00;00;00;22 - 00;00;39;04

Jonathan Hafetz

Hi, I'm Jonathan Heifetz, and welcome to Law on Film, a podcast that explores the rich connections between law and film. Law is critical to many films. This film, in turn, tells us a lot about the law. In each episode, we'll examine a film that's noteworthy from a legal perspective. What legal issues does the film explore? What does it get right about the law and what does it get wrong?

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Jonathan Hafetz

How is law important to understanding the film? And what does the film teach us about the law, and about the larger social and cultural context in which it operates? Our film this episode is eye in the Sky, a 2015 movie directed by Gavin Hood based on a script by Guy Hiebert, which depicts a multinational teams operation aimed at high level operatives from the al-Shabab terrorist group in Nairobi, Kenya.

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Jonathan Hafetz

When the British Army learns of the location of the suspects, one of whom is a British citizen, they plan to capture them. But that all changes when surveillance reveals the suspects are preparing two new recruits to carry out a suicide bombing. U.K. military officials, with the support of their U.S. partner, seek to shift the operation from capture to kill because the threat appears imminent and any attempt to capture the suspects would lead to an armed confrontation.

00;01;33;19 - 00;01;59;21

Jonathan Hafetz

Since the area the suspects are in is controlled by al-Shabab militants, a series of tense, high stakes moments ensue as officials must decide whether to authorize a lethal drone strike to avoid a possible terrorist attack. Despite the possibility of civilian casualties, including of a young girl who's nearby, eye in the Sky, which stars Helen Mirren, Aaron Paul, Barkhad Abdi and Alan Rickman.

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Jonathan Hafetz

His last screen role depicts the new reality of drone warfare and the many complex legal and moral issues it raises. To discuss the film, I'm joined today by Craig Martin. Craig is a professor of law at Washburn University School of Law. He teaches public international law, the law of armed conflict, constitutional law, human rights law, and climate change.

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Jonathan Hafetz

He's the co-director of the International and Comparative Law Center. Craig completed his Ph.D. at the University of Pennsylvania Law School, where his research examined the constitutional incorporation of international law principles on the use of force. Craig did his undergraduate work at the College Militaire Royale and the Royal Military College of Canada, where he graduated with a degree in honors in history.

00;02;45;03 - 00;03;09;22

Jonathan Hafetz

He served for four years as a naval officer in the Canadian Armed Forces. Following his service, Craig went to Japan on a mono scholarship, where he spent close to four years studying Japanese and public law and conducting research on conflicts between Japan and the U.S. over Japan's international legal interests in Manchuria in the 1920s. Greg graduated from Osaka University Graduate School of Law and Politics with an LA.

00;03;09;28 - 00;03;31;14

Jonathan Hafetz

Upon returning to Canada, Craig studied at the University of Toronto Faculty of Law, where he earned a JD. Last but certainly not least, Craig is also the creator and host of the acclaimed Jib Jab the Laws of War podcast, in which he interviews both top and upcoming experts in different aspects of the laws of war. Welcome, Craig. It's great to have you on.

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Craig Martin

Well, thanks so much. It's it's wonderful to be here. I'm I'm really quite envious of your podcast. And, you know, I'm thinking I should have created a podcast on law and film. It's a great idea.

00;03;41;21 - 00;04;09;09

Jonathan Hafetz

Well, thank you. And I and I'm a huge fan of your podcast, and it's great to have you on to talk about this movie, which is I think really delves into a lot of the issues on the laws of war. so yeah, I'm just thrilled. So. Well, let's let's jump in. So in the opening moments of the film, the British military counterterrorism officials learn that three high level suspects from the East Africa based terrorist group al-Shabab, will soon be meeting with two new recruits in Nairobi, Kenya.

00;04;09;12 - 00;04;33;05

Jonathan Hafetz

We learned the British had been tracking the suspects for six years, and finally, they appear to have an opportunity to capture them and presumably bring at least the British citizen back to the UK for trial. The British Army Colonel Katherine Powell, who's played by Helen Mirren, briefs the US Air Force team members who are located in Nevada on the operation, which she describes as an operation to capture.

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Jonathan Hafetz

And she tells the U.S. airmen they'll be operating a drone and serving as the eye in the sky for the operation. So can you just talk a little bit about the context here in terms of al-Shabab, the operation, and what's going on at the time in Kenya?

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Craig Martin

Sure. So, you know, there's been ongoing conflict between al-Shabab, which is a organized armed group classified by many countries as a terrorist organization operating out of, Somalia. Kenya had invaded Somalia. There had been ongoing conflict back and forth between al-Shabab forces and Kenyan forces. And around the time of this movie, al-Shabab, had in fact been established in Kenya itself.

00;05;22;04 - 00;05;51;01

Craig Martin

It had conducted a number of terrorist attacks. There was a very famous attack on a mall, not long before this movie came out. But the other context that I think is important for, for viewers of the movie to understand is that in 2015, the United Kingdom conducted a targeted killing of a British citizen in Syria, in Raqqa, and at the time, Prime Minister Cameron made a speech to Parliament saying that this had been a departure from British policy.

00;05;51;06 - 00;06;17;05

Craig Martin

And while this movie was still in theaters, the House of Lords issued a report, raising serious questions about the legal basis upon which the British forces had conducted this attack on a British citizen in Syria, and in particular, questioned whether the law of armed conflict applied, whether international human rights law applied, whether this was a use of force against Syria that was not justified.

00;06;17;08 - 00;06;24;04

Craig Martin

So the House of Lords report raised a whole host of questions that indeed are, I think, explored to some extent in the movie.

00;06;24;06 - 00;06;41;15

Jonathan Hafetz

And such an interesting contact with the movies in dialog with what's going on. Actually, at the time in the House of Lords. And I mean as well in the in the U.S., I think there was less of a debate on how the U.S. had sort of resolved or come to terms with its issues, or any concerns it had.

00;06;41;18 - 00;07;14;28

Jonathan Hafetz

Well, you know, a lot of the film talks about whether the particular strike, is justified. But let's step back for a minute and just talk about whether this is an armed conflict at all. Right? Because what happens is there's a key shift when drone surveillance, which is obtained by getting a tiny drone shaped like a beetle inside the terrorist safe house, reveals the suspects are now arming to suicide bombers for what appears to be an attack on civilian targets.

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Jonathan Hafetz

You had mentioned the recent attack by al-Shabab at the shopping mall in Nairobi, which killed over 70 people, which is, expressly referenced in the film. And so, because the suspects have moved to a house in an area controlled by al-Shabab, the British army officials say capturing them or attempting to capture them would lead to high casualties. So at this point, the officials seek to alter the rules of engagement and change the operation from capture to kill.

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Jonathan Hafetz

And the movie seems to assume that a lethal strike launching a Hellfire missile, as they say through the roof, might be legal. What informs that assumption? And is there an armed conflict such that international humanitarian law applies at all in the situation?

00;08;00;08 - 00;08;23;06

Craig Martin

Yes, I think that's a fundamentally important question. The movie, to be frank, doesn't really explore. Right. There is, as you say, they're working on this assumption that international humanitarian law or the law of armed conflict is operating right there. They begin talking about military necessity, the principle of proportionality. These are principles of HL. And so they're assuming that I shall applies.

00;08;23;06 - 00;08;42;29

Craig Martin

And yet it's not clear that that assumption is accurate. Right. So this is precisely what the report from the House of Lords was raising. with respect to the targeted killing of the the British citizen in Raqqa in Syria. Right. So just to situate this for those who haven't yet seen the movie, I do commend the movie to those who haven't seen it yet.

00;08;42;29 - 00;09;06;12

Craig Martin

It's a great movie. Leaving aside its legal, interest. But, you know, there's a group of Kenyan soldiers under the command of a senior officer standing by to affect the the capture. And then there are the British, you know, the British colonel with her team in London directing the operation. They are the American forces directing the drone in Nevada, which is quite common.

