Thanks to the diligent work of journalists, Just Security readers probably know by now that the United States has a squadron of armed drones based in the West African nation of Niger. Recent reports suggest that the U.S. military is on the brink of expanding this deployment, even as it plans to withdraw troops in the aftermath of a now infamous October 2017 incident in which four Army Special Forces members were killed. What has received less attention is that one of Africa’s top human rights institutions is starting to apply its legal standards to the use of these drones.

At its February session, the African Commission on Human and Peoples’ Rights (ACHPR) reviewed Niger’s compliance with its human rights obligations. In that review—published only recently—the Commission called on Niger to:

“Ensure respect for international human rights and humanitarian law, particularly regarding the use of combat drones and carry out independent and impartial investigations into all deaths caused by drones and bring the alleged perpetrators to justice, including payment of compensation to the victims and members of their family.”

The Commission’s recommendation urging Niger to ensure that armed drone use complies with international law comes at a particularly significant moment and foreshadows concerns about the potential expansion of drone use from Niger’s territory. Even before expanding its military footprint to Niger, the U.S. actively operated drones (both armed and unarmed) on and from the African continent to counter suspected terrorist threats for years. The U.S. military is also just one of several foreign militaries that has expanded its military presence in Niger and across the African continent in recent years. (Note, however, that U.S. military policy in the region is in a state of flux: after the Niger raid, the Defense Department considered withdrawing all its special operations forces from Niger and recently submitted a plan that seeks to reduce the number of special operations troops and missions in West and Central Africa, even as it continues construction of a new air base in Niger. With fewer ground forces, it is possible that the United States will rely more heavily on drones to counter presumed threats in the region.)

Despite this presence, until the Commission’s recommendation to Niger earlier this year, African human rights institutions have not provided explicit guidance to member states on these kinds of consent-based foreign military operations and drone use. The Commission’s timely remarks to Niger mark the first time it has seriously assessed the issue of armed drones on the continent and urged a state to take action.

 U.S. and French involvement in Niger 

The Commission is right to be concerned. U.S. military involvement in Niger flew almost completely beneath the radar for years until four members of the Army Special Forces were killed in a high profile incident in October 2017. Detailed reporting in the aftermath of the incident revealed both that the U.S. military had a sizeable presence in Niger that was much larger than many realized and that members of Congress apparently knew very little about it.

In the weeks that followed, it became clear that the Army Special Forces incident was part of increasingly robust U.S. engagement in Niger and the region. As early as 2013, the U.S. and Niger struck a deal allowing the U.S. to build an airbase that would house surveillance drones to support the French-led operation in Mali. In late 2017, news reports revealed that Niger had agreed to let the U.S. outfit surveillance drones already stationed in Niger with armed capabilities. Pursuant to this agreement, U.S. Africa Command confirmed in July that it had been operating armed drones out of Niamey, the country’s capital, since “early 2018.” In March, the U.S. reportedly killed an al-Qaeda leader in Libya with an armed drone flown from its base in Niger. And, today, a new U.S.-constructed air base in Agadez in central Niger, dubbed “Nigerien Air Base 201,” is only a few months away from completion. The base, with a construction cost of around $100 million, could reportedly host approximately 650 military personnel and be the new home for a U.S. armed drone squadron.

The French also have a sizeable military presence in Niger and have made similar moves to enhance their operational capabilities there. In September 2017, French Defense Minister Florence Parly announced a plan to arm its Niger-based surveillance drones that were supporting “Operation Barkhane,” France’s sprawling regional counter-terrorism effort that began in 2014 and consists of 3,000 to 4,000 troops across five countries. France reportedly has five drones in Niger, although more are on the way.

The U.S. and France both state that the main purpose of their presence in the Sahel is to combat terrorism. In June, President Donald Trump asserted that U.S. forces are in the Sahel region “to provide support to African and European partners conducting counterterrorism operations in the region, including by advising, assisting, and accompanying these partner forces.” Sen. Lindsey Graham (R-S.C.), even while admitting he did not know U.S. forces were in Niger, claimed that “U.S. forces were there to prevent another platform to attack America and our allies.” Yet experts in the region, while acknowledging the significant security challenges countries face, have expressed concern that armed groups in the Sahel “pose at most a minimal threat to the continental United States.”

Similarly, France has maintained its presence in Niger under the banner of Operation Barkhane, with the French defense minister saying in 2014 that France needed to stay in the region as “there still is a major risk that jihadists develop in the area that runs from the Horn of Africa to Guinea-Bissau.” However, commentators expressed concern at the time that “France is starting a lengthy and risky military endeavor in a vast region, with no apparent end in sight.”

Accordingly, ACHPR’s decision to hone in on a key aspect of the foreign military presence in the Sahel seems both timely and a portent of greater oversight of armed drone use in the context of open-ended foreign military engagements in Niger and the Sahel region more broadly.

Main Implications  

Foreign Drone Use in Niger: The Commission’s recommendation is especially salient to U.S. and French military operations in Niger. Although we are not aware of any instances of U.S. or French drones strikes occurring in Niger, the Commission is staying ahead of the game by placing legal obligations on a state in which armed drones might be used—in this case by a state that not only consented to their use, but reportedly requested that at least one of those states (the U.S.) use them. And while the Commission’s recommendation focuses on armed drones, its legal reasoning applies equally as strongly to the use of lethal force more generally by, for example, any foreign ground forces operating in Niger.

In many ways, this is nothing too extraordinary. The legal reasoning simply builds upon an already generally accepted principle of human rights law that, as the Commission has written elsewhere, a state has “a positive duty to protect individuals and groups from real and immediate risks to their lives caused either by actions…of third parties.” To that end, the Commission’s Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa also instructs states to protect human rights by taking “all practical steps to determine whether foreign entity activities on, and movements through, their territory involve such practices,” and to “withhold cooperation that would result in a violation of international human rights, humanitarian, or refugee law.”

