Who shall have control over the story? Who has, who should have, the power not only to tell the stories with which, and within which, we all lived, but also to say in what manner those stories may be told?
Salman Rushdie Footnote 1
1. Introduction
That narratives always involve, and are constructed by, narrators is surely a truism. Yet in the context of international legal scholarship and practice, there is a tendency to foreground analysis that accords with a cluster of master narratives, while the professional identity, political agency, and normative orientation of the narrators are downplayed. This article explores the implications of reversing such an emphasis, arguing that, instead of allocating international practices to preordained narratives, closer attention should be paid to the narrators who adopt international law as a professional vocabulary to advance particular projects.
The argument for a ‘turn to narration’ in international law proceeds as follows. Leading approaches to the study of narrative are canvassed, with a particular focus on the interplay between successional and configurative narrative dimensions (Part 2). The concept of the ‘unreliable narrator’ in literary criticism is then discussed in the context of international law. This focus on narrative perspective, or cognitive frames, provides a vocabulary for mapping consensus within international law's interpretive community (Part 3). The existence of unreliable narration within international law's interpretive community is considered in relation to the contentious practice of targeted killing by the Obama administration in the United States, where different narrators have made divergent pronouncements on the (il)legality of the practice. The benefits of analysing multi-perspectival narration are examined, revealing the close interaction between professional role and interpretive posture, and the way in which readers co-opt narrators in furtherance of their own projects (Part 4). The article concludes by endorsing the insights of narratological analysis in international legal theory, suggesting that the interplay of international practices, interpretive communities, and unreliable narration generates important insights in evaluating narratives of the international legal order.
2. Narrative theory
2.1. Narrative in literary and historical theory
Roland Barthes memorably described narrative as ‘international, transhistorical, transcultural: it is simply there, like life itself’.Footnote 2 Perhaps because of its ubiquity, narrative has proved notoriously difficult to define.Footnote 3 A suitably general definition of narrative insists that:Footnote 4
It is more than just a bare annal or chronicle or list of a sequence of events, but a representation of those events which is shaped, organized, and coloured, presenting those events, and the people involved in them, from a certain perspective or perspectives, and thereby giving narrative structure – coherence, meaningfulness, and evaluative and emotional import – to what is related.
The study of narrative is a mainstay of literary theory and criticism and has given rise to a bewildering array of theoretical traditions.Footnote 5 Narratology – the structuralist study of narrative plots in fictional texts – was predicated on a distinction between a sequence of actions or events in the world (‘story’), and the presentation or narration of such events (‘discourse’).Footnote 6 Notwithstanding the structuralist mandate to reveal the underlying ‘logic of narrative’,Footnote 7 narrative is in the business of creation as well as revelation.Footnote 8 The aforementioned distinction between story and discourse demonstrates the way in which storytellers attempt to give ‘shape and significance to life’.Footnote 9 J. Hillis Miller explained the constitutive function of narrative as follows:Footnote 10
[F]ictions may be said to have a tremendous importance not as the accurate reflectors of a culture, but as the makers of that culture and as the unostentatious, but therefore all the more effective, policemen of that culture . . . Narratives are [also] a relatively safe or innocuous place in which the reigning assumptions of a given culture can be criticized.
In the 1980s and 1990s, the narratological analytic method spread its disciplinary wings to encompass other media besides fictional text.Footnote 11 Narrative is now scrutinized in many disciplines across the social sciences and humanities including sociolinguistics, discourse analysis, communication studies, ethnography, sociology, and organization studies.Footnote 12 Cognitive narratology has assumed particular prominence, drawing on interdisciplinary insights about language and communication that were unavailable to structural narratologists.Footnote 13 Cognitive psychologists and artificial intelligence scholars had discovered the ‘storied nature of perception, sense-making, memory and identity formation’,Footnote 14 an insight that literary theorists began to capitalize on. There is now interest in building integrative theories that accommodate both literary narratives and the analysis of everyday storytelling.Footnote 15 The interdisciplinary ambition of narrative theory has displaced fictionality by conflating it with a general concept of narrativity.Footnote 16
As part of this narrative turn, historians began proactively to offer reasons for adopting a narrative mode of representation rather than seeking to explain events by causal generalization.Footnote 17 For David Carr, narrative form is ‘not a dress which covers something else but the structure inherent in human experience and action’.Footnote 18 Paul Ricoeur influentially advanced a general theory of narrative discourse, pertaining to both fictional and historical narrative forms.Footnote 19 For Ricoeur, narrative has an ‘irreducible temporality’, which negates the attempts of structuralists to dechronologize fictional narrative as well as those who seek to deny the narrative character of history.Footnote 20 He regarded both history and fiction as referring to the essential historicity of human existence:Footnote 21
We are members of the field of historicity as storytellers, as novelists, as historians. We belong to history before telling stories or writing history. The game of telling is included in the reality told. That is undoubtedly why . . . the word “history” preserves in many languages the rich ambiguity of designating both the course of recounted events and the narrative that we construct.
Ricoeur argued that any narrative combines two dimensions: a chronological or episodic dimension, and the attempt to construct ‘meaningful totalities out of scattered events’.Footnote 22 In other words, Ricoeur maintained that the art of narrating requires the ability to ‘extract a configuration from a succession’.Footnote 23 On this view, any narrative can be conceived in terms of the competition between its successional and configurational dimensions, between ‘sequence and figure’.Footnote 24 Because the configurational dimension involves the ‘encompassing [of events] in successive totalities’, a narrative may have the character of a judgement.Footnote 25 Ricoeur's typology of narrative as an interplay between successional and configurational elements is an illuminating heuristic framework, which is discussed in the context of international law below.
