Today, the UN Special Rapporteur on human rights and countering terrorism, Ben Emmerson QC, issued an interim report on his international investigation into drone strikes and targeted killings. The report, together with a report by the UN Special Rapporteur on extrajudicial executions, Christof Heyns, will be debated at the UN General Assembly on October 25, 2013.
This post provides a brief, descriptive outline of the interim report issued today.
Emmerson’s interim report provides an update on the progress of the Special Rapporteur’s drone strike study, launched in January 2013. (Note: I am one of the numerous individuals being consulted as part of this investigation). The study itself will be reported to the UN Human Rights Council in 2014, and will detail “33 sample remotely piloted aircraft strikes that appear to have resulted in civilian casualties” as well as the views of the states alleged responsible for the strikes, with whom the Special Rapporteur is “currently engaged in dialogue” (¶21).
The report released today provides a brief overview of drone capabilities, uses, and reported civilian casualties in various locations (Pakistan, Yemen, Libya, Somalia, Afghanistan, Gaza, Iraq) (¶¶25-40); accountability and transparency legal obligations, and existing practices in the US, UK, and Israel (¶¶41-50); and key areas of ongoing legal controversy (¶¶51-76). The controversial legal areas identified include: the existence of an unwilling or unable test in the law of self-defence (¶¶55-56); the legal scope of imminence ¶¶57-58); any legal geographic limits on armed conflict (¶¶62-65); the legal definition of “armed group” and “associated forces” (¶¶66-67); and individual targeting criteria (¶¶69-72).
Some of the report’s findings and recommendations include:
- Drones and humanitarian law. Drones can, where used in “strict compliance” with humanitarian law, reduce civilian casualties by improving situational awareness (¶¶22, 77).
- Transparency. The “single greatest obstacle” to assessing civilian impacts is the lack of transparency (¶41). The report agrees with earlier statements by the UN High Commissioner for Human Rights that the lack of transparency “creates an accountability vacuum and affects the ability of victims to seek redress” (¶41). The report urges the US to “clarify its position on the legal and factual issues,” and to “release its own data on the level of civilian casualties” (¶80).
- Investigations. A government must undertake a fact-finding inquiry whenever “civilians have been, or appear to have been, killed,” (¶78) and publicly provide a “full explanation,” subject to appropriate national security redactions (¶45).
- Yemen strikes and consent. Yemen told the Special Rapporteur that the US seeks prior consent before each strike, and that if “consent is withheld, a strike will not go ahead” (¶52). The report also notes that the US engaged in an “apparent effort to minimize civilian loss of life,” and that the US does not appear to have caused “large-scale” civilian deaths in Yemen – except for the 2009 al Majalah cruise missile (not drone) strike, in which 40 individuals were reportedly killed (¶35).
- Pakistan strikes and consent. The report notes that Pakistan states it confirmed 400 civilians killed (¶32). The report also notes that there has been a “marked drop” in reported civilian casualties during 2012-2013 (¶33). There is “strong evidence” that between 2004 and 2008, Pakistani intelligence and military officials consented to US strikes, and that senior government officials acquiesced and at times gave “active approval” (¶53). However, the report states that only the democratically elected Government of Pakistan can provide legal consent to US strikes, and (now) only in accordance with consent procedures announced in a 2012 parliamentary resolution. Any current cooperation “at the military or intelligence level” does not “affect the position in international law” (¶54). On this basis, the report finds that there is currently no legal consent, and thus that the continued US use of force in Pakistan violates Pakistani sovereignty (absent valid US self-defence).
- Afghanistan strikes. The report states, citing UNAMA, that drone strikes “appear to have inflicted lower levels of civilian casualties” than manned airstrikes, but notes that this “assessment has recently been called into question by media reports citing research that reached the opposite conclusion” (¶30, fn. 8). The report also refers to a partially declassified US investigation report suggesting that, in one 2010 drone strike, a Predator crew engaged in “inaccurate and unprofessional reporting” (¶31).
- Libya strikes. In Libya, NATO said that it had a “standard of zero expectation of death or injury to civilians.” Today’s UN report notes that the International Commission of Inquiry on Libya found that NATO conducted a “highly precise campaign” but that there was “evidence of civilian loss of life,” about which it recommended further investigations (¶36).
- Human rights law limitations. Absent an armed conflict, drone strikes would “rarely be lawful” (¶60) because of the restrictive use of force rules in human rights law.
- Ongoing legal controversies. On the controversial legal issues, the Special Rapporteur states that he is “currently consulting [UN] Member States with a view to clarifying their positions” (¶79), and that he will report to the Human Rights Council on the results (¶23).