Law and Public Policy

George Mason Law School: Kill-Lists and Accountability

GMU Law Logo

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. 

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Law and Public Policy

Kill-Lists and Accountability at Temple Law

TempleLogo

On November 7th at 12pm at Temple 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. 

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Law and Public Policy

Kill-Lists and Accountability at South Texas

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On October 17th at South Texas College 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. 


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Law and Public Policy

Are Targeted Killings Unlawful? A Case Study in Empirical Claims Without Empirical Evidence

Targeted Killing.pngNow 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.  For more on this issue, see my article Kill-Lists and Accountability.

Other contributors to the book Targeted Killing: Law and Morality in an Asymmetrical World (Oxford 2012) appear in the Table of Contents below:

Continue reading

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Law and Public Policy

New Approaches to Reducing and Mitigating Harm to Civilians

I just posted to SSRN the abstract for my chapter New Approaches to Reducing and Mitigating Harm to Civilians which will appear in the Oxford University Press book, Shaping a Global Legal Framework for Counterinsurgency: New Directions in Asymmetric Warfare (William C. Banks ed., 2012).  The abstract appears below.

The wars in Iraq and Afghanistan highlighted the strategic importance of the U.S. commitment to civilian protection. Both wars were eventually fought as a counterinsurgency (COIN) and both revealed how protecting civilians is a central feature of COIN. This chapter examines the importance of civilian casualty mitigation in U.S. counterinsurgency operations, it describes the theoretical and practical lessons learned regarding civilian casualties and situates them in a broader strategic context. The chapter also describes the U.S. military’s newest doctrinal publication aimed specifically at preventing and mitigating harm to civilians.

The chapter concludes noting that protecting the population and winning hearts and minds are well known central planks in counterinsurgency theory. However, achieving these goals is oftentimes harder said than done, especially when the reality of modern operations is a transparent conflict environment in which enemy forces will seek to purposefully cause harm to civilians, and exploit such harm for their own ends. Based on America’s experiences in Iraq and Afghanistan, the U.S. military has created the world’s first manual directed at preventing and mitigating harm to civilians in combat. As the discussion in this chapter highlights, the manual is merely the first step in cataloging and sharing lessons learned.

Effective civilian casualty mitigation in counterinsurgencies and other operations will require sustained efforts on the part of the military to act in a way that may exceed the baseline requirements of the law of armed conflict. Ample evidence –ranging from restrictive rules of engagement to a consistent focus on “lessons learned”– suggests the U.S. military is already exceeding the requirements of the law of armed conflict. Such actions may not placate critics of U.S. operations, but it may go a long way toward laying the foundation for success in counterinsurgency operations.

For more about the CIVCAS Mitigation manual see Spencer Ackerman’s post Army Writes New Manaul on Preventing Civilian Deaths here.

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Law and Public Policy

TELEFORUM- Collateral Damage in Combat Operations 3pm ET TODAY

 

 

   
Collateral Damage in
 
Combat Operations

A Teleforum Sponsored by the International & National Security Law Practice Group

 

Featuring Professor Gregory S. McNeal*
Pepperdine University School of Law
 

Tuesday, January 17, 2012

at 3:00 p.m. (EST)

888-752-3232

 

No registration is necessary.

 

To participate in this practice group Teleforum, please dial 888-752-3232 on Tuesday at 1:00 p.m. (EST) via telephone.
Professor Gregory McNeal will discuss how the U.S. military implements its International Humanitarian Law obligation to mitigate and prevent harm to civilians during combat operations. He will describe the process the U.S. military follows to estimate and mitigate the impact of conventional weapons on collateral persons and objects in most pre-planned military operations involving air-to-surface weapons and artillery. In recent years, an entire body of academic literature and policy commentary has been based on an incomplete understanding of how the U.S. conducts military operations. The literature is incomplete because U.S. practices are shrouded in secrecy and largely inaccessible. As a result commentators have lacked a descriptive foundation to analyze and critique U.S. operations. Their writings have focused on easily describable issues such as whether a target was a lawful military objective, and then typically shift attention to the question of proportionality balancing and collateral damage.  These commentators skip an important aspect of actual practice – the scientifically grounded mitigation steps followed by U.S. armed forces. Those mitigation steps are designed to ensure a less than 10% probability of collateral damage resulting from any pre-planned operation.

You can read Professor McNeal’s recent paper on this topic by clicking here.

For more on this issue, see my article Kill-Lists and Accountability.

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Law and Public Policy

Vanderbilt Law School Hosting Kill-Lists and Accountability Presentation

Nashville, TN Kill-Lists and Accountability to be presented on Wednesday October 10, 2012 at Vanderbilt University School of Law.

I will be presenting my paper Kill-Lists and Accountability, the abstract for 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.  For more on this issue, see my article Kill-Lists and Accountability.

 

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