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Abstract
This article examines the legality of drone strikes. It limits the analysis to conduct within a traditionally defined armed conflict, in order to focus more clearly on the question of whether features inherent to the drone as a weapons system might make it conducive to violations of international law. The article reviews the applicable legal principles from international humanitarian law and international human rights law, and examines the record of civilian deaths caused by drone strikes in Afghanistan. While transparency and accountability are a problem, the study suggests that the drone strike operations may be characterised by more direct systemic violations of international law. In examining such potential violations the article considers the features inherent to the drone as a ‘means' of warfare, and the features of the policy and practices that underlie the ‘methods' of warfare related to drone strikes, with the aim of determining which is more responsible for any violations. The features of the armed drone as a weapons systems appear to make it more conducive to compliance with international humanitarian law than competing aerial weapons systems. Conversely, aspects of the policy governing drone operations, such as the criteria used for ‘signature strikes', are more likely to contribute to violations of international law. However, examining the issue from the perspective of a particular strike, and viewed through the lens of cognitive consistency theory on misperception, the article suggests that the picture may be more complex. Paradoxically, the very features that are most likely to make the drone compliant with international humanitarian law – its ability to linger undetected for protracted periods over potential targets, feeding intelligence back to an operations team that can make targeting decisions in a relatively stress-free environment – may facilitate targeting errors caused by misperception and misinterpretation of the target data. In short, both the ‘means' and ‘methods' of drone strikes may combine to facilitate violations of international humanitarian law.
Acknowledgements
I would like to thank Michael Boyle for inviting me to contribute to this special volume of the journal, on what is an important issue. I would also like to thank, for their thoughts and comments at various stages of the development of this article: Michael Boyle, Lois Chiang, Benson Cowan, Will Foster, Alex Glashausser, Emily Grant, Jericho Hockett, Rebecca Hollender-Blumoff, Sarah Holewinski Matt Lamkin, Daniel Morales, Susannah Pollvogt, Margaret Ryznar, David Rubenstein, Laurent Sacharoff, Michael Schmitt, Nicholas Stephanopoulos, and the anonymous referees for the Journal. I am also grateful for the help provided by my research assistants: Norah Avellan, David Derochick, and Megan Williams.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes on contributor
Craig Martin, BA, Royal Military College of Canada; JD, University of Toronto; LLM, University of Osaka; SJD University of Pennsylvania; Associate Professor of Law, Washburn University School of Law, specialising in the use of force and the law of armed conflict in international law.
Notes
1 It should also be made perfectly clear here that the weapons system under discussion here is the remotely controlled armed drones such as the MQ-1 Predator and MQ-9 Reaper, as distinguished from a truly autonomous weapons systems that makes its own targeting decisions, about which there is growing debate. It is because of this distinction that the United States (US) Air Force now refers to the current generation of drones as remotely piloted aircraft, or RPAs, rather than UAVs. See Aaron M. Drake, ‘Current U.S. Air Force Drone Operations and their Conduct in Compliance with International Humanitarian Law – An Overview’, Denver Journal of International Law & Policy 39, no. 4 (2011): 630, n.1.
2 Targeted killing has been defined as when ‘lethal force is intentionally and deliberately used, with a degree of pre-meditation, against an individual or individuals specifically identified in advance by the perpetrator'. Philip Alston, ‘Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions', United Nations Human Rights Council, 28 May 2010, Doc. A/HRC/14/24/Add.6, 5, citing Nils Melzer, Targeted Killing in International Law (Oxford: Oxford University Press, 2008), 4–5. In this article, however, it is taken to have a broader meaning that includes so-called ‘signature strikes', in which otherwise unidentified individuals are targeted based on behaviour and other indicia that are taken to mean that the individuals are members of organised armed groups or are civilians taking direct part in hostilities.
3 Whether or not drone strikes in Yemen, Somalia and even Pakistan are conducted within an armed conflict as that term is understood in international law is itself a hotly debated issue, which we need not explore here.
4 For my own analysis of the jus ad bellum implications of targeted killing operations in countries such as Yemen, Somalia, and Pakistan, see Craig Martin, Going Medieval: Targeted Killing, Self-Defense and the Jus ad Bellum Regime, in Targeted Killings: Law and Morality in an Asymmetrical World, ed. Claire Finkelstein et al. (2012), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1956141.