The Commission’s recommendation is an important reaffirmation of the principles that 1) a state cannot detach itself from its human rights obligations when another state engages in lethal action on its territory and 2) a state cannot consent to another state’s activities on its territory if those activities would be unlawful for the host to do them (a topic one of us has written about extensively).

The implications of this are significant. In practice, the Commission is telling Niger that it cannot give U.S. and France carte blanche drone use. The Commission is 100 percent correct on this point. To implement and operationalize the Commission’s recommendation, at a minimum Niger should notify both countries of the legal standards that apply to drones strikes in its territory and obtain an agreement that foreign states will apply those legal standards. Niger should also study, analyse, and monitor the policies, practices, and lawfulness of U.S. and French drones use to date, and prohibit the use of armed drones on its territory if it is known that they were used unlawfully or it is reasonably foreseeable that their use will result in unlawful strikes.

The second half of the Commission’s recommendation—calling on Niger to conduct independent and impartial investigations into drone-caused deaths—is also relevant to to ensuring U.S. and French drones comply with international law: Niger must have in place effective accountability mechanisms that can respond to allegations of unlawful strikes. The Commission’s recommendations are consistent with international standards on investigations into the use of lethal force by state actors in situations outside an armed conflict. The recommendation also closely aligns with experts and international standards, which hold that “civilian casualties must be determined” and that where “it appears that casualties have resulted from an attack, a post-operation assessment should be conducted to establish the facts” when those deaths occur in situations of armed conflict.

Foreign Drone Use Beyond Niger: The context in which the Commission framed its recommendation is, potentially, also immensely important. There is good reason to interpret the Commission’s recommendation as not only placing a responsibility on Niger to ensure that future drone strikes in its territory comply with international human rights law (IHRL) and international humanitarian law (IHL), but also as placing a responsibility on Niger to ensure the same with respect to extraterritorial strikes that the U.S. and France launch from its territory in Libya or the broader Sahel region.

The Commission’s recommendation flows from its concern that drones have “caused deaths among the civilian population.” We are not aware of any reports that the U.S. or France have launched drone strikes within Niger (if readers know differently, we would be most interested to hear) and, as such, this leads us to believe that the geographic broadness of the Commission’s concern, and therefore the geographic broadness of its recommendation, may be purposeful.

Also notable was the Commission’s decision to locate its concern and recommendation about drones under the heading of “Right to Peace and Security” in its report, which corresponds to Article 23 of the African Charter on Human and Peoples’ Rights. The Commission has previously found that Article 23 of the African Charter places far-reaching geographic obligations on states to respect the right to international peace and security. Under this article, states are under an obligation to resolve disputes peacefully and, in preserving peace, must not violate the rights of people in other states that have signed up to the Charter.

Given this context, the Commission appears to be addressing the issue of drones not just as a human rights issue but also as a matter of international peace and security due to the tensions that may arise when drones launched from one nation result in the death of people living in another country. When seen through this lens, framing drones as an Article 23 issue is both appropriate and adds a level of conceptual depth that is rarely discussed during technical legal debates around drones and the scope of a country’s human rights obligations. This framing also echoes growing concerns about the increased proliferation of armed drones and the impact that a minority of powerful states are having on the international order and peace and security due to their expansive views on when force is permitted under international law.

Domestic Drones Use: This post focuses on how Niger must ensure foreign drone use complies with IHRL and IHL. There is nothing, however, in the Commission’s recommendation that prevents this legal reasoning from extending to how Niger, or any other African state may use armed drones domestically. It is legally obvious that a state’s domestic use of lethal drones must comply with IHRL and IHL (when applicable). It is equally obvious that independent and effective investigation mechanisms need to be in place to address instances of drone-caused deaths. That the weight of the recommendation does not hinge on third party drone use makes the Committee’s recommendation especially strong, and of normative value, addressing an issue (domestic armed drone use) that has yet to be widely seen on the continent, but certainly might become relevant. Nigeria in particular, the only party to the African Charter known to have carried out a drone strike on its own territory, should take note of where the Commission is headed. The first known strike took place in Nigeria in 2016..

Next steps

There is a clear need for those concerned about the human rights implications of armed drones to ensure follow up and state compliance with the African Commission’s recommendations, not least because U.S. and French armed forces will be in Niger for the foreseeable future. As with any similar international mechanism, nongovernmental organizations and the media have a key role to play to support implementation of the Commission’s recommendations and demand from the Nigerien government (or any other government that allows foreign states to base their armed drones in its territory) answers to a number of important, practical questions, including:

  • What safeguards has Niger put in place to ensure that U.S. and French actions are in accordance with Niger’s own international and domestic legal obligations?
  • What is Niger doing to monitor the actions of France and the U.S.?
  • What are the details of Niger’s agreements with France and the U.S.?
  • What measures does Niger have in place to ensure accountability for allegations of wrongdoing by France and the U.S.?
  • What procedures does Niger have in place to withhold or withdraw its consent to foreign operations on or from its territory if there are concerns that France and the U.S. are engaging in unlawful strikes?
Image: Air Force airmen assigned to the 724th Expeditionary Air Base Squadron and soldiers assigned to the 411th Military Police Company take down tents from the old base to move to a new location on Air Base 201, Agadez, Niger, Sept. 11, 2017. Photo: U.S. Department of Defense

[Editor’s note: An earlier version of this article referred to four Navy SEALS killed in an October 2017 incident. They were Army Special Forces. The text of the article has been updated.]