As has already been discussed in several postings, the report of the UN Special Rapporteur on Extrajudicial Executions has been published and deserves close attention. To the extent that these Reports are well researched and well-reasoned analyses of the law on a particular subject, they provide excellent sources of information and the basis upon which States and the United Nations can take actions. On the other hand, to the extent that they are pieces of advocacy which either misstate the law or present contested principles as settled, they can do as much harm as good. The recent Report by the Special Rapporteur falls into the latter category. Unfortunately, reports written in this latter fashion make it easy for detractors to also discredit the worthwhile aspects of the Report.
In an excellent earlier post, Ryan Goodman has already discussed how the Special Rapporteur has presented an argument about co-belligerents as if it is the law when it is not, and would have harmful effects if it was. Goodman’s post makes it clear that the Special Rapporteur has overstepped in the strength of his statements about the non-application of co-belligerency in non-international armed conflict. The Report similarly could have benefited from the type of analysis by Beth Van Schaack on extraterritoriality. I will draw attention to one other similarly weak area of argument in the Report.
The Report states “The various components of transparency require that the criteria for targeting and the authority that approves killings be known and that drone operations be placed in institutions that are able to disclose to the public the methods and findings of their intelligence, criteria used in selection of targets and precautions incorporated in such criteria.”
The Report goes on to state in the recommendations that States “must disclose the legal basis for the use of drones, operational responsibility, criteria for targeting, impact (including civilian casualties), and information about alleged violations, investigations, and prosecutions . . . Drone operators must not be placed within a chain of command that requires them to report within institutions that are unable to disclose their operations.”
The boldness of these statements, particularly when written as if they were actual legal requirements, is another example of the Special Rapporteur overstating the law. The Report quotes no law as the basis for these assertions, probably because there doesn’t appear to be any. There have been many calls for increased transparency in drone operations from many different sources, and the United States has responded by increasing transparency in small degrees. But these changes have been done as a matter of policy, not as a matter of law. Requiring a State to disclose such information ahead of an attack would be truly revolutionary.
Consider any other weapon system. What other weapon or tactic does the law require such transparency? Is there some element in each nation’s defense ministry where all military attacks are controlled and this element discloses to the public targeting criteria and decisions? Is there any other weapon system where targeteers are placed in an unclassified information environment before they can use the weapon? Of course such situations do not exist and are certainly not required as a matter of law. Either drones are somehow so fundamentally different than every other weapon system in the military arsenal or the Report is misstating the law.
Further, as with the Report’s conclusions on co-belligerency, if the Report’s incorrect assertions were right, the unintended consequences of such a rule would be serious. Assume that the United States was required to disclose its targeting criteria, including the circumstances when the rules of engagement would and would not allow for an attack to take place. Every potential target would ensure that they were continuously in a position to be untargetable, while still engaging in hostile actions. Similar steps are already taken as potential targets often surround themselves with civilians in an effort to immunize themselves from attack. Such actions are specifically violative of the law of armed conflict, or international humanitarian law, as it is often called.
Misstatements of the law such as these with transparency and co-belligerency (and others within the Report) have even larger impacts generally. They allow States and others to discount the many excellent aspects of the Report. When a detractor can point to clear errors, it allows them to discredit the overall report, which is tremendously unfortunate. Less advocacy and more reasoned analysis of the law would have made the Report a much better resource for urging compliance among States.