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If Moammar Gadhafi's forces could retaliate against the airmen in Nevada who are firing Hellfire missiles from unmanned planes over Libya, would it be legal for them to do so?
Defense Department officials and most legal scholars agree remotely piloted aircraft pilots in the U.S. are considered legal combatants and could be targeted by other legal combatants of another nation-state. Terrorist groups such as al-Qaida or the Taliban have no legal standing to hit U.S. forces or any legal combatants of a nation-state.
"Because terrorists such as al-Qaida and its affiliates operate without state authority, they have no lawful targets," said one senior Defense Department official with a legal background. "It is equally illegal for an al-Qaida terrorist to target a U.S. military member, a government civilian, a defense contractor or a member of a nongovernmental relief organization."
Members of such groups have been prosecuted for attacking purely military targets, including the al-Qaida perpetrators who bombed the destroyer Cole in 2000.
Attacks by uniformed forces on other uniformed forces, though, are fair game, said retired Maj. Gen. Charles Dunlap, a former Air Force deputy judge advocate general.
Further, RPA pilots in uniform, even when they are off duty, are still considered legitimate military targets, said Dunlap, now associate director of Duke University's School of Law Center on Law, Ethics and National Security.
Retired Air Force Col. Michael Schmitt, who directs research at Durham University's law school in Britain, described every service member as "a valid target, period, no matter what you do," except for clergy and medical personnel.
It is a problem the Air Force is keenly aware of, which is why one source said the service last year stopped allowing RPA pilots to be identified in news reports.
If legal combatants target an RPA operator where a civilian population could be harmed, the burden is on the attacking power to use what Schmitt called proportional force. He said the collateral damage to civilian life anticipated as the result of an attack "must not be excessive" compared to the military gain.
For example, a targeted raid by special operations forces would be considered justified while the obliteration of a town to kill an individual more than likely wouldn't be. Expected civilian casualties, but not actual causalities, must be factored into the proportionality calculation from the outset.
"You can conduct an operation knowing that you will cause harm, but that cannot be your purpose," Schmitt said. "You cannot directly target civilians."
The Pentagon does not dispute combatants can be legitimately targeted but adds an enemy could still be prosecuted for attacking civilians, unless the civilians were participating in hostilities.
"In such a conflict, provided that their conduct does not otherwise constitute a war crime … members of the foreign force could benefit from ‘combatant immunity' from prosecution for targeting U.S. combatants," the DoD official said.
Dunlap agreed a civilian who takes up arms is considered a legitimate combatant.
Schmitt noted there is a "huge debate" over whether a civilian not immediately participating in hostilities is targetable.
For example, is an RPA operator for the CIA who is off duty still a valid target? Is the person launching the weapon the only valid target, or is the sensor operator a valid target, as well? What about contractors who build and maintain UAVs? What about contractors loading missiles onto an unmanned aircraft?
A civilian who belongs to an organized armed group such as Hezbollah, is the clearest exception, Schmitt said.
The DoD official pointed out the exception to attacking civilians participating in armed conflict is not only well established but fairly broad and could include civilian leaders of militaries, technicians engaged in operating or repairing military equipment during hostilities, and logistical support.
"This is not an especially novel phenomenon, nor is it unique to the context of remotely piloted aircraft," the official said.
Civilian unmanned aircraft pilots forfeit their protection from military attack, Schmitt said, and could be prosecuted in the country where the airstrike took place.
And such an operator could potentially be prosecuted by a third nation if the airstrike targeted a citizen of that nation, Schmitt said. For example, a U.S. civilian unmanned aircraft operator who hit a Yemeni citizen during a strike over Libya could be prosecuted under both Libyan and Yemeni law.
Uniformed troops cannot be prosecuted because of their "belligerent immunity" in the same situation, Schmitt said.
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