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.