5 See infra, note 34, and accompanying text.
6 See infra, note 36, and accompanying text.
7 See infra, note 68 et seq., and accompanying text.
8 Alston, ‘Report of the Special Rapporteur’, 4.
9 John Sifton, ‘A Brief History of Drones', The Nation, 7 February 2012.
10 John F. Burns, ‘Villagers Say U.S. Should Have Looked, Not Leapt’, The New York Times, 17 February 2002.
11 Sifton, ‘A Brief History of Drones'.
12 Burns, ‘Villagers Say U.S. Should Have Looked, Not Leapt’; see also, Sifton, ‘A Brief History of Drones'.
13 United Nations Assistance Mission in Afghanistan (UNAMA), Annual Report 2013: Protection of Civilians in Armed Conflict (Kabul: United Nations, 2014), 46–7.
14 Drake, ‘Current U.S. Air Force Drone Operations', 658; Center for Civilians in Conflict, The Civilian Impact of Drones: Unexamined Costs, Unanswered Questions (2012), 42; Maj. Gen. Timothy P. McHale, ‘Memorandum for Commander, United States Force-Afghanistan/International Security Assistance Force, Afghanistan – Subject: Executive Summary for AR 15–6 Investigation, 21 February 2010 CIVCA Incident in Uruzgan Province’; Gen. Stanley A. McChrystal, ‘Memorandum for Record – Subject: AR 15–6 Investigation, 21 February 2010 U.S. Air-to-Ground Engagement in the Vicinity of Shahidi Hassas, Uruzgan Province, Afghanistan’, http://www.isaf.nato.int/images/stories/File/April2010-Dari/May2010Revised/Uruzgan%20investigation%20findings.pdf.
15 Philip Alston, ‘The CIA and Targeted Killing Beyond Borders', Harvard National Security Journal 2 (2011), 299; Alice K. Ross, ‘Who is Dying in Afghanistan's 1,000-plus Drone Strikes?’, The Bureau of Investigative Journalism, 24 July 2014, http://www.thebureauinvestigates.com/2014/07/24/who-is-dying-in-afghanistans-1000-plus-drone-strikes/.
16 Alston, ‘CIA and Drones Beyond Borders', 331, citing David Kilcullen and Andrew Mcdonald Exum, ‘Death From Above, Outrage from Below’, The New York Times, 16 May 2009, http://www.nytimes.com/2009/05/17/opinion/17exum.html.
17 UNAMA, Annual Report (2012), 31; see also, Ben Emmerson, Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism (Third Annual Report to the General Assembly), United Nations, Doc. A/68/389, 18 September 2013, 7.
18 Emmerson, Third Annual Report to the General Assembly, 7 (reporting a steady rise up to 2012); UNAMA, Annual Report (2013), Interim Report (2014) (reflecting the continued increase in 2013 and 2014).
19 UNAMA, Annual Report (2012), 33.
20 UNAMA, Annual Report (2013), 8.
21 Ross, ‘Who is Dying in Afghanistan's 1,000-plus Drone Strikes?’
22 The 2014 report states the number as over 1,000 since 2001, but a prior report with more detailed annual numbers reflects 1,015 strikes between 2008 and 2012. See Chris Woods and Alice K. Ross, ‘Revealed: US and Britain Launched 1,200 Drone Strikes in Recent Wars', Bureau of Investigative Journalism, 4 December 2012, http://www.thebureauinvestigates.com/2012/12/04/revealed-us-and-britain-launched-1200-drone-strikes-in-recent-wars/.
23 Ross, ‘Who is Dying in Afghanistan's 1,000-plus Drone Strikes?’
24 Ibid.
25 Lawrence Lewis, ‘Drone Strikes: Civilian Casualty Considerations', Joint Coalition Operational Analysis, 18 June 2013, http://cna.org/research/2013/drone-strikes-civilian-casualty-considerations.
26 Lewis, ‘Drone Strikes’.
27 For analysis of the entire regime, see Yorum Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict, 2nd ed. (Cambridge: Cambridge University Press, 2010); Andrew Clapham and Paola Gaeta, eds, The Oxford Handbook of International Law in Armed Conflict (Oxford: Oxford University Press, 2014); Dieter Fleck, The Handbook of International Humanitarian Law (Oxford: Oxford University Press, 2013).
28 The Hague Convention (II): Laws and Customs of War on Land, 32 Stat. 1803, 29 July 1899; The Hague Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulation Concerning the Laws and Customs of War on Land, 187 CTS 227, 18 October 1907.
29 See, in particular, Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135 (1950)(Geneva Convention III); Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287 (1950)(Geneva Convention IV).
30 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, (Protocol I), 1125 UNTS 3 (1979), 8 June 1977.
