[Editorial note: Last week, the United Nations discussed two major reports on drones. Just Security’s coverage included posts by Philip Alston, Ryan Goodman (here, here), Kevin Jon Heller (guest post), Eric Jensen (guest post), Sarah Knuckey (here, here), and Harold Hongju Koh. We are delighted that Christof Heyns, the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, agreed to provide the following commentary and analysis as a Guest Author.]
Last week four reports put the issue of armed drones in the spotlight – two parallel reports to the General Assembly by Ben Emmerson and me, as well the Amnesty International and Human Rights Watch reports. This presented an opportunity to reflect on how far the debate has come.
It seems important to recognize that whether one likes it or not, drones as weapon platforms are here to stay (some states described this “concession” in my report as “premature” during the discussion in the Third Committee of the General Assembly). Moreover, most of the applicable rules of international law are settled. However, there is no denying that in some cases there is controversy about the application of these standards to the use of drones. Some of the discussions on this blog last week also reflected deeply seeded differences in basic assumptions about the applicable law. Given the increased number of states that are likely to use drones in the future, there is a global interest in finding a common understanding of the applicable legal standards.
The fact that increasing information is now available concerning the actual circumstances of drone operations, through systematic expositions of the scope and nature of the strikes and eye witness accounts of their impact on the communities where they are deployed, places the international community in a better position to consider where it wants to go. Drones have in recent times become much more real to the world beyond those who are directly impacted. Important players have had the opportunity to weigh in. We can now consider the experience of the last decade – the mistakes made and in some cases the myths that have been exposed – as a reference point for the future.
This issue presents itself against the background of the possible deployment of new technologies that make drones look dated, such as lethal autonomous weapons systems, a topic that enjoyed attention in a separate discussion in the UN First Committee last week. Moreover, the apparent overreach of intelligence gathering operations also create a certain context for the discussion of the legitimacy of drone strikes. The link between mass surveillance and drone strikes (raising inter alia questions about complicity by states that are not directly involved in the strikes) remains largely unexplored.
During the interactive dialogue following the presentation of our reports in the General Assembly one state after the other took the floor to express their concerns about the current use of drones. There was a particular focus on the lack of transparency and accountability.
In their intervention the European Union, with which the United Kingdom aligned itself, agreed with the following approach set out in my report:
- the established international legal framework for the use of force – international human rights law, international humanitarian law and inter-state use of force – provides an adequate framework to regulate the legality of the use of drones;
- the right to life can only be adequately protected if each of the distinct requirements in the constitutive components of international law are satisfied;
- the central norms of international law need not, and should not, be abandoned to meet the challenges posed by terrorism; and
- states should be transparent about their use of drones.
The report also highlights various problems associated with attempts to lower the thresholds for the deployment of lethal force through drones. These include the concept of a world-wide armed conflict against Al-Qaida and its so-called “associated forces,” and the idea that all members of an organized armed group can be targeted in an armed conflict under the relatively permissive international humanitarian law standards on the conduct of hostilities. It also includes an elongated interpretation of the concept of “imminence” in self-defense law.
The report warns against an approach that views self-defence as a free-standing or independent justification for the use of force, without recognition of the additional requirements presented by international human rights law and in appropriate cases international humanitarian law. Such an approach will leave the use of force insufficiently regulated, and undermine the international rule of law. The prospect of recognition that the war paradigm is over and that international human rights law regulates the use of force against specific individuals, while welcome on face value, raises the concern that human rights standards such as imminence may be stretched to legitimize wide targeting authority.
The interventions by states in the General Assembly showed that accountability and transparency will probably be the area of most significant focus for many of them in the future. The report emphasizes that the right to life entails a protective component, rendering the arbitrary (or unjustified) deprivation of life illegal, but stresses that the right to life also has an accountability component. Lack of accountability for arbitrary deprivations of life in itself constitutes a violation of that right.
In turn, accountability requires some level of transparency – subject to legitimate security considerations – to ensure accountability occurs not only in theory but also in practice. The onus is on states that engage in taking life to show that it is lawful, and to make this showing as transparent as possible. It is important to keep in mind that the right to life is guaranteed not only by treaties, but also by customary international law, which is unaffected by debates about the extraterritorial application of treaties.
The report concludes that a world where an expanding number of states have clandestine programmes to use armed drones wherever they deem necessary, under rules that they give novel interpretations in order to grant them maximum targeting ability, will be a less safe place – putting the right to life at increased risk.
In discussions on the fringes of the General Assembly, I encountered the view that the United Nations should pay particular attention to keeping track of the number and identity of at least the civilian casualties of drone strikes wherever they occur in the world. In other discussions, the fact that the use of armed drones are used in situations where it is not supported by international law was blamed for the fact that the UN finds it difficult to use reconnaissance drones in situations where that would clearly be beneficial and ought not to be controversial.
In addition to the discussion in and around the UN, a welcome component of the debate was the interest the various reports generated on this and other blogs. Space allows a response to only one of these comments: In a post on my report, Ryan Goodman disagreed with my contention that only groups that form part of a party to a non-international armed conflict may be targeted, and my resultant criticism of the notion of “associated forces”.
He referred to the US view that the concept of “co-belligerency” in wars between states applies to non-international armed conflicts as well. He offered as an additional or alternative – and as far as I know novel – basis for the recognition of the notion of “associated forces” the argument that article 50(1) of the Additional Protocol I to the Geneva Conventions read with article 4(a)(2) of the Prisoners of War Convention recognizes the possibility that “members of other militias and members of other volunteer corps” can belong to parties of the armed conflict.
As is the case with co-belligerents, this seems to me to be an unwarranted extension of a concept that belongs in international armed conflict into the field of non-international armed conflict, where there is a strong premium on construing at least the non-state parties to conflict – and as a result the potential targets – narrowly (and also not giving them prisoner of war status, as Ryan’s approach seems to imply).
But even if this stretch could be made in principle, it has become a real question of fact whether Al-Qaida (assuming this is the core group to which other groups can “belong”) should still be regarded as an organized armed group at all. Moreover, in order to qualify as a militia or volunteer corps, these associated forces would need to comply with the other definitional requirements of article 4(a)(2), including the requirement to bear arms openly, and to conduct operations in accordance with the laws and customs of war. They would also need to have the same goal as the core group, which seems in many cases to be contentious (their actions may for example be directed more against a local enemy). It remains unclear how the US defines “associated forces” and who it places in that category – again demonstrating the importance of greater transparency.
Judged by the interactive dialogue in the Third Committee last week there appears to be a higher level of coherence in the public positions taken by the majority of states than before, and a willingness to engage with the issue in public. The fact that states are on record in expressing caution about the use of drones and emphasize transparency and accountability may also prove to be significant in future when they may use similar technology. However, the most immediate question remains to what extent the current debates will translate into changes in the practices of states that are already using drones.
* At the time of writing the author was United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions