Abstract

 Since October 2001, the Central Intelligence Agency (CIA) employed a predator drone armed with missiles to carry out an operation in Afghanistan that targeted suspected al-Qaeda members. These missile attacks continued to hit targets in Yemen, Afghanistan, and the Pakistani territory bordering Afghanistan. It has been proven that missile-equipped drones are uncertain when used in covert operations. Drone strikes raise legal questions under International Law, Human Rights Law (HRL) and International Humanitarian Law (IHL). IHL prohibits civilian organisations from participating in direct hostilities unless the government notifies them of their incorporation into the regular armed forces. The explanation for why the CIA does not have the authorisation to carry out drone strikes is given in the article. The deployment of the CIA rather than regular armed forces is a violation of both accepted norms of war and HRL regulations.

Key Words

Central Intelligence Agency, Combatants, Lieber Code, Non-Regular Armed Forces, Military Manuals, Lethal 

Introduction

The direct participation of the CIA as non-regular armed forces in conflict areas between Afghanistan and Pakistan requires a legal assessment. This article expands the discussion based on international law regarding target killing without any option to surrender or due process. As separating combatants from civilians is a core premise of IHL. The CIA's deployment of drones instead of traditional "armed forces means US civilians are actively participating in hostilities". The International Committee of the Red Cross (ICRC) has issued interpretive guidance stating that the US government should not classify CIA officials as de facto members of the armed forces to allow them to carry out targeted killing operations (ICRC, 2009). However, incorporating paramilitary organisations into regular armed forces requires proper notification. For legal purposes, a state must notify other parties or make an open declaration when incorporating a paramilitary or civilian organisation into its armed forces. Without incorporation, CIA operatives executing targeted operations would be considered in breach of IHL. In this case, they can be labelled as 'unlawful combatants' directly engaged in hostilities.

The regular military personnel undergo specific training reflecting IHL norms. In the same direction, the US military practice is reflected in manuals detailing these principles. Contrary to established legal conventions and regulations of armed conflicts, the CIA has engaged in direct military involvement following post the 9/11 declaration of war. As the CIA has never been incorporated into the US military, therefore, CIA's drone operations constitute a violation of US domestic law. In this regard, the Lieber Code noted the concept of military necessity refers to the requirement for the enlistment of soldiers in any armed conflict. This is done through the use of the CIA instead of the conventional military forces. The operation is comparable to terrorists who exploit civilians as human shields and ignore internationally accepted conventions. 

By arranging drones, the CIA has been engaged in targeted killings which are forbidden under IHL and "international human rights law (IHRL)". The essential IHL tenets include military necessity, which is the foremost fundamental premise requiring that armed actions in times of war be tightly limited to military objectives. The concept of distinction refers to the restrictions that apply when it comes to the targeting of military targets. It also prohibits the use of force that could cause civilian casualties or property damage. Another rule of proportionality, which limits the number of strikes that can be carried out in a given area, states that they should not be carried out. 

out in a manner that could cause incidental civilian casualties (Hague IV) stipulates that the legal use of force by belligerents against an adversary shall not be infinite. The IHRL applies throughout the armed conflict. The application of IHL in parallel with IHRL does not release states from their duties under IHRL, nor does it decide the nature of those obligations. Instead, each of these two systems of law provides important restraints on the use of force as well as protections against violence and abuse that correlate with those restraints.

This article is limited to making a legal assessment of the use of the CIA in drone operations. Therefore, various principles of IHL and IHRL have not been discussed in detail. The discussion in this article is an extension of a previously published article (Ahmad, 2013).

Direct Participation of Non-Regular Armed Forces in Hostilities

It is a fundamental premise of IHL to distinguish between combatants and civilians. CIA can be integrated into the armed forces through proper legislation or presidential notification. Without a proper inclusion of the CIA in the armed forces, the deployment of drones constitutes the active participation of US civilians in wars, which breaches the core IHL principles. 

The traditional IHL defines "armed forces as organised forces, groups, and units" trained for armed combat (IHL Database, 2005). According to this view, CIA operatives “are not employed as members of armed forces; rather, they are officials of a civilian institution” (House Hearing, 2010). Civilians who actively participate in armed conflict without formal absorption into regular armed forces are referred to as ‘unprivileged combatants’ (Melzer, 2009). The same word applies to CIA personnel who conduct drone strikes. However, the CIA can be merged into the armed forces in whole or in part through national legislation (ASIL, 2011).

