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. 

Standard
Law and Public Policy

Kill-lists and Accountability Lecture at Penn State Law

KNewImageill-Lists and Accountability, a public lecture at Penn State’s Dickinson School of Law.  November 12, 2012 7 p.m.   

In targeted killings, who creates the “kill list?”  Who approves the names on the list? How is the targeted killing executed? Who is responsible for ensuring that the strike complies with international humanitarian law obligations? When killings are conducted in secret, how can we hold government accountable? National security scholar Gregory McNeal will present “Kill-lists and Accountability” at Penn State Law and the School of International Affairs.

The public is welcome to this event, which will begin at 7 p.m. in Lewis Katz Hall in Carlisle, PA. Registration is requested.

“As the shift from conventional combat to cyber attacks and targeted killings (often through unmanned drone strikes) accelerates, questions arise as to the applicability of the legal standards governing armed conflict developed in earlier times,” said Professor Amy Gaudion, who is organizing the event. “Professor McNeal’s work attempts to answer these questions, and offers recommendations for how the laws of war should apply when the tools in the combat arsenal change.” Professor McNeal’s presentation is based in part on recent field research he conducted into the U.S. practice of targeted killings, and specifically the creation and execution of “kill-lists”. His research concludes that less than 1% of preplanned operations conducted by the military result in collateral damage, but this only tells part of the story as reports indicate the CIA is also involved in the controversial practice.    

This program is co-sponsored by the American Constitution Society, Federalist Society, International Law Society, Military Law Caucus and Penn State Journal of Law & International Affairs, an interdisciplinary journal jointly published by Penn State Law and the Penn State School of International Affairs.
 
This event will be held in the Apfelbaum Family Courtroom and Auditorium in Lewis Katz Hall in Carlisle, PA, and simulcast to the Apfelbaum Courtroom, Lewis Katz Building, University Park, PA, and webcast live.  For more on this issue, see my article Kill-Lists and Accountability.
Standard