The use of armed drones as a response to counterterrorism : a discussion and analysis of the Human Rights Council Panel of 22 September 2014 on the use of remotely piloted aircraft or armed drones in counterterrorism

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1 Van Belle, Jorien

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LL.M International and European Law: Public International Law track Supervisor: Prof. Dr. I.H. Scheltema

The Use of Armed Drones as a Response to Counterterrorism.

A Discussion and Analysis of the Human Rights Council Panel of 22 September 2014 On the Use of Remotely Piloted Aircraft or Armed Drones in Counterterrorism.

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2

University of Amsterdam Academic Year

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3 “Drones, it can safely be said, are here to stay.”

(Christoph Heyns)

But,

“Used foolishly, they can endanger our interests, diminish regional and global stability and undermine our values. Used wisely, they can help advance our national security interests even

as we foster a more robust international commitment to the rule of law.” (the Stimson Task Force Members)

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Introduction

The world is moving towards an increased reliance by States on remote controlled weapon delivery systems, and in particular armed drones.1 A drone2 is a weapon platform that is at all times under human command and control in the process of identification and attacking of targets, meaning that there is a “person in the loop”.3

Flavia Pansieri, United Nations Deputy High Commissioner for Human Rights, states that “since its emergence in the past 15 years, drone technology has developed remarkably and the use of armed drones in the context of counterterrorism measures has grown significantly.”4 Accordingly, discussion of armed drones focused on the question of whether their use is compatible with the rules and principles of international humanitarian law seems desirable. The use of armed drones also has an impact on human rights because they create an atmosphere of fear in the affected communities, and have a negative effect in the everyday life of the affected population.5

Human Rights Council resolution 25/22 called for an expert panel to discuss the use of remotely piloted aircraft.6 As follows, on 22 September 2014, during its twenty-seventh session, the Human Rights Council (HRC) held a panel on the use of armed drones in counterterrorism and military operations and discussed for the first time the use of armed drones.7 The experts at the panel examined issues related to the use of armed drones in

1

Christof Heyns, “Taking a holistic view of the use of drones and the right to life”, 26.

2_{Also called remotely piloted aircraft, remotely operated weapon system, or unmanned aerial vehicle (UAV).} 3_{Jelena Pejic, “Extraterritorial targeting by means of armed drones: Some legal implications”, 1.}

4_{Flavia Pansieri, United Nations Deputy High Commissioner for Human Rights, opened the panel discussion on}

the use of remotely piloted aircraft or armed drones in compliance with international law. A/HRC/27/NGO/101; UNOG, “Human Rights Council holds panel on remotely piloted aircraft or armed drones in counterterrorism and military operations”.

5_{A/HRC/27/NGO/101; UNOG, “Human Rights Council holds panel on remotely piloted aircraft or armed}

drones in counterterrorism and military operations”.

6_{A/HRC/25/L.32.}

7_{HRC panel discussion on “Ensuring use of remotely piloted aircraft or armed drones in counterterrorism and}

military operations in accordance with international law, including international human rights and humanitarian law”, 22 September 2014. The panel discussion was chaired by the President of the Human Rights Council and moderated by Dapo Akande, Co-Director of the Oxford Institute for Ethics, Law and Armed Conflict, Oxford University. The United Nations Deputy High Commissioner for Human Rights, Flavia Pansieri, gave an opening address. The panelists were Shahzad Akbar, Legal Director of the Foundation for Fundamental Rights; Alex Conte, Director of International Law and Protection Programmes at the International Commission of Jurists; the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism; the Special Rapporteur on extrajudicial, summary, or arbitrary executions and Pardiss Kebriaei, Senior Attorney at the Center for Constitutional Rights. During the plenary discussion, delegations from Algeria, Bolivia, Brazil, Chile, China, Cuba, Ecuador, France, Germany, Indonesia, Iran, Ireland, Malaysia, the

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8 counterterrorism and military operations in accordance with international law, including international human rights law (IHRL) and international humanitarian law (IHL), where applicable. For the purpose of this masters’ thesis, only the use of armed drones in counterterrorism will be discussed.

Following, the main research question of this study is as follows: “Is the use of armed drones in counterterrorism in accordance with international law, in particular with international human rights law and international humanitarian law?”

During my research, a few sub-questions will be discussed, in particular relating to:

- The adherence to the law of armed conflict - if and when it applies - in specific drone strikes, supported by international criminal law, the applicability of international human rights law to drone strikes, and the law on the use of inter-State force;

- The legal issues relating to the use of armed drones in counterterrorism as discussed in the debate in the Human Rights Council panel of 22 September 2014 on remotely piloted aircraft or armed drones in counterterrorism and military operations;

- And lastly, which obligations rest upon States to meet the human rights requirements of transparency and accountability.

This masters’ thesis contains a normative/descriptive and analytic study of the use of remotely piloted aircraft in countering terrorism. It focusses on the current state of affairs with regard to armed drones and IHL, and the impact of IHRL to the use of such weapons.

