Just Security readers are now familiar with the German Federal Prosecutor General’s opinion regarding a 2010 drone strike in Pakistan attributed to the CIA. The opinion is remarkably supportive of the strike’s legality, particularly due to their assumption that the CIA ran the operation. Among the holdings supporting its legitimacy under German and international law, the prosecutor maintains that the US intelligence operatives believed to be involved in the strike qualified as armed forces under international law. By implication, though not directly addressed by the German prosecutor, this would entitle them in some circumstances to combatant immunity. As a member of the armed forces who benefits from this status, I am loath to begrudge extending the same protection to any American who supports US security. Yet expanding that status under these circumstances stands in opposition to a long held US position regarding the law of armed conflict, a position that makes the United States an outlier in the international community.

The German opinion finds authority to grant the CIA operatives combatant status under Article 43, paragraph 1 of Additional Protocol I to the Geneva Convention. The Article states, “The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates….” The Prosecutor declares:

Although the relevant CIA units and their weapons systems are not integrated into the military command structure, they do in fact act under the command of higher-ranking government agencies, which in turn exercise responsibility for military deployments; thus, a “responsible command” answerable to a party to the conflict is indeed given in the case at hand.

Additional factors the prosecutor relied on include the operatives’ coordination with military units in Afghanistan, with whom they share common objectives, armaments, and organization. Whether drone operators wore distinctive military insignia while piloting drones, presumably from a distant area where non-participating civilians would face no risk, was not considered a factor.

The United States famously declined to join Additional Protocol I, a subject of routine criticism ever since (over 170 states have ratified the Protocol and many consider portions to be customary international law, including the United States). One of the objections President Reagan highlighted when transmitting the Protocol to the Senate noted the importance of distinction:

[The Protocol] would grant combatant status to irregular forces even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population and otherwise comply with the laws of war.

This issue was considered so incompatible with acceptable practice that the US rejected Protocol I in its entirety, despite the option to submit reservations to specific items while ratifying the “meritorious elements.”

Applying the transmittal letter’s reasoning to the aerial drone strike’s facts, it is unlikely that a US Attorney General would make similar findings with regard to CIA operatives’ participation. The opinion avoids a crucial issue by assuming the operatives carried out this mission from a remote location, presumably where an enemy could not strike, making distinction by insignia unnecessary (why the opinion assumed operatives were distant from the battlefield is unclear, though it certainly made it easier to reach the Prosecutor’s conclusion).

In a world where technology increasingly makes distance less relevant, it is likely that adoption of this rule would eventually endanger civilians. Would the reasoning change if an enemy develops the capacity to strike back at those distant attackers? At what proximity to the battlefield does an operative’s lack of distinctive marking become a legal issue?

The German opinion stops its analysis at paragraph 1 of Article 43, but AP I’s analysis goes further. Paragraph 3 states:

Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict.

The US Department of Defense Dictionary of Military and Associated Terms describes paramilitary forces as, “[f]orces or groups distinct from the regular armed forces of any country, but resembling them in organization, equipment, training, or mission.” This coincides almost perfectly with the Prosecutor’s justification for including them among the armed forces. However, if the United States had wanted to cloak the CIA in the Geneva Convention’s protection, it should have notified other parties to the conflict (the U.S. Government has not acknowledged CIA involvement in drone strikes). The Prosecutor does not acknowledge this requirement.

It is doubtful that anyone benefiting from this opinion will debate its conclusions, and perhaps it is best left unchallenged. Yet the next time the international community is faced with a similar situation, it may involve the status of other types of non-combatants, such as irregular forces rebelling against the Ukrainian Government. Before the German Prosecutor’s reasoning on this issue gains traction, the United States might be wise to reject it publicly, reassert the objections to Additional Protocol I, and provide a legal basis for the participation of some civilians in lethal operations.

Left to a policy preference, which would be the better choice? Allowing CIA operatives to benefit from combatant immunity while also being considered lawful targets at all times, or maintaining their status as unlawful targets when not directly participating in hostilities who may face criminal liability for hostile actions. Against the lawless foes faced in Afghanistan and Pakistan, perhaps neither presents practical advantage. Nevertheless, the German opinion offers persuasive arguments that might gain support in the international community. Reaffirming US commitment to the principle of distinction might prevent its diminishment on other battlefields.