The standards governing America’s drone assassinations may violate the Geneva Conventions and other international norms, legal experts say.
U.S. forces routinely classify bystanders felled in its Afghanistan drone strikes as “enemies killed in action,” even when they are not the intended targets of the strikes, according to a source and to documents obtained by The Intercept published earlier this month. But the Geneva Conventions specify that when someone’s status is not clear, they should be classified as a civilian. Article 50 of Additional Protocol I, which dates to 1977 and was ratified by 174 countries, says that “in case of doubt whether a person is a civilian, that person shall be considered to be a civilian.”
A landmark document from the International Committee of the Red Cross in 2009 expands on this rule:
All feasible precautions must be taken in determining whether a person is a civilian and, if so, whether that civilian is directly participating in hostilities. In case of doubt, the person must be presumed to be protected against direct attack. … In case of doubt as to whether a specific civilian conduct qualifies as direct participation in hostilities, it must be presumed that the general rule of civilian protection applies.“
The U.S. failed to ratify Protocol I after signing it, and the Red Cross’ legal guidance has been controversial, at least within elements of the U.S. defense establishment. But until now it’s been unclear to what extent the U.S. would depart from treaties and other influential documents related to classifying casualties whose civilian status is unclear.