War Criminals in the CIA?

The UN is about to deliver a report questioning the legality, under international law, of the use of unmanned drones by the CIA

The New York Times is reporting that Philip Alston, the United Nations special rapporteur on extrajudicial, summary or arbitrary executions, will ask the Obama Administration to cease conducting drone strikes (most common in Pakistan) under the auspices of the CIA.  The use of drones (bombers controlled remotely from the safety and comfort of the CIA headquarters in Langley, VA) is a pretty poorly held secret.  While there is no official admonition of the program by the US, drone strikes have increased dramatically under Obama – the Long Wars Journal notes that the drone strikes have increased from 5 in 2007 to 53 in 2007.

[tweetmeme] Alston, whose views are not legally binding, is suggesting that control of the drones be moved from the CIA to the Department of Defense (DOD).  The questionable legality under international law of the CIA running the drones centers around the concept of ‘battlefield immunity’ (where uniformed soldiers cannot be prosecuted for killing other uniformed soldiers).  Alston argues:

“With the Defense Department you’ve got maybe not perfect but quite abundant accountability as demonstrated by what happens when a bombing goes wrong in Afghanistan,” he said in an interview. “The whole process that follows is very open. Whereas if the C.I.A. is doing it, by definition they are not going to answer questions, not provide any information, and not do any follow-up that we know about.”

As The Majlis points out, a move in command from the CIA to the DOD would not make the drone operations more transparent to the public (‘despite the potential benefits of transparency‘), but could perhaps ‘add a degree of critical scrutiny’ to the usage of drones.  It is really unknown how strategically or tactically effective the drones are as there are varying reports on the number of civilians killed by the strikes (to complement qualitative consequences such as how the drones encourage radicalization among Pakistani civilians).

The legality of the drone program has already been an issue for the United States.  In 2007 , the Bush Administration released a manual that described the rules for a military tribunal.  The original described the charge (taken from the NYTimes article)

of “murder in violation of the laws of war” as a killing by someone who did not meet “the requirements for lawful combatancy” — like being part of a regular army or otherwise wearing a uniform.

However, it was pointed out by the State Department legal adviser that such language endangered the CIA drone operators to be classified as war criminals, as they do not wear a uniform.  The final draft changed the wording slightly to avoid this legal obstacle course.  Currently, CIA drone operators could be charged in a domestic court in Pakistan for their actions.  Importantly, Alston

said he agreed with the Obama legal team that “it is not per se illegal” under the laws of war for C.I.A. operatives to fire drone missiles “because anyone can stand up and start to act as a belligerent.” Still, he emphasized, they would not be entitled to battlefield immunity like soldiers.

The switch of command from the CIA to the DOD might shine some light on the murky legal abyss of the use of drones, or it might not.  Ultimately, it would be best for the US to officially acknowledge the use of drones or simply give up on them.

Photo from Liquid Matrix

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