Targeted Killing and Accountability
Gregory S. McNeal
Pepperdine University School of Law; Pepperdine University - School of Public Policy
March 5, 2013
Georgetown Law Journal, Forthcoming
This article is a comprehensive examination of the U.S. practice of targeted killings. It is based in part on field research, interviews, and previously unexamined government documents. The article fills a gap in the literature, which to date lacks sustained scholarly analysis of the accountability mechanisms associated with the targeted killing process. The article makes two major contributions: 1) it provides the first qualitative empirical accounting of the targeted killing process, beginning with the creation of kill-lists extending through the execution of targeted strikes; 2) it provides a robust analytical framework for assessing the accountability mechanisms associated with those processes.
The article begins by reporting the results of a case study that began with a review of hundreds of pages of military policy memoranda, disclosures of government policies through Freedom of Information Act (FOIA) requests by NGOs, filings in court documents, public statements by military and intelligence officials, and descriptive accounts reported by the press and depicted in non-fiction books. These findings were supplemented by observing and reviewing aspects of the official training for individuals involved in targeted killings and by conducting confidential interviews with members of the military, special operations, and intelligence community who are involved in the targeted killing process. These research techniques resulted in a richly detailed depiction of the targeted killing process, the first of its kind to appear in any single publication.
After explaining how targeted killings are conducted, the article shifts from the descriptive to the normative, setting out an analytical framework drawn from the governance literature that assess accountability along two dimensions, creating four accountability mechanisms. After setting forth the analytical framework, it is applied to the targeted killing program. The article concludes with accountability reforms that could be implemented based on the specified framework.
Keywords: collateral damage, targeted killing, bombing, principle of distinction, international humanitarian law, law of war, civilian casualties, political accountability, proportionality balancing
JEL Classification: H56, K10, K14, K33, N4, O38, J18Accepted Paper Series
Date posted: May 7, 2011 ; Last revised: October 16, 2013
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