  As noted, I think Vaughan-Williams underestimates the pressures faced by the liberal state in July 2005 and this possibly stems from a criticism of all things sovereign.  The realist of course acknowledges that there are moments when the law has to be suspended in order to save it.  The targeted killing based on the ‘one last rescue shot principle’ (see Melzer’s recent book on this) is one of those moments. As perhaps was the police raid at Forest Gate, which Vaughan-Williams also writes about.   His conclusion that ‘…the home itself offers little refuge from the sovereign operation’ will seem naive to those familiar with the challenges of policing any form of ‘domestic’ violence, as well as to those fighting asymmetric warfare.  The danger of the latter of course is that the sovereign expands the notion of combatant so wide that the ‘home’ and the ‘civilian’ are targetable.  But being aware of this danger does not reduce the difficulties of responding to the irregular combatant who politicises the private by launching his attack from a house while dressed in civilian clothes.

Of course, the sovereign does overreact to security threats.  But the litmus test for the liberal state is what happens in retrospect.  Are the actions taken by the state in the name of security brushed under the carpet or is there a full accounting when human rights have been violated?  Menezes would only have been abandoned by the law had we not have had an inquiry and ‘compensation’ (as ridiculous as that may sound).  Other victims of targeted killing such as McCann and his accomplices may have been reduced to ‘bare life’ had the European Court not found that the UK government was in breach of their right to life when it shot them on Gibraltar.  The implication of this is that we need to look much more closely at the arguments that are used to justify the use of sovereign power.  A subject may very well be reduced to ‘bare life’ if, as with some of the arguments from the Bush administration’s Department of Justice, individuals are permanently excluded from legal protections because of their identity (i.e. al Qaeda, Taliban).  This however is very different from those arguments that justify the use of sovereign force in situations of extreme insecurity.  Where the latter exception is recognised in human rights law the former is not.  It is the failure to consider this counterweight to sovereign power that I think undermines Vaughan-Williams account of the cases he considers and the broader conclusions for global governance.  As I noted above, the implications are that we should redouble our commitment to liberalism and it commitment to the international human rights and international humanitarian regimes.  Because it seems to point in this direction without explicitly acknowledging it, I’m still left wondering what contribution biopolitics to the consideration of security.  More to the point, if we ignore the way in which human rights law contests the existence of the camp, then there is a danger that we will better understand the way power turns us into homines sacri  without being able to do anything about it.

    

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About Jason Ralph

Jason Ralph, Professor of International Relations, University of Leeds
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