CIA Drone Strikes and The Law of War: Uncharted Legal Territory

August 30th, 2011

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Recently Pakistani tribesmen filed a criminal complaint in Pakistan against John Rizzo, the former acting General Counsel of the Central Intelligence Agency (CIA).  The complaint is based on Mr. Rizzo’s authorization of the CIA’s use of armed unmanned aerial vehicle attacks, or drone strikes, in Pakistan’s tribal regions near the Pakistan-Afghanistan border. The ultimate disposition of the complaint is not terribly important because it is highly unlikely that the U.S. will extradite Mr. Rizzo to face any possible prosecution in Pakistan.  However, there are several fundamental legal and policy questions that are raised by this new means of warfare.  One important and controversial question is the legality of the CIA’s use of lethal force through drones under the international laws and customs of war.

Open-source media outlets have reported that the drones themselves are piloted remotely by CIA officers operating out of the agency’s headquarters in Langley, VA.  The drone strikes target leaders of terrorist organizations, as well as other militant and insurgent groups that pose a threat to the U.S., its allies and interests.  The targets are acquired through the use of a variety of intelligence gathering techniques, but the exact sources and methods that serve as the basis for targeting decisions are classified (as they very well should be).  The drone strikes started several years ago during the administration of President George H.W. Bush, but have been increased during the administration of President Barack Obama

There has been considerable controversy regarding the legality of the drone strikes under the international law of war, with well regarded scholars and practitioners of international law waging different arguments.  One proponent of the legality of the drone strikes is Harold Koh, the current Legal Advisor to the State Department and former dean of the Yale Law School.  In a speech given to the American Society of International Law, Mr. Koh argued that that the drones themselves are in compliance with two major law of war principals governing the modes and methods of warfare that relate to targeting, namely proportionality and distinction.  

The principal of distinction generally states that a state engaged in armed conflict must distinguish between a belligerent or military target and a civilian entity.  The principal of proportionality requires the weighing of military advantage against potential civilian damage, and prohibits attacking a military target whose tactical or strategic advantage is greatly outweighed by the damage caused to civilians.

Mr. Koh states that the drone strikes adhere to these principals because of the care and consideration that is involved in the planning and execution of these strikes to avoid civilian casualties to the greatest extent possible. While Mr. Koh cannot elaborate in great detail the exact mechanisms of the process, the underlying argument is still credible if one compares a drone strike to a conventional ground or manned air strike.  A drone is operated by a pilot who is not physically on the battlefield, and therefore not susceptible to the same pressures and fears that would accompany someone that is faced with the life-threatening realities of combat.  Therefore, a drone operator can afford to be more patient and calculating in deciding when to apply lethal force.

On the flip side, there have been law-of war scholars, such as David Glazier of Loyola Law School, who have argued that the CIA officers lack the “combatant’s privilege” to use lethal force. The combatant’s privilege is a legal protection that shields lawful belligerents in armed conflict from being prosecuted for acts committed while engaged in lawful combat, to include killing.  The combatant’s privilege is of critical importance in the targeted killing context because without it, one could possibly be prosecuted for pre-meditated murder in the jurisdiction in which the strike occurs.  The elements that one must fulfill in order to have the privilege, as outlined in Article 4 of the Third Geneva Conventions (to which the U.S. is a party) specifically state:  

The individuals must be commanded by someone who is responsible for the actions of the subordinates; they must have a fixed distinctive sign recognizable at a distance; they must carry their arms openly; and they must operate in a manner that is compliant with the laws and customs of war. 

In the U.S. context, the combatant’s privilege was traditionally only afforded to members of the various uniformed Armed Forces.  Professor Glazier and others argue that this privilege does not extend to CIA personnel, who are un-uniformed employees of an independent civilian intelligence agency. There are, of course, other scholars who argue that despite not being part of a traditional military service, the CIA officers do meet the four requirements outlined in the Geneva Conventions.  While there is room for debate on this point, what is well-established is that a protracted overseas lethal targeting campaign by an entity outside of the U.S. military is somewhat of a novel concept and extends into uncharted legal territory.

Ultimately, it would be in the best of interest of the U.S. government to foster a dialogue to ensure that the CIA drone program is in compliance with international law, thereby protecting the CIA officers for actions committed under the program.

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