International Law and Technology as a Critical Project: A Collective Reading

Abstract

Distracted from writing these brief introductory notes, I am watching retired surgeon professor Nizam Mamode provide evidence to the United Kingdom’s parliamentary International Development Committee.¹ It is not only a disturbing, dark and dystopian account but also a precise and personal report of the genocidal deathscapes in Gaza. After bombs are dropped on ‘crowded, tented area[s]’, professor Mamode describes, ‘drones would come down’ – armed quadcopters hovering above the scenes of slaughter that would ‘pick off’ unarmed civilians, including children, appearing within their lethal lines of sight. This is a ‘deliberate [and a] persistent act’, Mamode testifies, with harrowing medical effects: the ‘small cuboid pellets’ fired from the drones ‘would go in and they would bounce around’, causing multiple internal injuries from a single entry point. The retired surgeon paused and struggled recounting the events.

This is far from the only instance where new technological tools have been deployed to amplify and channel the violence of the ongoing Nakba.² It has now been widely reported that strikes such as those described by Mamode are supported by artificial intelligence-based targeting systems – systems with idyllic and biblical titles such as Lavender or the Gospel – which vastly expand the speed and scale of military attacks. These production lines for military targets algorithmically alter (and lower) the thresholds of killability and change the calculus of accepted civilian harm in a way that is designed to widen the dragnet of aerial bombardment (remedying the perceived operational issue of ‘running out of targets’).³ While the civilian and infrastructural harm inflicted by these tools of data-driven target selection is unseen, the algorithmic process of pattern recognition and relational association that shapes systems such as Lavender or the Gospel is increasingly prominent across a wide variety of governance domains – from counterterrorism and border control to welfare fraud detection and disaster relief.⁴ The logic of algorithmic inference that is inherent to these systems redirects and reshapes the exercise of (international) public authority.

New technological tools not only mediate the exercise of lethal force in Palestine but also impact the possibility and visibility of political critique or public outrage in response. As noted by Human Rights Watch (HRW), technologies of automated content moderation deployed by online platforms have led to consistent patterns of censorship in relation to the current violence. ‘Meta’s policies and practices’, HRW reported, ‘have been silencing voices in support of Palestine and Palestinian human rights on Instagram and Facebook in a wave of heightened censorship of social media’.⁵ This results not only from Meta’s undue deference to Israel’s Cyber Unit but also from ‘heavy reliance on automated tools for content removal’.⁶ As firmly established asymmetries in the moderation of Israeli and Palestinian online content are thereby amplified,⁷ we witness a consolidation of powerful and politically skewed regimes of algorithmic regulation where technological tools and legal standards are woven together.⁸

Yet, while digital technologies are deployed to censor voices in support of Palestine, we also observe a counter-movement where new digital and forensic instruments are used to monitor, visualize, map and publicly contest the lethal violence of the siege and the Israeli occupation long preceding it.⁹ As the ‘cartography of genocide’ developed by Forensic Architecture instantiates,¹⁰ this entails methods of witnessing,¹¹ evidence gathering and truth telling that intersect with, differ from and occasionally conflict with conventional forms of narration, fact finding and contestation in international law.¹²

These empirical snapshots show how practices of central concern to international lawyers – from the material processes of military targeting to the regulation of online speech – are altered by the use of new digital technologies.¹³ Even those deeply committed to imaginaries of technological solutionism would recognize the tension between the developments described above and the fundamental legal principles of precaution, responsibility or redress. A prevailing response to this recognition has been to extend the reach of existing legal rights – through analogy and adaptation – and to propose new legal entitlements attuned to the digital domain. ‘[E]xisting rights’, Dafna Dror-Shpoliansky and Yuval Shany argue, will ‘need to be adapted and complemented by new digital human rights in order to maintain effective protection of individual needs and interests in the digital age’.¹⁴ This reflects a familiar professional routine that situates the repertoire of international law at a comfortable distance from its regulatory object. Following the scripts and structures that shaped international law’s prior encounters with global value chains or forms of international executive rule,¹⁵ the ambition is to fix spheres of social life presumed to be devoid of law – international lawyers as surveyors and regulators of a disciplinary frontier space. This entails a consistent pattern, as Fleur Johns long observed, where ‘[i]nternational lawyers have often preferred to innovate from within and extend their discipline by labouring to throw a normative net over one or other domain perceived as deficient of norms, rather than by engaging tactically in those domains’ (domains that are always already saturated with law).¹⁶ This is an accurate description, I think, of a dominant strand of scholarship in the field of international law and technology that perceives the problem primarily as one of law’s absence or insufficiency.