2.2. Narrative in legal theory
Compared to its treatment in literary and historical theory, narrative has not been one of the more visible methodological tools in legal theory.Footnote 26 This is puzzling, given that storytelling is a pervasive feature of legal practice. Indeed, the argumentative moves lawyers regard as rule-based reasoning are frequently a mode of narrative reasoning.Footnote 27 For example, the ‘theory of the case’ in the adversarial trial is an explicitly narrative mode of representation.Footnote 28 There are exceptions which highlight narrative in legal scholarship, including the ‘law and literature’ movement,Footnote 29 Ronald Dworkin's conception of the judicial opinion as a chapter in a ‘chain novel’,Footnote 30 and Robert Cover's contention that law and narrative are ‘inseparably related’.Footnote 31 Cover situated law squarely within the realm of storytelling, refusing to draw disciplinary lines between different narrative forms.
Despite such insights, for the most part, one ‘searches in vain for any recognition within legal doctrine that narrative is one of law's categories for making sense of its affairs’.Footnote 32 This quest and its frustration may be due either to disciplinary naiveté or a more active repression.Footnote 33 Critical theorists have suggested that the desire for order and system in the law is sustained by the production of successional ‘grand narratives’.Footnote 34 Although they often self-present as neutral methodological tools, legal theories themselves are best regarded as exercises in narrative, to appreciate ‘how they work on us and through us’.Footnote 35 Accordingly, like its incarnation in literary theory, narratological analysis in law has the distinct potential to emphasize the constitutive, as well as reflective, nature of narrative,Footnote 36 and highlight the interrelationship of successional and configurational elements. Narratology also fosters reflexivity in the legal discipline by emphasizing point of view and perspective: ‘who sees and who tells; the explicit or implicit relation of the teller to what is told; the varying temporal modalities between the told and its telling’.Footnote 37
2.3. Narrative in international law
International legal scholarship has been described as characterized by a ‘deracinated, anti-biographical, depersonalised, formally circumscribed, view-from-nowhere, prose style’.Footnote 38 Ricoeur's distinction between narrative's successional and configurational dimensions helps illuminate and parse the major approaches to narration in international legal scholarship. A consideration of the successional dimension reveals the prevalence of progress narratives in international legal thought, while a consideration of the configurational dimension reveals the constellation of norms operative in master narratives, such as constitutionalism, pluralism, and global administrative law.
2.3.1. Succession: progress narratives
In international law, Enlightenment-style ‘progress narratives’ are a familiar style of scholarship.Footnote 39 There frequently appears to be a clear ‘teleological horizon which orientates . . . cognitive activity’ at work in international legal discourse.Footnote 40 This horizon includes the increased centrality of individual rights in the international legal system,Footnote 41 and the increased juridification of international relations.Footnote 42 Although the sequential trajectory is conceived in a variety of ways,Footnote 43 progress narratives in international law are characterized by ‘discipline optimism’.Footnote 44 Historical events are made to fall along ‘an invisible line of progress’, from Westphalia to a more just world:Footnote 45
Individual episodic developments such as the conclusion of the Peace of Westphalia, the adoption of the UN Charter in San Francisco, the Nuremberg Trials, the Kyoto Protocol, or the establishment of the ICC in The Hague become no longer isolated phenomena to take on their own accord, but rather milestones falling on an invisible line of progress from injustice to a more rudimentary, and, finally, to a more advanced international law.
Such trajectories of progress have been called into question by contemporary international law historiography,Footnote 46 which has frequently adopted a posture of ‘incredulity towards meta-narratives’,Footnote 47 in favour of a narrative mode that highlights the contingency underpinning visions of progress. Such narratives emphasize the ‘marginalized alternatives and choices which seem to question our self-assured satisfaction of having ‘overcome’ history’,Footnote 48 and attempt to expose the ‘dynamics of power and hierarchy’ in conventional narratives.Footnote 49 Narrative accounts of international law that presumptively appeal to linear teleological developments tend to mask intractable value conflicts that characterize practice on the ground.Footnote 50 It is here that narrative has a powerful constitutive function, as observed by Friedrich Kratochwil:Footnote 51
Whatever the world community might be – a minimal ordre public, a practical association, or a value-based utopia – one thing seems clear: doctrines and actual practice often diverge widely and are only tenuously held together by metaphors, conceptual constructs, and narratives, instead of actual, settled practices.
2.3.2. Configuration: constitutionalism, pluralism, global administrative law
While the successional dimensions of international legal narratives are largely dominated by progress and teleology, the configurational effort to construct ‘meaningful totalities out of scattered events’Footnote 52 are frequently variations on a cluster of master narratives: constitutionalism, pluralism, and global administrative law.Footnote 53 Master narratives can be understood as sharing a ‘common rhetorical desire to resolve conflict by establishing audience expectations according to the known trajectories of its literary and rhetorical form’.Footnote 54 Martti Koskenniemi has conceived of constitutionalism and pluralism in explicit narrative terms,Footnote 55 describing a corresponding ‘play of narratives of unity and fragmentation’.Footnote 56 Constitutionalism narratives purport to offer continuity with domestic constitutional traditions by offering an overarching framework that determines the relationship of, and distribution of power between, institutions in the international legal order.Footnote 57 Given that domestic constitutionalism relies on an understanding of the common good that is arguably absent in the international community, there are inevitably transposition difficulties.Footnote 58 Moreover, the emphasis on unity and hierarchy in global constitutionalism narratives is destabilized by the complexities of regime proliferation and fragmentation.Footnote 59
Set against unity and hierarchy, pluralism narratives posit an international legal order characterized by the ‘heterarchical interaction of the various layers of law’.Footnote 60 They proceed on the basis of a situation in which two or more legal orders exist in the same juridical space, where each may have a plausible claim to authority.Footnote 61 While they squarely address the implications of overlapping and often conflicting levels of authority, pluralism narratives have been critiqued for failing to ‘pose demands on the world’ and sustain a distinct legal project.Footnote 62
Meanwhile, the global administrative law (GAL) narrative responds to the lack of accountability attendant on the regime proliferation and fragmentation identified by constitutionalism and pluralism narratives. While accountability is frequently willed into being by constitutionalism or left under-specified by pluralism, accountability pursuant to the GAL narrative is effected by standards of transparency, participation, reasoned decision, legality, and effective review.Footnote 63 In an analysis attuned to the configurational activity at work in the GAL narrative, Susan Marks has considered the way in which the ‘naming’ of GAL modifies existing concepts:Footnote 64
[N]aming is not just a matter of sticking on labels. At least where we are speaking of social phenomena, it changes what is named. An element within a new conceptual framework is something different from what it was when considered as an isolated phenomenon; it has new features, prompts new enquiries, orients action in new directions.
