On November 14th at 12pm at George Mason University School of Law, I will be making a presentation entitled Kill-Lists and Accountability, based on my identically titled paper. The abstract of the paper appears below:
This paper examines the U.S. practice of targeted killings. It proceeds in two parts, the first part is an empirical description of the process of targeted killings. Based on qualitative empirical research conducted pursuant to proven case study techniques, part one describes how kill-lists are created, what government actors approve the name of individuals to be added to kill lists, how targeted killings are executed, and how the U.S. implements its International Humanitarian Law obligation to mitigate and prevent harm to civilians.
Specifically, the paper explains in rich detail the process the U.S. follows to estimate and mitigate the impact of conventional weapons on collateral persons and objects in most targeted killings. Key Findings: In pre-planned operations the U.S. follows a rigorous collateral damage estimation process based on a progressively refined analysis of intelligence, weapon effects, and other information. When followed, this process dramatically reduces the amount of collateral damage in U.S. operations, and also ensures high levels of political accountability. However, due to the realities of combat operations, the process cannot always be followed; Data about the U.S. military’s collateral damage estimation process reveals that the system is intended to ensure that there will be a less than 10 percent probability of serious or lethal wounds to non-combatants; In actuality, less than 1% of pre-planned operations that followed the collateral damage estimation process resulted in collateral damage; When collateral damage has occurred, 70% of the time it was due to failed “positive identification” of a target. 22% of the time it was attributable to weapons malfunction, and a mere 8% of the time it was attributable to proportionality balancing – e.g. a conscious decision that anticipated military advantage outweighed collateral damage; According to public statements made by U.S. government officials the President of the United States or the Secretary of Defense must approve any pre-planned ISAF strike where 1 civilian casualty or greater is expected.
In the second part of the paper, I turn from the empirical to the normative. I describe the various mechanisms of accountability embedded in the targeted killing process. Specifically, I set forth an analytical framework which allows for the examination of legal, political, bureaucratic, and professional mechanisms of accountability. I then assess the strengths and weaknesses of these four accountability mechanisms as applied to U.S. targeted killings. The paper concludes by suggesting legal and policy reforms to address the shortcomings identified in the normative section.
Now available on SSRN is my newest piece, Are Targeted Killings Unlawful? A Case Study in Empirical Claims Without Empirical Evidence. In the piece I argue that critics of the U.S. policy of targeted killing by unmanned aerial vehicles (UAVs or drones) generally lack credible information to justify their critiques. In fact, in many circumstances their claims are easily refuted, calling into question the reliability of their criticisms. I highlight some of the most striking examples of inaccurate claims raised by critics of the U.S. policy of drone based targeted killing. Specifically, I offer a much needed corrective to clarify the public record or offer empirical nuance where targeted killing critics offer only unsubstantiated and conclusory statements of fact and law.
Section I discusses the decision protocol used by the U.S. military before launching a drone strike, a process that goes to extraordinary lengths to minimize civilian casualties. Although this decision protocol was once secret, recent litigation in federal court has resulted in the release of extensive information regarding U.S. targeting protocols. An analysis of this information indicates that the U.S. military engages in an unparalleled and rigorous procedure to minimize, if not eliminate entirely, civilian casualties. Although independent empirical evidence regarding civilian casualties is hard to come by, it is certainly the case that statistics proffered by some critics cannot be empirically verified; their skepticism of U.S. government statements is not backed up by anything more substantial than generic suspicion.
Section II addresses the critics’ unsubstantiated claims about the legal, diplomatic and strategic results of drone strikes. Although the counter observations I raise do not, by themselves, demonstrate that targeted killings are morally or legally justified, they do however suggest that some of the moral or legal objections to targeted killings are based on empirical claims that are either dubious, impossible to verify, or just plain false.
Other contributors to the book Targeted Killing: Law and Morality in an Asymmetrical World (Oxford 2012) appear in the Table of Contents below. For more on this issue, see my article Kill-Lists and Accountability.
INTRODUCTION Andrew Altman
PART I: THE CHANGING FACE OF WAR: TARGETING NON-COMBATANTS
- Rebutting the Civilian Presumption: Playing Whack-A-Mole Without a Mallet? Colonel Mark “Max” Maxwell
- Targeting Co-belligerents Jens David Ohlin
- Can Just War Theory Justify Targeted Killing? Three Possible Models Daniel Statman
- Justifying Targeted Killing With a Neutral Principle? Jeremy Waldron
PART II: NORMATIVE FOUNDATIONS: LAW-ENFORCEMENT OR WAR?
- Murder, Combat or Law Enforcement Jeff McMahan
- Targeted Killing as Preemptive Action Claire Finkelstein
- The Privilege of Belligerency and Formal Declarations of War Richard V. Meyer
PART III: TARGETED KILLING AND SELF-DEFENSE
- Going Medieval: Targeted Killing, Self-Defense, and the Jus ad Bellum Regime Craig Martin
- Imminence in Justified Targeted Killing Russell Christopher
- Defending Defensive Targeted Killings Phillip Montague
PART IV: EXERCISING JUDGMENT IN TARGETED KILLING DECISIONS
- The Importance of Criteria-Based Reasoning in Targeted Killing Decisions Amos N. Guiora
- Are Targeted Killings Unlawful? A Case Study in Empirical Claims without Empirical Evidence Gregory S. McNeal
- Operation Neptune Spear: Was Killing Bin Laden a Legitimate Military Objective? Kevin H. Govern
- Efficiency in Bello and ad Bellum: Making the Use of Force Too Easy? Kenneth Anderson
PART V: UTILITARIAN TRADE-OFFS AND DEONTOLOGICAL CONSTRAINTS
- Targeting in War and Peace: A Philosophical Analysis Fernando R. Tesón
- Targeted Killings and the Morality of Hard Choices Michael S. Moore
- Targeted Killing and the Strategic Use of Self-Defense Leo Katz
The Combating Terrorism Center at West Point “Sunni and Shi’a Terrorism: Differences That Matter” by Colonel Thomas F. Lynch, III. Lynch was a fellow at Brookings from 2007-2008 and holds a PhD in international relations from Princeton University.
The paper discusses six key areas that impact American policy considerations and gives recommendations for addressing these issues.
Issue 1: “Sunni radicals and Shi’a extremists differ in the overall approach and main objectives for their use of terror. The former tend to operate in a continuous, mid‐to‐high intensity manner, seeing war against infidels and apostates as a perennial condition featuring overlapping waves. Outside of an ongoing and seemingly open‐ended campaign against Israel, terrorist attacks by Shi’a groups have by and large featured discrete terror campaigns tethered to state and organizational objectives.” (more…)