Lost in the debate over whether the Obama administration had the right to carry out the extra-legal execution of Anwar al-Awlaki, the American-born Yemeni cleric and al-Qaeda member, is who pulled the trigger? It is not a minor question, and it lies at the heart of the 1907 Hague Convention, the 1949 Geneva Conventions, and the 1977 additions to the ’49 agreement: civilians cannot engage in war.
In the main, laws of war focus on the protection of civilians. For instance, Article 48, the “Basic Rule” of Part IV of the 1977 Geneva Conventions, states, “In order to ensure respect for and protection of civilian populations and civilian objects, the Parties to the conflict shall at all times distinguish between civilian populations and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”
What follows in the 1977 Conventions are nine articles specifying what the general rule means, ranging from prohibitions against attacking power plants and water sources and spreading “terror among civilian populations” to destroying the “natural environment.” There are many civilian-related sections in other parts of the Conventions, but the 10 articles that make up Chapter I, Section I, Part IV on “Civilian Population” are the clearest guidelines about what is allowed when civilians are caught up in war.
The Conventions were mainly a response to the horrors of World War II, where civilian deaths were more than twice those on the military side. Of the approximate 80 million people who died in WW II, 55 million of them were civilians. In comparison, out of some 17 million who died in World War I, seven million were civilians.
The logic behind Article IV of the Conventions is that civilians are innocent bystanders, with no ability to defend themselves or inflict damage on an antagonist. However, if civilians take part in hostilities, they lose their protected status. If the warring parties have an obligation to protect non-combatants, civilians also have obligations, the most important of which is that they do not act as soldiers.
In short, if someone takes a pot shot at you, it is irrelevant if he or she is a civilian, by their actions they are no longer innocent bystanders. Members of a resistance movement may not wear uniforms or be part of a military organization, but if they blow up your Humvee or ambush your patrol, they are combatants.
Which is why the question of who killed Anwar al-Awlaki (and over 2,000 people in Pakistan, Somalia, and Yemen killed by drones) is relevant. If the cleric was killed as part of a military operation—as with, for instance the assassination of Osama bin-Laden—then the arguments are around issues like whether we have the right to execute enemies without a trial (the Conventions say we don’t), or violate another nation’s sovereignty.
But al-Awlaki was not taken out by Navy Seals, he was assassinated by a member of the Central Intelligence Agency, the organization that runs the drone wars in Pakistan, Yemen and Somalia. CIA members are civilians. Indeed, the new director, David Petraeus, formally resigned his Army commission to make that point. Even if he had not, however, the CIA is not a military organization and is not under the control of the Joint Chiefs of Staff.
Why is this important? Because if civilians in the U.S. are killing combatants in another country, then those civilians lose their protection under the Conventions. Worse, it means all U.S. civilians become potential targets. If a CIA employee based in Afghanistan, the Arabian Peninsula, or Djibouti in Africa kills a Pakistani, Somalian, or Afghan with a Hellfire missile fired from a Predator drone, one can hardly complain if everyday U.S. citizens are targeted for retaliation.
One could argue that, since al-Awlaki was an American citizen, the hit didn’t really contravene the Conventions and the arguments should be over whether you can order the killing of an American citizen without due process. However, others targeted by the drone war—like members of al-Qaeda, the Taliban, the Haqqani Group, and the Somali Shabaab—do not fall in this category.
According to the CIA, the drone wars have killed no civilians. “There hasn’t been a single collateral death because of the exceptional proficiency, precision of the capabilities we’ve been able to develop,” John O’Brennan, the Obama administration’s counterterrorism advisor told the New York Times.
That assertion is almost beyond ridiculous. Even a supporter of the drone war like Bill Roggio, editor of The Long War Journal, says the claim is “absurd.” The United Kingdom based Bureau of Investigative Journalism found that out of the 2,292 people killed by drones in Pakistan, 775 of them were civilians. Pakistan journalist Noor Behram puts the total much higher, telling The Guardian (UK), “For every 10 to 15 people killed [by drones], maybe they get one militant.”
The U.S. claim, however false, allows the drone war to continue. There is nothing in the Conventions that bars lying.
The Obama administration (and the previous Bush administration) argue that drone war is part of the “war on terror” that Congress mandated after the 9/11 attacks: hence we are at “war” with at least the Taliban and its allies, the Shabaab, and al-Qaeda. But the CIA still has no authority to execute a war. The last two run by the organization—the war in Laos and the Contra war against Nicaragua—were not only unmitigated disasters, they were illegal.
Many countries have already stretched the Geneva Conventions to the breaking point with regards to civilians and the treatment of prisoners. For instance, by using the term “collateral” to describe civilian deaths, a country sidesteps the Convention’s stricture against “deliberate targeting” of civilians by claiming the damage was “inadvertent.” By calling insurgents “combatants” rather than “soldiers,” the U.S. has waterboarded people, thus finessing both the Conventions and the 1984 UN Convention Against Torture.
One could get cynical about this—aren’t civilians always the victims of war?—but in their own uneven way, the Geneva Conventions have protected civilians. Indeed, it was the Conventions that led to what is now an almost worldwide ban on landmines and may end up eliminating cluster weapons in the future. The fact that laws don’t always work, or that people of ill will figure how to contravene them, is an argument for greater adherence to the rules, not ignoring or contravening them.
The danger is that the U.S. is blurring the difference between civilian and military, and that is a dangerously slippery slope. We already have a former general running the CIA, and former CIA Director Leon Panetta heads up the Defense Department. If we reach a point where there is nothing to distinguish our military institutions from our civilian ones, then all of us are fair game.