I Do Not Think That Word Means What You Think It Means.
I’ve been thinking this weekend about Gary Solis’ WAPO op-ed of Friday about CIA drone pilots being unlawful combatants – unlike drone pilots serving in the US armed forces who may arguably be violating the laws of war but at least have the right under international law to engage in combat:
In terms of international armed conflict, those CIA agents are, unlike their military counterparts but like the fighters they target, unlawful combatants. No less than their insurgent targets, they are fighters without uniforms or insignia, directly participating in hostilities, employing armed force contrary to the laws and customs of war. Even if they are sitting in Langley, the CIA pilots are civilians violating the requirement of distinction, a core concept of armed conflict, as they directly participate in hostilities.
Moreover, CIA civilian personnel who repeatedly and directly participate in hostilities may have what recent guidance from the International Committee of the Red Cross terms “a continuous combat function.” That status, the ICRC guidance says, makes them legitimate targets whenever and wherever they may be found, including Langley.
I agree with his first point, but I think he is misreading the meaning of “continuous combat function.” And in so doing Solis makes a common conceptual error: conflating the lawfulness of combatancy with the legitimacy of targets.
Here’s the relevant part of the ICRC’s interpretative guidance on the issue of distinguishing civilians from combatants (that is, lawful v. unlawful targets) in asymmetric wars:
While members of organized armed groups belonging to a party to the conflict lose protection against direct attack for the duration of their membership (i.e., for as long as they assume a continuous combat function), civilians lose protection against direct attack for the duration of each specific act amounting to direct participation in hostilities. This includes any preparations and geographical deployments or withdrawals constituting an integral part of a specific hostile act.
In other words, the concept of “continuous combat function” only applies to members of the armed forces, never to civilians. You can shell a military encampment at night while the GIs are asleep (not participating in hostilities) and it’s not a war crime, because they remain military targets as long as they’re deployed in a conflict zone. However you cannot legitimately target a “civilian” – however guilty s/he may be of participaitng in hostilities at times – when s/he is not currently doing so. So say the existing laws of war.
So while Solis is right to apply the same standard to US civilians participating directly in hostilities as we would apply to Afghani or Yemeni or Saudi civilians doing the same thing, he’s mistaken to argue that in either case it is legitimate to treat such individuals as legitimate targets per se. Only when they are engaged in hostilities is that the case.
And this is what make many drone attacks – even those carried out by the Air Force – violations of the laws of war. When pilots – lawful or not – target civilians – guilty or not – as they sleep in their homes rather than as they go about the business of planning/conducting attacks, this violates the cardinal rules of the Geneva Conventions and is a war crime.
In political terms, the distinction we like to talk about is between civilians who are “guilty” of supporting attacks on “us” and those who are “innocent” bystanders. However in legal terms, the civilian / combatant distinction matters only in the moment, in determining whether you can kill someone outright or must capture them and bring them to justice; and there is no distinction among civilians in terms of their relative guilt. The guiltiest party in the US for going to war is the civilian Commander in Chief, but s/he is not a legitimate target because s/he’s not part of the armed forces.
So to sum, military are legitimate targets and lawful combatants, who are guilty of war crimes if they don’t respect these rules; civilians are illegitimate targets (unless and for as long as they take up arms) are unlawful combatants, and can be prosecuted simply for using violence if they are captured.
In correctly pointing out that there are unlawful combatants on both sides in the war on terror, Solis is implicitly suggesting that this makes those combatants – on both sides of the war – legitimate targets, a position that justifies military drone attacks on civilian terror suspects per se, rather than just when they’re engaged in hostilities. Not true.
UPDATED: A student of mine writing a humanitarian law dissertation pointed out an error in the earlier version of the post (now modified): civilians remain civilians (as opposed to combatants) even when they directly participate in hostilities.
It’s lucky it’s not a war, then, and none of these pesky rules apply, eh? I mean, if it was a war, we’d be at war with Pakistan and Afghanistan, wouldn’t we, ’cause that’s where we’re blowing shit up; and last time I looked, we were big pals with both those governments. So it can’t be a war, can it? Just a little cleaning up…
Your Not true. seems a rather definitive statement to draw from such material as was linked.
the ICRC drafted its “Interpretive Guidance on the Notion of Direct Participation in Hostilities under IHL” (Interpretive Guidance). In course of the expert process it was not feasible to reach a unanimous view on the questions addressed. While the wide variety of views expressed…
Doesn’t the fact that the CIA officers, in the case of the drones, have a job that sets them apart from any other CIA employee, even those in the control room? If they get to go home, miles from the conflict, at night does that alter who and what they are? If they were killed on the way to work is that different than on their way home?
The Solis article offered a view and I don’t find your not true very persuasive in that context.
1) I didn’t link to that material to draw a conclusion, I linked to it because Solis did. My point was to show that his interpretation of “continuous combat function” is in direct contradiction to the material he cites.
2) I wasn’t critiquing the view he offered per se but rather his misuse of this ICRC concept to further his position. I also disagree with his view, but that’s another matter.
3) You are correct that humanitarian law is plagued with ambiguity about the concept of “direct participation in hostilities.” However, until this ambiguity is resolved through a new round of norm-building, the ICRC remains the authoritative arbiter on the issue, outside of war crimes courts.
I dunno, Charli. As I understand it, the argument is that civilians who are members of an organized armed group belonging to a non-State party to an armed conflict lose their protection from direct attack for as long as they assume a continuous combat function within the group. I don’t know how useful that distinction actually is, but as a conceptual matter, I don’t think it’s necessarily inconsistent with either IHL or the ICRC interpretive guidance you cited above.
In fact, your argument — that civilians lose protection against direct attack only by directly participating in hostilities, not by assuming a continuous combat function — is the one at odds with the ICRC position (as sections VII-X, among others, make clear). I think the problem may be that you’re assuming there is no legal distinction between membership in state armed forces and membership in organized armed groups, but that’s simply not the case.
Here’s the thing: in IHL terms, there is no such thing as a civilian who is a member of an organized armed group; civilians are by definition anyone not a member of such a category. This is laid out in Additional Protocol 1, 1977 Article 43 – civilians aren’t actually defined, but combatants are (very carefully) and civilians are anyone not falling into the combatant categories.
In IHL, combatants include regular armed forces plus non-state armed groups meeting certain criteria. So the “continuous combat function” might apply to non-state armed groups (as combatants) but it wouldn’t apply to civilians. This is fleshed out more in Part 2 of the full interpretative guidance – starting p. 20.
Now, the interesting question which R. Stanton Scott raises below is whether the CIA might be considered an armed group, which would change everything. I haven’t thought this through yet, but that would invalidate Solis’ argument completely, because in that case CIA agents might be considered both lawful combatants and a legitimate targets…
Oh, here’s a link to the actual ICRC guidance. It’s a PDF.
Thanks very much for the link. I should have included it in the original post.
I would challenge the classification of CIA officers as “civilians.”
By most practical measures the CIA now functions as a branch of military service.
The CIA is an organized military force in every sense of the word I can think of.
This is an extremely interesting point that I’ll have to chew on and may require a follow-up post. Thank you.
I don’t know what the official definition of “organised armed group” is, but the CIA certainly is an organised armed group (and a state party, for that matter). Then again, so is a police force. How are they treated in the laws of war?
[...] ago I wrote about the legal status of CIA operatives flying drones in Pakistan. A commenter asked a great question: is the CIA an armed group? I’ve been [...]