As illustrated by the insightful contributions to this review symposium and the books they discuss, this familiar framing – which portrays the digital domain as an unruly frontier space to be covered with the ‘normative net’ of international law – obscures how international legal labour today is already dependent on, constitutive of and routed through digital infrastructures.¹⁷ Rather than framing digital technologies as objects of legal regulation, this critical perspective is focused on the co-constitutive relation of international law and technology in producing patterns of power and shaping structures of global governance.¹⁸ As the contributions to this issue reveal, these emergent governance formations – in which legal and socio-technical changes are inherently tied together – extend from the spheres of security and surveillance to the logistical networks that sustain the circulation of capital.

Resisting the framing of the digital as a ‘world cast in some sense as beyond [international] law’,¹⁹ a critical project of international law and technology would foreground precisely these co-constitutive relations between digital systems, logics and infrastructures and the patterns of distribution, division and discipline in international law.²⁰ While many of these compositions might take on a novel shape, this critical reading remains attentive to the embedded hierarchies, inequalities and sanctioned forms of violence that are reconfigured, redirected and amplified in the digital and infrastructural mediations of international legal authority.²¹ This is evident, for example, in how algorithmic targeting tools such as Lavender redefine the combatant-civilian distinction in a manner that results in the latter’s erosion and erasure as part of a broader process of de-civilianization.²² The deployment of these algorithmic tools thereby instantiates the reported ‘humanitarian camouflage’ of genocidal violence on display in Gaza, which is tied, as Robert Knox argues, to international law’s structural civilizational hierarchies.²³ The reviews and essays bundled together in this symposium significantly contribute to this critical project by tracing the interrelation between law and technology in evolving patterns of governance.

The co-constitutive, entangled relation between international law and technology is foregrounded in Rebecca Mignot-Mahdavi’s Drones and International Law: A Techno-Legal Machinery, reviewed by Abhimanyu George Jain.²⁴ George Jain carefully retraces how, in contrast to the prevalent regulatory repertoire that sees international law as a constraint on the development and deployment of drones, Mignot-Mahdavi’s critical and innovative analysis shows how international law accommodates and reinforces the dematerialization and individualization of warfare enabled by these new technologies. Drones and International Law, as George Jain observes, thereby provides an important account of how legal and technological developments are tied together in the evolution of the war on terror as a war without spatial and temporal confines – a war shaped by governmentalities of pre-emption and algorithmic anticipation and ultimately animated by a logic of annihilation. This intervention widens the scope of critical attention beyond proceduralist concerns with transparency or responsibility – concerns that tend to focus on the impossible figure of the ‘human in the loop’ – and targets patterns of violence and permanent surveillance that are enacted through the techno-legal infrastructures of contemporary counterterrorism.²⁵ In a generative dialogue with this work, George Jain pushes the argument on three levels: insisting on a more expanded engagement with modalities of technological agency, suggesting a more political engagement with forms of legal (in)determinacy and questioning the qualification of jihadism as a radical rupture rather than a new iteration of enemy construction in international law.

The ambition to expand the horizon of critical writing in international law is equally central to Marie Petersmann’s review essay on Ramon Amaro’s The Black Technical Object: On Machine Learning and the Aspiration of Black Being.²⁶ In the problematization by international legal scholars of emergent digital technologies, one of the most dominant concerns relates to how forms of racial inequality and injustice are reproduced, amplified and reconfigured.²⁷ Responding to these concerns, the prevailing regulatory repertoire frames this in terms of persistent ‘biases’ that need to be corrected by rendering algorithms, the communities that code them and the data from which they learn more ‘inclusive’ or ‘transparent’.²⁸ Yet The Black Technical Object, in Petersmann’s reading, reveals the political problems and limitations of this focus on statistical ‘debiasing’.²⁹ In its insistence on representational correction, Amaro observes, this normative response remains committed to ‘the presupposition that coherence and detectability are necessary components of techno-human relations’ – to a milieu where the ‘white object remains whole, while the object of difference is seen as alienated, fragmented, and lacking in comparison’. In dialogue with Ramon Amaro, Petersmann provides a radically different perspective on the problematic of racialized violence by tracing technologies of machine learning to a longer lineage of the sociogenesis of race,³⁰ and by articulating an agenda of resistance that insists not on recognition and correction but, rather, on undetectability, incoherence and refusal: an invocation of self-determination outside the prototypical logics of the computational calculus and its ‘affective pre-logic of race’. This opens new avenues of critical work in international law that focus on the evolving modalities of subject making in the digital domain and the practices of resistance and refusal these invite.³¹

