The standards governing America’s drone assassinations may violate the Geneva Conventions and other international norms, legal experts say.
U.S. forces routinely classify bystanders felled in its Afghanistan drone strikes as “enemies killed in action,” even when they are not the intended targets of the strikes, according to a source and to documents obtained by The Intercept published earlier this month. But the Geneva Conventions specify that when someone’s status is not clear, they should be classified as a civilian. Article 50 of Additional Protocol I, which dates to 1977 and was ratified by 174 countries, says that “in case of doubt whether a person is a civilian, that person shall be considered to be a civilian.”
A landmark document from the International Committee of the Red Cross in 2009 expands on this rule:
All feasible precautions must be taken in determining whether a person is a civilian and, if so, whether that civilian is directly participating in hostilities. In case of doubt, the person must be presumed to be protected against direct attack. … In case of doubt as to whether a specific civilian conduct qualifies as direct participation in hostilities, it must be presumed that the general rule of civilian protection applies.“
The U.S. failed to ratify Protocol I after signing it, and the Red Cross’ legal guidance has been controversial, at least within elements of the U.S. defense establishment. But until now it’s been unclear to what extent the U.S. would depart from treaties and other influential documents related to classifying casualties whose civilian status is unclear.
“The [ICRC] teaches the presumption of civilian status in cases of doubt, and its teaching is consistent with the purpose of international humanitarian law, which is to protect civilians from attack unless they are taking a direct part in hostilities,” says Hina Shamsi of the ACLU’s National Security Project. “What the U.S. is essentially presuming is that the people it has killed were taking a direct part in hostilities. In other words, in assessing the lawfulness of its lethal force, it’s turning the exception into the rule.”
The United States Special Operations Command has previously declined to comment on The Intercept’s revelations about its drone strikes in Afghanistan.
This controversial U.S. posture toward possible civilians is not confined to its drone wars or to the documents obtained by The Intercept; it’s also explicitly outlined in a landmark law-of-war manual issued by the Department of Defense in June. The manual, the first ever such department-wide manual in the DoD’s history and the culmination of years of legal deliberation by military and civilian lawyers, directly addresses Additional Protocol I, but argues that customary international law does not require classifying people as civilians by default.
“A legal presumption of civilian status in cases of doubt may demand a degree of certainty that would not account for the realities of war,” the document states. It also claims that “under customary international law, no legal presumption of civilian status exists for persons or objects.”
While the Defense Department claims that a presumption of civilian status is not part of “customary international law,” at least one member of the defense establishment has said the opposite. Michael Schmitt, a professor at the U.S. Naval War College and 20-year veteran of the Air Force, endorsed the presumption of civilian status as a key part of “customary international law” in the course of arguing against strict Red Cross legal guidance on which members of a hostile group may be attacked in combat. As he wrote in his article in the Harvard National Security Journal:
International humanitarian law already accounts for situations of doubt as to whether an individual is a civilian. Article 50.1 of Additional Protocol I, a provision generally deemed reflective of customary international law, provides that “[i]n case of doubt whether a person is a civilian, that person shall be considered to be a civilian.”
The DoD manual doesn’t only reject a presumption of civilian status, it also discusses when it is appropriate to direct attacks against what it refers to as civilians:
Attacks, however, may not be directed against civilians or civilian objects based on merely hypothetical or speculative considerations regarding their possible current status as a military objective. In assessing whether a person or object that normally does not have any military purpose or use is a military objective, commanders and other decision-makers must make the decision in good faith based on the information available to them in light of the circumstances ruling at the time.
Legal experts interviewed for this article criticized U.S. drone-war leaders not only for misclassifying civilians as combatants, but also for seeming to abandon the idea that people the U.S. militarily attacks on foreign soil must pose an imminent threat.
Under international law, initiating the use of force in another country is legitimate only within a narrow range of circumstances, one of which is a need to quickly defend against an imminent threat. The Obama administration nodded at this norm when it outlined standards stipulating that in counterterrorism operations, it “will use lethal force only against a target that poses a continuing, imminent threat to U.S. persons.” The Bush administration also embraced this concept, stating in a 2002 National Security Strategy document that “for centuries, international law recognized that nations … can lawfully take action to defend themselves against forces that present an imminent danger of attack.”
The Bush administration then stretched the definition of “imminent danger” to include Iraqi dictator Saddam Hussein. But at least it tried to justify war using the framework of imminent threat.
“In international law, ‘imminent’ means what non-lawyers would assume it means: immediate, about to happen,” says Sarah Knuckey, an international lawyer and professor at Columbia Law School. “But the U.S. government interpretation of ‘imminent’ expands traditional legal interpretations, and expands the scope of who can be killed and when.”
Even these criteria for defining imminence are omitted in a 2013 Pentagon study made public this month by The Intercept, which evaluates certain aspects of the Joint Special Operations Command (JSOC) killing campaign in Yemen and Somalia in 2011 and 2012. Instead, the only criterion mentioned in the study to justify targeting a person for lethal operations is an opaque reference stating that they must “present [a] threat to U.S. interest or personnel.”
A National Security Council spokesperson contacted previously by The Intercept would not explain why the Pentagon study’s rules for drone assassinations differed from those outlined by the White House the same month. But the spokesperson said that the White House rules are “in effect today.”