Despite our modern ideas about a separation between civilians and soldiers in international law (and then complain about the breakdown of the legal distinction in counterinsurgency conflict or situations like Pakistan), civilians have almost always accompanied military forces into the field. These include journalists, clergy (not within the armed forces of an army) and “camp followers” which may have included cooks, tailors, menders, prostitutes, etc.
That these individuals were there and an essential part of the operations of the armed forces, was accepted. Yet, because they were not formally “enlisted” they were considered as civilians and not subject to direct attack so long as they did not take a direct part in hostilities.
This doesn’t render the principle of distinction irrelevant of course. It’s still one of the key principles upon which the law of war rests. However, it does suggest that we sometimes forget that the line has not always been crystal clear between combatants and civilians.
Yet, a major recent difference has been the increasing technological dependence of the armed forces in their military missions. This has resulted in civilians working on computer and weapons systems, possibly crossing certain lines in terms of distinction and participating in a conflict in a direct way.
Efforts trying to regulate civilian participation have not been particularly successful. As is relatively well known, efforts to regulate private military firms (PMFs) have been less than satisfactory (and even the US government who employs them has trouble exercising jurisdiction over their behaviour). The Montreux guidelines
are just that – guidelines – and without any enforcement mechanism.
However, the CIA drone issue is different from that of PMFs. The CIA is a state-sanctioned institution. It’s armed and uses force against other actors. So what does it mean for their status under their international law? Are they directly participating in hostilities? Is their participation allowed?
Other important “guidance” here comes from the (controversial) ICRC study on the direct participation in hostilities. This document has been, is and will be subject to a lot of scrutiny (and it will be interesting to see, exactly, which states consider it authoritative. I’m thinking not many…). However, for our purposes here, a lot of the criticism (typically directed to ‘insurgent’-like actors and a supposed ‘revolving door of protection’) does not really apply.
Actually, the position taken with regards to private military firms and civilian employees would seem consistent with what the United States has typically put forward:
III Private contractors and employees of a party to an armed conflict who are civilians (see above I and II) are entitled to protection against direct attack unless and for such time as they take a direct part in hostilities. Their activities or location may, however, expose them to an increased risk of incidental death or injury even if they do not take a direct part in hostilities.
The fifth point of the study, (V Constitutive elements of direct participation in hostilities) is more controversial as some might deem the criteria as far too narrow for the purpose of modern fighting. (ie: On just one point, the United States would likely argue that someone who did financing for a terrorist organization was ‘fair game’). While this might provoke more controversy for their targets, for our purposes, the DPH guidelines suit the CIA Drone pilots rather well.
In order to qualify as direct participation in hostilities, a specific act must meet the following cumulative criteria:
i. The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm), and
ii. there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation), and
iii. the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus).
Regardless of whether or not the threshold is too high or narrow, there is no question that what the CIA drone pilots are doing falls into this category.
Therefore, I would argue the two most important legal issues here are:
1. Is there participation in hostilities legal?
2. Are they subject to attack?
The first question is more difficult to answer than the second. I would argue that the default position regarding civilians accompanying armed forces is that their presence may be authorized by a state/military force (because of the increasing essential tasks that they perform). In this sense, I would argue that their presence is legal if they are authorized by a state and armed forces AND they carry out their operations in line with the laws of war. This implies that all actors should receive instructions and training in the laws of war.
Key to this framework – and I think this is rather obvious from what is stated above – is that although civilians may accompany the armed forces and assist them in a variety of ways, they remain civilians – not combatants or non-combatants (which, in US military parlance are considered to be chaplains and medical personnel). However, they are different from “regular” civilians in that their functions in relation to combat render them targetable.
If we take the case of a contracted computer specialist who accompanies a unit to a forward operating base, I would suggest: 1) His presence is legal. 2) His activities may constitute direct participation in hostilities 3) He may be subject to attack. 4) He, like the rest of the armed forces, must carry out his activities in line with the laws of war.
I think it is clear that for policy reasons the military should do its best to ensure that his participation does not constitute combat functions – although where one draws the line in this day and age is almost impossible to tell.
Article 4(A) of the Third Geneva Convention also makes it clear that should these authorized individuals be captured in an international armed conflict that they are to be given POW status. States/armed forces must therefore provide such civilians with appropriate identification cards.