What accounts for the staying power of the three master narratives canvassed above as exercises in naming? After all, international legal scholars repeatedly adopt these conceptual frameworks rather than branch out and tell alternative stories about the international legal order.Footnote 65 This may be because the persuasive appeal of a configuration of concepts increases if they conform to widely accepted norms.Footnote 66 Common to constitutionalism, pluralism, and GAL is a shared professional preoccupation with the existence of a coherent international legal system: ‘how international law functions as a whole, and how a judgment or new legal instrument in one particular regime fits into the overarching narrative of the international legal “system”’.Footnote 67 Yet these three narratives have a tendency to transcend ‘systemic considerations’ and confer ‘conceptual trumps’.Footnote 68 Constant resort to them can ‘risk putting in the shade disputes over process, agency and orientation’.Footnote 69 Yet narratives of the international legal order are inevitably advanced to support differing political projects and normative agendas.Footnote 70 In that advancement, there is the distinct risk of attribution errors and selection bias on the part of whoever narrates.Footnote 71 As Fleur Johns observed, ‘if a person with a hammer sees every problem as a nail, then a person with an architectural blueprint sees every problem as a foundation and every hammer-carrier as a ‘mere’ labourer implementing some architect's vision’.Footnote 72
This section has not attempted to provide an exhaustive analysis of the successional and configurational dimensions of international law narratives, but rather to briefly outline their operative effect and interplay. International legal practice reveals that different actors leverage different narratives in support of different outcomes at different times.Footnote 73 Accordingly, it is critically important to keep narrative point of view or perspective firmly in view in evaluating the narration of the international legal order, a mandate that theories of unreliable narration significantly bolster.
3. Unreliable narration
3.1. Unreliable narration in literary theory
A narrator may display a range of possible attitudes towards her story, typically described as point of view or perspective.Footnote 74 Indeed, the relationships between the storyteller and her story, and the storyteller and her audience, constitute the ‘essence of the narrative art’.Footnote 75 Narratology has a resulting analytic value:Footnote 76
We are always summoned to consider the possible omissions, distortions, rearrangements, moralizations, rationalizations that belong to any recounting. The more we study modalities of narrative presentation, the more we may be made aware of how narrative discourse is never innocent but always presentational and perspectival, a way of working on story events that is also a way of working on the listener or reader.
Unreliable narration is a mode of narration in which the teller of a story cannot be trusted or taken at her word, compelling the audience to ‘read between the lines’.Footnote 77 While unreliable narration is often used to humorous effect, it can also reveal ‘biased perspective, limited knowledge, or serious character flaws’.Footnote 78 In The Rhetoric of Fiction, Wayne Booth introduced the terminology of unreliable narration in literary theory.Footnote 79 Booth described a narrator as reliable when he ‘speaks for or acts in accordance with the norms of the work (which is to say, the implied author's norms), unreliable when he does not’.Footnote 80 For Booth, narrators ‘differ markedly according to the degree and kind of distance that separates them from the author, the reader, and other characters of the story’.Footnote 81 Vladimir Nabokov's Lolita is a well-known example of unreliable narration.Footnote 82 Read uncritically, the first-person narration would seem to function as an apologist tract for paedophilia. However, by concluding that Nabokov himself ‘advocat[es] the ravishing of nymphets’,Footnote 83 the reader fails to distinguish between the norms of the implied author and that of the unreliable narrator, Humbert Humbert. To appreciate the novel in the way the implied author apparently intended, the reader must make that distinction. A ‘secret communion’ between implied author and reader results:Footnote 84
We discover a kind of collaboration which can be one of the most rewarding of all reading experiences. To collaborate with the author by providing the source of an allusion or by deciphering a pun is one thing. But to collaborate with him by providing mature moral judgment is a far more exhilarating sport.
The concept of implied authorship is complex and controversial.Footnote 85 In his seminal analysis, Booth postulated that the implied author plays a vital role in literary communication, but left the metes and bounds of the concept open. Theorists working within the rhetorical narrative tradition consider the implied author to be an indispensable category of textual analysis,Footnote 86 and that the implied author provides a standard against which to test the reliability of the narrator's statements.Footnote 87 In its partial focus on the notion of authorial intention, the concept of the implied author is said to function as a ‘yardstick for an ethical kind of criticism and as a check on the potentially boundless relativism of interpretation’.Footnote 88 However, theorists working within the cognitive narrative tradition have drawn attention to the elusive nature of the implied author concept,Footnote 89 arguing that the implied author is ‘a construct inferred and assembled by the reader from all the components of the text’.Footnote 90 Some cognitive narratologists mooted the reconceptualization of the implied author as a reader's strategy to resolve ambiguities and textual inconsistencies by projecting an unreliable narrator as an integrative hermeneutic device.Footnote 91 Ansgar Nünning has argued that an adequate model of unreliable narration needs to combine insights offered by both rhetorical and cognitive narrative theories, offering a more sophisticated analysis of the interplay between textual data and interpretive choice (or reader-response):Footnote 92
In the end it is both the structure and norms established by the respective work itself and designed by an authorial agency [rhetorical approach], and the reader's knowledge, psychological disposition, and system of norms and values [cognitive approach] that provide the ultimate guidelines for deciding whether a narrator is judged to be reliable or not.