31 Dinstein, Conduct of Hostilities, loc-862 et seq. (Kindle edition).
32 For analysis of the regime as it applies to non-international armed conflict, see Lindsay Moir, The Law of Internal Armed Conflict (Cambridge: Cambridge University Press, 2002); Michael N. Schmitt et al., The Manual on the Law of Non-International Armed Conflict with Commentary (Sanremo: International Institute of Humanitarian Law, 2006); Yorum Dinstein, Non-International Armed Conflicts in International Law (Cambridge: Cambridge University Press, 2014); for the definition of non-international armed conflict, the so-called Tadic test elaborated by the Appeal Chamber of the International Criminal Tribunal for the Former Yugoslavia, see Prosecutor v. Dusko Tadic (Defense motion for interlocutory appeal on jurisdiction), 2 October 1995, para. 70, http://www.icty.org/x/cases/tadic/acdec/en/51002.htm.
33 Schmitt et al., Manual on the Law of Non-International Armed Conflict, 8–10; Mary Ellen O'Connell, ‘Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004–2009’, Notre Dame Law School Legal Studies Research Paper No. 09-43 (unpublished), 21; Dinstein, Non-International Armed Conflicts in International Law, 257–8; Laurie R. Blank, ‘After “Top Gun”: How Drone Strikes Impact the Law of War’, University of Pennsylvania Journal of International Law 33 (2012): 681 et seq., 690–1.
34 Hague Convention (IV), 1907, Art. 22. See also, Steven Haines, ‘The Developing Law of Weapons: Humanity, Distinction, and Precautions in Attack’, in The Oxford Handbook of International Law in Armed Conflict, ed. Andrew Clapham and Paola Gaeta (Oxford: Oxford University Press, 2014), 281–2.
35 Haines, ‘The Developing Law of Weapons', 277, 281.
36 Ibid. See also, Willam H. Boothby, The Law of Targeting (Oxford: Oxford University Press, 2012), 57–8; Stefan Oeter, ‘Methods and Means of Combat’, in The Handbook of International Humanitarian Law, ed. Dieter Fleck, 3rd ed. (Oxford: Oxford University Press, 2013), 401–88.
37 Haines, ‘The Developing Law of Weapons', 277.
38 Ibid., 312, 331.
39 Dinstein, Conduct of Hostilities, loc-756 et seq. (Kindle edition); Gary D. Solis, The Law of Armed Conflict (Cambridge: Cambridge University Press, 2010), 257–65; Boothby, The Law of Targeting, 58.
40 Additional Protocol I, Art. 48, Art. 44, Art. 51. It should be noted that the principle of distinction is referred to in Additional Protocol II as well: Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, (Protocol II), 1125 UNTS 609 (1979), 8 June 1977, Art. 13(1); see also, International Committee of the Red Cross, Customary International Humanitarian Law – Vol. 1: Rules (Cambridge: Cambridge University Press, 2005), 3–6, 25–9.
41 Geneva Conventions, Common Article 3; AP II, Art. 13(3). ICRC, Customary International Humanitarian Law – Vol. 1: Rules, 12–13, 19.
42 International Committee of the Red Cross, Direct Participation in Hostilities Under International Humanitarian Law (Geneva: ICRC, 2009), 41–68.
43 International Committee of the Red Cross, Direct Participation in Hostilities Under International Humanitarian Law, 59, 72–3; Dinstein, Non-International Armed Conflicts in International Law, 61–3.
44 The ICRC notes that this is less than satisfactory, since in some languages the word ‘fighter' would be translated with the same term as used for ‘combatant' in any event: ICRC, Customary International Humanitarian Law – Vol. 1: Rules, Rule 3, 13; but see Schmitt et al., Manual on the Law of Non-International Armed Conflict, 4 (classifying both members of armed forces and members of organised armed groups as fighters).
45 AP I., Art. 51. See also ICRC, Customary International Humanitarian Law – Vol. 1: Rules, Rule 11, 37. While explicit language articulating the rule was not included in AP II, the ICRC considers it to be customary international law as applicable to non-international armed conflict. Ibid., 38–9.
46 Boothby, The Law of Targeting, 99; Solis, The Law of Armed Conflict, 269.
47 AP I, Art. 51(5)(b) and Art. 57(2)(a)(iii); ICRC, Customary International Humanitarian Law – Vol. 1: Rules, Rule 14, 46–50.