00;09;06;15 - 00;09;32;07

Craig Martin

And there's an intelligence unit in Hawaii. And this. I should just pause for a second to say that this depiction of operations is is really quite accurate. Right. So American drone strike operations were typically took this kind of configuration. There would be a drone operating team in Las Vegas. There would be an intelligence team operating somewhere else, assessing and analyzing the video feed that was coming in from the drone.

00;09;32;14 - 00;09;55;01

Craig Martin

And the command center might be somewhere else entirely. This is being a joint, a joint operation. You know, the British are controlling, and I should just say that a where a lot of the drama takes place is in what is called Cobra, which is this high level group involving ministers of the British cabinet in a room, determining what actions should be taken.

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Craig Martin

You know, so the general who's overseeing the operation, along with a deputy minister from the Foreign Ministry and the attorney general, as well as, I think, a member of the opposition party. So. Well, as you said, initially, there's going to be this capture operation. But what's interesting is that, as you say, the high level targets move into a area of Nairobi that is controlled by al-Shabab.

00;10;21;01 - 00;10;49;23

Craig Martin

And all of a sudden makes the capture option impossible. And even before the British forces gain knowledge of the pending imminent suicide bombings, Helen Mirren, the colonel, says, well, since capture is no longer an option, we have to move to a kill operation because she's been tracking this high level target, this British woman who is working with al-Shabab for five years and she's on a so-called kill list.

00;10;49;23 - 00;11;23;27

Craig Martin

And so the colonel says we have to move to a kill operation, which raises this question on what basis would a lethal strike be effected? Because you have to ask the question, is al-Shabab in an armed conflict, a non-international armed conflict with the United Kingdom? Is it in a non-international armed conflict with Kenya? You know, would Kenya be justified and authorized under the law of armed conflict, or HL, to engage in lethal operations against al-Shabab in the Nairobi suburb?

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Craig Martin

Right. Only if there's an armed conflict ongoing can you invoke HL to provide any of the kind of authority for this sort of lethal strike. If I chose not operating, then domestic criminal law and international human rights law applies. And, you know, the report from the House of Lords raised this question and said, well, with respect to the killing of the British citizen in Syria, was this actually under the European Convention on Human Rights and in particular the right to life?

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Craig Martin

And had that been violated in the killing? Right. It's a it's a different analysis as to when lethal force can be used under both domestic criminal law and under international human rights law than there is under IHS. So it's a fundamentally important question. The movie sort of assumes that ISIL applies that somehow Kenya and al-Shabab are in an armed conflict, and the British and the Americans are assisting Kenya in that armed conflict, but it's never really explicitly explored.

00;12;24;05 - 00;12;50;18

Jonathan Hafetz

It's a great point. And the two frameworks you mentioned, especially for my listeners, were a little, maybe less specialized. You talk about the two different frameworks, the law of peace time, right? The governance, which is human rights law, and then the law of armed conflict, the law of war, I charged, is the term somewhat interchangeably, where there's a much greater ability for states to conduct lethal operations.

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Jonathan Hafetz

And as you say, the film kind of just assumes in some sense that HL applies that we are in this armed conflict situation. And then the question is whether this particular strike is justified under HL principles, without talking about whether this is really a basically the rules of law enforcement in peacetime should apply with the much stricter rules governing the use of force.

00;13;13;15 - 00;13;30;21

Craig Martin

Yeah. And I do think that the movie is quite explicitly responding to the strike in Syria because there's a reference, you know, one of the members in the Cobra room asks the general the question, has the UK ever conducted a drone strike in a, quote, friendly country, not at war?

00;13;30;24 - 00;13;42;24

Eye in the Sky Dialogue

This is a change of mission from a capture to a shoot to kill. Isn't it? Yes it is. Are we right with that? I'm sure we are not. There are two British citizens and an American.

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Eye in the Sky Dialogue

As this mission has the full support of Kenya and the United States for.

00;13;46;15 - 00;13;46;28

Eye in the Sky Dialogue

A drone.

00;13;46;28 - 00;13;53;26

Eye in the Sky Dialogue

Strike. Yes. A missile fired from an RPA is part of an agreed contingency plan in circumstances like this. Do we have permission to proceed?

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Eye in the Sky Dialogue

No. Such a plan should not have been signed off by the PM without the authority of Parliament.

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Eye in the Sky Dialogue

Operational issues are not generally discussed at cabinet and certainly not at.

00;14;02;26 - 00;14;29;11

Eye in the Sky Dialogue

I know the protocol I'm talking about what should be happening. Angela. In my view, all the legal criteria for an attack have been met. Namely, this is a military necessity. There is no reasonable alternative. And the force to be used is in proportion to the threat. That should answer your question. It does not. George, has there ever been a British led drone attack on a city in a friendly country that is not at war?

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Eye in the Sky Dialogue

General, I do not believe so, no.

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Eye in the Sky Dialogue

Then how can we sanction it?

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Craig Martin

No, sir. It was not really necessarily a friendly country, but the Prime Minister in in the House of Commons had said that this was in fact the use of force in a territory of a country with which the United Kingdom was not at war. And so the movie, I think, is quite explicitly addressing this situation of this recent drone strike in Syria.

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Craig Martin

By raising the issue in the context of al-Shabab in Kenya.

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Jonathan Hafetz

Right. And they and they, they talk about the friendly country not at war. It's almost more from a policy, political perspective, like, have we done this? It seems unprecedented, the British official says, but more possibly about maybe the political blowback than some of the legal issues.

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Craig Martin

Well, I think it's both. Right. So there's the political and policy sort of blowback issue. But again, from a from a purely legal perspective, if you're not in an armed conflict, then international humanitarian law does not apply, and you cannot rely on HL for the broader authorities to use lethal force to engage in violence, right. That violence that would otherwise be unlawful under both domestic criminal law or international human rights law.

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Craig Martin

You cannot engage in that if there's not an armed conflict operating right. The existence of an armed conflict triggers the operation of ISIL, which then governs how lethal force can be used. Then, as you say, it's a wider scope. And for your listeners who are not sort of steeped in this, right? I mean, how has this built in tension where on the one hand, it's authorizes, although different people would have differing views on the extent to which it actually authorizes them and say there has to be some prior other legal authorization.

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Craig Martin

But in any event, once you're in an armed conflict, I shall authorize, as we go forth and immunize as combatants for the lawful use of lethal force and engaging in destructive violence that would otherwise be unlawful. But at the same time, it operates to try to limit human suffering, and in particular, the suffering of civilians and people who wear the combat.

00;16;41;11 - 00;16;54;10

Craig Martin

Right. So it has this dual role. It's both authorizing violence and the use of lethal force, but at the same time, trying to limit that to that which is strictly necessary and that which is proportionate to that, to the objectives.

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Jonathan Hafetz

And how does Kenya's because Kenya is participating in the operation. So there are joint participants in the state of Kenya is on board. Does that how does that affect the analysis if at all?

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Craig Martin

Yeah. No I think that's crucial. Right. Because first of all, if Kenya is not on board, if Kenya is objecting, for example, then the the firing of a missile at that at a house in Nairobi would constitute use of force and it would be a violation of the other legal regime that governs armed conflict, use of force, which is the Ustad bellum regime, but also the fact that Kenya is on board and it is Kenya's participation or involvement in a non-international armed conflict with al-Shabab that makes it most plausible that there is an armed conflict going on here.

00;17;41;22 - 00;18;11;13

Craig Martin

Right. And I think it is plausible to say that al-Shabab is occupying this suburb. Right. The Kenyan colonel or general, I forget what rank is said, but we can't go into that suburb without triggering a bloodbath. So it's clear that there is conflict between al-Shabab and Kenyan forces in that space. And so it's plausible to say that that is the the non-international armed conflict that's operating here that gives rise to the operation of ISIL.