Notwithstanding ambiguities surrounding the implied author concept, literary theorists have advanced numerous taxonomies of unreliable narration.Footnote 93 James Phelan identified six kinds of unreliability: misreporting, misreading, misevaluating, underreporting, underreading, and underregarding.Footnote 94 Shlomith Rimmon-Kennan argued that unreliable narration might exist where there is: (i) a contradiction between the narrator's views and the real facts, (ii) a gap between the true outcome of the action and the narrator's erroneous early report, (iii) a consistent clash between the views of other characters and the narrator, and (iv) internal contradictions, double-edged images, and the like in the narrator's own language.Footnote 95 Per Krogh Hansen offered four types of unreliability: intranarrational (occurring within a single narrator's discourse), internarrational (where one narrator's unreliability is unveiled in contrast to other narrative versions), intertextual (based on manifest character types), and extratextual (predicated on the knowledge the reader brings to the text).Footnote 96 Meanwhile, pragmatic approaches to unreliable narration posit a narrator as unreliable where she deviates from the obligations of co-operation and relevance that are presupposed in a communicative situation.Footnote 97
The phenomenon of unreliable narration is relatively underexplored outside the context of fictional narrative.Footnote 98 This is partly because the implied author and narrator inevitably collapse into one in non-fictional texts, where narration is an act of ‘direct telling from author to audience’.Footnote 99 Unreliability in this context becomes principally a matter for the reader's judgement.Footnote 100 Yet in the autobiography genre, for instance, there are many of the same manifestations of unreliable narration as in fiction.Footnote 101 Accordingly, the transposition of unreliable narration to fields such as law and politics has been described as a ‘highly fertile area of research’.Footnote 102
An analysis of unreliable narrative perspective in terms of cognitive frames avoids the fraught concept of the implied author, and emphasizes the ‘reader's knowledge, psychological dispositions and systems of norms and values’.Footnote 103 Frame theory, as developed by the sociologist Erving Goffman, examines the relationship between text and reader in terms of the frames of reference that the reader brings to the interpretive task.Footnote 104 Artificial intelligence researchers posit frames as the store of situational and contextual knowledge used to integrate specific information into larger conceptual frameworks.Footnote 105 In the narratology context, frames supply the defaults that fill gaps and enable the reader to understand a given text.Footnote 106 However, cognitive frames are not fail safe:Footnote 107
Because frames result in the interpreter considering certain features and ignoring others, blind spots can appear and help generate a limited view. Once established in the mind of the interpreter, frames can lead to conclusions that block consideration of other possible facts and interpretations. If the facts do not fit into the pre-existing frame, the frame stays while the facts are ignored. If a scenario is activated in the mind, other options are downplayed due to the suspicion that they are incompatible. Eventually, alternative ways of thinking are suppressed, which can create ‘tunnel vision’.
3.2. Unreliable narration in international law
A ‘turn to narration’ in international law accords with an increasing focus, in some quarters, on international law as a profession.Footnote 108 Various critical approaches to international law have drawn on the Weberian insight that the ‘legal order is a projection of the legal staff's knowledge of it’.Footnote 109 David Kennedy has described international law as a ‘group of people pursuing projects in a common professional language’,Footnote 110 while Koskenniemi has identified international law as ‘what lawyers do and how they think’.Footnote 111 Although Kennedy and Koskenniemi do not use the vocabulary of unreliable narration, they identify the perils of expertise and managerialism respectively,Footnote 112 where international law becomes ‘rules of thumb or soft standards that refer to the best judgement of the experts in the [sub-disciplinary] box’ from which they emanate.Footnote 113 This can lead to the phenomenon of ‘frame-consistent inferences’,Footnote 114 where lawyers with a background in a related area have ready access to analogies from that area when analysing novel issues. According to Koskenniemi, political conflict is ‘waged on the description and re-description of aspects of the world so as to make them fall under the jurisdiction of particular institutions’.Footnote 115 Such ‘description and re-description’ lends itself to consideration through the optic of unreliable narration or cognitive frames, revealing the instrumentalist interpretive posture of experts and the myopia of the managerialist mindset.
The ‘situatedness’ of narrators in international law is illustrated by reference to the ‘interpretive community’, a concept from literary theory that has already been effectively transposed to international law.Footnote 116 Ian Johnstone described the interpretive community in international law as ‘loosely composed of three concentric circles of officials, professionals and civil society representatives associated with a field of legal practice [which] sets the parameters of discourse surrounding that practice and affect how the law is interpreted and applied’.Footnote 117 The ‘inner’ concentric circle consists primarily of a network of government and intergovernmental officials who, ‘through the process of formulating, negotiating, adopting and applying rules, come to share a set of assumptions, expectations and a body of consensual knowledge’.Footnote 118 This inner circle is surrounded by a second circle of officials, lawyers, and other experts engaged in professional activities associated with the practice or issue area regulated by the norm. Around these two concentric circles is a more ‘amorphous constellation of actors whose interests are affected’, including social movements, media, and transnational civil society: ‘they are the broad audience who listen to and critique the reasons given by policy makers for the decisions they make, on the basis of values as well as technocratic considerations.’Footnote 119
Johnstone's concentric conception of the interpretive community usefully highlights the various actors involved in the battle for ‘semantic authority’ in international law,Footnote 120 and reveals the persuasive force of international law argumentation that has intersubjective purchase across the concentric circles. However, Johnstone indicates that where opinion on an international legal issue is divided, then ‘almost by definition no interpretive community exists, or perhaps there are multiple communities’.Footnote 121
Unreliable narration and cognitive frames ‘add value’ in international legal theory by calling attention to subjectivities. They provide a vocabulary for mapping consensus and dissensus within international law's interpretive community in a manner that is acutely sensitive to point of view, perspective, and ‘disputes over process, agency and orientation’.Footnote 122 As Iain Scobbie has argued, ‘identifying authorial predispositions is crucial to evaluating the weight to be given to an argument’ in international law.Footnote 123 The concentric structure of the interpretive community helps illuminate the ways in which unreliability may be identified. To adopt Hansen's typology of unreliability,Footnote 124 the concentric structure of the interpretive community highlights the propensity for intranarrational, internarrational, intertextual, and extratextual unreliability to be identified, as various narrators compete for ‘semantic authority’ in international law.Footnote 125 Meanwhile, cognitive frames shape the narration, and are ‘frequently oriented by strategic policy aims that impact on the use of vocabulary and the direction of interpretation’.Footnote 126 At stake in acts of framing are:Footnote 127
questions of authority, jurisdiction and institutional responsibility, where particular frames set the conditions for apprehension, recognition and regulation but also make the frame and that which is enframed always open to redescription, contestation and reconfiguration.