48 Dinstein, Conduct of Hostilities, loc-5379-5421 (Kindle edition); Boothby, The Law of Targeting, 95–7.
49 AP I, Art. 57(1); ICRC, Customary International Humanitarian Law – Vol. 1: Rules, Rule 15, 51.
50 AP I, Art. 57(2)(a)(i)–(iii), (b); ICRC, Customary International Humanitarian Law – Vol. 1: Rules, Rules 16–19, 55–61.
51 Michael N. Schmitt, ‘Drone Attacks Under Jus ad Bellum and Jus in Bello: Clearing the “Fog of Law”’, Yearbook of International Humanitarian Law – 2010 (The Hague: T.M.C. Asser Press, 2011), 321; Michael N. Schmitt, ‘Extraterritorial Lethal Targeting: Deconstructing the Logic of International Law’, Columbia Journal of Transnational Law 52 (2013): 92 et seq.
52 See, for example, Alston, ‘The CIA and Targeted Killing Beyond Borders', 283, 301.
53 Dinstein, Conduct of Hostilities, loc-1170 (Kindle edition).
54 David Kretzmer, ‘Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence?’, The European Journal of International Law 6, no. 2 (2005): 181 (providing examples of such confusion on the part of the Inter-American Commission for Human Rights).
55 Ibid., 185; Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons [1996] I.C.J. Rep. 226; Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [2004] I.C.J. 136, para. 106.
56 Kretzmer, ‘Targeted Killing of Suspected Terrorists', 186, 201–4; and see infra, note 66, and accompanying text.
57 International Covenant on Civil and Political Rights, 23 March 1976, 999 U.N.T.S. 171, Art. 6 (ICCPR).
58 ICCPR, Art. 2.
59 See Jon Heller, ‘Does the ICCPR Apply Extraterritorially?’, Opinio Juris, 18 July 2006, http://opiniojuris.org/2006/07/18/does-the-iccpr-apply-extraterritorially/ (including text of the US Statement to the Human Rights Committee on its interpretation). Harold Koh, as legal counsel to the State Department, wrote an extensive memo arguing for a change of position (http://justsecurity.org/wp-content/uploads/2014/03/state-department-iccpr-memo.pdf), but the Obama administration reiterated the US interpretation in early 2013; see Charlie Savage, ‘U.S., Rebuffing U.N., Maintains Stance that Rights Treaty Does Not Apply Abroad’, The New York Times, 13 March 2014, A12.
60 See, for example, United Nations Human Rights Committee, Concluding Observations on the Fourth Periodic Report of the United States of America, 23 April 2014, CCPR/C/USA/CO/4, 2–3; though the actual position of the U.S. was more ambiguous in the actual report: Fourth Periodic Report of the United States of America, 22 May 2012, CCPR/C/USA/4, 142.
61 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] I.C.J. 136, para. 108–11.
62 See note 59, supra.
63 Kretzmer, ‘Targeted Killing of Suspected Terrorists', 186; Alston, ‘CIA and Targeted Killing Beyond Borders', 23, citing Nigel S. Rodely and Matt Pollard, The Treatment of Prisoners Under International Law, 3rd ed. (Oxford: Oxford University Press, 2009), 250.
64 Armed Activities on the Territory of the Congo (Democratic Republic of Congo (DRC) v. Uganda) [2005] I.C.J. 168, 179–80, 205–12, 216–19. As with the Al-Skeini case, infra, the finding that Uganda was an occupying power at the relevant times was a significant aspect of the decision, which does cast some doubt on how persuasive an authority this may be as a general principle.
65 Al-Skeini and others v. The United Kingdom, ECtHR 7 July 2011, 40–1. It should be noted that while the court held that the convention applied, and that the UK had violated the right to life of several of the applicants, the decision was based on the language of the European convention relating to jurisdiction. Moreover, the fact that the killings were conducted in the context of belligerent occupation by occupation forces was relevant to the decision. Ibid., 59–61.
66 Ben Emmerson, Third Annual Report to the General Assembly. See also, Christof Heyns, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, United Nations General Assembly, Doc. A/68/382, 13 September 2013, 7–9 (describing the right against the arbitrary deprivation of life as not only a principle of customary international law attaining the status of jus cogens, but also a general principle of international law, and that it is ‘now a well established principle of international law that international human rights law continues to apply during armed conflict, as a complement to international humanitarian law').
67 ‘Obama's Speech on Drone Policy’, The New York Times, 23 May 2013, http://www.nytimes.com/2013/05/24/us/politics/transcript-of-obamas-speech-on-drone-policy.html?pagewanted=all.