Regarding CIA drone attacks, the US government has provided no intention at any level about the incorporation of the CIA into conventional armed forces. Unlike the CIA, the US military undergoes "specific training and courses" that mirror fundamental "IHL principles". According to any credible source, the "US government has not publicly addressed whether CIA personnel could be considered de facto members of the armed forces" (ASIL, 2011, p.28). Thus, CIA agents do not qualify as combatants or arm forces persons. By "directly participating" in drone strikes, the agents could be considered unlawful combatants. Without the inclusion of the CIA into the armed forces by national legislation and proclamation, it is, therefore, illegal to use CIA personnel to engage with lethal missile strikes.

The position of CIA officials as unlawful combatants cannot exempt them "from the application of the rules of war". As per law, civilians who are "directly participating in hostilities must" adhere "to the law of hostilities and" are subject to prosecution for war crimes if they fail to do so (Melzer, 2009). The United States' official stance is missing on this issue. In a legal observation, this gap may be filled only by a clear US government policy.

Engaging in Hostilities

This section examines the CIA's role in relation to drone strikes. It “is a fundamental principle of laws of war” to distinguish between combatants and civilians. Civilians who actively “participate in armed conflict” without formal absorption into regular armed forces are referred to as ‘unprivileged combatants’ (Melzer, p. 332). The same word applies to CIA operatives participating in drone attacks. 

Within the framework of IHL, the armed forces are considered "parties to an armed conflict" (ICRC, 2009). CIA employees, under the mandate of a civilian agency, are not members of the United States military (Hearing, 2010). However, the CIA can be incorporated into the armed forces in whole or in part as a tenable and legal way out (ICRC, 2009). "According to the ICRC Interpretive Guidance", the "US government has not publicly" acknowledged either CIA operatives should be regarded as "de facto members of the armed forces", given that they are authorised to undertake targeting operations (Melzer ed., 2009).

Thus, CIA operatives don’t s qualify as ‘combatants’ or ‘members of the armed forces.’ In addition, it has been highlighted that for the purposes of IHL, paramilitary and law enforcement agencies that are not incorporated are considered to be of a civilian nature (Schmitt, 2005). Due to the fact that “CIA personnel do not qualify as members of the regular armed forces, they are” considered civilians, and their status during armed conflicts is that of civilians engaged in hostilities.

Generally, notification is required when paramilitary organisations are integrated into regular armed forces. "Additional Protocol-I (AP-I) requires that a party to the conflict should notify the other parties if paramilitary forces or law enforcement forces are integrated into its armed forces (AP-I, Art. 43)”. It is a legal requirement officially and openly incorporates paramilitary or armed law enforcement forces (IHL Database, 2005).

Without incorporation, CIA operatives are 'unlawful combatants' and directly engage in hostilities and in this case, they are actually 'unprivileged combatants. It has been emphasised that CIA staffs are civilians, and they are involved in direct participation in armed conflicts. Therefore, they are not immune from punishment under national jurisdiction for their actions (Alston, 2010). Even if CIA operatives are considered unprivileged and unlawful fighters, they are nevertheless subject to the rules of engaging in war. “As with combatants, Civilians” who directly participate in hostilities must adhere “by the law of hostilities” and are subject to prosecution for crimes if they ignore the fundamental principles of human rights and IHL (Melzer, 2009). The term ‘direct participation in hostilities’ lacks a precise definition.

Three significant definitions of direct participation have been noticed. Firstly, “direct participation refers to acts of war that, by their nature or intent, are likely to cause genuine harm to the enemy's soldiers and equipment” (ICRC Commentary, 1987). Secondly, direct engagement in hostilities involves a causal connection “between the activity engaged in and the harm” caused to the adversary at the time and location where the action occurs (AP-I, Art. 43). Thirdly, the term ‘direct engagement in hostilities’ denotes a causal connection “between the act of participation and its immediate” results (AP-II, Art. 13).

All three descriptions apply to drone strikes in Pakistan. It's unclear if the US government considers CIA agents combatants (in international armed conflict), military personnel (in NIAC), or citizens directly engaged in hostilities. US officials are mute. Legal observers may only remedy this lacuna with a clear US official pronouncement on the CIA's position.

Unlike the CIA, the US military undergoes “specific training and courses” that incorporate fundamental IHL principles. In the section that follows, the reflection of IHL principles in the US regular armed services is explored and compared to the CIA.

Adoption of IHL Principles into Military Manuals

Participating armed forces and covert agencies are required to abide by the fundamental IHL norms. These regulations govern the training of the regular armed forces. In this regard, the “practice of the United States military is” reflected in manuals establishing these principles. It is unclear whether the CIA has implemented the same standards and compliance processes into its operational procedures.