The analytic potential of the fusion of unreliable narration, cognitive frames, and interpretive communities in international law theory will be examined in a case study in the following section, focusing on the practice of targeted killing by the Obama administration.
4. Tales of targeted killing
The contestable legality of targeted killing or extrajudicial executions as a counterterrorism strategy has given rise to significant debate in international law's interpretive community.Footnote 128 While the practice of targeted killing predates the so-called ‘War on Terror’, there has been particular controversy about the escalating use by the US of ‘drone strikes’ by unmanned aerial vehicles against alleged members of al-Qaeda and related organizations in the aftermath of the 11 September attacks. Much of the voluminous recent scholarship on targeted killing aspires to doctrinal exegesis.Footnote 129 This includes fierce debate about the definition of an armed conflict, whether members of a non-state terrorist organization should be regarded as combatants rather than civilians pursuant to the laws of war, concerns about compliance with jus in bello requirements such as distinction and proportionality, and the permissibility of pre-emptive self-defence in the event of an imminent threat.
4.1. Successional and configurational analyses
Successional dimensions can be discerned in existing approaches to the narration of targeted killing. In a variation of the progress narrative that is familiar from the debates on humanitarian intervention,Footnote 130 the inner concentric circle of US government officials has proffered a narrative that justifies the necessity of a ‘War on Terror’.Footnote 131 The gist of this narrative is that:Footnote 132
what is under threat today is a set of values and a way of life – Western, of course, and American specifically – that constitute civilisation itself. And that the threat comes from forces of darkness, from a great evil that emanates from Muslim countries.
In a somewhat ironic inversion of the teleology that typically orients international legal thought, much of the literature on targeted killing depicts drone strikes by unmanned aerial vehicles as technologically ‘progressive’ and unprecedented, with commentators quick to stress the discontinuities with prior military tactics.Footnote 133 This focus on technological innovation leads to the ‘eventing’ of targeted killing as a narrative stratagem,Footnote 134 apparently necessitating a rupture in settled approaches and doctrinal frameworks. Paul Kahn explains the implications of this successional narrative trajectory as follows:Footnote 135
Political violence is no longer between states with roughly symmetrical capacities to injure each other; violence no longer occurs on a battlefield between masses of uniformed combatants; and those involved no longer seem morally innocent. The drone is both a symbol and a part of the dynamic destruction of what had been a stable imaginative structure . . . The drone operator is neither combatant nor law enforcer, yet he is a fact around which our norms are going to have to organize themselves – not the other way around.
However, efforts to uphold the sui generis nature of targeted killing have been challenged on the grounds of ahistoricism. For example, the focus on remote piloting in drone use has downplayed continuities with earlier uses of air power.Footnote 136 Indeed, Samuel Moyn argues that it is possible to narrate the modern history of warfare in ways that make ‘current developments only new versions of continuous practices’.Footnote 137 He goes on to articulate an inclination to be ‘tentative about how new the drone is and how far it actually or symbolically unsettles traditional frameworks’.Footnote 138
Turning to configurational narrative elements, targeted killing has eluded widespread explanatory co-option by the master narratives of the international legal order – constitutionalism, pluralism and GAL – canvassed in Part 2 above. That said, particular aspects of the practice have been framed instrumentally by different members of international law's interpretive community to pursue particular projects. A number of academics have drawn attention to clear fragmentation concerns at a doctrinal level, given that targeted killing exists at the interstices of the law of armed conflict and international human rights law.Footnote 139 The New York Times has insistently called for judicial review of targeting decisions, revealing a constitutionalism narrative frame.Footnote 140 Appeals by civil society, UN officials, and the academy for greater transparency and accountability in targeting decisions echo the normative prerogatives of GAL.Footnote 141 However, in advocating a multi-perspectival ‘turn to narration’, it is pluralism that helps map hermeneutic dissonance within international law's interpretive community. As Kennedy observed in the context of law and warfare, we ‘learn to operate in a complex world of pluralism, of multiple perspectives on the validity, persuasiveness, and strategic usefulness of legal norms and institutional competence’.Footnote 142
4.2. Selecting the texts
An analysis of unreliable narration in the context of targeted killing must begin by identifying texts that are amenable to narratological analysis. What follows is a far from exhaustive list of texts appearing from different concentric circles of international law's interpretive community. (The narrative implications of the selection of particular texts and their presentation in sequential form is not lost on this author, who will discuss below the ineradicable implicatedness of the scholar in international law's interpretive community, and the resulting need for self-reflexivity.)
1. Philip Alston's report to the UN Human Rights Council in May 2010, in his capacity as Special Rapporteur on extrajudicial, summary or arbitrary executions.Footnote 143 Alston defined targeted killings as the ‘intentional, premeditated and deliberate use of lethal force . . . against a specific individual who is not in the physical custody of the perpetrator’.Footnote 144 He argued that the failure of the Obama administration to ‘comply with their human rights law and IHL obligations to provide transparency and accountability for targeted killings is a matter of deep concern’.Footnote 145 He concluded by arguing that states should ‘publicly identify the rules of international law they consider to provide a basis for any targeted killing they undertake’.Footnote 146
2. The 2010 judgment of the US District Court in the high-profile litigation brought by the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR), challenging the alleged approval of the targeted killing of Anwar al-Awlaqi, an American citizen in Yemen.Footnote 147 ACLU and CCR claimed that the US's drone programme asserted a ‘sweeping authority to impose extrajudicial death’ and that it accordingly violated al-Awlaqi's rights under the US Constitution and international law.Footnote 148 It asked the court to enjoin the President from killing al-Awlaqi until he presented ‘a concrete, specific, and imminent threat to life or physical safety’, and asked the Court to order the Obama administration to ‘disclose the criteria that are used in determining whether the government will carry out the targeted killing of a US citizen’.Footnote 149 In a motion to dismiss, the Obama administration argued that the claims required the Court to decide non-justiciable political questions and that ‘information properly protected by the military and state secrets privilege would be necessary to litigate this action’.Footnote 150 The Court agreed, concluding that ‘questions of justiciability require dismissal of this case at the outset’.Footnote 151 al-Awlaki was subsequently killed in September 2011.
