The Obama Administration has made great efforts to deflect criticisms of its drone policy. In May, President Obama delivered a major address at the National Defense University in which he defended the legality of drone strikes but suggested that US policy was shifting. In August, Secretary of State Kerry indicated in an interview on Pakistani television that the US was winding down its drone campaign. Critics, however, view these assurances skeptically, and the Washington Post reports that drone strikes continued throughout the fall (apps.washingtonpost.com/foreign/drones). There are numerous possible objections to the current practice of drone strikes; however, one of the core questions is a legal one: can drone strikes be reconciled with the laws of war? The answer to this question is yes, but not in every case and only with certain restrictions.

To target foreign terrorists raises questions related to the rule of distinction. That rule requires parties in a conflict to distinguish between combatants and noncombatants. Campaigns against terrorist organizations present a challenge to the rule, because terrorists do not belong to the armed forces of any state; hence, it is difficult to know whether they should be classified as combatants or civilians. Terrorists are an unusual version of the “irregular” combatant. Irregulars are civilians who participate in military hostilities temporarily (perhaps in the course of a foreign invasion or occupation), thereby forfeiting temporarily the protections afforded civilians by the laws of war, as established in international treaties such as the Geneva Convention. So long as irregulars act as soldiers, they are legitimate objects of attack. When they cease to act as soldiers, they regain civilian immunity.

A key question concerning terrorists, therefore, is when are they combatants and when are they civilians? One might argue, appealing to the laws of war, that terrorists can be considered combatants only during the time when they are carrying out a violent deed (e.g., driving a suicide truck into a military check point, planting a bomb, and so forth). Yet such an argument would overlook important dimensions of the problem. International terrorist organizations like al-Qaeda are engaged in planning and perpetrating terrorist attacks on a permanent basis. In this respect, they are analogous to an armed force. Active members of al-Qaeda, in turn, are analogous to the soldiers of an armed force. We therefore rightly think of al-Qaeda’s active members, especially its leaders, not as civilians who have temporarily taken up arms, but as permanent combatants. To grant such persons the same immunities afforded civilians would undermine the difference that makes the rule of distinction morally meaningful.

Indeed, no less impeccable a humanitarian organization than the International Committee of the Red Cross has suggested that, under certain circumstances, global terrorists can be considered permanent combatants. In 2009, the ICRC adopted an Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Law. Since under the laws of war civilians lose immunity from direct attack whenever they “participate directly in hostilities,” the ICRC has sought to clarify what “direct participation in hostilities” means. According to the Interpretive Guidance, such participation is constituted by activities with a direct causal link to an act or military operation intended to harm a party to a conflict. The concept of direct participation therefore functions restrictively. Civilians who sympathize with one party to a conflict, and even civilians who offer non-military support to that party (e.g., food or shelter), are not legitimate objects of attack. Only when individuals are involved in activities directly intended to cause harm, do they become irregular combatants and legitimate objects of attack.  

Even while seeking to circumscribe the definition of “direct participation in hostilities,” however, the Interpretive Guidance also allows that certain irregulars can become permanent soldiers, in effect, by assuming a “continuous combat function.” Irregulars assume a continuous combat function by virtue of their membership in an “organized armed group.” An organized armed group is “the armed or military wing of a non-State party; its armed forces in a functional sense” (International Review of the Red Cross, Vol. 90, No. 872, page 1,006). Members of such organized armed groups are legitimate objects of attack. As the Interpretive Guidance explains:

Civilians lose protection against direct attack for the duration of each specific act amounting to direct participation in hostilities, whereas members of organized armed groups belonging to a non-State party to an armed conflict cease to be civilians, and lose protection against direct attack, for as long as they assume their continuous combat function. (996)

Again, the concept of “continuous combat function” functions restrictively. Not every civilian who sympathizes with or supports a non-state party to a conflict is a legitimate target, but only those individuals who assume membership within the organized armed group of a non-state party.

Clearly al-Qaeda is an organized armed group involved in a conflict with the United States. The leaders of al-Qaeda, engaged in planning and executing terrorist attacks, have a continuous combat function, and as such they are legitimate objects of attack. Al-Qaeda operatives like Osama bin Laden and Anwar al-Awlaki are not civilians, but irregular combatants. If US armed forces target and kill such persons, this is in keeping with the rule of distinction. Drone strikes that target terrorists are, in principle, compatible with the laws of war.

This does not mean that drone strikes always comply with the laws of war in practice. Critics claim the strikes are insufficiently ­discriminate, having killed thousands of civilians, while ­government officials claim civilian causalities have been negligible to nonexistent. Part of the problem behind this numbers game arises from confusion about who counts as a combatant. On the one hand, humanitarian critics incline to define irregular combatants so narrowly that almost anyone killed, even those affiliated with al-Qaeda, are civilians. On the other hand, the administration’s definition of irregulars is so vague that many civilians can easily be classified as combatants. What is needed are clear and public criteria explaining the basis on which those supervising drone strikes determine who counts as a target. It is one thing to target high level al-Qaeda operatives with a clear continuous combat function; it is quite another thing to target al-Qaeda sympathizers, or anyone who has ever interacted with an al-Qaeda operative.

Unfortunately, the legal justifications for drone killing offered by this administration (whose chief executive was once a law professor) have been flaccid. A Department of Justice white paper obtained by NBC News in early 2013 claimed drone strikes were justified in situations where “the targeted individual poses an imminent threat of violent attack against the United States.”¹ But the United States has carried out over four hundred drone strikes since Obama became President. To claim that every one of these has forestalled an imminent terrorist attack strains credulity. The white paper implicitly concedes as much, asserting that “the threat posed by al-Qaeda and its associated forces demands a broader concept of imminence in judging when a person continually planning terror attacks presents an imminent threat.” When, however, imminence is flattened out to include attacks that are not imminent in any normal sense of the word, the criterion has become meaningless. Nor need the concept of imminence be made to bear such weight. In armed conflicts between states, the targeting issue is not imminence but status; individuals with combatant status are legitimate targets, civilians are not. Similarly, when confronting organized armed groups belonging to non-state parties, the targeting issue is whether or not the individual in question has a continuous combat function.

Rather than playing fast and loose with ­the concept of imminence, the White House would do better to articulate criteria to determine when an individual participates directly in hostilities and when he assumes a continuous combat function. Making those criteria public would be better than the administration’s current strategy for defending drone strikes, which consists mostly in having President Obama protest that, since he is a liberal who criticized the executive branch as a senator, he can be trusted to make the right decisions. As a matter of fact, some drone strikes, such as the so-called signature strikes carried out under Obama’s administration, violate the rule of distinction. Signature strikes do not target specific persons, but groups of people engaged in suspicious activities. Insofar as those individuals are not identified, however, they cannot be identified as having a continuous combat function, while to target groups for being suspicious is insufficiently discriminate.

At the moment, the moral and legal framework regulating US drone strikes is quite unclear. Were the executive branch to develop public criteria for assessing continuous combat function, this would contribute greatly to the development of institutional guidelines for the use of a weapon that has become a regular part of the American military arsenal. Drone strikes can be justified or unjustified. The US needs a policy capable of recognizing the difference.

H. David Baer is Associate Professor of Theology and Philosophy at Texas Lutheran University.

Endnotes

1. The full text of this white paper is available at http://msnbcmedia.msn.com/i/msnbc/sections/news/020413_DOJ_White_Paper.pdf.