These IHL principles are incorporated into US military manuals. In any armed conflict, military necessity and proportionality are key constraints on the use of lawful force. In the conventional “principle of proportionality, it is prohibited to launch an attack that would be excessive in relation to the” anticipated direct and concrete “military advantage (AP-I, Art. 51)”. The second principle of necessity, as articulated “in the Lieber Code and subsequent military manuals”, stipulates that the use of “force in armed conflict” must be permissible under “the modern law” and customs of war and required to achieve the war's objectives (Lieber Code, 1863). The "principles of necessity and proportionality" assert that the power of belligerents to employ means to injure the adversary is not unrestricted (Hague Convention, Art. 22). For the functioning of these principles, the framework of IHL stipulates that person planning, deciding, and executing attacks must take precautions to prevent collateral civilian casualties (AP-I, Art. 57). The US military manuals, instructions, and reports reflect IHL norms and breaches (IHL Database, 2005). The US Army Field Manual necessitates that fighters reduce harm to non-combatants and take more risks to minimise possible injury (Department of Army, 2014). The US armed forces are bound to follow these core principles (Rule of Law Handbook, 2010).




The US Regular Armed Forces and Utilisation of CIA

When it comes to US foreign policy, the US president possesses the authority to sanction covert actions. However, any conduct that violates domestic law is illegal (United States Code, 2014). Different laws apply to the military and CIA. It's considered that IHL's restrictions don't apply equally to both. The CIA's drone strikes raise questions of accountability owing to violations of proportionality and distinction. Are CIA breaches of the laws as severe as those by conventional armed forces? Regarding the CIA, there is no public document on CIA violations, nor has anyone ever been tried for violation of IHL principles.

There have apparently been thousands of civilian deaths since 2004, including women and children. However, no case of IHL violation has been formally reported. Such a breach may have been reported and looked into, but it was never made public. The IHL, on the other hand, calls for a certain level of openness and codified legal requirements. There are institutional constraints on the CIA's transparency and accountability. The CIA maintains the secrecy of its operational paperwork. 

It has been asserted in one of the reports that have been provided to the congressional committees that the training that the CIA agents receive does not include instruction on the laws of war (Shamsi, 2010). Therefore, when the CIA's drone program is compared against IHL requirements, contradictions emerge. To understand this, the Command-and-Control structure and training requirements of regular armed forces have been analysed as follows. 

Essential Command and Control Structure: The armed services are expected to build internal procedures to guarantee that soldiers who engage in targeting techniques comply with the IHL principles. In this regard, AP-I stipulates that members of the armed services must be countable to an internal mechanism to ensure conformity with the applicable standards of IHL (AP-I, art. 43).

In its manuals, the United States military recognises the requirement (Robertson, 1991).

The US defence department issued directives for the “prompt investigation of” potential “violations of the laws of war”. These directives included the “preservation of evidence” and the reporting of incidents in order to establish command channels for the "transmission of information to the “appropriate agencies, allied” governmental bodies, or other authorities. These procedures include the reporting of incidents and the preservation of evidence (DoD, Directive, 2006). 

Training and Legal Counsel: It is a requirement under IHL that the armed personnel must have access to training and legal counsel. The AP-I requires all parties to incorporate Geneva Conventions and Protocols into their military education curricula. In the same direction, for the governments, it is obligatory to make sure that Counsels are available to advise military commanders when necessary (AP-I Art.82 & 83) so that legally safe directions are taken (AP-I Art.82).

The IHL is incorporated into the United States military's training in such a way that it is represented in periodic reports, directives, and manuals. Staff training and the dissemination of information that is relevant to the law of war are two examples of the kinds of effective means that need to be developed “in order to meet the requirement of” preventing violations of the law of war (DoD Directive, 2006). Moreover, all plans and methods of engagement must be examined to ensure conformity with IHL requirements. (DoD, p.5)     For instance, the US Naval Handbook mandates ‘autonomous and rapid’ IHL training for US officers (Robertson, 1991). When it is time to apply IHL regulations, particularly in unclear and time-sensitive situations, military leaders rely on their experience and seasoned military attorneys. It is uncertain whether CIA officials conducting these evaluations have received the same rigorous training in IHL or have access to competent legal counsel.

Similar concerns regarding the CIA's transparency and accountability have been expressed by the US House of Representatives in a testimony. It emphasises the effects of the agency's secret character, stating that because the CIA is permitted to work secretly, therefore, a countervailing check is necessary since the potential for abuse of the authority is possible (Radsan, 2010). It was also stated that the prolonged employment of CIA operatives would be legally problematic without the proper incorporation into the armed forces (Lewis, 2010).

