Unmanned Aerial Vehicles (UAVS), or drones, have become more prevalent in modern warfare. Countries like the United States that once raced for the development of the atomic bomb today load their arsenals with drones. This remote technology has since supplied participating governments with an edge to successfully combat attacks behind a screen miles away from the target. Reportedly, the United States makes great use of two different drone models to conduct targeted killings during armed conflicts.[i] The first model is intended for gathering intelligence and carrying surveillance capacities, whereas the other is utilized to carry out killings. Despite these advances in drone warfare, the pilots operating them, both in the Military and the CIA, are not being treated with equality of immunity and do not receive the same training in the law of war. The aftermath of which opens the door for (1) counterattacks against unprotected operatives; and (2) criminal liability to attach as the drone agents are performing targeted killing assignments as ordered by their employer—the U.S. government.

Drone strikes are ordered from the President’s bureau and carried out by one of two entities: the military program, which the government relies on by enlisting the help of the Department of Defense’s Joint Special Operations Command (JSOC) or the Central Intelligence Agency’s UAV unit.[ii] Despite conducting the most drone strikes out of the two programs, the officers taking part in the CIA’s program—unlike the JSOC military pilots—are not offered immunity for the targeted killings that they are ordered to carry out during the ongoing armed conflict.[iii] Additionally, they are not trained in the law of war.[iv] This is because, under international law, CIA agents are not deemed combatants requiring “combatant protection” and “combatant knowledge.”[v] A combatant is defined as a member of armed forces who has the right to directly participate in hostilities.[vi]

Military drone pilots working for JSOC have been recognized as legitimate members of the U.S. armed forces; as a result, the term “combatant” has been extended to them, conferring on them the authority to use lethal force in the course of armed conflict against adversary combatants. The same cannot be said for the CIA program, a civilian-run fleet that only positions civilian intelligence officers and private contractors behind the joystick. Under, Article 51(3) of the Additional Protocols to the Geneva Conventions I and Article 13(3) of the Additional Protocols to the Geneva Conventions II, “[c]ivilians shall enjoy . . . protection . . . unless and for such time as they take a direct part in hostilities.”[vii] Accordingly, as civilians firing drones on behalf of the United States, CIA UAVS drone operatives are partaking in straightforward hostilities and concomitantly foregoing protection from counterattacks.

For this reason, a CIA agent’s participation in targeted killings, which is undoubtedly part of the job, can be self-compromising. Under the current laws, their complicity makes them susceptible to the consequences of the activities they are tasked with during their employment. In turn, these CIA agents grow vulnerable because they run the risk of becoming targets themselves, being prosecuted for murder under the laws of the country in which they conduct targeted drone killings and prosecution for violations of applicable U.S. law.

Although the U.S. government prosecuting its own pilots for violations of U.S. law is not highly likely, the former is still a considerable possibility. To remedy this disparity in the law, the President would need to exercise his treaty power under Article II, Section 2 of the U.S. Constitution. Wherefore, the President can call for the immunity of CIA drone pilots engaged in targeted killings by entering treaties with countries that would respect the extension of this legal shield. While this may sound like a paradoxical proposition at first glance—asking for immunity and not for combatant status—to argue otherwise would contradict the law of war which does not support the combatant protections of CIA drone personnel. Accordingly, to protect its CIA drone operatives, the U.S. government should take the lead in arming them with immunity and informing them of the consequences of their actions under the law of war.

[i] See Milena Sterio, The United States’ Use of Drones in the War on Terror: The (Il)legality of Targeted Killings under International Law, 45 Case W. Res. J. Int’l L. 197, 198 (2012).

[ii] Id.

[iii] See Greg Miller, CIA remains behind most drone strikes, despite effort to shift campaign to Defense, Wash. Post (Nov. 25, 2013), https://www.washingtonpost.com/world/national-security/cia-remains-behind-most-drone-strikes-despite-effort-to-shift-campaign-to-defense/2013/11/25/c0c07a86-5386-11e3-a7f0-b790929232e1_story.html; see also Donna R. Cline, An Analysis of the Legal Status of CIA Officers Involved in Drone Strikes. 15 San Diego Int’l L.J. 51, 144 (2013) (discussing how CIA Drone Pilots do not have the same immunity extended to the military pilots because they are considered civilians as opposed to members of armed forces and are therefore “not entitled to take part in hostilities in times of armed conflict”).

[iv] See Mary E. O’Connell, Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004-2009, Notre Dame Legal Studies Paper No. 09-43 (“CIA operatives are not trained in the IHL rules governing the use of force and there is evidence the rules are being violated in the context of Western Pakistan: Drones kill many unintended victims for each intended one, raising questions of proportionality.”).

[v] Id.

[vi] See Immunities, ICRC, https://casebook.icrc.org/glossary/immunities (last visited March. 1, 2023).

[vii] Kai Ambos, Once Again: Drone Killings and International Law, OpinioJuris (June 9, 2021), http://opiniojuris.org/2021/09/06/once-again-drone-killings-and-international-law/.