Published online by Cambridge University Press: 03 April 2019
Public opinion polls on national security issues are often seen as indicators of the strength of international human rights norms. By contrast, we hypothesise that the very act of answering poll questions can weaken citizens’ understandings of important international human rights laws and norms in the very moment they are being measured. We ground this discussion empirically by analysing a new dataset of post-9/11 survey questions on two US national security policies at odds with international human rights norms: ‘enhanced interrogations’ and ‘targeted killing’. In so doing, we encourage a widened research agenda on how international legal and normative understandings are transmitted to the public through surveys. We conclude by highlighting substantive implications for norm scholars and policy implications for norm advocates.
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69 To count as ‘explaining’ the law, questions needed to include a baseline description of what a given treaty states, or a simple description of the law's content, such as this example pulled from our dataset: ‘The US (United States) and most countries in the world have signed a number of conventions – that is, treaties that create international laws – that prohibit certain methods for trying to get information from detainees.’
70 We define this code, which we call ‘Priming for Violation’, as follows: ‘Without explaining international law, question encourages or invites respondent to consider the appropriateness or effectiveness of practices that would violate non-derogable human rights law/norms such as torture or killing criminal suspects without trial, or asks respondents about the conditions under which they would approve of these practices. For extrajudicial killing, do not use this code if the survey question explicitly states that a situation of armed conflict is present.’
71 United Nations General Assembly, ‘Universal Declaration of Human Rights’ (1948), Article 1.
72 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987), Article 1.1.
73 Department of Defense Military Commission Order No. 1 (21 March 2002).
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79 Notably, even if a detained individual does not receive prisoner of war status, he or she is still protected by the IHL prohibition on torture, ‘beginning from the time of their capture to their release and repatriation’. See Okimoto, Keiichiro, ‘The protection of detainees in international law’, in Perrigo, Sarah and Whitman, Jim (eds), The Geneva Conventions under Assault (London: Pluto Press, 2010), p. 129Google Scholar.
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88 Chris Kahn, ‘Exclusive: Most Americans support torture against terror suspect’, Reuters (30 March 2016).
89 Brittany Lyte, ‘Americans have grown more supportive of torture’, FiveThirtyEight (9 December 2014).
90 United Nations International Covenant on Civil and Political Rights (ICCPR) (1976), Articles 4 and 6.
91 Hurd, How to Do Things with International Law.
92 In international human rights law, killing must not be arbitrary. See UN ICCPR (1976), Article 6.1. Human rights law does allow the killing rather than capture of criminal suspects in rare situations where an individual poses an imminent threat to others’ lives and peaceable means of suppression are not feasible. Such an ‘imminent threat’ cannot however be based upon past crimes or behavioural profiling.
93 Common Article 3 to the Four Geneva Conventions extends protection to all captured persons in non-international conflicts.
94 Dan De Luce and Paul McCleary, ‘Obama's most dangerous drone tactic is here to stay’, Foreign Policy (5 April 2016); Jo Becker and Scott Shane, ‘Secret “kill list” tests Obama's principles’, New York Times (29 May 2012).
95 US Department of Justice White Paper, ‘Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa'ida or An Associated Force’ (8 November 2011).
97 Kenneth Roth, ‘Letter to Obama on targeted killings and drones’, Human Rights Watch (7 December 2010).
98 United Nations Counter-Terrorism Implementation Task Force, ‘Global Counter-Terrorism Strategy’ (2006).
99 Phillip Alston, ‘Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Rep. A/HRC/14/24/Add.6’, United Nations Human Rights Council (28 May 2010).
100 Amnesty International USA, ‘Killing Outside the Bounds of Law?’ (2016).
101 Human Rights Watch, ‘Joint Letter to President Obama on US Drone Strikes and Targeted Killings’ (11 April 2013).
102 Kreps, ‘Flying under the radar’; Zenko, ‘U.S. public opinion on drone strikes’.
103 Kreps, ‘Flying under the radar’.
104 Walsh, ‘Precision weapons’.
106 Kreps, ‘Flying under the radar’.
107 John Sides, ‘Most Americans approve of foreign drone strikes’, The Washington Post (10 March 2013).
108 Chris Cillizza, ‘The American public loves drones’, The Washington Post (6 February 2016). Kreps wrote a response to Cillizza: Sarah Kreps, ‘Do Americans really love drone strikes?’,The Washington Post (6 June 2014).
109 Ken Dilanian and Emily Swanson, ‘Americans approve of drone strikes on terrorists, poll finds’, PBS News Hour (1 May 2015). Interestingly, the content of this news story actually mentioned that this poll doesn't include mention of civilian casualties, and cited Kreps.
110 Wilson Dizard, ‘Poll finds strong support for drone strikes among Americans’, Al Jazeera America (28 May 2015).
111 Lydia Wheeler, ‘Majority of Americans support US drone strikes, survey says’, The Hill (28 May 2015).
112 Kreps, ‘Flying under the radar’, p. 3.
114 This theoretical position stands in contrast to more realist contentions, which would argue that change in attitudes towards international norms stems primarily from strategic factors rather than more subtle processes of social construction.
115 For example, Miller et al. (2014) find that responses to surveys are conditioned heavily by expectations of how others think on an issue – expectations often influenced by media reporting of earlier survey results with headlines such as ‘Americans Love Drones!’. Miller, Peter, Gronke, Paul, and Rejali, Darius, ‘Torture and public ppinion: the partisan dimension’, in Lightcap, Tracy and Pfiffner, Jame (eds), Examining Torture: Empirical Studies of State Repression (New York: Palgrave MacMillan, 2014), pp. 11–42Google Scholar.
116 See Kreps, ‘Flying under the radar’. In particular, although Kreps questions subjects in the treatment group about international war law concepts such as civilian harm, proportionality, and legal authorization, these questions assume that a situation of armed conflict exists and that a war law framework applies. This is contrary to the opinion of many international lawyers. Thus, Kreps's study itself thus also contains ‘disputed assumptions embedded in questions’ – assumptions consistent with a mainstream, elite government narrative about which laws matter, and one that frames the question about the legitimacy of drones as a tool rather than so-called ‘targeted killings’ as a policy.