In his discussion of the legality of the CIA's operations, Keneth Anderson notes that influential "members of the international law community", i.e. human rights activists, international organisation officials, and academics, view these targeted killings as illegal and consider the CIA to be outside the defined scope of the laws of armed conflicts (Anderson, 2010). David W. Glazier said that CIA agents conducting armed attacks fall outside the boundaries of legal behaviour and should be reassessed, especially as the US moves to punish rivals for similar actions (Hearing, 2010). Before the subcommittee, the following recommendations were made about accountability. (1) Each CIA operation must be scrutinised. (2) Because each strike is lethal, the drone operator must be confident the trigger is pushed on a functional enemy combatant. Military needs and proportionality must be met. (3) After each drone strike, the CIA's Inspector General reviews compliance with standards and procedures. (4) Information on these strikes shall remain available. (5) The Inspector General must make reports public.

The concerns made before the Congressional Subcommittee show that the CIA does not place enough focus on IHL compliance (Lubell, 2010). In this regard, US Congressmen reportedly signed a letter to President Obama demanding a legal rationale for ‘signature drone attacks’ (Wood, 2012). Congressman Dennis Kucinich and 25 others stated drone strikes might increase the risks of murdering civilians. The letter requests information on the permission and execution of drone strikes, as well as the CIA and Joint Special Operations Command's legality checks (Wood, 2012).

Using a civilian organisation for bombing violates the Geneva Conventions, as shown above. This US government action seems similar to terrorists that employ civilians as human shields and disrespect international norms.

The Utilisation of Lethal Force for Targeted Killings

Targeted assassination is a method of deploying lethal force against individuals (Melzer, 2009). It is a lethal attack, and it is not carried out because the state believes the victim poses a substantial threat in future even though they are not actively engaged in hostilities (Doswald-Beck, 2006).

Targeted killings are called 'extrajudicial executions,' or 'extrajudicial killings,' 'extrajudicial punishment,' or 'assassinations' (Amnesty International, 2003). Hugo Grotius and Emerich de Vattel defined assassination as "targeting and killing enemy leaders in" a time of peace or war. Grotius viewed assassination during the war as permissible. In "armed conflict, the term assassination" refers to killings in which a single individual is killed using means clearly prohibited under the IHL framework (Addicott, 2003). In armed conflict, the term 'assassination' refers to killings in which a single individual is killed using means clearly prohibited by the application of IHL rules (Schmitt, 2009). In practice, the assignation of a combatant is not illegal at the time of ongoing armed conflict.

Target Killings in International Law: International law prohibits targeted assassinations. International law primarily applies to states. However, non-state actors, terrorist acts, and IHL and IHRL apply to targeted killings. Lethal force in a foreign jurisdiction is regulated, prohibited, or penalised through international law. International law attributes State-sponsored targeted killings (Melzer, 2009). In international law, acts are attributed to a State when they are carried out by individuals or organisations acting with the State's authorisation. Therefore, international legal responsibility for their conduct applies to these activities (ILC, 2001).

The term ‘targeting’ refers to the complete process of designating a person as a target, from individual selection to the application of fatal force, whereas the term ‘killing’ refers to the final objective and outcome of the targeting process (Melzer, 2009). In this article, “targeted killing' refers to the use of lethal force” to murder “individually selected persons who are not in the target” country's physical control. Killings through U.S Drone strikes fall in the category of state-sponsored targeted assassinations, and those killings which are conducted in the direction of responsibility of states for the behaviour of their agents are considered state-attributable killings. 

Targeted Killing under IHL: As IHL governs the actions “of non-State actors participating in armed conflicts”. There are varying points of view among different legal scholars in academic literature. By combining (suspected) terrorists with appropriate military targets, some authors have a tendency to overlook the intricacies of IHL (Downes, 2004). Others contend that the “requirement of military necessity prevents the targeted killing of a single” combatant or individual directly engaged in hostilities. In situations where such killing is militarily unjustified, either because it gives no military advantage or because the targeted individual might have been apprehended without putting the forces in an unacceptable danger, it is not permissible to carry out the killing (Schmitt, p. 640). Targeted killings under IHL raise serious questions about the high probability of mistaken targets and collateral effects, including unintentional civilian deaths and injuries (Melzer, 2008, p.56).

In the case of NIAC, Article III is "common to the Geneva Conventions of 1949" (GC-1) and ensures wide and comprehensive protection of personal life in NIAC in the zone outside the conduct of hostilities. The same articles ban the killing of anybody who is not actively engaging “in the hostilities, including members of the armed forces who have” put down their weapons. The same article applies to persons who are sick, injured, and detained.