00;18;11;15 - 00;18;20;01

Jonathan Hafetz

And so the idea of this kill list, right. Can you talk a little bit about that and how that kind of relates to these issues?

00;18;20;04 - 00;18;48;20

Craig Martin

So I mean, this is a very controversial issue. And we could spend a lot of time talking about it. But again, just to back up and perhaps for your listeners who who aren't steeped in Iceland, laws of war, right. Once you have the existence of an armed conflict, then lethal forces is authorized is lawful, but only by combat and only against both military objectives or combatants in the context of what's called an international armed conflict.

00;18;48;22 - 00;19;14;07

Craig Martin

Right? You can only target combatants or civilians who are taking part in hostilities. Or there's there's debate and controversy over whether members of armed groups like al-Shabab can be characterized as fighters or people who are fulfilling a continuous combat function such that they are akin to combatants in an international and conflict. The key issue is can you kill someone on the basis of their status?

00;19;14;07 - 00;19;33;27

Craig Martin

Right? Which you can in the context of an international armed conflict, combatants, people running around in uniforms and carrying weapons openly are combatants and who can be targeted on the basis of their status. Civilians, on the other hand, are protected. They are not to be targeted. And this is a fundamental core principle of I chose the principle of distinction.

00;19;33;27 - 00;19;54;19

Craig Martin

You cannot target civilians unless and until and for such time as they're taking direct part in hostilities. So if a civilian picks up a weapon, you know, like the French Resistance in World War Two movies, then they can be targeted for such time as they are taking direct part in hostilities. So there is a controversy over, well, how do you characterize al-Shabab, for example, or members of al-Shabab?

00;19;54;19 - 00;20;17;21

Craig Martin

Can they be targeted on the basis of their status as members of Al Shabab or must you wait for them to be taking direct part in hostilities? So bringing this back to the movie, at the point where they are putting on preparing these two new recruits to engage in a suicide bombing, it is clear that everyone in that house is now, if nothing else, a civilian taking direct part in hostilities.

00;20;17;24 - 00;20;43;20

Craig Martin

Right? And at that point they are definitely targetable under HL rules. But again, I refer back to what I was started to say earlier when the Colonel, Helen Mirren, when she first learned that they would move to a neighborhood controlled by al-Shabab and the capture option's off the table, she says, well, we now have to put a missile through the roof, not based on the fact that they're about to engage in a suicide bombing, but just in the fact that, well, we can't capture them and she's on a kill list.

00;20;43;24 - 00;21;08;03

Craig Martin

Well, there is a very significant debate over the lawfulness, plausibility of these so-called kill lists. And the British, where they don't have kill lists. Right. The killings were really something that the Americans developed, you know, in the movie, you know, they keep referring to the fact that the three people in the house are number two, four and five on the East Africa kill list, which is something that the American government had developed.

00;21;08;11 - 00;21;38;23

Craig Martin

But this idea that you can use lethal force against someone simply because you put them on some list is highly controversial. You know, you may remember that Anwar al-Awlaki, the American born imam who ends up, you know, working with Al Al Qaida in the Arabian Peninsula or AQAP in Yemen, is killed by the Obama administration in 2011. And it was argued at the time that he had been involved in developing and directing imminent terrorist attacks on the United States.

00;21;38;26 - 00;21;57;27

Craig Martin

But the fact was, he had been put on a kill list, and he was killed more than a year after he had been put on that kill list. And so to argue that he was killed as sort of an act of self-defense in response to an imminent armed attack is is pretty difficult, you know, and his father had actually gone to court to try to get an injunction against the operation against him.

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Craig Martin

And ironically, the court said, well, it's not ripe yet.

00;22;01;10 - 00;22;18;18

Jonathan Hafetz

I remember it well, as I worked a little bit on it wasn't the ACLU at the time on the Awlaki lawsuit, and there's a kind of a reference to it, I think, in the in the movie, when they, you know, when they're in the war room in London, right? They you know, the member of the U.S. National Security Council calls in to give her $0.02 on the U.S. position.

00;22;18;18 - 00;22;49;04

Jonathan Hafetz

And I think there's a reference that there was a U.S. citizen as one of the people who was going to be involved in the suicide bombing, and she's like, that's not an issue. Kind of, we've crossed that bridge. We made that decision. He's targetable. Right. So yeah, it's interesting. And so basically, I think that what you're saying is assuming it's, you know, the agile framework applies the debate, the legal debate should have been around imminence or I mean, you know, that's the real you know, it should have been is the the attack imminent as opposed to this notion of a kill list.

00;22;49;04 - 00;22;51;18

Jonathan Hafetz

And that's sort of where the controversy lies.

00;22;51;20 - 00;23;13;25

Craig Martin

Well, and maybe not too much imminence. I do think that, you know, once they're putting on the vest, then yes, there's going to be an imminent attack. But that's what that goes to is the temporal window within which you determine that a civilian is taking direct part in hostilities. So interesting that the Israeli Supreme Court has addressed this question of what constitutes taking direct Barton hostilities, which is known by the acronym DF, right.

00;23;13;26 - 00;23;37;26

Craig Martin

ISIL is full of acronyms. And so here, I mean, there's no question that they are at this point, taking a direct part in hostilities. I think that the only merit, or the only way a kill list makes any sense within the ISIL framework is if you accept that some individuals in organized armed groups can be targeted on the basis of their status because they are engaging in a continuous combat function.

00;23;37;26 - 00;23;51;18

Craig Martin

The kill list is is a form of identifying who is performing a continuous combat function, and who therefore can be targeted on the basis of their status. But other than that, I think this idea of a kill list makes no sense in the context of ISIL.

00;23;51;20 - 00;24;09;06

Jonathan Hafetz

And if we're not accepting the age of framework, if we're going to say this is a, you know, we're going to operate within the human rights law, the kind of law of peacetime norms. I mean, would there still be a argument or space for the use of lethal force? And when in this particular situation, might might it have been used?

00;24;09;08 - 00;24;30;19

Craig Martin

So it's a very different framework. Right. And there's a great book on targeted killing that I think half of the book is approaching targeted killing from the perspective of domestic, criminal and international human human rights law. And then the second half is, from your perspective, the threshold for use of lethal force in a law enforcement context is obviously much higher.

00;24;30;21 - 00;24;54;27

Craig Martin

Right? You have to show imminent danger of of death or injury to, to yourself or others. So that might be met in this context, although you have to ask the question of why are the British and the Americans the ones engaging in this use of lethal force? If it's a law enforcement operation in Kenya, right. And we can come back to this, but I think, you know, for for trail scholars, right.

00;24;54;27 - 00;25;17;02

Craig Martin

It's third world approaches to international law. Would look at this movie from a different lens and say, like, why are the Kenyan forces so subordinate in the conduct of this operation? Right. There's a there's a moment when the colonel, the British colonel, is calling the the Kenyan officer and saying, look, you got to get one of your guys closer to the to the house.

00;25;17;02 - 00;25;36;06

Craig Martin

And I don't care if I don't care what the risk of death of him is. And he almost gets killed. And really, there's there's a lot going on there from sort of a trail perspective too, I think. I'm not a total scholar, but it strikes me that there's something to be said about the the relationship between the Americans, the British and the Kenyans.

00;25;36;06 - 00;25;37;04

Craig Martin

In the film.

00;25;37;06 - 00;25;57;27

Jonathan Hafetz

You have certainly I mean, and there's the pressure that the Colonel Helen Mirren praises on. I think it's the Kenyan, military official to to redo and shade, the collateral damage estimate, which we'll get, which we'll talk about in a minute so that the strike can go forward. So yeah, that's a really interesting perspective. I mean, Kenya is sort of on board.