3. The speeches of senior Obama administration officials, purporting to outline the legal basis for the targeted killing programme.Footnote 152 Key speeches include: Harold Koh's speech to the American Society of International Law, in his capacity as Legal Adviser to the US State Department, in March 2010;Footnote 153 Attorney-General Eric Holder's speech at Northwestern Law School, in March 2012;Footnote 154 and the speech by John Brennan, Assistant to the President for Home Security and Counterterrorism, in April 2012.Footnote 155 The general position, revealed in the speeches, was that ‘US targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable laws, including the laws of war’.Footnote 156
4. The release of a civil society report titled ‘Living Under Drones’ in September 2012, researched and written by law clinics at NYU and Stanford University.Footnote 157 The report explicitly rejects as false the ‘dominant narrative about the use of drones [as] a surgically precise and effective tool’,Footnote 158 and evidences the damaging effects of US drone strike policies. The report calls for the US to ‘fulfil its international obligations with respect to accountability and transparency, and ensure proper democratic debate about key policies’.Footnote 159
5. The freedom of information litigation brought by the New York Times and the ACLU, seeking disclosure of the government legal memos used to justify al-Awlaqi's targeted killing.Footnote 160 The government's motion to dismiss was accepted by the US District Court at first instance in January 2013, despite salutary narrative references to the ‘Alice-in-Wonderland’ nature of proceedings and a ‘veritable Catch-22 of security rules that allow the executive branch to declare legal actions that seem on their face incompatible with our Constitution and laws’, while keeping the reasons for their conclusion a secret.
6. The Department of Justice ‘White Paper’, leaked in February 2013, which purported to spell out the Obama administration's legal position regarding the overseas targeted killing of US citizens alleged to be al-Qaeda leaders.Footnote 161
7. President Obama's speech on counterterrorism policy at the National Defence University in May 2013,Footnote 162 and the simultaneously released fact sheet entitled ‘US Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities’. In this speech, the President authorized the declassification of materials pertaining to al-Awlaqi ‘to facilitate transparency and debate on this issue and to dismiss some of the more outlandish claims that have been made’.Footnote 163
8. In 2013, two UN Special Rapporteurs – Christof Heyns and Ben Emmerson – released major reports on drones, which were debated at the UN General Assembly.Footnote 164 Heyns recommended that ‘States must be transparent about the development, acquisition, and use of armed drones. They must publicly disclose the legal basis for the use of drones, operational responsibility, criteria for targeting impact (including civilian casualties), and information about alleged violations, investigations and prosecutions’.Footnote 165 Emmerson's report argued that the ‘single greatest obstacle to an evaluation of the civilian impact of drone strikes is lack of transparency’.Footnote 166
9. In March 2014, the UN Human Rights Committee issued its concluding observations assessing US compliance with the International Covenant on Civil and Political Rights.Footnote 167 In relation to targeted killing, the Committee recommended that, subject to operational security, the US should ‘disclose the criteria for drone strikes including the legal basis for specific attacks, the process for target identification and the circumstances in which drones are used’.Footnote 168
10. In June 2014, the US Court of Appeals for the Second Circuit ordered the Obama administration to disclose (with redactions) the memo containing the government's reasoning as to the lawfulness of al-Awlaki's killing. The Second Circuit overturned the District Court's decision (see (5) above) on the basis that the collection of statements and disclosures made by the administration amounted to a waiver of secrecy and privilege. The release of the memo was described by the ACLU as a ‘victory for transparency’,Footnote 169 and as a first step in ‘clos[ing] the gap between the administration's official narrative of the targeted killing program and the actual facts about the program’.Footnote 170 That said, the substance of the memo was criticized by the New York Times as a ‘slapdash pastiche of legal theories that was cleverly tailored to the desired result’.Footnote 171
4.3. Transparency and reliability
An internarrational and extratextual analysis of the texts above yield important insights that complement, and reveal the subjectivities of, extant successional and configurational narrative approaches to the practice of targeted killing. Appeals to transparency in the outer concentric circles were met by auto-interpretation from the inner circle by way of response, whether through official speeches or unofficial leaks. The narration of targeted killing is an example of ‘legal discourse starting in the broader, outer circle of the interpretive community, gathering steam and penetrating the corridors of power’.Footnote 172 Repeated calls for the legal justification regarding the decision to target al-Awlaqi, emerging from the outer circle, might be conceived as an advocacy project deliberately designed to cast aspersions on the reliability of government officials in the inner circle. In its appeals to transparency and accountability, Alston's report came to be emblematic of the posture towards targeted killing in the outer circle, described by one commentator as the ‘international legal – media – academic – NGO – international organization – global opinion complex’.Footnote 173
The interplay between secrecy and transparency has a significant bearing on the identification of unreliable narration, whether cast in terms of underreporting, or internarrational or extratextual unreliability. Of course, transparency is a core element of the GAL narrative configuration.Footnote 174 However, the argumentative strategy in this article is not to narrate a GAL reading of the targeted killing debate, but to track the way in which transparency is discursively deployed at critical junctures by different actors within international law's interpretive community.