68 Alston, ‘Report of the Special Rapporteur’, 26; Emmerson, ‘Interim-Report of the Special Rapporteur’, 12; Emmerson, ‘Report of the Special Rapporteur’, 9; Hayes, ‘Report of the Special Rapporteur’, 20–2.
69 Nils Melzer, Human Rights Implications of the Usage of Drones and Unmanned Robots in Warfare (European Parliament, Policy Department – Directorate-General for External Policies, May 2013), 37 et seq.; Gen. John P. Abizaid and Rosa Brooks, Recommendations and Report of the Task Force on US Drone Policy (Washington, DC: The Stimson Center, 2014), 34. On a review of different theories of the rule of law more generally, see Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge: Cambridge University Press, 2004).
70 Report of the Secretary-General's Panel of Experts on Accountability in Sri Lanka, March 31, 2011, 115, http://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf.
71 Alston, ‘CIA and Targeted Killing Beyond Borders', 310 (citing common Article 1 of the Geneva Conventions); Alston, ‘Report of the Special Rapporteur’, 26.
72 Alston, ‘The CIA and Targeted Killing Beyond Borders', 310–11.
73 Emmerson, ‘Report of the Special Rapporteur on the Promotion of Human Rights', 12. Emmerson relied in part on the report of the 2013 Public Commission to Examine the Maritime Incident of 31 May 2010 (the Turkel Commission, which investigated the Israeli killing of several individuals while boarding a Turkish vessel bound for Gaza), which itself conducted an ‘analysis of a broad range of sources'.
74 Alston. ‘The CIA and Targeted Killing Beyond Borders', 310–11.
75 Ibid., 22, citing ICRC Rules, Vol. 1, 608–9, and a range of cases and institutional reports – see note 87; but see Michael N. Schmitt, ‘Investigating Violations of International Law in Armed Conflict’, Harvard National Security Journal 2 (2011): 35 et seq, 77–82.
76 Melzer, Human Rights Implications, 40, See note 186 for authorities referred to.
77 Alston, ‘The CIA and Targeted Killing Beyond Borders', 312.
78 Ibid.
79 Ibid., 317.
80 Amantha Perera, ‘Sri Lanka Ducks International Probe’, Interpress Service, 20 August 2011.
81 Center for Civilians in Conflict, The Civilian Impact of Drones, 54; see also, Gregory S. McNeal, ‘Are Targeted Killings Unlawful? A Case Study in Empirical Claims Without Empirical Evidence’, in Targeted Killing: Law and Morality in an Asymmetrical World, ed. Claire Finkelstein et al. (Oxford: Oxford University Press, 2012), 328–33.
82 One of the best documented and egregious examples of this followed a Special Forces night raid on a civilian household in Gardez, on 12 February 2010, in which five civilians, including three women, were killed. ISAF initially claimed that the women had been stabbed to death by the Taliban, and there were reports that Special Forces personnel involved in the raid had dug the bullets out of the dead bodies with knives to destroy the evidence of how they had died. ISAF only changed its version of events almost two months later after numerous media stories about a possible cover up. See Jeremy Scahill, Dirty Wars: The World is a Battlefield (New York: Nation Books, 2013), 333–46.
83 Alston, ‘CIA and Targeted Killing Beyond Borders', 364; Center for Civilians in Conflict, The Civilian Impact of Drones, 44–6; UNAMA, Annual Report (2013), 48.
84 Alston, ‘CIA and Targeted Killing Beyond Borders', 355, citing Afsheen Radsan and Richard Murphy, ‘Measure Twice, Shoot Once: Higher Care for CIA Targeted Killing, University of Illinois Law Review, no. 4 (2011).
85 Alston, ‘CIA and Targeted Killing Beyond Borders', 355; Abizaid, Task Force on US Drone Policy, 39.
86 Department of Defense Directive, Number 2311.01E, 9 May 2006 (certified current as of 22 February 2011), http://www.dtic.mil/whs/directives/corres/pdf/231101e.pdf.
87 Drake, ‘Current U.S. Air Force Drone Operations', 641–5; Abizaid, Task Force on US Drone Policy, 33.
88 Alston, ‘CIA and Targeted Killing Beyond Borders', 357–66; see also, Radsen and Murphy, ‘Measure Twice, Shoot Once’, 1217–20 (exploring CIA practice, but in the absence of concrete information, recognising that ‘in fashioning its own standards and procedures, [the CIA] has presumably relied on the military'); and Tara McKelvey, ‘Inside the Killing Machine’, Newsweek, 13 February 2011, http://www.newsweek.com/inside-killing-machine-68771.