00;25;57;27 - 00;26;08;24

Jonathan Hafetz

They've addressed the sort of sovereignty issues. So Kenyan is, you know, a willing participant. But there's still some tensions and dynamics around this which are very interesting.

00;26;08;26 - 00;26;24;18

Craig Martin

Yeah. Because I mean, at the end of the day, if there is going to be a suicide bombing, it's going to be in Nairobi, right? So you would think that the Kenyans should have the lead and deciding what risks should be taken to prevent this suicide bomber. But in fact, it's the British say, no, no, no. You know, you got to get your people in there.

00;26;24;18 - 00;26;30;01

Craig Martin

We don't care what the risks are. Then we got to stop this British terrorist from doing what she's doing.

00;26;30;03 - 00;26;56;16

Jonathan Hafetz

So just to move to, the gym, if we can. The use in Belarus. Right. Which is kind of, I think the primary focus in some ways of the drama in the movie, that is whether or not this particular use of force is justified under ISIL. So the the factors are right. The main factors are necessity, proportionality and precautions in attack.

00;26;56;16 - 00;27;22;25

Jonathan Hafetz

Right. Those are the calculations in terms of whether or not the lethal strike can go forward. Applying these critical in applying these factors, the critical decisions in the movie revolve around the young girl, the young can you girl who's unknowingly decided to set up shop and sell bread right outside the safe house? where the British are planning to launch the Hellfire missile.

00;27;22;28 - 00;27;32;17

Jonathan Hafetz

And so there's a real risk she's going to be killed in the strike. So how does the girl affect the analysis?

00;27;32;19 - 00;27;56;15

Craig Martin

So again, I think just to reiterate what you said for your for your listeners who are not steeped in it already, there are some core principles about each other that would apply here. The first being, you know, military necessity, which is both a facilitating principle and a limiting principle. Right. So you have to establish that this is in fact necessary, that it's the only alternative, as that's the way the way the principle operates is a limiting principle.

00;27;56;18 - 00;28;16;00

Craig Martin

And then there is the principle of distinction, right, which is fundamentally important where you it is prohibited to target civilians. So this gets to the question of, well, who are these people in the house? Are they civilians? Are they taking direct part hostilities and so forth? Then is the principle of proportionality, which is the real issue in the movie in some sense, right.

00;28;16;02 - 00;28;50;28

Craig Martin

And the principle of proportionality, which is often deeply misunderstood, especially in the media. The principle of proportionality in eyebrow in distinction from how it operates, because there is a similar principle of proportionality in you said bellum, but they are quite different in the way they operate and what they're balancing. The principle of proportionality. Nigel says that the expected harm to civilian cannot be excessive in relation to the direct and concrete military advantage anticipated to be obtained by the strike.

00;28;51;01 - 00;29;15;10

Craig Martin

Right. So it's the expected harm to civilians in relation to the direct and concrete anticipated military advantage. So you have to look at the information that the commander had at the time, not you can't sort of look at the facts that are known after the fact. You know, if there were 20 people in a basement under the house that you didn't know about and they get killed, that's not relevant to the determination of whether the principle of proportionality was satisfied.

00;29;15;13 - 00;29;45;18

Craig Martin

So here, yes, you have this little girl who is the daughter of repressive Kenyan who's bringing her up to be an educated young girl. So we're in some sense being somewhat manipulated by the movie because this is like charming little girl that we're all rooting for, because to sell bread right next to the safe house. And the question is, would killing her with a strike or, you know, the initial collateral damage estimate to use the sort of euphemistic acronyms that are used in ISIL?

00;29;45;18 - 00;30;11;07

Craig Martin

The CDC says there's like a 65% probability that she's going to be severely injured or killed. Is that excessive in relation to the direct and concrete military advantage? And what's interesting in the movie, I mean, there's a whole host of debate and, you know, we haven't seen it yet. I'm sorry, there's all kinds of spoilers here, but but, I mean, part of the movie is it's a real time debate within the Cobra Room about whether to proceed with the strike or not.

00;30;11;14 - 00;30;40;24

Craig Martin

But what's interesting is that stated quite clearly early on by the attorney general who's in the room, also by the JAG, who's in the command room with Colonel Helen Mirren. Say, look, the principle of proportionality is met here that given the suicide bombing and given the high value nature of the targets, the military advantage, the direct and concrete military advantage of using lethal force against them here would justify the killing of one sibling.

00;30;41;01 - 00;31;03;09

Craig Martin

And so that's not really where all of the drama lies, right? So that that principle of proportionality is satisfied fairly early. The drama really often revolves more around the policy and strategic issues. Right. And it is interesting like the Americans, of course, as you said, the National Security Advisors Council calls in and says, look, what are you waiting for?

00;31;03;11 - 00;31;23;26

Craig Martin

The Secretary of state has gotten on the phone while he's playing ping pong in China and says, what are you waiting for? Whereas the British are wringing their hands and referring up and getting into all kinds of debates. But it's in large measure about both the ethical, strategic and political ramifications of this strike as opposed to the pure legal issue.

00;31;23;28 - 00;31;46;14

Jonathan Hafetz

Yeah. The US official says basically. Right. I mean, her view is we're way off what we consider a dispute over, you know, collateral damage. Right. And she's probably right in terms of proportionality is the requirements are probably murkier once you accept the ideal framework, given the factors, you, you know, you you explain. But I think, you know, I think you're absolutely right.

00;31;46;14 - 00;32;03;01

Jonathan Hafetz

It's that the debate is more about some of the moral, political and ethical issues. The basically they say that we could wait or we could go forward and it's really about the policy decision, you know, of of whether or not we should go forward.

00;32;03;03 - 00;32;26;22

Craig Martin

Right. Well, you did mention one other principle, which I think is illustrated quite brilliantly in the movie, which is the precautions in attack. Right. So the principle of precautions in attack require armed forces to engage in all feasible measures to minimize the probability of harm to civilians in the conduct of any attack. And so here again, lots of spoiler alert.

00;32;26;25 - 00;32;47;01

Craig Martin

The little girl is gone to sell bread right beside the safe house. And so the Kenyan agent who's on the ground and is controlling the little the tactical drones inside the house, is told to go and buy the bread. Right. So he runs and she's trying to buy the bread as a means of trying to get the girl to go away.

00;32;47;01 - 00;33;04;09

Craig Martin

Right? To go home when she sold all her bread. She can go home. She'll get out of the area and out of the blast radius. And so this is, in a sense, in a very real sense, right? This is the conduct of all feasible measures to reduce and minimize harm. It doesn't work right. But I'll leave that to them.

00;33;04;11 - 00;33;05;19

Craig Martin

You have to watch the movie.

00;33;05;22 - 00;33;26;00

Jonathan Hafetz

Right? Yeah. No it doesn't work. but I mean, it's really, it's it's certainly illustrates taking all feasible measures and taking that very seriously, that idea and going to sort of the you know, the fullest possible extent to send goes in at great risk to great risk to the person who, you know, the kid that goes in to try to get her away and they're losing valuable time.

00;33;26;00 - 00;33;30;28

Jonathan Hafetz

And then I think at one point Helen Mirren says, we're done with, we're done with the bread, right?

00;33;30;28 - 00;33;49;06

Craig Martin

And again, right. This does raise this question. You know, it. It again implicates both principles of necessity and principles of precautions in attack. Is this the only alternative? Is this the time like, do you have to take the strike right now. Right. And they're making the argument. The military is making the argument. Like once they leave the house, they're going to have cars.

00;33;49;06 - 00;34;08;26

Craig Martin

We're only going to be able to follow one. We don't know where they're going. Like, this is the time to take the strike. But, you know, some of the, opposing voices in the room, in the Cobra room are saying, well, we can wait. And and this is where the policy issues come in. So the question is, the general says, are we really going to allow the killing of 80 people?