A concerted effort has been made, in Special Rapporteur recommendations and civil society-directed litigation, to transform contentious foreign policy advice from a ‘black box’ to a site of contestation and critique on transparency and accountability grounds.Footnote 175 The widespread desire for secret advice to be disclosed reveals extensive mistrust about the candour and political neutrality of the legal advice provided within the executive branch.Footnote 176 The existence of freedom of information legislation and subsequent litigation has reshaped the governance terrain by turning a spotlight on executive legal interpretation. The availability or public promulgation of government information provides distinct incentives to ensure that it is ‘factually right, neutral, comprehensive and well-judged’.Footnote 177 However, the prospect of disclosure heightens hermeneutic sensitivity and means that advice might be written in a way that ‘anticipates scrutiny from outside the circle of decision makers to whom it has been tendered . . . los[ing] its character of candid guidance offered in confidence’.Footnote 178 Jack Goldsmith has suggested that a duty of disclosure ‘might lead to a two-track legal analysis – the real analysis and the one for popular consumption’.Footnote 179
In the counterterrorism context, ‘public interest’ advocacy has shifted from habeas corpus petitions, demanding that bodies are released, to freedom of information campaigns, demanding that information is released. Filing cabinets and inboxes, rather than prison cells, are the new targets for emancipation. The body that is now sought are the legal principles used to justify a foreign policy decision. While government lawyers have condoned the legality of targeted killing at conferences and campuses (in Cliffs Notes form),Footnote 180 they have resisted disclosure of their actual advice in the courtroom on non-justiciability and state secrets grounds. Selective leaks of advice appear to be the preferred method of disclosure, as demonstrated by the release of the infamous White Paper.Footnote 181 This form of stage-managed and selective ‘whistleblowing’ conveniently avoids the rigours of an adversarial process to test the plausibility of the content.Footnote 182
The redactions in the recently released al-Awlaki memo point to the existence of an ‘entire body of secret law, a veritable library of authoritative legal opinions produced by Justice Department lawyers but withheld from the American public’.Footnote 183 What became of the ‘duty to explain’, defined by Koh as the ‘important transparency norm that senior US government lawyers, and the Legal Adviser of the Department of State in particular, are expected not just to give legal advice in private but also to explain in public the international legal basis for what the United States has done’?Footnote 184 In the parlance of the New Haven School of international law, the duty to explain ‘myth system’ is in tension with the ‘operational code’ of actual practice.Footnote 185 The actual practice appears to favour a ‘secret life of international law’, where the legal advice that informs decision-making is seldom visible outside government.Footnote 186
Should the constant chatter about transparency, emerging from the outer circle of international law's interpretive community, be regarded as an unmitigated victory for civil society and as a paean to the virtues of reliable narration? Or is transparency more in the nature of a ‘pacifying ideology’?Footnote 187 Whose interests has transparency ultimately served? An extratextual analysis of Alston's influential report (see (1) above) reveals that its focus on transparency masked a failure to take account of immanent legal regulation.Footnote 188 The continued focus on transparency in the aftermath of Koh's speech arguably distracted from more fundamental issues about the basis for the use of force in the first place.Footnote 189 Moreover, the fetishization of transparency as a panacea for unreliability fails to recognize the subversive potential of the availability of information, which can be used instrumentally to achieve a wide variety of goals.Footnote 190 Providing a comprehensive account of targeting criteria would potentially function as a road map for those who are targeted, who can then modify their behaviour to fall just outside the criteria.Footnote 191 Ultimately, transparency emerges as something of a mixed blessing, an ambivalence well articulated by Anne Peters:Footnote 192
Is the quest for transparency misguided because it aims only at the symptoms and hides the causes? Is it a “triumph of form over results”? Does not striving for transparency become “a distraction, diverting time and resources from substantive outcomes”? Are we merely performing “rituals of verification”?
If the reader is agnostic about the merits of transparency, what new stories might be told about targeted killing? A disquieting successional narrative emerges, where targeted killing's relationship to international legal normativity is ‘mutually constitutive’.Footnote 193 International lawyers have repeatedly prepared to accept targeted killing as a practice by couching it in legal rather than extra-legal terms. An iterative progression can be discerned from targeted killing as secret strategic directive to codified practice in purported compliance with international law,Footnote 194 of which Obama's institutionalization of a ‘kill list’ or ‘disposition matrix’ is a recent chapter.Footnote 195 A revisionist narrative might posit that the preoccupation with transparency in the outer circle of the interpretive community helped legitimate the practice of targeted killing in the inner circle by forcing it to be engaged with on a legal turf. Yet, as Grégoire Chamayou observed:Footnote 196
To apply norms designed for a conflict to slaughtering practices, and to be willing to pursue the discussion without questioning the presupposition that these practices still stem from within that normative framework, ratifies a fatal confusion of genres.
Aspirations to escape this Gordian knot engage the critical problem of silencing technology,Footnote 197 and the difficulty of evaluating the appropriate course of action before it is an operational fait accompli, where a narrator finds herself in the province of ex post facto justification.
4.4. Towards a critical narratology
You have recorded all the facts faithfully and exactly – though you have shown yourself becoming reticent as to your own share in them . . . You see now why I drew attention to the reticence of your manuscript . . . It was strictly faithful as far as it went – but it did not go very far, eh, my friend.Footnote 198
Agatha Christie
The foregoing analysis of targeted killing through a narratological lens demonstrates that theories of unreliable narration have the potential to critically evaluate how narratives are generated, sustained, and called into question in international law. Stories are always told from a ‘point of view, for a purpose, and create a perspective on happenings – even create happenings through perspective’.Footnote 199 Rather than merely allocating aspects of an international practice to a particular successional or configurational narrative mode, an alternative narratological strategy is to foreground the multi-perspectival narration and cognitive frames at play within an interpretive community. This approach allows the reader to make an internarrational or extratextual evaluation of the narrators, frequently exposing unreliability in the process.Footnote 200
The disaggregation of international law's interpretive community to its constituent narrators accords with Kennedy's call, in the context of law and war, for a ‘typology of projects and sites of articulation’.Footnote 201 Such a typology reveals fierce contestation among competing narrative visions.Footnote 202 Interpretive communities are revealed as ‘centers for disciplinary power and exclusion . . . creat[ing] room for specific forms of politics, allowing certain voices to be heard and others to be silenced’.Footnote 203 The struggle for control of the narrative is ultimately a struggle for interpretive power, with the resulting ability to ‘kill or capture’ conflicting narrative visions.
