Mission Impossible? International Law and the Changing Character of War

• Author: John F. Murphy
• Position: Professor of Law, Villanova University School of Law
• Pages: 13-40

II

Mission Impossible? International Law and

the Changing Character of War

John F. Murphy*

As aparticipant in the conference "International Law and the Changing

Character ofWar," in this article Ihope to present and support the thesis re-

flected in the title to this essay, i.e., that the use and abuse of international law and

the changing character ofwar have combined to place major obstacles in the way of

the successful prosecution of armed conflict by US forces and their allies. In sup-

port of this thesis, Ishall be drawing extensively on examples arising out of "the

changing character of weapon systems" panel, but Ishall also be exploring other

dimensions of "the changing character of war" to buttress this support.

I. Challenges Posed by the Changing Character of Weapon Systems

In the panel "The Changing Character of Weapon Systems: Unmanned Systems/

Unmanned Vehicles," an overarching theme was the issue whether the use of these

new weapon systems was compatible with international law. As noted in particular

in Professor Pedrozo's article, 1the criticisms ofthe use of unmanned systems to at-

tack adversaries outside oftraditional combat zones like Afghanistan and Iraq have

*Professor of Law, Villanova University School of Law. Iwant to acknowledge the excellent re-

search assistance of John (Sean) E. Jennings III and Carolyn (Carly) Studer, third-year students

at Villanova University School of Law, on this article.

Mission Impossible? International Law and the Changing Character of War

been especially sharp. The primary focus of the critics has been on the Central In-

telligence Agency's (CIA) use of armed drones, aprime example of an unmanned

aerial system or unmanned aerial vehicle, to kill leaders of the Taliban or Al-Qaeda

in the Federally Administered Tribal Areas (FATA) of Pakistan.

Imake no attempt to address all of the numerous arguments advanced by the

critics of the drone attacks, but rather limit my discussion to two closely related ar-

guments: first, that the civilian nature of the CIA personnel utilizing the armed

drones precludes them from engaging in armed conflict, and if they engage in

armed conflict, this renders them "unlawful combatants"; and second, outside of

Afghanistan and Iraq, the United States is not engaged in an armed conflict with

the Taliban, Al-Qaeda or any other militant or terrorist group. If such attacks occur

outside of an armed conflict, they must be treated as criminal acts and not armed

attacks that give rise to the right to use military force in self-defense. Rather, they

must be combated by law enforcement measures and governed by international

human rights law, not the law of armed conflict, or, as some prefer to call it, inter-

national humanitarian law. Because armed drones are not law enforcement tools,

the critics contend, they may not be used outside of combat zones.

The Effect of the CIA's Status as aCivilian Government Agency

One of the most persistent critics of the CIA's use of armed drones has been Mary

Ellen O'Connell, holder of the Robert &Marion Short Chair in Law at Notre Dame

University. According to Professor O'Connell, the CIA is not bound by the Uni-

form Code of Military Justice of the United States to respect the laws and customs

of war and therefore it does not.2Moreover, according to O'Connell:

Under the law of armed conflict, only lawful combatants have the right to use force

during an armed conflict. Lawful combatants are the members of astate's regular

armed forces. The CIA are not members of the U.S. armed forces. They do not wear

uniforms. They are not subject to the military chain of command. They are not trained

in the laws of war, including the fundamental targeting principles of distinction, neces-

sity, proportionality, and humanity.3

O'Connell's remarks presume that the law of armed conflict governs the CIA's

use of armed drones in the FATA in Pakistan. This is adebatable point; we shall re-

turn to the issue below. But assuming arguendo that it does, the law of armed con-

flict does not prohibit civilians, including intelligence agents, from participating in

hostilities. As Pedrozo points out,4even Philip Alston, the UN Special Rapporteur

on extrajudicial, summary or arbitrary executions, in his study on targeted killings,

has conceded this point. 5Moreover, the use of armed drones by CIA personnel

does not necessarily constitute awar crime if it results in adeath in the FATA.6

14