00;34;08;26 - 00;34;35;17

Craig Martin

70 people in a mall for the purposes of saving this one little girl and the member of Parliament, I think it was a member of the opposition party says, yes, I would. And by the way, it's from a strategic perspective. I'd rather al-Shabab kill 80 people than for it to become public, that we killed one, that that we put a drone strike into a little girl, which raises these sort of strategic and political implications that are sort of beyond the legal considerations.

00;34;35;17 - 00;34;49;26

Craig Martin

Right. And this is the general is losing all patience with these sorts of considerations. But there's this telling moment when the foreign minister is on the phone and the foreign minister asks, well, what, if any, of this video gets on YouTube?

00;34;49;28 - 00;34;59;10

Eye in the Sky Dialogue

With respect, Foreign Secretary of the lives of 18 people, including innocent children, really worth the price. Winning the propaganda war.

00;34;59;12 - 00;35;02;16

Eye in the Sky Dialogue

General, if we go ahead and let footage of our attack be leaked.

00;35;02;16 - 00;35;05;26

Eye in the Sky Dialogue

So the footage from the Reaper is completely general.

00;35;05;29 - 00;35;17;19

Eye in the Sky Dialogue

I would feel uncomfortable if we did not at least wait a little longer. If we go ahead, the footage is leaked and this girl is killed, then I think the country would be most disturbed.

00;35;17;19 - 00;35;25;12

Eye in the Sky Dialogue

Foreign Secretary, it is our task to make the right military decision. We cannot engage in an argument about possible future postings on YouTube.

00;35;25;12 - 00;35;31;23

Eye in the Sky Dialogue

From Spectrum Revolutions, a few by postings on YouTube.

00;35;31;25 - 00;35;48;15

Craig Martin

There's a really interesting, I think, illustration of the cabinet ministers taking a bit of a broader view than the general who's looking at it from a purely military like military necessity. We've satisfied the legal requirements. Let's do what we came here to do.

00;35;48;17 - 00;36;17;09

Jonathan Hafetz

Yeah, absolutely. And the reference to the propaganda war, right. The larger propaganda war that the political official is pointing out. Right. Exactly. As you said right now, the general says I'm you know, who's gonna have to defend this, right? The Foreign secretary and you will, but as you said. Right. I'd rather defend I'd rather have al-Shabab defend killing of 80 innocent people that have to defend the killing of the innocent girl because of the broader implications of this war.

00;36;17;09 - 00;36;51;17

Jonathan Hafetz

And what's the sort of longer term strategy? I mean, I think there's, you know, once you're in the IHF framework and you accept the framework, there's a, you know, a very strong argument, the military argument, that they should not wait in terms of this immediate moment. But if you step back and you look at the larger sort of the conflict in a larger scale or the situation in a larger, broader scale, exactly as you're saying, the movie makes space, and does a good job presenting this counter argument about what are the sort of long term, ramifications of these drone strikes, even if, you know, they fulfill this short term objective.

00;36;51;22 - 00;37;23;17

Craig Martin

And, you know, I actually use this film to teach my Law of Armed Conflict class. And we get into a discussion of the trolley problem, because the movie does sort of set up the trolley problem. Right. And for those of you, your listeners who haven't heard of the trolley problem, the idea is right. You're you're standing at the the fork in a rail line and there's a switch beside you that that diverts cars from one track to the other, and you see a trolley coming barreling down the track, and you look down the fork and there's six men standing on the one track and one on the other, and you realize that if you do

00;37;23;17 - 00;37;46;09

Craig Martin

nothing, that trolley, the train cart, is going to continue on down the track and kill the six. And so you have the option of pulling the switch to divert the trolley to kill the one. And the question is, what are you going to do? Right? Are you going to pull the switch? And you know, most of my students, not surprisingly, I think most Americans are so utilitarian, consequentialist at heart, you know, they don't know it.

00;37;46;11 - 00;38;06;03

Craig Martin

And so they say, yeah, of course I'll pull the switch. Right. It's better to save six than, you know, six lives are better than, more valuable than one. Where, of course, the deontological Kantian approach would be. No, that there is an, you know, the affirmative of pulling the switches. You are now killing someone in a way that you would not if you do nothing, right?

00;38;06;06 - 00;38;31;12

Craig Martin

Yes. Six people will die if you don't pull the switch, but you have not actually taken action to kill them. And there is a philosophical difference in that. In the taking of no action. And this problem, I mean, this I mean the, the trolley problem is, of course, a thought experiment that is used to tease out these differences between deontological and utilitarian consequentialist thinking, but it is presented in the movie exactly right.

00;38;31;12 - 00;38;51;04

Craig Martin

The question is put in the Cobra room are you really going to allow 80 people to die in order not to kill this one girl? And the one person said, yes, yes, absolutely. And the interesting part, I think about what the movie explores, you know, not not in an overstated way. It's quite this. I think it's subtle, but it's there.

00;38;51;07 - 00;39;13;19

Craig Martin

Is that what's often missed by the, utilitarian, consequentialist approach is they don't factor in the second and third or costs of the action. Right. It's easy to say, well, of course six lives are better than one, right? It's better that that's six people living and one person die than the other way around. But that doesn't factor in the second and third order costs, right.

00;39;13;19 - 00;39;43;02

Craig Martin

And once you factor those in, even though from a utilitarian, consequentialist perspective, it's not clear, right, that the the the pulling the switch makes sense. Right. And here the foreign minister and others are pointing to there are second and third order consequences here. And again, you know, sort of spoiler alert. But you fast forward to the very end of the movie, and here you have this very sort of modern, progressive father who's bringing up his his daughter in a sort of feminist way, and he thinks that Al Shabab are, are fanatics to be despised.

00;39;43;02 - 00;40;06;20

Craig Martin

But at the end of the movie, when his daughter is dying in his hands and Al Shabab has helped them try to save her, you are left with the sense that he is now radicalized, right? He is going to be absolutely opposed to both Kenyan forces in Western countries who have who basically killed his daughter. Right. And these are the second and third order consequences that don't get factored into the consequentialist utilitarian calculus.

00;40;06;22 - 00;40;29;14

Jonathan Hafetz

Yeah. And these are so I mean, these are so real. I think the film does a great job highlighting that if you look, you know, just look today at situations around with Gaza and elsewhere in the world and that sort of history of the U.S. targeted killing program, in terms of the larger impact, the second and third order costs that you you talk about and I use the word targeted killing.

00;40;29;16 - 00;41;01;13

Jonathan Hafetz

but perhaps that's something of a misnomer, right? I mean, the notion is that it's very it's very clean, in terms of it's very accurate. The intelligence is very good. And so the way the movie sets it up is it's very clear who these people are. it's very clear what they're doing. And so then it's really just about this ethical, moral, political decision once you got by the legal aspect of whether or not we should launch the missile and take out these suspects.

00;41;01;16 - 00;41;18;09

Jonathan Hafetz

And so the debate happens around, you know, this otherwise sort of very clear set of facts. But I don't know, Craig. Yeah. I mean, it's, you know, is it always that clear is the, you know, there are more gray areas in the real world in terms of whether or not you know, what the facts are on the ground, so to speak.

00;41;18;12 - 00;41;46;07

Craig Martin

Yeah. I think that's one of the criticisms of this movie. Right. Is that, well, first of all, it involves some technology that doesn't yet exist. Right. So the little Beatle and Hummingbird drone, they certainly in 2015 did not exist. But I think the bigger criticism is that it creates this illusion that Intel is incredibly accurate, right? That the information that the operations team is, is relying on is incredibly accurate.

00;41;46;10 - 00;42;11;17

Craig Martin

It also creates this impression that there is room for disagreement and pushback and second guessing within the operations team. Right. So there is this moment, like there's a very dramatic moment where the commander of the drone, right, who's a lieutenant or lieutenant, use the American term lieutenant is in Nevada. And the colonel, the British colonel is saying fire.

