Special Rapporteur on human rights and counterterrorism Ben Emmerson’s latest report and the European Parliament’s resolution on drones highlight some pressing issues. Most important are the welcome calls for transparency and implementation of measures of accountability and remedies for violations of the law. The report and resolution also make issues out of some non-issues and don’t pay enough attention to others, thereby obscuring some of the more important questions that the premier trend-setter, the United States, must answer.

First, readers should be aware of the constituencies represented by these reports. Just Security correctly notes that the United Nations released a new report on drones (Emmerson’s) but the report is not that of the United Nations. Emmerson’s mandate falls within the Human Rights Council’s Special Procedures. The Special Procedures mandate holders are independent, volunteer experts who report TO rather than FOR the United Nations.

The European Parliament is a directly elected institution of over 700 members, reflecting the multiplicity of the European Union’s political parties. It exercises powerful lawmaking functions of the European Union along with the Council of the European Union and the European Commission but it has no right of legislative initiative.

Biggest issues missed:

  1. While “drones” is a proven attention-getter, the special concerns they raise are a microcosm of a larger problem: the legality of State-sponsored targeted killing, including so-called ‘signature strikes.’ The question of who may be extra-judicially killed and where applies equally whether by cluster bomb, bayonet or poisoned martini as well as by unmanned or autonomous vehicle.
  2. There are three possible international legal frameworks applicable in a US targeted killing attack on foreign soil. The first is the law of war/law of armed conflictwhen the circumstances amount to armed conflict. In this case, members of enemy forces may be targeted by virtue of their status as such and civilians may be targeted so long as they are directly participating in hostilities, all such attacks subject to principles of military necessity, humanity, distinction, proportionality and precautions. Human rights law has little currency here on questions of targeting. Another scenario is outside a state of war, where the law of war doesn’t apply and human rights law is the applicable metric. Here, authorities may not engage in status-based killings. They may only use lethal force in self defense- in face of a threat to life that cannot be ameliorated by less intrusive means, such as arrest. Emmerson’s report gives insufficient attention to the very real possibility, especially as the war in Afghanistan winds down, that drone strikes have no business being justified on law of war grounds, but rather, are subject to the more stringent requirements of self-defense and human rights law. A third relevant international legal framework is jus ad bellum. Under jus ad bellum, States are allowed to violate the territorial integrity of their fellow-States only when authorized by the UN Security Council, or in self-defense (in order to stop an imminent risk of death), but only upon consent or when the host State is unwilling or unable to ameliorate the problem. Jus ad bellum is the law applicable to the decision to cross a border, but does not determine the right to use force against any individual. That is left to the law of war/armed conflict and human rights law. Under the law of war, you can shoot subject to the principles of military necessity, humanity, distinction, proportionality and precautions. Under human rights law, you may use lethal force only against an imminent threat to life that cannot be ameliorated through less harmful means, such as arrest.
  3. Biggest distractions (and there are a few):

Emmerson says there’s an “urgent and imperative need to reach consensus” (the lettering below tracks the subparagraphs of para 71 of his report):

a. On whether a State may use lethal force on the territory of another State only against a “direct and immediate” threat posed by a non-State actor. This is not an issue. The answer is, yes, if the threat is to life and cannot be ameliorated by means short of lethal force.

b. On whether the international legal principle of self-defense is confined to situations in which an attack has already taken place. No, it is not. The real issue here, outside the context of armed conflict, is whether force may be used preventively as distinct from preemptively and, as Emmerson does note, against what measure of imminence of the threat. It is not enough, as he suggests, that the feared attack be against the State’s “interests.” It must be a threat to life on a scale amounting to an armed attack.

c. On whether the metrics for determination of armed conflict against non-State actors (frequency/severity of attacks) may be applied across international borders, or do we aggregate attacks in only one State? This is important because the rules for killing in armed conflict are looser than those outside of armed conflict, but the answer is not so mysterious. Non-international armed conflict, meaning war against a non-State actor, can clearly cross international boundaries. This means not only that attacks in more than one State, as long as they are attributable to one party, may be aggregated to determine the existence of armed conflict, but also that parties to armed conflict may target legitimate military objectives beyond “zones of active hostilities” and beyond the borders of a single state, assuming compliance with principles of military necessity, humanity, distinction, proportionality and precaution. Caveat: the jus ad bellum must still be respected. (See “Biggest issues missed,” – number 2, above.)

d. On whether persons directly participating in hostilities in a “non-belligerent State” may be targeted. Yes. See the answer to c directly above.

h. On whether the law of non-international armed conflict imposes a “capture rather than kill where feasible” requirement. No, not yet. There is scant evidence that the principle of humanity debate (the prohibition of unnecessary suffering)or the principle of military necessity debate (only military objectives may be targeted) includes a ‘kill vs. capture’ component. The Israeli Targeted Killing decision, which does require capture when feasible, rests more on policy than on legal grounds. I hope that resort to the armed conflict paradigm will diminish as counterterrorism looks increasingly less like the conditions that prompted elucidation of law on conduct of hostilities in armed conflict and more like law enforcement. In the alternative to armed conflict, and even if the armed conflict paradigm continues, human rights values will hopefully become increasingly applied in counterterrorism efforts against non-State actors. This might cause a shift from a “status-based” concept of military necessity (if you’re a “member” we can kill you) to a “circumstance-based’ concept (if we can arrest you, we can’t kill you). But that’s not the law today.