In the same direction, "article 4(2) (a) AP-II  forbids violence to the life against and those who do not take a direct part or who have quit taking part in hostilities" (AP-II Art.1). The AP-II does not outlaw the death penalty for offences related to the armed conflict but makes its pronouncement and execution subject to strict observance of judicial and procedural guarantees (AP-II Art.2, 6 & 4). In addition, it is generally accepted that the restriction on extrajudicial killings stated in Articles III GC-1 to IV and 4 AP-II "applies to situations of non-international armed conflict" (Henckaerts, & Doswald-Beck, 2006, p.311).

In a nutshell, the prohibition is related to, firstly, "violence to life and murder of all kinds". Secondly, the imposition of penalties and executions without a final ruling "rendered by a court with a" regular structure and all the legal safeguards that civilised countries consider essential.

Outside of the territory occupied by the contending parties in an armed conflict, IHL does not apply. Furthermore, legal opinions differ on whether targeting "an individual in the territory of a non-belligerent state is governed by the conduct of hostilities paradigm under IHL or the law enforcement forces". The principles that govern law enforcement must be followed while using force in a state that is not currently engaged in hostilities. The US has used drones in each of these scenarios. In addition, the United States does not acknowledge "the extraterritorial application of human rights" law (US Department of State, 2005). One of the main substantive differences between human rights and IHL is that the latter offers a more lenient framework for the use of lethal force during wars.

Conclusion

The recent US history reveals that it has been engaged in targeted killings in many countries. In the 1970s, for instance, a thorough investigation performed "by the US Senate Select Committee (Church Committee)" determined that the CIA was involved in multiple assassination plans against foreign nationals (Zengel, 1992). The US forces conducted air raids against Libyan leader Muammar Qadhafi, attacks to hunt down Osama Bin Laden in Afghanistan, attacks against US Embassies in Nairobi and Dar-ul-Salaam in 1998 and attacks against Iraqi President Saddam Hussein at the start of the US invasion of Iraq (Melzer, 2008, p.137).

Post 9/11, on September 14, 2001, the US Congress gave power to the President to deploy forces against any organisation, any country and individuals that the President determined were involved in the planning, authorisation, commission, or aiding of the terrorist attacks (Priest, 2005). Additionally, according to reports, President Bush authorised the CIA to carry out 'lethal covert operations to bring down al-Qaida and its network by signing a classified intelligence finding. Osama Bin Laden was described by the Bush administration as wanting dead or alive. The US President instructed the agency to take any necessary action. Before September 11, lethal operations by utilising the CIA were unimaginable (Priest, 2005). For this purpose, CIA operatives went after Al Qaeda and other terrorist organisations in the bordering area of Pakistan and Afghanistan. 

On August 5, 2009, the CIA carried out an attack on a residence in which the leader of Tehrik-e Taliban Pakistan, Baitullah Mehsud, together with his wife and her parents, were residing. Additionally, it was believed that he was the mastermind behind Benazir Bhutto's (former Prime Minister of Pakistan) assassination. When the missile hit, he was receiving medical treatment. Reportedly, his spouse, in-laws, and eight bodyguards perished on the spot. According to some reports, the United States government carried out as many as 16 efforts to eliminate Mehsud through the use of drone strikes (O’Connell, 2009). The CIA's drone operation in Pakistan carried out another attack on July 6, 2012, which resulted in the deaths of dozens of civilians who were attending the funeral. It was alleged that a total of six missiles were fired during the triple attack that took place that evening on a residence in Datta-Khel. As a result, a maximum of 24 persons were reportedly murdered (Daily Dawn, 2012; also see O'Connel). In both of these incidents, the civilians were not given a chance or warning to flee from alleged targets. Hague-IV article compels commanders to warn the authorities before bombardments. In this way, separating civilians from terrorists can limit collateral damage.

In numerous other instances, drone strikes violate fundamental IHL norms. These norms serve as the basis for the codification of the customary laws of war. In armed conflict, the civilian objects and populations must be respected and safeguarded, and they must be separated from combatants and military targets for this reason. According to the IHRL, force should be employed in a graded manner, and the use of fatal force is permitted only as a method of last resort and only when absolutely required in the face of death or a substantial risk of injury.

For legal assessment specific to CIA operatives, it can be concluded that the CIA's direct involvement in waging war by launching missiles at their intended targets constitutes a blatant breach of the norms that govern the application of IHL and HRL. Under US domestic law and IHL, the CIA as a civilian agency cannot assume the responsibilities of regular armed troops since such forces are trained and held accountable for their actions.

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