The critical reward of trespassing the disciplinary boundaries of international legal scholarship returns in Christine Schwöbel-Patel’s inspiring review of Karen Levy, Data Driven: Truckers, Technology, and the New Workplace Surveillance – a book about truckers and the electronic logging devices that surveil their labour.³² While, as Schwöbel-Patel notes, truckers are no typical protagonists of international legal ordering, this account of the digital surveillance tools that discipline their movement and labour provides unique insight into the co-constitutive relation between legal and material infrastructures in facilitating the circulation of global capital. Connecting the trails of truckers traced in Data Driven with other recent studies of the logistical infrastructures that channel global trading, Schwöbel-Patel foregrounds the devaluation, exploitation and invisibilization of labour as a red thread that links together these increasingly digitized sinews of capital movement.³³ Against the grain of the new materialist orientation that directs much literature on international law and infrastructure,³⁴ Schwöbel-Patel hereby foregrounds how the deployment of new digital surveillance technologies is tied to historical lineages of labour exploitation and the dual dynamic of capital movement and control.³⁵ As digital devices serve to discipline truckers – a canary in the coal mine for more systemic shifts in labour conditions – they encounter everyday resistance of avoidance, manipulation and tampering (truckers trying to ‘beat[] the box’). Supporting these expressions of mundane, material resistance, Schwöbel-Patel reads Data Driven as an invitation to ‘think infrastructurally’ about the problem of the rules rather than the rule breakers. In line with the reflections above, this allows us to avoid the ‘catching up trap’ – the idea that there is a legal ‘gap’ to be filled with ‘new digital rights’ – and focus instead on how law is ‘already baked into existing infrastructures’ as a crucial step towards social resistance and material transformation.

In confronting concerns associated with new digital technologies, the repertoire of human rights has proven prominent. Yet, in an essay reviewing Elizabeth Renieris, Beyond Data: Reclaiming Human Rights at the Dawn of the Metaverse, André Dao argues that it would be a mistake to perceive human rights as an ‘uncontested normative ground for technology governance’.³⁶ In this incisive and beautifully written essay, Dao points to the powerful critique in Beyond Data on the ‘technocratic, data-focused governance’ that shapes regulatory instruments such as the European Union’s General Data Protection Regulation.³⁷ This crystallizes in Beyond Data’s plea for a (re)turn to, and remembrance of, the promise of human rights – the ‘normative net’ of human dignity. Yet, in resurfacing this normative promise, Dao argues, the argument is marked by a ‘historiography of amnesia’: a ‘turn to a nostalgic fantasy of an ahistorical, apolitical human rights past’ that does not correspond to the political place of human rights in either our past or present and, as a result, is misdirecting proposals of regulation and projects of resistance. While Beyond Data provides a powerful critique of the power differentials that shape the current legal landscape, Dao concludes, there is no safe terrain to which to return.

The critical literature on human rights that Dao’s essay foregrounds is key to the argument of the final work reviewed in this symposium: Joshua Bowsher’s The Informational Logic of Human Rights: Network Imaginaries in the Cybernetic Age. Angelina Fisher, in a wonderful concluding essay, maps its critical concerns with the ‘informational turn’ in human rights and its important insights on how this turn links with a cybernetic logic that is intimately interwoven with neo-liberal governmentality.³⁸ In drawing these connections, The Informational Logic of Human Rights provides a distinct critique on the depoliticizing nature of human rights through its commitment to the ‘informatic modalities of cybernetic capitalism’. Fisher shows, however, that this critique tends to flatten the ‘human rights movement’ by focusing only on a limited – and somewhat outdated – set of institutions in the global North. The essay does not only multiply the sites of human rights practice – including practices that instantiate the situated perspective for which The Informational Logic of Human Rights pleads – but also signals promising pathways for a redirection of human rights guided by the ‘infrastructural turn’. ‘Thinking infrastructurally’, Fisher argues, in resonance with Schwöbel-Patel’s observations, can inspire new forms of legal and political engagement orientated towards the material and socio-technical. The proposal for ‘engaging tactically in those domains’, drawing on the words of Johns cited above, provides important avenues for critical engagement in the field of international law and technology.

Footnotes