00;42;11;20 - 00;42;35;07

Craig Martin

And he's saying, I want a recalculation of the key and and his superior officer, who's 100 yards away in another building, suffers. What, are you, crazy? What are you doing? You're pushing back. There's a colonel and he says, like, I have the right to do this. And he does right then. And the director in an interview talks about an incident where this actually happened.

00;42;35;09 - 00;43;10;16

Craig Martin

But it is misleading, right? So I've actually done some, some writing. I published a piece around this time actually, 2016 I think, called the Means Methods Paradox, where I look at and explore the question of why it is that targeted killing with drones in particular, was at the time causing higher rates of civilian casualties. And when that might be expected, a declassified report from the US Air Force or Central Command, had indicated that there were higher civilian casualties from drone strikes than there were from the use of other aerial attacks, which is counterintuitive, right?

00;43;10;16 - 00;43;32;22

Craig Martin

You would expect that drone strikes would be far more precise. There's a whole host of reasons why you would expect drone strikes to be more compliant with, so they can persist over the target for great lengths of time. They have operations teams that are spread out. You have intelligence analysis looking at reams of video to analyze the the data on the ground.

00;43;32;25 - 00;43;55;01

Craig Martin

The team is operating in a relatively low stress environment as opposed to a fixed wing aircraft. You know, a pilot that's on on site and is at risk of being fired upon by enemy forces. The drone operators are in Las Vegas. And, you know, the intelligence, team in this movie are in Hawaii, right? They are under no risk whatsoever.

00;43;55;01 - 00;44;15;13

Craig Martin

So you would expect for all of these reasons that the drone operators would be operating at lower risk, lower stress. There's more people involved in the decision making. They have far more intelligence. They have more time to make the decisions for all of those reasons, you would expect them to make less errors. But my research indicated that, in fact, there's reasons to suspect that.

00;44;15;13 - 00;44;38;16

Craig Martin

Well, first of all, the data shows that they are making mistakes, they're making targeted targeting errors. And there are some very high profile instances, not least of which, you know, everybody will remember just in 2022, during the withdrawal from Kabul, there was a drone strike of what was thought to be an ISIS member who was preparing to plant a bomb at the airport.

00;44;38;18 - 00;45;02;05

Craig Martin

It turned out to be an aid worker, and ten people were killed, including seven children. And that was a complete targeting error, right? There's another attack in Afghanistan when general McChrystal was in command there, where a convoy of three trucks carrying some something in the order of 25 people was struck after a drone had been covering it for six hours.

00;45;02;07 - 00;45;29;17

Craig Martin

And all of the people in the trucks were were civilians, including women and children, many children under six years old. And the the audio transcripts were released. It was one of the few of these strikes where the investigation was actually made public. When you look at the audio, you see a number of characteristics that reflect cognitive consistency theory misperception, problems in the sense that there's there's confirmation bias.

00;45;29;20 - 00;46;09;10

Craig Martin

There's overwhelming confidence in the accuracy of the intelligence. There is interpretation of ambiguous information to conform with preexisting assumptions and hypotheses. That being that these are insurgents, there is therefore a suppression of data that is inconsistent with those hypotheses. And so I don't want to get too deeply into the weeds, but the research shows that there are psychological phenomena operating, and that the nature of the technology and the structure of the teams is such that it is conducive to this kind of psychological misperception.

00;46;09;16 - 00;46;31;07

Craig Martin

Right. And operation of groupthink. The other thing that was very clear in the transcript of the Uruzgan airstrike was that anytime anybody tried to voice any question about the nature of the evidence that they were seeing on the video, it was suppressed. So there was an operation of groupthink, which is completely contrary to what you see in the movie or in the movie.

00;46;31;07 - 00;46;59;18

Craig Martin

You're having all of the second guessing and pushback, and that doesn't seem to happen in real life, as far as we can tell. Right? On the basis of the few disclosures of of transcripts of strikes, there's, on the contrary, a sort of an operation of groupthink and a suppression of data. That or reinterpretation of data that's in any way inconsistent with the the starting hypothesis that these are insurgents and that this has led to serious targeting errors and violations of nature.

00;46;59;20 - 00;47;23;08

Jonathan Hafetz

I think the movie also does, I think, a pretty good job of exploring some of the impacts on of the new drone warfare on the participants. Right? So you mentioned before the U.S. airman, his name is what's played by Aaron Paul, who demands the calculation, the recalculation of the collateral damage estimate, because you concerned about the girl, right?

00;47;23;08 - 00;47;41;17

Jonathan Hafetz

He's concerned about he's the one that's going to be personally really responsible for her, death. So he feels it. And you can see it, I think in other in other ways, just the I mean, just the nature of the way the operations conducted its, you know, and the the missions being flown essentially from thousands of miles away.

00;47;41;17 - 00;48;02;01

Jonathan Hafetz

And, you know, in a military base and air force base in Nevada, the desert, the way that people kind of that are going to everyone's kind of coming to work. Like it's almost like they're coming to their job at 9:00 in the morning. They're today at work in there, but their work is fighting this war, whether it's in Nevada, at the Air Force base or the headquarters in London.

00;48;02;01 - 00;48;31;21

Jonathan Hafetz

Alan Rickman, the British generals on goes out on his way to work is. Yeah, there's a scene with him buying this doll for his daughter. It turns out he gets the wrong one, but it's. So there's a sense that this is very different in terms of the. But there's an impact on the people that are involved. And there's this great scene at the end, I think, where after the British undersecretary, the one who's pushed back hardest against the strike, sort of, you know, confronts Alan Rickman and says, you know, do you know what you've done?

00;48;31;23 - 00;48;36;17

Jonathan Hafetz

You know, there are real costs here. And, you know, he gives, I think, a very powerful response.

00;48;36;20 - 00;48;41;12

Eye in the Sky Dialogue

And all done from the safety of your chair.

00;48;41;15 - 00;48;57;19

Eye in the Sky Dialogue

I have attended the immediate aftermath of five suicide bombings on the ground with the bodies.

00;48;57;21 - 00;49;16;20

Eye in the Sky Dialogue

What you witnessed today with your coffee and biscuits. It's terrible. What these men would have done would have been even more terrible. Never tell a soldier that he does not know.

00;49;16;20 - 00;49;20;00

Eye in the Sky Dialogue

The cost of war.

00;49;20;03 - 00;49;36;23

Jonathan Hafetz

So what do you think about the costs? There are costs of war, and they are born, I think, to some extent by these people, by the military officials who are making these decisions, carrying out these orders, even though it is this much more kind of antiseptic, clinical way of fighting war, I don't know. I'd love to get your reaction to that.

00;49;37;00 - 00;49;57;06

Craig Martin

Yeah. And I think it's really interesting issue. And the movie does a wonderful job like that. Scenes of Alan Rickman, you know, buying his doll on his way to a raffle. I mean, he doesn't know yet that it's going to be a lethal operation, but still. And there's debate or there used there was debate over this, right? There was this idea that there was the so-called PlayStation effect.

00;49;57;06 - 00;50;41;26

Craig Martin

There was this concern that drone operators working in, you know, Las Vegas would be conducting operations almost like it was a video game on PlayStation. And they wouldn't feel the full ethical ramifications of what they were doing, and that therefore there would be more cowboy behavior on their part. I think the evidence shows that's quite incorrect. And it's it's actually the contrary, right, that a disproportionate number of these people experience PTSD, in part, I think, because of the surreal juxtaposition of they are engaging in these little operations and, you know, in a trailer in Las Vegas and as the movie depicts, they are required to remain over the target to zoom in to identify the

00;50;41;26 - 00;51;01;08

Craig Martin

bodies of those that they have killed, which has to be like just a an incredibly difficult, experience. And then, you know, half an hour later, they're in the backyard with a beer in their hand. Barbecuing with a family. Right. Like that is just a completely different experience than what I think members of armed forces are typically used to.

