DRONES AND CIVILIANS: EMERGING EVIDENCE OF THE TERRORIZING EFFECTS OF THE U.S. DRONE PROGRAMS

The Biden Administration, in one of its first consequential foreign policy decisions, announced that it would undertake a comprehensive review of the United States drone program. Officials promised that this review would consider all available evidence. This article shows that the U.S. drone program violates international law because of the ways it terrorizes civilian populations. U.S. officials from both parties have argued that drones are an effective part of the U.S. counterterrorism strategy. However, effectiveness is not the legal standard. The law requires that the program not unduly harm civilians. For as long as the U.S. has been using drones, communities in targeted countries have contended that the U.S. kills innocent civilians. The U.S. has typically minimized these claims, even as it has acknowledged some of the deaths. Until recently, this was the state of the argument: the U.S. argued that the drone program was effective, with minimal effects on civilians, while others argued that it caused undue harm to innocent civilians. Neither side found the evidence cited by the other side credible or gave much credence to the other side’s arguments. There is now a growing body of empirical evidence that shows how the U.S. drone program terrorizes civilians in ways that violate the law. Drawing on research from several disciplines, I show the ways the drone program affects the targeted population, civilian and militants alike. The evidence shows that even if drone strikes kill terrorist leaders—strikes the U.S. would consider successful—militants shift their attacks from military targets to civilians. The evidence also shows that the main reason militant violence goes down is not the strikes themselves, but the monitoring and surveillance apparatus associated with the drone program. Areas in which the U.S. maintains an active drone strike program are typically under persistent surveillance and monitoring. Communications are monitored, movements are tracked by surveillance drones, and intelligence-gathering operations are ongoing. Civilians are terrorized by these practices. Taken together, this evidence shows that U.S. operations violate international law because they are indiscriminate: they affect civilians and militants alike, with little effort made to reduce civilian harms

Evidence-Based Stakeholder Engagement: The Promise of Randomized Control Trials for Business and Human Rights

When a large-scale development project comes to a poor country, that project typically comes with a stakeholder engagement plan, which structures the relationship between those affected by the new project and the proponents of the project. The plan sorts those affected by the project into categories, distributes economic benefits differentially based on those categories, allocates other benefits which can increase or decrease the social power of those affected, defines the ways that people harmed by the project may seek redress for their injuries, and might even modify existing governance structures. In the past decade, through the efforts of large institutional lenders—such as the International Finance Corporation and an array of non-governmental organizations—stakeholder engagement plans have become more comprehensive and sensitive to the wide range of impacts that development projects can have on the communities in which those projects take place. Nonetheless, stakeholder engagement plans are problematic, in large part because they amount to a new legal system, plunked down in a community in which there already exists a formal legal system (in the form of national and municipal law), and the usual non-formal mechanisms of addressing legal or quasi-legal issues exist in every community. In this Article I propose to draw on recent research from development economics, sociology, and other disciplines that use randomized control trials to assess how specific policies work at solving specific problems. Large-scale development projects bring together companies, governments, and local communities, each of which as different resources, bargaining power, and values. At the present time, most stakeholder engagement plans are shaped by legal requirements and conventional wisdom (and because they are negotiated, bargaining power plays a big role as well). I argue that this important area of development policy should not be left out of the revolution that is influencing many other areas of development policy and development scholarship

Do Norms Still Matter? The Corrosive Effects of Globalization on the Vitality of Norms

Why does the process of globalization undermine the power of social norms to regulate behavior? Norms are the social regularities that shape individual behavior and help to create vibrant--or dysfunctional--communities. Most theories of norms do not account for the many ways that globalization affects the foundations of norms. This Article fills the gap by developing a more robust theory of the informal regulation of behavior that considers the ways that the process of globalization can interfere with the creation of norms and erode their power. Drawing on behavioral economics, sociology, and criminology, the theory proposed in this Article contains three claims. First, because individuals in a globalizing community typically suffer from significant disruptions in relationships, the community\u27s ability to regulate itself is eroded. In vibrant communities, residents are willing to intervene in the lives of their neighbors by, for example, scolding children who misbehave in public or teenagers who deface buildings. But in a globalizing community, the conditions that give rise to this willingness to intervene are eroded by the process of globalization. Second, globalization can distort the process of creating and enforcing social norms by allowing individuals to, in effect, immunize themselves from the sanctions typically employed to enforce norms. For example, differences in social status affect the ways that observers judge illicit behavior, and the ways that they condemn, condone, or ignore that behavior. Third, globalization also makes it possible for individuals to engage in what the Author calls reputational segmentation. In this process, people who wish to engage in an activity that carries social sanctions do so in a place where they are immune to the real effects of those sanctions. For instance, Western tourists who travels to the developing world to engage in illicit sexual activity, often with children, may suffer social sanctions in the destination community, but those sanctions do not follow those tourists back to their countries of origin. And because the quality of the person\u27s life is affected almost entirely by his reputation in his country of origin, the ability to engage in reputational segmentation allows him to escape the consequences of his actions. The Author\u27s theory differs from other work on norms and globalization because it considers both the role of individuals and the incentives that shape their actions, as well as the role of communities in the enforcement of norms. With some notable exceptions, most scholarship that considers the power of norms looks at the incentives that guide an individual\u27s decision to comply with or deviate from social norms. But as communities confront globalization, they evolve in ways that inevitably affect the power and content of norms. The give and take between individuals and communities is therefore central to the way that globalization affects norms

The Changing Face of Terrorism and the Designation of Foreign Terrorist Organizations

In this Article, I take up one slice of what should be a broad re-examination of U.S. law and policy. I argue that the new attacks have been undertaken by entities that can and should be designated as foreign terrorist organizations. Doing this would permit prosecutors to target those who support these entities with tools that are not currently available. This Article is both a doctrinal argument that directly addresses the many legal hurdles that make designating groups, such as foreign hackers and troll farms, terrorist organizations a complicated endeavor, and a policy argument about how U.S. law and policy should respond to new modes of terrorism. To make this case, I make two principal claims. First, on the doctrinal front, I argue that my proposed reconsideration of the kinds of entities that may be designated as terrorist organizations is consistent with existing law and with the purposes of 8 U.S.C. § 1189, the statute permitting designation. Making this case requires consideration of what it means for an entity to be an “organization,” what activities constitute terrorism, and how this activity is similar to activity that is currently considered terrorism. Although the context is different, new organizations have similar structures and characteristics as organizations that have been designated already. With respect to what constitutes terrorism, I argue that a harms-based approach is appropriate. The magnitude and type of harm done by the new organizations are similar to harm done by existing organizations.16 Second, on the policy side, I argue that the problem of the entities that are threatening U.S. economic, governmental, and social infrastructure can be more effectively addressed if they are designated as terrorist organizations. Despite the attention paid to counterterrorism law and policy in the past two decades, the area of law is far from fully developed and has struggled to keep up with changes in the world. Designating these entities as foreign terrorist organizations would amount to an updating of law and policy to better combat an evolving threat

The Slippery Concept of Object and Purpose in International Criminal Law

In little more than twenty-five years, the field of international criminal law has grown from a small slice of public international law into a functioning system of international justice, complete with multiple juridical bodies and substantial scholarly attention. Building on the legacy of the Nuremberg Tribunals and drawing from international humanitarian law, human rights law, and domestic criminal law principles, international criminal law has become its own discipline. Creating any new field of law is a complicated endeavor; this is especially true when the field affects and is affected by so many politically sensitive issues. Throughout this doctrinal experiment, one concept has been an essential ingredient to its development

Regulating Information Flows, Regulating Conflict: An Analysis of United States Conflict Minerals Legislation

The connection between conflict and commercial activity is the focus of this paper. In particular, it focuses on the ongoing conflict in the Eastern Democratic Republic of Congo (DRC) that is funded, in large part, by the sale of conflict commodities – minerals, metals and petroleum that fund violent groups at their source and then enters legitimate markets and products around the world. Recently, attention has turned to how to regulate conflict commerce as a tool for divesting from violent conflict. In the United States, for example, the recently-adopted Dodd-Frank Wall Street Reform and Consumer Protection Act include a provision addressing conflict minerals originating from this region. The violent and secretive nature of conflict minerals transactions makes crafting effective regulation and policing strategies challenging. As a result the Dodd-Frank Act, like other domestic and international efforts, is designed in large part to discover, gather and disseminate information about the nature and scale of conflict commodities emanating from the DRC. This paper analyzes this legislation while also discussing a number of other current conflict commerce governance efforts. It observes the difficulty of regulating in the context of conflict and corruption and analyses the use of regulation as a tool for information-extraction, information-forcing and information-dissemination, as opposed to its use as a tool for directly proscribing undesirable behavior

The IFC\u27s New Africa, Latin America, and Caribbean Fund: Its Worrisome Start, and How to Fix It

In April 2010 the International Finance Corporation announced the creation of the African, Latin American, and Caribbean fund, a new co-investment vehicle funded largely with commitments from sovereign wealth and pension funds. The fund\u27s objective was to draw on the IFC and the World Bank\u27s strengths in emerging markets to identify and support enterprises that might not otherwise have come to the attention of large investors and thereby help strengthen the private sector and alleviate poverty in some of the world\u27s poorest countries. Unfortunately the fund has, so far, proven a disappointment. It has invested only in large corporations that were already well known to investors. The fund should return to the principles that seemed to motivate its creation: direct engagement with private enterprises, rather than politically-connected financial intermediaries; leveraging the World Bank\u27s superior knowledge and understanding of emerging markets, rather than investing in corporations listed in London or Frankfurt; and providing capital to small- and medium-sized enterprises that would otherwise not have the support needed to grow and compete nationally or globally

The IFC\u27s New Africa, Latin America, and Caribbean Fund: Its Worrisome Start, and How to Fix It

In April 2010 the International Finance Corporation announced the creation of the African, Latin American, and Caribbean fund, a new co-investment vehicle funded largely with commitments from sovereign wealth and pension funds. The fund\u27s objective was to draw on the IFC and the World Bank\u27s strengths in emerging markets to identify and support enterprises that might not otherwise have come to the attention of large investors and thereby help strengthen the private sector and alleviate poverty in some of the world\u27s poorest countries. Unfortunately the fund has, so far, proven a disappointment. It has invested only in large corporations that were already well known to investors. The fund should return to the principles that seemed to motivate its creation: direct engagement with private enterprises, rather than politically-connected financial intermediaries; leveraging the World Bank\u27s superior knowledge and understanding of emerging markets, rather than investing in corporations listed in London or Frankfurt; and providing capital to small- and medium-sized enterprises that would otherwise not have the support needed to grow and compete nationally or globally