However, again the CIA case is difficult because it poses several direct challenges to this scenario.
As suggested above, legal questions surrounding the participation of civilians revolve around civilians accompanying the military into the theatre of operations. The CIA case is different – many, if not most, of the operations seem to be coming from abroad or within the United States. Are the civilians therefore within the theatre of operations? And does distance render this ‘arithmetic’ irrelevant?
An important question here is whether or not the CIA operations can be considered as supporting military operations? The CIA program seems to operate at arms length from the DoD/Air Force Program – although how near or far is almost impossible to say. It may be that the CIA and US government considers the Agency to be part of the broader effort in the abstract “War on Terror” and therefore, yes, they are supporting military operations. They may also see themselves as working within a “self-defence” scenario whereby they are responding to the threat of terrorism posed by radical extremists in Pakistan.
Others, however, may see this as problematic because, legally, the conflict in Pakistan must be considered separately – not as an international armed conflict, but as an internal armed conflict and subject to a different set of international rules.
I think questions as to the status of the legality of the conflict in Pakistan are jus ad bellum issues and I will ignore them for the purpose of this post. I am also going to work from the assumption that a drone attack is an “armed attack” for the purpose of the laws of war and that this makes it the appropriate law to apply when considering the CIA operations.
I would therefore apply the following argument regarding the CIA drone pilots:
1. They are civilians.
2. Their activities constitute direct participation in hostilities in a law of war context.
3. They may be subject to attack, regardless of their location. The same may be said for a civilian who provides logistical support for military operations at the Pentagon. Of course, the same may not be said of a civilian who works at the Pentagon Best Buy (and yes there is one) who is supporting the staff who work at DoD, but is not directly participating in hostilities. This individual may be at risk because he/she works at a military target, but is not targetable. He/she must be taken into a proportionality consideration when a strike is being considered or planned.)
4. Their armed attacks must be carried out in line with the laws of war.
But what about their legality?
There is no question that the CIA is not part of the armed forces of the United States. Typically referred to as “other government agency” in military documents, one typically struggles to see them named within the DoD literature.
Yet international law stipulates that armed forces are not necessarily the only groups which may participate on the battlefield. For example, in a situation of a “mass uprising” (levée en masse), civilians may participate in an armed attack with immunity. Similarly guerrilla/partisan movements which follow certain rules have been recognized by the law of armed conflict since 1949.
However, none of these categories work particularly well. The CIA operatives do not meet the standards of these categories and nor were these categories ever really intended to apply to state actors. Ultimately, the Agency represents not “the” armed forces of the United States but “an” armed force of the United States. And this is essentially the main difficulty with regards to their legal classification.
Therefore, I simply can’t help but conclude that the CIA program is operating in a legal grey area – there is just not enough law or examples to render a crystal clear verdict on the status of the CIA operatives. The state-sanctioning of the activity means that they are not simply rogue individuals who are operating like some kind of armed group (unless you want to consider it a state-sanctioned armed group – in which case I don’t know how you would distinguish this from the armed forces). There are differences and developments here which international law has not yet had a chance to catch up with.
Practically, however, this should not make an operational difference. As I have suggested above, I think regardless of who is carrying out the attacks, they must be done in accordance with the laws of war. This is the really important key factor – at least for me. Not who is carrying out the attacks, but whether they are actually done in accordance with the applicable law.
It seems to me that there is no doubt that the individuals who are carrying out these activities are directly participating in activities and are targetable. Additionally, their civilian status does not relieve them of law of war obligations.
To me it would seem that the legality of the participation becomes really important if someone wanted to arrest and charge the CIA pilots for their missions. Practically speaking, I find this highly unlikely.
However, there is a more important issue of accountability here – what happens in a case of gross negligence? Or A clear violation of the laws of war? Who is responsible? I think this is where there is more room to be concerned. And how this will play out remains to be seen.
I’m curious as to what other international legal-politicos out there think of this. Am I missing something? Law simply does not have all of the answers – at the end of the day, I think it will be more helpful if the CIA program is going to have to be judged on its effectiveness vs the amount of damage it does and this will likely be done on political and moral grounds.