00;51;01;08 - 00;51;23;15

Craig Martin

I mean, it's one thing, if you're on site, you're at risk. You're with your colleagues who are, you know, it's just a very different experience. And I think that the movie depicts that quite well. They come out of the trailer and it's, you know, the sun rising and it's like, you know, home to the family. And there's another movie, I Forget the Name of It, starring Ethan Hawke as a drone operator, which I think explores this, in more depth.

00;51;23;17 - 00;51;33;19

Craig Martin

So I do think that the movie explores that. Well. And there there is this, this issue of the effects on those that are conducting these operations.

00;51;33;21 - 00;52;03;26

Jonathan Hafetz

I mean, you just don't know that the Aaron Paul character is going to suffer secondary effects, right? He's not he's not going to get over this. You know, too quickly another aspect that the film gets into, I think, is the role of lawyers in drone operations. Right. And there are multiple conversations between, Colonel Powell, Helen Mirren character, and the British Army attorney going back and forth over whether or not she should or would need to.

00;52;03;26 - 00;52;18;21

Jonathan Hafetz

As you use the words, refer up. Right. So I think lawyers play a, underappreciated role in these type of operations. so can you talk a little bit about the role of these military lawyers in the film and in, in real life?

00;52;18;24 - 00;52;42;06

Craig Martin

No, I think it's, a really important point. I mean, I think that if you go back, you know, pre nine, 11 certainly, I mean, when I was an officer in the Canadian military, jags were not very prominent. Like, you know, they were certainly not involved in operational decision making to the same extent. But in the post 9/11 world and lawyers became much, much more involved.

00;52;42;06 - 00;53;02;07

Craig Martin

And I think it's quite common to have lawyers involved in, in decision making like this. And I think the, the relationship between the lawyer in this case, the judge in this case and Helen Mirren in The Colonel is really quite interesting as you say. I mean, there's this, this dramatic moment when she's almost trying to get him to bless the decision that she wants to make.

00;53;02;07 - 00;53;09;12

Craig Martin

He makes the point, like, I'm not here to make the decision. You have to make the decision. I'm just here to tell you what is lawful and what is not.

00;53;09;16 - 00;53;32;02

Eye in the Sky Dialogue

Our where are we legally with the girl? Yes. Are we in the clear? again, I would refer up. No, no, I'm asking you. We cannot hold up this operation any longer. We need to take all reasonable steps to minimize collateral damage. If we're buying her bread and we're not buying her bread, that's how many children's lives are at risk.

00;53;32;02 - 00;53;51;22

Eye in the Sky Dialogue

This is just one girl. Are we clear to engage, yes or no? Come on, make a decision. With respect, ma'am, I don't make those decisions. I am here to advise you on the law. The law is not here to get in your way to say it, to protect you and to protect. Don't talk to me, Harold. Ma'am. The legal questions of necessity and proportionality are almost certainly met.

00;53;51;22 - 00;54;01;21

Eye in the Sky Dialogue

But for the protection of you and for the protection of that girl, I would refer up to the Attorney general.

00;54;01;23 - 00;54;30;23

Craig Martin

But what's interesting is that the dynamic in that room that you mentioned, you alluded to earlier, the fact that Helen Mirren puts pressure on a sergeant to adjust his casualty estimates at the CDF. So he has said, look, there's a 65% probability that the girl is going to be severely injured or killed, and she puts pressure on him to adjust it down to less than 50% because she's had a conversation with the general and says, like, if if I get it to below 50, do you think they'll go for it?

00;54;30;23 - 00;54;52;23

Craig Martin

They being the politicians and the general says, yes, which, you know, and pausing there for a moment, what's interesting is like this is not necessary for legal purposes, right? I mean, I think it's already been established that under the principle of proportionality, the killing of one civilian would be justified and would not be excessive in relation to the direct and concrete military advantage to be gained.

00;54;52;23 - 00;55;16;17

Craig Martin

But it's for political reasons. She's trying to convince the politicians. But but her pressuring of the sergeant to revise down his collateral damage estimates is clearly unethical. And the lawyer is standing right there watching her, and he he's clearly aghast, but he doesn't step it. And what's even worse is that once the operation is completed, the colonel then turns to the sergeant and says, make sure that your report reflects that.

00;55;16;17 - 00;55;34;25

Craig Martin

It was a 45% CD, which again, I think is is just entirely unethical. And I think it's worth pausing for a moment. Just also, the one thing we haven't talked about is at the very end of the movie, there's a second strike, right? So they they engage in the strike. The girl is injured. She's lying on the ground.

00;55;34;25 - 00;56;00;28

Craig Martin

The father is running to get her. They're all watching this on the video in high definition, and they zoom in to identify the bodies. And it is clear that the British subject, the woman who is a high value target within al-Shabab, is moving severely injured but moving in the rubble of the house. And Helen Mirren, the colonel, says, prepare to fire again.

00;56;01;00 - 00;56;21;29

Craig Martin

She's a high value target. She's on the list. We have to take her out. And what's fascinating about the movie is there's no pushback and there's no discussion. There's no debate in Cobra. And like, they just take the second strike. And in my view, this was clearly a violation by. So in fact, I think this is a grave breach of the Geneva Conventions constituting a war crime.

00;56;22;03 - 00;56;48;10

Craig Martin

That individual crawling around in the rubble was then a protected person under the Geneva Conventions. And even if this is a non-international armed conflict under Common Article three of Geneva Convention, she's a protected person and cannot be targeted at that time. It's called a double top right to use lethal force against someone. And then when you see that they're injured but not yet dead to take a second shot and the movie doesn't explore it, it just leaves.

00;56;48;10 - 00;56;59;18

Craig Martin

It is very it is a very interesting choice from a moviemaking perspective. But we focus on this in my lab on conflict class. That second strike where it's surely a violation by shell.

00;56;59;24 - 00;57;27;19

Jonathan Hafetz

It's so interesting because the yeah, the focus of the movie is on the first strike, which from a legal perspective, seeming to love armed conflict applies is comfortably within the law under the under the assessment of necessity, distinction and proportionality. But it's say it's a second strike, the double tap, which is not giving any attention where you really have the actual violation, which also, I think just underscores one point which is was implicit in what you were saying.

00;57;27;19 - 00;57;54;25

Jonathan Hafetz

And about the application of HL. Right. So HL does, as you said earlier on, allow, empower the use of lethal force. Right? I mean, it gives states, a much greater ability to use lethal force than they do. And then the domestic peacetime human rights framework, however. Right, right. It also has a criminal HL has a criminal regime of, of of war crimes, in particular.

00;57;54;25 - 00;58;08;26

Jonathan Hafetz

And so if you violate these rules, potentially, those are, those are war crimes, and those would be punishable under international law as well as under domestic law in the UK. In the US.

00;58;08;28 - 00;58;33;27

Craig Martin

That's right. I mean, it's a subset of the rules. Right? So there are violations of HL that that do not attract individual criminal responsibility. But then there are the subset under the Geneva Conventions. These are called grave breaches. And you know, and the Rome Statute for the International Criminal Court, they're itemized in article eight that lay out those offenses that would constitute war crimes and which would attract individual criminal responsibility.

00;58;34;03 - 00;58;42;29

Craig Martin

And and certainly I think the, you know, the the targeting of a protected person, somebody who is injured and or taken by, is in that category.

00;58;43;01 - 00;58;56;06

Jonathan Hafetz

So, Craig, before we wrap up, are there any other movies about, HL the laws of war that you think are particularly informative? Useful? I guess either for bad or for good?

