The UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ben Emmerson, has now released the final report on his year-long investigation into the use of drones for killings.
The report presents details of 30 strikes in which civilian harm was credibly alleged, and calls upon the responsible governments to investigate and publicly explain the strikes. The report also recommends that the UN Human Rights Council create a panel of experts to further discuss the legal issues raised by drones and targeted killings. (The report is accompanied by a detailed website, which provides forensic architecture analysis of selected strikes. The website will be publicly available the week of March 10, when the Special Rapporteur presents his report to the UN.)
This post provides a brief description of the major findings and recommendations of the report. Future Just Security posts will provide further commentary and analysis.
Following significant international controversy and debate about drones and targeted killings, in January 2013, the Special Rapporteur announced that he would investigate “drone strikes and other forms of remote targeted killing.” He stated that his aim was to “examine the evidence in detail with a view to determining whether there is a plausible allegation of unlawful killing that should trigger the international law obligations to investigate, obligations which arise both under international human rights law, and under international humanitarian law.” The Special Rapporteur presented an interim report to the UN General Assembly in October 2013, providing an overview of his views on the law applicable to drones and targeted killings, discussing the obstacles posed by government secrecy, and outlining the transparency and accountability obligations of states. That report was designed to be read in conjunction with a report by the UN Special Rapporteur on extrajudicial executions, Professor Christof Heyns, on the legal framework for targeted killings. Those reports built on a decade of prior work by the Special Rapporteur on extrajudicial executions on the topic, including a detailed 2010 report by then Special Rapporteur Philip Alston. During UN inter-governmental debate about the two 2013 reports, numerous states around the world strongly and publicly – many for the first time – criticized the secrecy of current targeted killings practices, and called for reform.
Findings on civilian casualties
Sample strike analysis. The bulk of the final report (¶¶32-69) is a “sample strike analysis” – documentation of 30 individual cases in which civilian harm (including deaths, injuries, or where civilian lives were “put at immediate risk”) was reported, from Afghanistan, Pakistan, Yemen, Somalia, and Gaza. A number of these cases have received little mainstream attention, although many will be familiar to those who follow drone and targeted issues closely, and some of the strikes have been widely reported. They include some of the most contentious strikes of the past decade, including the March 2011 strike on a Jirga in North Waziristan (43 killed, many allegedly civilians), the October 2011 strike that killed 16 year old US citizen Abdulrahman al-Alwaki, the October 2012 strike that allegedly killed a 68 year old Pakistani grandmother, and the December 2013 “wedding convoy” strike that may have killed up to 15 civilians. In all, the report describes allegations of over 300 civilian deaths.
Criteria for inclusion. The report lays out in some detail the criteria for including any particular strike in the Special Rapporteur study. The report does not conclude that any of these strikes necessarily violated the law, or even that the reports of civilian casualties are necessarily accurate. Some of the strike descriptions also note ambiguity about whether the strike was in fact carried out with drones, or ambiguity about which state(s) were responsible. Rather, the report includes a sample of strikes in which there is a “plausible indication” of civilian harm (¶33) that “raises a reasonable suspicion” of illegality (¶34). Credible allegations of civilian harm, the Special Rapporteur finds, “trigger” governments’ legal duties to investigate, and to publicly explain strikes.
In essence, the report states that it is governments who now bear the legal burden of explaining the strikes.
Contested legal issues and challenges to established law
The second main aspect of the report addresses not facts or specific strikes, but discrete legal issues which the Special Rapporteur says need additional inter-governmental discussion (¶¶70-74). He lists a number of legal issues which he says are either subject to disputed interpretation, or where it appears that state practices “challenged established legal norms” (¶70).
Primarily, the legal issues raised by the Special Rapporteur concern the specific circumstances in which it is or is not lawful for a state to encroach on the territory of another country to intentionally kill a person. (Generally speaking, the circumstances in which a person may be lawfully intentionally killed are extremely limited. These legal frameworks are laid out in the 2010 and 2013 reports of the Special Rapporteur on extrajudicial executions, linked to above. The fundamental rules and principles are also broadly agreed by states – what is at issue is the interpretation of certain legal terms, or their application to certain sets of facts). The specific issues of concern raised in the drone/targeted killings context by the Special Rapporteur on countering terrorism include the scope of a state’s right to self-defence (including the proper meaning of “imminence”), the criteria for the existence of an armed conflict, and the circumstances in which an individual may be lethally targeted under international humanitarian law.
Special Rapporteur recommendations
The report contains two primary recommendations. First, that the states which conducted any of the 30 strikes publicly explain them and disclose the results of any fact-finding inquiries, and that states on whose territories the strikes took place “provide as much information as possible” about them. Second, that the Human Rights Council should set-up a panel of experts to discuss and report on the legal issues raised by the use of drones for targeted killings.
Government engagement and responses
The Special Rapporteur report indicates that meetings were held or communications exchanged with the governments of Pakistan, the US, the UK, Yemen, and Israel in the context of the year-long inquiry (¶¶8, 14, 18, 29, 30). Further government engagement will take place when the report is presented to the Human Rights Council – there has not yet otherwise been a public response from those governments to the Special Rapporteur’s final report.
(Note: Sarah Knuckey was one of numerous individuals consulted during the course of the Special Rapporteur’s Inquiry).