Of course, calling something a war crime doesn’t make it so–the question is whether it is recognized as such under international law–and your question raises a broader concern and reflects the deeply disturbing approach of the United States to the laws of war since 9/11. The U.S. has put forward the novel theory of a brand new “law of 9/11” under which it can sidestep the laws of war or re-interpret them when it suits. This approach is no doubt appealing and convenient in the short term. But it will inevitably return to bite the U.S., and will undermine the international legal framework on which the U.S. relies in so many other contexts. In this particular instance, if the U.S. were to insist that use of lethal force in an armed conflict by a civilian who is a citizen of another country is a “war crime” just because that person is a civilian, it won’t have a leg to stand on if another state prosecutes a CIA agent involved in the drone killing program on exactly the same grounds.
Like a lot of problems we try to legislate away- too broad is arbitrary upon enforcement or counterproductive, too narrow can be useless or discriminatory. There is rarely “baby bear porridge” in law.
A new phrase has entered the criminological lexicon: the “CSI effect” after shows such as “CSI: Crime Scene Investigation”. In 2008 Monica Robbers, an American criminologist, defined it as “the phenomenon in which jurors hold unrealistic expectations of forensic evidence and investigation techniques, and have an increased interest in the discipline of forensic science.”
Exposure to television drama series that focus on forensic science has altered the American legal system in complex and far-reaching ways.
Jurors think they have a thorough understanding of science they have seen presented on television, when they do not. Mr Durnal cites one case of jurors in a murder trial who, having noticed that a bloody coat introduced as evidence had not been tested for DNA, brought this fact to the judge’s attention. Since the defendant had admitted being present at the murder scene, such tests would have thrown no light on the identity of the true culprit. The judge observed that, thanks to television, jurors knew what DNA tests could do, but not when it was appropriate to use them.
Prosecutors in the United States are now spending much more time explaining to juries why certain kinds of evidence are not relevant. Prosecutors have even introduced a new kind of witness—a “negative evidence” witness—to explain that investigators often fail to find evidence at a crime scene.