00;58;56;09 - 00;59;19;02

Craig Martin

Well, I mean, there's there's tons I, I've actually debated sort of creating a page on the Job Loss War podcast website with all these movies that both have other use in battle HL or use ad bellum aspects. you know, a couple or a few, I guess, that come to mind. So one is the documentary is not a feature film, but it's still, I think, a fantastic film.

00;59;19;02 - 00;59;42;18

Craig Martin

And it's actually useful for teaching as well as actually To The Dark Side, which is a documentary about the torture program, and it focuses on detention of a couple of individuals in Afghanistan. But that that just sort of provides the the narrative arc. It examines the torture program in more detail in the United States. and so it's a very well done film.

00;59;42;21 - 01;00;03;09

Craig Martin

Another an older film, two older films, which I think, you know, are classics. And anybody interested in The Lost War, you know, sort of would want to watch is Breaker Morant, which is an Australian film set in the Boer War and again, involves it's a trial. So, I mean, there are a number of movies that involve trials for violations of HL and break them, right is a great one.

01;00;03;14 - 01;00;39;28

Craig Martin

Another is Paths of Glory, which is a Stanley Kubrick film set in World War One with, Kirk Douglas great film. You know, I think we're we're recording this on the morning that the ICJ just handed down its provisional measures order in the South African case against Israel for genocide. So I think apropos of genocide, an incredibly powerful movie is conspiracy, which is, Kenneth Branagh plays General Heidrich and Stanley Tucci plays out of Eichmann in the Vance Conference, where the Final Solution is developed.

01;00;39;28 - 01;00;55;04

Craig Martin

In the meeting outside of France. And it's based on the minutes of the meeting. It's a brilliant film. The entire movie is outrageously disturbing and chilling, but there's there's one chilling moment where they go around the room, say, like, how many of you are lawyers? And you realize that, you know, the vast majority of the people in the room are lawyers.

01;00;55;04 - 01;01;23;16

Craig Martin

And so for lawyers, I think watching conspiracies is, really important. Another, a feature film about more modern conflict is called A War. It's a Danish film set in Afghanistan about, an officer and the choices that he has to make. so there's a whole host of other ones that, you know, we could talk about. I think one last plug I'll make for your viewers.

01;01;23;16 - 01;01;47;09

Craig Martin

There's a movie that has been nominated for both Best Picture and Best Foreign Film, and it's still in theaters. It's called Zone of Interest, which is, I think, one of the most chilling Holocaust movies I've ever seen. And it's, you know, I don't want I won't spoil the movie, but but what's what's extraordinary about the movie is it's about the commandant of Auschwitz.

01;01;47;13 - 01;02;10;14

Craig Martin

It's sort of an illustration of Hannah, the banality of evil hypothesis. You almost never see any of the detainees victims of the Holocaust in Auschwitz, and yet it manages to be one of the most disturbing and chilling movies about the Holocaust. I've seen it. It's like it's not fun to watch, but it is important and really worth worth seeing.

01;02;10;16 - 01;02;36;25

Jonathan Hafetz

I couldn't agree more. I just saw a zone of interest and it is. It is chilling. I in fact I saw it on the same day. I guess it was a I don't know if I'd recommend combining them, but the Steve McQueen documentary on Occupied City, which depicts going back into Amsterdam actually a lot of it was filmed during Covid, and he goes back to sort of each place where house or business and the shots are of what the location is today and the people there today.

01;02;36;25 - 01;02;59;29

Jonathan Hafetz

But he tells kind of the history of what happened there. so, I mean, that's a great film too. But, I agree about Zone of Interest and the other films you mentioned are all great. We actually did. I did Breaker Morant on the podcast. So, I recommend yeah, it's, it's super powerful depiction of some of the ethical and legal issues around war crimes trials and the Boer War.

01;02;59;29 - 01;03;17;06

Jonathan Hafetz

And I put it in a blog, too, for The Mauritanian, which film about Mohamedou Salahi, Guantanamo detainee who I represented with others who I think it's a very good depiction of torture at Guantanamo and then how that corrupted the military commission, the war crime trial process that was put in place.

01;03;17;06 - 01;03;34;03

Craig Martin

Yeah, I just saw that quite recently. Yeah, I would second that as well. And while we're on the topic, I guess you could throw in the report, which I think is actually a pretty good movie about the development of the Senate Intelligence Committees report on, you know, enhanced interrogation techniques. It's quite well done. Yeah.

01;03;34;05 - 01;03;46;17

Jonathan Hafetz

And then there's Zero Dark 30, which I think, probably the most relevant in some ways to, the film we're discussing to the extent that they're in dialog, I think, which I found problematic in some respects.

01;03;46;17 - 01;04;24;29

Craig Martin

Yeah. I have a lot of problems with Zero Dark 30. Right. And in particular, I mean, it I think it tries to make it leaves the audience. It misleads the audience into thinking that somehow waterboarding and the use of it, harsh interrogation techniques led to so-called actionable intelligence like. And I would just, you know, for for those of your viewers who have seen it and are fans of it, you know, I would I would encourage them to find on YouTube, John Brennan's press conference in the aftermath of the publication of the executive summary of the intelligence committees, the Senate Intelligence Committee report on enhanced Interrogation techniques, where he's asked the question about whether, in

01;04;24;29 - 01;04;54;08

Craig Martin

fact, enhanced interrogation interrogation techniques led to actionable intelligence. And he said, it's unknowable, like so when the director of the CIA is the best he can do is tell you it's unknowable as to whether the enhanced interrogation techniques led to actionable intelligence. Right. That's a damning conclusion. And so Zero Dark 30, which there's allegations that the CIA had involvement in, in reviewing the script and so forth, I think is is really misleading in that regard.

01;04;54;15 - 01;05;18;11

Jonathan Hafetz

Certainly. And the torture program had those second and third order effects that you were talking about in the context of drone strikes, in terms of even if you got some arguably some actionable intelligence, like what are what were the consequences in terms of radicalizing populations and leading to, you know, just sort of more basically more terrorists, right? I mean, that's basically creating people who are more opposed.

01;05;18;12 - 01;05;22;05

Jonathan Hafetz

So I think it's sort of the same thing applies to the torture program very much.

01;05;22;12 - 01;05;50;10

Craig Martin

Right. And and again, it's not just the radicalizing of people and creating strategic blowback. It corrupted institutions within the United States. Right? I mean, this is one of the issues of torture is that in many countries where like Chile and Argentina, where they've engaged in torture of this high, the empirical research shows that it starts off as some very confined program that's limited to a very small number of people who are only going to use it against the worst of the worst, as Donald Rumsfeld said.

01;05;50;12 - 01;06;13;00

Craig Martin

But it bleeds into everything. And the report, I think the movie, does a good job of showing exactly how this bleeds into institutions within the United States such that the CIA is now spying on and a Senate Intelligence Committee and hacking into their computers. Right. Which is just one indicia of the ways in which the torture program corrupted institutions within the United States.

01;06;13;07 - 01;06;32;23

Jonathan Hafetz

Yeah, I agree completely. I we did an episode comparing the two films, Zero Dark 30 and The Report, and I, basically. Yeah, underscore exactly what you said. Yeah. With with Karen Greenberg. So. Well, great. Craig. Well, it's been so great talking to you about AI and the Sky, the movie and about AI, HL and the legal, moral, ethical, political implications.

01;06;32;23 - 01;06;36;29

Jonathan Hafetz

Yeah. It's an honor to have you on the podcast. So I really appreciate you're making the time for joining.

01;06;37;04 - 01;06;47;28

Craig Martin

Well thank you. It's been a real pleasure. And, you know, as I said, I'm envious of of your podcast. And I just love the idea of exploring law through film and film through law. It's just it's so awesome project. So thanks very much for having me.

01;06;47;28 - 01;06;49;13

Jonathan Hafetz

Of course. And we'll have to do it again.

01;06;49;15 - 01;06;51;07

Craig Martin

I agree totally. Take care.