A Review of the Special Rapporteur Reports Regarding “Drones” and the Use of Lethal Force

Background

The UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Mr Christof Heyns, recently reported on the topic of the use of lethal force through armed drones from the perspective of the right to life, focusing on “remotely piloted aircraft” (RPA — a much more factually accurate term than the misleading “drone”) and the legal frameworks surrounding their use. The Heyns Report covered the same ground as the report by the previous UN Special Rapporteur on extrajudicial, summary and arbitrary executions, Mr Philip Alston, on “Targeted Killings” in 2010. In addition, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms, Mr Ben Emmerson, submitted his interim report to the UN Human Rights Council on allegations that the use of RPA have caused disproportionate civilian casualties.

Despite the slightly differing purposes of each report, each cover some common key themes:

  • An examination of the legal paradigms that authorize the use of lethal force under international law.
  • A claim for greater transparency through increased public disclosure of procedures and safeguards for the conduct of operations that involve the use of lethal force and have a risk of collateral effects.
  • A claim for greater accountability regarding civilian deaths and processes for investigating any breaches of the applicable legal framework.
  • The use of RPA for conducting targeting operations.

Key Themes

Legal paradigms

There are three legal paradigms examined in all the reports:

  • The law governing the inter-State use of force (the jus ad bellum).
  • The law governing armed conflict (the jus in bello)
  • The law governing international human rights (this is referred to by Alston as “the law enforcement model”).

There is acceptance in all three reports that human rights law prioritizes the protection of human life, which is enshrined in customary international law and various treaties (for example Article 6(1) of the International Covenant on Civil and Political Rights). Underemphasized in the reports is an analysis of whether this is accurate under the jus in bello. The jus in bello recognizes the need to balance humanity and military necessity. The obvious example being that jus in bello prohibits only superfluous injury and unnecessary suffering.  An appreciation of this fundamental balancing in the jus in bello, particularly in comparison to human rights law, is important as it affects the key legal issues under consideration. For example, it is only the Heyns report that gives due recognition to the hotly disputed topic of whether the use of lethal force should be a last resort in armed conflict (the capture versus kill debate).

The reports have consistently found that the existing legal frameworks – jus ad bellum, jus in bello and “the law enforcement model” – are not in issue, but rather the practical application of these paradigms by States, particularly in recent times during the “War on Terror,” are stretching widely accepted legal principles and norms. For example, Alston highlights that the use of force in self-defense under Article 51 of the UN Charter cannot be directed at non-State actors, particularly given the International Court of Justice decision in the Wall Opinion (cited by Alston, para 40). Unfortunately, he does not deal thoroughly with the opposing views. Despite an abundance of post 9/11 literature on the subject, his only reference is to a 1989 article by Sofaer. If States are the subject of attack by a non-State attack, logic alone says they will act to defend themselves. The focus should be on how any such response is regulated.

Another example by Heyns (at para 64) relates to the extent to which non-international armed conflicts can extend across borders and whether force can be used against non-State actors in foreign States. In each of these examples, States have sought to extend the operation of existing legal paradigms as justification for taking action against non-State actors located in other States outside of a “war zone” such as Afghanistan. Heyns apparent adoption of the ICRC view that each case needs a case-by-case analysis to determine whether it is an international armed conflict, non-international armed conflict, or is outside the armed conflict paradigm entirely is sound. By agreeing on that approach, the focus can then turn to asking States to explain why they have adopted a particular position, rather than arguing over whether force can be used at all.

Transparency

All three reports highlight a lack of transparency in relation to the process by which targeting decisions are authorised. The Alston report also highlighted the need for safeguards for targeting in armed conflict; including ensuring that there is reliable information to support the targeting process, ensuring there is adequate intelligence on weapons to be used and numbers of civilians in a target area, the need to employ proportionality calculations for each individual strike; and a process whereby an attack can be aborted or suspended if there is a change to the circumstances supporting the original targeting decision (Alston, para 89). Such broad claims of transparency contrary to current State practice are not sufficiently well argued. When a clearly controversial claim for transparency is made, it would help significantly if the claim was demonstrated with an example of what would suffice and what is not expected. Is it being asserted that the law requires intelligence to be divulged, names on target lists, the actual proportionality evaluation made for a particular strike etc or would it be sufficient to identify policies and procedures, names of organised armed groups but not membership lists etc? The operational reality is that the details of targeting processes and rules of engagement are classified on the basis that the enemy forces will be able to circumvent or exploit these processes and rules if they are made aware of the specific details relating to these documents. Opposing forces always strive to understand the other side’s capabilities and intentions. In the operational context, the compromise or loss of mission-sensitive information not only jeopardizes the success of the mission, but also places own forces at risk. Nonetheless, in order to address concerns about transparency and to demonstrate that military forces take jus in bello considerations into account, there is some scope for broad outlines of military targeting processes to be released. Gregory S. McNeal has discussed the processes used by the US military – called the “collateral damage methodology” (CDM) – prior to launching strikes. The CDM takes into account matters such as the effects of all US conventional weapons and uses computerized models for estimating collateral damage. Such analysis and dissection of targeting processes by academics is a useful starting point for increasing transparency in relation to the processes used by military forces in making targeting decisions and can achieve an appropriate balance between the need for broad transparency (we would all like to know whether a group to which we might decide to belong is on a targeting list!) while preserving necessary operational security.