89 Centers for Civilians in Conflict The Civilian Impact of Drones, 57–8; Murphy and Radsan, ‘Measure Twice, Shoot Once’ (arguing that the CIA should be so governed by IHL).
90 Centers for Civilians in Conflict, The Civilian Impact of Drones, 57. Though, see Robert Chesney, ‘Military-Intelligence Convergence and the Law of the Title 10/Title 50 Debate’, Journal of National Security Law & Policy 5 (2012): 617 et seq. (arguing that Title 50 does not provide any domestic law justification for violation of international law).
91 Centers for Civilians in Conflict The Civilian Impact of Drones, 57, citing W. Hayes Parks, ‘The United States and the Law of War: Inculcating an Ethos', Social Research 69, no. 4 (2002): 981; and Laurie Blank and Amos Guiora, ‘Teaching an Old Dog New Tricks: Operationalizing the Law of Armed Conflict in New Warfare’, Harvard National Security Journal 1 (2010).
92 See for example, Douglas Valentine, The Phoenix Program (New York: William Morrow Co., 1990).
93 Andrew Feickert and Thomas K. Livingston, ‘U.S. Special Operations (SOF): Background and Issues for Congress', Congressional Research Service, 3 December 2010, 10.
94 Andrew Feickert, ‘U.S. Special Forces (SOF): Background and Issues for Congress', Congressional Research Service, 18 September 2013; Feickert and Livingston, ‘U.S. Special Operations (SOF): Background and Issues for Congress'; Schahill, Dirty Wars, Chapter 3; Marshal Curtis Erwin, ‘Covert Action: Legislative Background and Possible Policy Questions', Congressional Research Service, 10 April 2013.
95 Chesney, ‘Military-Intelligence Convergence’, 573; Jennifer D. Kibbe, ‘Covert Action and the Pentagon’, Intelligence and National Security 22, no. 1; Centers for Civilians in Conflict, The Civilian Impact of Drones, 64; Alston, ‘CIA and Targeted Killing Beyond Borders, 346–7.
96 Centers for Civilians in Conflict, The Civilian Impact of Drones, 63; Kibbe, ‘Covert Action and the Pentagon’.
97 Centers for Civilians in Conflict, The Civilian Impact of Drones, 63; on details of JSOC conduct at Camp Nama in Iraq, see Scahill, Dirty Wars, Chapter 13, and Jane Mayer, The Dark Side: The Inside Story of how the War on Terror Turned Into a War on American Ideals (New York: Doubleday, 2008), loc. 4913–25 (Kindle edition).
98 P.W. Singer, ‘Double Hatting Around the Law: The Problem with Morphing Warrior, Spy and Civilian Roles', Armed Forces Journal, 1 June 2010.
99 See, for example, Chesney, ‘Military Intelligence Convergence’; Kibbe, ‘Covert Action and the Pentagon’; Andru E. Wall, ‘Demystifying the Title 10-Title 50 Debate: Distinguishing Military Operations, Intelligence Activities & Covert Action’, Harvard National Security Journal 3 (2011); Alston, ‘CIA and Targeted Killing Beyond Borders'; Abizaid, Task Force on US Drone Policy.
100 Chesney, ‘Military Intelligence Convergence’, 540–1; Kibbe, ‘Covert Action and the Pentagon’, 65–8; Alston, ‘CIA and Targeted Killing Beyond Borders', 348–50; Centers for Civilians in Conflict, The Civilian Impact of Drones, 64–5; but see Wall, ‘Demystifying the Title 10-Title 50 Debate’ (arguing generally that the blurring of accountability is exaggerated and misunderstood).
101 See Scott Horton, ‘The Khadr Boomerang’, Harper's Magazine, 25 May 2010.
102 Schmitt, ‘Clearing the “Fog of Law”’, 324; Blank, ‘After “Top Gun”’, 708.
103 On the law enforcement paradigm, see Melzer, Targeted Killing, Chapter 5.
104 Abizaid, The Task Force on US Drone Policy, 21; Lynn E. Davis et al., Armed and Dangerous? UAVs and U.S. Security (Washington, DC: RAND Corporation, 2014), 11; Drake, ‘Current U.S. Air Force Drone Operations', 637.