Here are two notable misfires in the European Parliament report:

a. “[D]rone strikes outside a declared war by a State on the territory of another State without the consent of the latter or of the UN Security Council constitute a violation of international law and of the territorial integrity and sovereignty of that country.”This pronouncement says both too much and too little. A declared war does not make targeting per se legal. The act may still be aggression in violation of the jus ad bellum. Also, a declaration of war alone does not trigger the law of armed conflict. Facts on the ground do. And even if the situation is armed conflict, targeting may still be in violation of humanitarian law principles and rules. On the other hand, the absence of war, whether or not declared, does not make targeting illegal. States may also use lethal force in self-defense in appropriate circumstances and subject to the protections of human rights law.

b. “[I]nternational humanitarian law does not permit the targeted killing of persons who are located in non-belligerent states.”This is false. See responses to Emmerson, a, c, and d, above.

The really important issues that Emmerson raises at para. 71 of his report (again, the lettering below tracks the subparagraphs of para 71 of his report) are:

b.   for purposes of determining legality of targeting outside of armed conflict, how do we define        “imminence?” This is one of several areas in which greater government transparency is sorely needed. While States may use force in self-defense without waiting for an attack to occur, the United States has been both inconsistent and less than clear in its pronouncements, including the National Security Strategies of 2002 (page 15) and 2010 (page 22), on when a threat has sufficiently materialized to justify use of force.

e. Is there an armed conflict against Al Qaeda? Answer: no. There is no longer a single entity, or agglomeration of entities (so-called “associated forces”) whose composition or activities meet the test for armed conflict. Al Qaeda is more of a name than an entity capable of exercising rights and responsibilities under the law of armed conflict. As a thankful result, and perhaps more importantly, the frequency and severity of attacks attributable to it do not rise to the level of armed conflict. Thus, Emmerson’s next questions (f and g) about targeting individuals who perform a “continuous combat function” and those who “directly participate in hostilities” should be moot. But as long as the United States continues to claim the mantle of armed conflict, it is important to determine the content of these concepts, and whether they enjoy the status of customary international humanitarian law.

The unfortunate focus on non-issues makes Emmerson’s otherwise worthy report and the European Parliament’s otherwise worthy resolution all too easy to dismiss, allowing the United States to elide the really important challenges: Is it really armed conflict? If so, who are we at war against, what makes something an “associated force,” what makes someone a legitimate military objective and what rules of engagement are in place in respect of principles of military necessity, humanity, distinction, proportionality and precautions? If it’s not armed conflict, does the United States concede the application of human rights law? (Tune in to the upcoming U.S. appearance before the Human Rights Committee to see if anything comes of the debate on extraterritorial application of the ICCPR. My guess is there will be no news.) If not armed conflict, what law applies? What makes a threat “imminent?”

An important issue missing from the list raised by Emmerson and the European Parliament resolution is so-called “signature strikes.” These are killings in which the identity of the target is unknown, and the decision to strike is based on circumstantial evidence. There’s nothing inherently illegal in killing someone otherwise targetable simply because you don’t know their name. But what kinds of “signatures” are sufficient, and what degree of confidence there needs to be in the intel used to justify a strike, are issues left unresolved.

We need also to parse the discussion on “civilian casualties.” That’s a term that should arise only in armed conflict. Outside of armed conflict, there is no combatant/civilian distinction. Everyone, whether targetable or not, is a civilian. Failing to respect that fact in our targeting vocabularies risks confusing wartime powers with those of peacetime. Likewise, distinguishing “civilians” from “terrorists,” “insurgents,” “militants,” and (my favorite) “bad guys,” (as news accounts and officials often do) plays all too fast and loose with categories that we use to distinguish the right to live and the power to kill. These terms simply tell us nothing about whether or not someone is legally targetable.

Finally, much discussion has properly centered on proportionality between intended and unintended deaths in targeted killing attacks. Less has been said about people intentionally but wrongly targeted and the Obama administration owes a much more detailed explanation of whom it is killing and why before Americans can rest assured that its government obeys the law.

In short, the Special Rapporteur’s report and the European Parliament’s resolution make some excellent points, but they place too many eggs in the law of armed conflict basket, which is of increasingly questionable relevance, and too few in that of human rights law, which applies at all times and requires considerably greater forbearance in State-sponsored use of lethal force than does the law of armed conflict.