It is revealing to track the prevalence of particular narrative configurations in particular professional contexts.Footnote 204 A narrator's interpretive agenda, and cognitive frame, is invariably closely aligned with, and often distinctly circumscribed by, their professional role.Footnote 205 This is compounded by professional self-identification as, first and foremost, a domestic constitutional lawyer or an international lawyer. For example, if an international legal adviser in government service ignored a domestic policy directive in giving advice, that would likely result in their advice being regarded as ‘virtuous but marginal’ in the ultimate decision-making.Footnote 206 This shifting narrative orientation, based on professional role, is perhaps most apparent when a particular individual oscillates between different roles that map on to different concentric circles of international law's interpretive community. One might contrast Koh's ‘calculated opacity’ as the Legal Adviser to the State Department,Footnote 207 with his interpretive posture after returning to academia.Footnote 208
A typology of projects in the targeted killing context reveals fundamental disagreements across the concentric circles of the interpretive community as to the appropriate interpretive methodology to adopt.Footnote 209 Frame-consistent inferences mean that lawyers from different professional backgrounds often approach the law of war in fundamentally disparate ways.Footnote 210 However, the mutually constitutive nature of targeted killing and its law reveals that narration from opposing factions now invariably adopts a legal vernacular:Footnote 211
Law now offers an institutional and doctrinal space for transforming the boundaries of war into strategic assets, as well as a vernacular for legitimating and denouncing what happens in war. Once the law in war becomes a strategic asset, able to be spoken in multiple voices – an ethically self-confident voice of sharp distinctions, a pragmatic voice of instrumental assessment – we can anticipate that it will be used differently by those with divergent strategic objectives.
A typology of sites of articulation reveals the way in which readers co-opt narrators for their own projects. A narrator regarded as reliable in one context may be excoriated as unreliable in another. To make allegations of unreliability is to promulgate a new narrative of one's own. For example, a New York Times article that purported to provide an authoritative account of what led to the al-Awlaki strike claimed to be ‘based on interviews with three dozen current and former legal and counterterrorism officials and outside experts’.Footnote 212 After reading this piece, another leading columnist wrote an article, recasting the other journalists as unreliable narrators: ‘It's standard government stenography, administration press releases masquerading as in-depth news articles’.Footnote 213 Tracing unreliability, and the ability to call others to account, plays an important part in constituting narratives:Footnote 214
Asking you what you did and why, saying what I did and why, pondering the differences between your account of what I did and my account of what I did, and vice versa, these are essential constituents of all but the very simplest and barest of narratives.
The emphasis placed on unreliable narration in this article does not minimize the need to consider the professional identity and cognitive frames of the reader who responds to said narratives. Thus, in crafting arguments, the international legal scholar is not a passive chronicler of international practices but is deeply implicated in international law's interpretive community. While positivist scholarship may often appear to be an exercise in ‘normative abstinence’,Footnote 215 at pains to distinguish the Jekyll of lex lata and the Hyde of lex ferenda, it has the potential to grant the imprimatur to norm entrepreneurs who seek to develop the law in accordance with their own ends.Footnote 216 Doctrinal discussion of targeted killing has the tendency to disembody the act of killing.Footnote 217 The drone strike is presented as a technical accomplishment, the intended victim as a ‘target’. The technical questions asked distance the reality of bloodshed and conflict. Thus, narratives, even of the doctrinal variety, have the ability to strip away, and create, humanity and inhumanity. What is required is the ability to read critically, translating what is hidden behind technical language rather than capitulating to professional expertise.Footnote 218
One way for narrators and readers to militate against allegations of unreliability is for their legal analysis to be married with disclosure of their underlying jurisprudential commitments and methodological assumptions. This conscientiously counters Duncan Kennedy's characterization of the ‘hermeneutic of suspicion’, where jurists seek to uncover hidden ideological motives behind the ‘wrong’ legal arguments of their opponents, while affirming their own ‘right’ answers innocent of ideology.Footnote 219 Such disclosure is particularly pressing where legal work takes place at the intersection of conflicting values, such as the public's opportunity to obtain information about government activities versus the interests of the executive branch in maintaining secrecy about matters of national security.
Ultimately, narrativizing international law brings to the fore the ‘disputes over process, agency and orientation’ that the master narratives of the international legal order avoid.Footnote 220 To merely perform the allocative function of conduct in international practices to such narratives, whether of the successional or configurational variety, is to cede the battle.Footnote 221 Rather than permitting international practices to be co-opted to particular narrative agendas uncritically, a focus on unreliable narration helps us pay close attention to consensus and dissensus within international law's interpretive community. Judith Butler has suggested that to ‘call the frame into question is to show that the frame never quite contained the scene it was meant to limn’.Footnote 222 For Butler, the critical objective is to expose the ‘orchestrating designs of the authority who sought to control the frame’.Footnote 223 In the final analysis, close attention to multi-perspectival narration is nothing less than a valiant effort to narrate without silencing, without consuming the voices of others.Footnote 224
5. Conclusion
This article has examined the existence of unreliable narration in international law, and the ability of narrators to ‘kill or capture’ narratives to advance their particular projects. Rather than uncritically subscribe to the ‘nightmare’ of the technological progress narrative or the ‘noble dream’ of transparency, the case study on targeted killing highlighted the fundamental significance of point of view and perspective in international law's interpretive community. More generally, unreliable narration is ultimately a function of where a given reader is situated within international law's interpretive community vis-à-vis the narrator, and whether their cognitive frames, or the interpretive method they apply to evaluate international practices, diverge. Ultimately, mapping unreliable narration is a valuable critical project in international legal theory, offering a generalizable framework for the evaluation of narrative transmission in the international legal order, while fostering reflexive inquiry about the state of international law as a professional discipline.
