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Targeted Killing and Drone Warfare: How We Came to Debate Whether There Is a ‘Legal Geography of War’, by K. Anderson

Targeted Killing and Drone Warfare: How We Came to Debate Whether There Is a ‘Legal Geography of War’, by K. Anderson

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Published by: Hoover Institution on Jun 07, 2011
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05/12/2014

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I. The Anxieties of Drones and Geography
Targeted killing using armed drones has raised proound anxieties in legal, policy, andadvocacy communities in the United States and abroad, including among UN ofcialsand special rapporteurs, high-ranking diplomats and lawyers o oreign and deenseministries o important states and allies, civil liberties and human rights advocacy groupssuch as the American Civil Liberties Union, and important commentators in academicinternational law and the press and media. Others are equally adamant that targetedkilling using drone technology is a signifcant step toward making conict less harmul tocivilians and more discriminating in its objectives. The introduction o armed drones toLibya as this article goes to press has urther complicated matters, as some o those whomight otherwise be opposed to drone use fnd that they have irresistible attractions in awar o humanitarian intervention.The concerns run particularly high given that the Obama administration has madethe drones a signature operational tool o US orces, not just in the zones o overtconict in Aghanistan and Pakistan but arther afeld, including attacks in Yemenand a possible attack against a Yemeni American radical Islamist cleric with UScitizenship. They are also a source o concern or the administration’s critics,particularly when carried out by civilian agents o the Central Intelligence Agency(CIA), not only by the uniormed armed orces. The stakes are higher still, given thatthe US government explicitly holds out the possibility o strikes that extend to otherplaces, such as Somalia, where terrorists might go seeking sae haven and protectedlocales in which to hide and regroup.
 uu cs ss
argeted Killing andDrone Warfare
How We Came to Debate Whether There Is a ‘Legal Geography of War’ 
Kenneth Anderson
 
 
Targeted Killing and Drone Warfare 
Hoover Institution
Stanford University
by Kenneth nderonKoret-abe ak ore on ational serity and aw
www.futurechallengesessays.com 
 
Kenneth Anderson
 
 
Targeted Killing and Drone Warfare 
 
2
Hoover Institution
Stanford University
Critics o the practice are naturally most concerned where it appears to involverelatively many civilian casualties. A debate is under way as to what levels o civiliancollateral damage ensue rom targeted killing. Estimates range rom the upper hundredsover the years o targeted killing attacks since 9/11 to insistence by the CIA—in leaks tothe press rather than ofcial statements—that total civilian casualties are in the dozens,not in the hundreds. Identiying particular individuals through intelligence methods,ollowed by an attack on them with deadly orce rom a remote platorm, itsel controlledby a still more remote operator, at frst blush seem ominous. But these eatures alsoraise the genuine possibility, or supporters such as me, that technology
is
makingweaponry in conict genuinely more discriminating. I true, the consequences mightwell be less collateral damage to civilians. Increasing numbers o observers—I amongthem—have concluded that this is so, despite the uncorroborated nature o much othe inormation.Even i collateral damage to civilians is signifcantly less, however, important concernsremain. Emerging technologies o potentially great geographic reach raise the issue owhat regime o law regulates these activities as they spread. This is to ask what are theboundaries o that regime o law—i there are any—when the reach o the weaponextends ever arther. The question has special salience when these uses o orce are,indeed, highly discrete—but simultaneously ar less limited by the physical constraintso geography than beore. Having said that, however, we should not overstate how muchdrones overcome geography; the broadly acknowledged eectiveness o the currentprograms in Aghanistan and Pakistan is owed in large part to robust on-the-groundhuman intelligence operations that identiy targets in the frst place; this is prooundlylocal, not global, intelligence work, and the ability eectively to target depends on it.Drone technology is not a substitute or on-the-ground local intelligence but ratherdepends vitally on it.Moving beyond the issue o civilian collateral damage, the most salient anxiety amongthe practice’s critics comes rom a sense that these weapons redefne the geographyo war in ways that reveal an apparent lacuna in the laws o war (viz., the law o war’simplicit reliance on a bounded geography). The laws o war have inchoate boundariesor where they apply,
lex specialis
, and where the Law o Everyday Lie applies. Redefnethose boundaries through changes in war’s technologies, and the ordinary law oeveryday lie, including criminal law, constitutional protections, and more, suddenlymight not apply. The laws o war might apply instead.In earlier times, these boundaries did not need to be specifed in a direct legal way, andthe law o war did not speak o “geography o war” or the “boundaries” o the laws o
 
Kenneth Anderson
 
 
Targeted Killing and Drone Warfare 
 
3
Hoover Institution
Stanford University
war. But then they didn’t need to. The technologies o war more or less establishedthese things because they established the places in which hostilities were under way.It was enough to say that war took place, and the law o war governed, wherehostilities took place. There were indeed boundary issues—largely created by thedevelopment o aircrat—but the nature o the weapons launched rom aircrat, andthe requency, still made clear where hostilities were under way and where not orpurposes o the laws o war.The emergence o technologies or targeted killing using drones seems to alter thatimplicit constraint on war and law o war and still more so in the emergence o globalcounterterrorism operations. So what might be seen—and certainly is, in my view—anextraordinary and salutary technological revolution in both conventional armedconict and global counterterrorism is nonetheless a source o proound anxiety tomany. It has the possibility o disturbing and undermining a mostly tacit underpinningto the laws o war: an implied geography o war.This essay examines the evolution o the argument around the proposition that thereis a “legal geography o war.” Its purpose is not to oer a ormal legal argument on theproposition but instead to reect on how the communities o international law, policy,diplomatic, laws o war, military, intelligence, nongovernmental organizations (NGOs),and international advocacy have debated this since 9/11. It is discursive, structured asa stylized argument between the “US government” and its “critics.” The intent is toreconstruct a complicated, high-stakes debate over the legal nature o war andcounterterrorism, driven by the emergence o a new technology.
II. Arguing within the Binary
The Use-o-Force Binary: Law Enorcement or Armed Confict 
According to one legal view widely accepted by human rights advocates and othercommentators, uses o deadly orce in international law must necessarily all into oneo two legal categories. Any lawul use o deadly orce must be either law enorcementunder the rules o law enorcement, which (with rare exception) seek to detain andarrest rather than to kill in the frst instance, on the one hand, or armed conict underthe laws o war, on the other. Under this legal ramework, the regulation o how orcecan lawully be used is binary in that it is either law enorcement within the internationallaw regime o human rights or armed conict within the regime o the law o armedconict (perhaps incorporating signifcant materials o human rights law as well).How does targeted killing ft into this binary raming o international law regulating theuse o deadly orce? Under narrow circumstances law enorcement condones targeted

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