Accountability for civilian deaths

There is consensus among the three reports that accountability requires the investigation of any breaches of the law, and that action be taken against those found to have breached the law. This is consistent with the obligation under Article 87(3) of Additional Protocol I to the Geneva Conventions to take action in relation to breaches. This obligation is not limited to breaches arising from situations involving targeting or drone use, but all breaches of the jus in bello. It is implicit in the doctrine of command responsibility and as general proposition it is not controversial. Emmerson adds that States using lethal force are obliged to account for civilian casualties in order to provide redress to those that have potentially been wronged (Emmerson, para 45). This recommendation was made in full awareness that under the jus in bello there will be times when incidental civilian deaths are perfectly lawful (and even expected) as the result of an attack. Any policy on inquiries into civilian deaths must not only take into account the relevant law under the jus in bello, but must also recognise that in armed conflicts there may be practical impediments to investigating or inquiring into every incident of civilian deaths (e.g., in a strategic bombing campaign conducted behind enemy lines).

An example of a process for inquiring into civilian casualty incidents is the policy and practise of the ADF to conduct formal inquiries into such incidents under Australian domestic legislation. The redacted report into “Possible Civilian Casualties from Close Air Support Strike at [redacted] Afghanistan on 28 Apr 09” demonstrates a mechanism for a State to inquire into civilian deaths as a matter of policy while managing operational realities.

RPA technology

The types of RPA discussed in the reports are not fully autonomous, but incorporate “man in the loop” systems such as the “Reaper” and “Predator.” As recognised by Emmerson (para 28), RPA sensors and technology can assist with real-time intelligence collection and improve overall situational awareness, and have the potential to reduce the risk of civilian casualties. Despite these advantages, the level of risk of collateral effects and the precision with which targeting activities can be conducted when using RPA is dependent on accurate and timely intelligence regarding the target and target area, and a proper / good faith application of legal principles. RPA should not be singled out in this regard, as collateral risk mitigation and precision strike are issues that are not exclusive to RPAs, but apply equally to all conventional weapon systems.

The distance of RPA operators from “the battlefield” enliven concerns about what Alston (para 84) calls the “Playstation mentality” to killing, suggesting that operators who are not subjected to the risks of being in the battlefield may be desensitized to the realities of targeting operations and may be less rigorous in their application of procedures and the jus in bello. For example, according to the partially released US report, the Predator crew involved in an attack on a convoy on 21 February 2010 were found to have provided misleading information and that they had “a predisposition to engage in kinetic activity” (Emmerson, para 31). While very little is publicly known regarding the effects of targeting activities on RPA operators who are living outside of the “battlefield,” a recent report by a former USAF RPA operator, Brandon Bryant, provides insight at the human level regarding what RPA operators do, what they see, and the long term impacts of their actions (see GQ article here and CNN report here). A quantitative study into the “man in the loop” is required before conclusions are made regarding their level of mental detachment and willingness/readiness to apply process and legal paradigms. And subject to the outcomes of any such study, it would be naïve to suggest that the solution would be to expose attacking forces to greater personal risk (by stopping the use of RPA in attacks).

The use of lethal force by States should be subject to thoughtful review and critique. Accordingly, the authors commend the special rapporteurs and the other commentators. Once it is apparent that the debate has been joined and there are genuine areas of disagreement, progress can often best be made by identifying not only where there is disagreement, but why such disagreement exists. While the “better” legal argument may win out, where there are genuine policy differences, it will often be helpful to find ways to accommodate the underlying concerns of each side rather than merely trying to get the better of the argument. To that end, the authors hope to follow up this short post with a longer article addressed at policy makers, government officials, and military decision-makers and advisors on means and methods for ensuring RPA operations are legally sound and publicly explicable.

This note was written in the authors’ personal capacities and does not necessarily represent the views of the Australian Government or the Australian Department of Defence. 

About the Author(s)

Ian Scott Henderson

Group Captain in the Royal Australian Air Force, Director of the Military Law Centre at the Australian Defence Force, Deputy-Director of the Asia-Pacific Centre for Military Law at the Australian Defence Force

Jo Brick

Acting Staff Officer Legal, Headquarters Air Command, Royal Australian Air Force She joined the Royal Australian Air Force in 1997.