105 Drake, ‘Current U.S. Air Force Drone Operations', 637.
106 Ibid., 637–8.
107 Ibid., 639.
108 Ibid.
109 Ibid., 640; Blank, ‘After “Top Gun”’, 686–8.
110 Abizaid, Task Force on US Drone Policy, 18; Davis et al., Armed and Dangerous?, 11–12.
111 Schmitt, ‘Clearing the “Fog of Law”’, 314; Drake, ‘Current U.S. Air Force Drone Operations', 645; Blank, ‘After “Top Gun”’, 687.
112 Drake, ‘Current U.S. Air Force Drone Operations', 645.
113 Schmitt, ‘Clearing the “Fog of Law”’, 322; Drake, ‘Current U.S. Air Force Drone Operations', 645; Blank, ‘After “Top Gun”’, 688–702.
114 Schmitt, ‘Clearing the “Fog of Law”’, 315.
115 Drake, ‘Current U.S. Air Force Drone Operations', 645; Blank, ‘After “Top Gun”’, 713–14.
116 Centers for Civilians in Conflict, The Civilian Impact of Drones, 37.
117 Ibid., 41; see also, Wayne Chappelle et al., ‘Assessment of Occupational Burnout in United States Air Force Predator/Reaper “Drone” Operators’, Military Psychology 26:5–6 (2014): 376–385.
118 Alston, ‘Report of the Special Rapporteur', 317.
119 Schmitt, ‘Clearing the “Fog of Law”’, 321; Blank, ‘After “Top Gun”’, 680.
120 Schmitt, ‘Clearing the “Fog of Law”’, 319–20.
121 One of the most often-cited authorities for how the ‘kill lists' are compiled and maintained is a series of articles in The New York Times, particularly Jo Becker and Scott Shane, ‘Secret “Kill List” Proves a Test of Obama's Principles and Will’, The New York Times, 29 May 2012, A1.
122 As indicated earlier, the temporal window during which such a civilian is targetable is hotly debated, and has been the subject of judicial analysis: See, for example, Nils Melzer, Direct Participation in Hostilities Under International Humanitarian Law (Geneva: ICRC, 2009), 65–8; Public Committee Against Torture in Israel v. Israel, HCJ 762/2 [2005], paras 38–40.
123 Alston, ‘CIA and Targeted Killing Beyond Borders', 285.
124 Kate Clark, “The Takhar Attack: Targeted Killings and the Parallel Worlds of US Intelligence and Afghanistan”, Afghan Analysts Network, May 2011, http://aan-afghanistan.com/uploads/20110511KClark_Takhar-attack_final.pdf; Centers for Civilians in Conflict, The Civilian Impact of Drones, 38.
125 Centers for Civilians in Conflict, The Civilian Impact of Drones, 11.
126 Kevin Jon Heller, ‘“One Hell of a Killing Machine”: Signature Strikes and International Law’, Journal of International Criminal Justice 11, no. 1 (2013): 94.
127 On the efforts within the government to formalise the criteria, see Scott Shane, ‘Election Spurred a Move to Codify U.S. Drone Policy’, The New York Times, 24 November 2012, A1.
128 Heller, ‘One Hell of a Killing Machine’, 94–103.
129 Ibid., 94–7.
130 Ibid., 97, citing for evidence of the use of such signatures, Stanford Law School International Human Rights and Conflict Resolution Clinic & NYU School of Law Global Justice Clinic, Living Under Drones: Death, Injury and Trauma to Civilians from US Drone Practices in Pakistan, September 2012, 31.
131 Heller, ‘“One Hell of a Killing Machine”’, 97–8, citing D. Filkins, ‘The Journalist and the Spies', New Yorker, 19 September 2011, http://www.newyorker.com/reporting/2011/09/19/110919fa_fact_filkins.
132 Heller, ‘“One Hell of a Killing Machine”’, 98–9, citing B. Roggio, ‘US Predators Strike Again in Southern Yemen’, Long War Journal, 16 April 2012, http://www.longwarjournal.org/archives/2012/04/us_predators_strike_35.php.
133 Heller, ‘“One Hell of a Killing Machine”’, 99–100, citing ‘Munter Found Drone Strikes Unacceptable’, DAWN, 30 May 2012, http://dawn.com/2012/05/30/munter-found-drone-strikes-unacceptable/.
134 Heller, ‘“One Hell of a Killing Machine”’, 100–3, citing for the adequacy of such criteria, ICRC, ‘Interpretative Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law’, International Review of the Red Cross 90 (2008), 1002.
135 Centers for Civilians in Conflict, The Civilian Impact of Drones, 41–2.
136 Schmitt, ‘Clearing the “Fog of Law”’, 319.
137 Cognitive consistency theory developed in the area of social psychology in the 1940s through to the 1960s, with such work on balance theory by Fritz Heider, cognitive dissonance by Festinger, and cognitive consistency by Robert Abelsohn – see, Fritz Heider, The Psychology of Interpersonal Relations (New York: Wiley, 1958); Leon Festinger, A Theory of Cognitive Dissonance (Stanford, CA: Stanford University Press, 1957); Robert Abelsohn and Milton Rosenberg, ‘Symbolic Psycho-Logic’, Behavioral Science 3 (1958); Robert Abelsohn et al., eds, Theories of Cognitive Consistency (Chicago: Rand McNally, 1968). It worked its way into other fields over the next several decades, such as its brilliant application in international relations in Robert Jervis, Perception and Misperception in International Politics (Princeton, NJ: Princeton University Press, 1976). It has had a resurgence in the last couple of decades. For a short review of the more recent theoretical development see Dan Simon et al., ‘The Redux of Cognitive Consistency Theories: Evidence Judgments by Constraint Satisfaction’, Journal of Personality and Social Psychology 86, no. 6 (2004), 814–37; and Raymond S. Nickerson, ‘Confirmation Bias: A Ubiquitous Phenomenon in Many Guises’, Review of General Psychology 2 (1998), 175–220. For recent applications in the context of law, see for example, Stephanie Stern, ‘Cognitive Consistency: Theory Maintenance and Administrative Rulemaking’, University of Pittsburgh Law Review 63 (2002): 589; and in police work, Karl Ask and Par Anders Granhag, ‘Motivational Sources of Confirmation Bias in Criminal Investigations: The Need for Cognitive Closure’, Journal of Investigative Psychology and Offender Profiling 2 (2005): 43–63; on attribution theory, see John H. Harvey and Gifford Weary, ‘Current Theories in Attribution Theory and Research’, Annual Review of Psychology 35 (1984): 427–59.
138 Jervis, Perception and Misperception, 203–6; Stern, ‘Cognitive Consistency’, 603–4.
139 Jervis, Perception and Misperception, 143–54; Stern, ‘Cognitive Consistency’, 603–5, 608–11.
140 Simon, ‘The Redux of Cognitive Consistency Theories', 817; Jervis, Perception and Misperception, 195–202;
141 Jervis, Perception and Misperception, 187; Ask, ‘Motivational Sources of Confirmation Bias', 45–8.
142 Ask, ‘Motivational Sources of Confirmation Bias'; Carole Hill et al., ‘The Role of Confirmation Bias in Suspect Interviews: A Systemic Evaluation’, Legal and Criminological Psychology 13 (2008), 357–71.
143 Jervis, Perception and Misperception, 211–16.
144 Solomon Asch, ‘Effects of Group Pressure Upon the Modification and Distortion of Judgments', in Groups, Leadership and Men: Research in Human Relations, ed. Harold Guetzkow (New York: Russell & Russell, 1963), 177–90.
145 See notes 137–40, supra.
146 Centers for Civilians in Conflict, The Civilian Impact of Drones, 41; David S. Cloud, ‘Anatomy of an Afghan War Tragedy’, Los Angeles Times, 10 April 2011. See also McChrystal, ‘Memorandum for Record’.
147 Cloud, ‘Anatomy of an Afghan War Tragedy’.
148 Ibid.
149 Ibid.
150 See note 141, supra.
151 Heller, ‘“One Hell of a Killing Machine”’, 97; Centers for Civilian in Conflict, The Civilian Impact of Drones, 75. On the order of Gen. McChrystal banning the use of the criteria, see Cloud, ‘Anatomy of an Afghan War Tragedy’.
152 Cloud, ‘Anatomy of an Afghan War Tragedy’.
153 Ibid.
154 Ibid., quoting Air Force Maj. Gen. James O. Poss, who oversaw the Air Force investigation.
155 Lewis, ‘Drone Strikes’.
156 But see Schmitt, ‘Clearing the “Fog of Law”’, 320, stating that ‘compared to attack by manned aircraft or ground-based systems, the result is often a significantly reduced risk of misidentifying the target or causing collateral damage to civilians'. Hence the paradox if this is in fact not always the case.
157 Laurie Blank hints at this, writing: ‘Furthermore, given that proportionality rests on a reasonable commander's determination based on the information available to him at the time of the attack, we must consider whether drones at some point will no longer add to that process but could actually impede that process simply because of the flood of information.' Blank, ‘After “Top Gun”’, 714.