The structure of my masters’ thesis is as follows. The first chapter gives an overview of the background and recent developments of the use of unmanned aerial vehicles (UAVs). As follows, the second chapter discusses the legal frameworks applicable to use of armed drones. The statements of the panellists and delegations of the States and NGOs, will be analysed and discussed. Also the legal issues and controversies as discussed at the HRC panel that may rise regarding remotely piloted aircraft in counterterrorism operations are part of this chapter. Thus, in chapter II, (a) its adherence to IHRL, and (b) – in situations of armed conflict - to

Netherlands, Nigeria, Pakistan, the Russian Federation, South Africa, Sri Lanka, the Sudan, Switzerland, the United Kingdom of Great Britain and Northern Ireland, the United States of America and Venezuela were represented. Delegates of the following NGOs also took the floor: Amnesty International, the Organization for Defending Victims of Violence, the American Civil Liberties Union, the Open Society Institute, the Women’s International League for Peace and Freedom, and a representative of the ICRC.

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9 international humanitarian law, and (c) when the use of armed drones interferes with the territorial sovereignty of other States, it may also give rise to issues of sovereignty and the UN Charter prohibition on inter-State force.8 Although the legal principles resulting from these normative frameworks are universally recognized, their precise application and interpretation with regard to the use of armed drones gives rise to a number of controversies.9 Further, chapter III contains an overview of the human rights impact of drone strikes in affected communities, following by Chapter IV which contains the obligations resting upon States to comply with the human rights requirements of transparency and accountability. Lastly, Chapter V gives some concluding remarks, based on the analysis in the foregoing chapters of the current state of affairs.

Is it desirable that states adopt new legal regulations to limit the use of force through remotely piloted aircraft? And how should States handle to comply with the human rights requirements for transparency and accountability?

8_{See, e.g., A/HRC/14/24/Add.6; Nils Melzer, Targeted Killing in International Law; Robert M. Chesney, “Who}

May Be Killed? Anwar al-Awlaki as a case study in the international regulation of lethal force”.

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Methodology

For the first part of my study on unmanned aerial vehicles (UAVs) in counterterrorism operations, the reports to the UN General Assembly of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns,10 and in parallel, the interim report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ben Emmerson,11 will be discussed. The former has the aim to contribute to clarifying the application of the rules on the use of lethal force through armed drones and the reiterate their authority, from the perspective of protection of the right to life, while the latter is an interim report to the General Assembly on the use of remotely piloted aircraft in counterterrorism operations. While the two reports are separate and independent, they cover, to some extent, the same ground.12

As a continuation of his interim report on the use of drones to the General Assembly of 18 September 2013, Ben Emmerson examines the use of remotely piloted aircraft in extraterritorial lethal counterterrorism operations in his report of 11 March 2014.13 This report is to be read in conjunction with his interim report to the General Assembly and the report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, as referred to above.

Also the report to the General Assembly of the former Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin,14 will be discussed since it will give some opposing views to the report of the current Special Rapporteur Ben Emmerson. It addresses in particular the question of compliance with human rights by the UN when countering terrorism. The report also addresses ways and means of improving the human rights accountability of the UN for its field operations, including in the context of countering terrorism.

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A/68/382.

11_A/68/389.

12_{A/68/382, par. 25 and A/68/389, par. 20.} 13_A/HRC/25/59.

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11 Lastly, and more recently, the Stimson Task Force on Drone Policy Report15 persuasively describes the significant advantages that the US could realize if it were to be transparent about its use of force, not only in terms of securing international and domestic legitimacy, but also so that the US might establish and defend legal and customary norms that would cabin the future use of force by other nations.

These reports can be found online on the official website of the Office of the High Commissioner for Human Rights, www.ohchr.org, and the last report on www.stimson.org, the official website of the Stimson Task Force.

For a discussion and analysis of the HRC panel discussion of 22 September, and accordingly for answering the main research question, the Report of the Office of the United Nations High Commissioner for Human Rights16 which provides a summary of the interactive panel discussion of experts on the use of remotely piloted aircraft or armed drones, held on 22 September 2014, during the twenty-seventh session of the Human Rights Council, will be discussed and analysed.

Resolutions of the United Nations General Assembly are to be found on the official website of the UN General Assembly, www.un.org, and those of the United Nations Human Rights Council on its official website, namely www.ohchr.org.

Additional sources contributing to my research contain books, articles, other reports and studies, and commentaries from professors, PhD researchers and other experts in the field on blogs or in newspaper articles. These sources, notably books and articles, are to be found, in first instance, online through the online library CatalogusPlus of the University of Amsterdam. The other additional sources will online be accessible.

15_{Stimson Task Force on Drone Policy Report of 26 June 2014.} 16

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Chapter I The Law of Drones: Background and Development

1.1 Historical Background

Originally, drones, unmanned aerial vehicles (UAVs) or unmanned aircraft were developed to gather intelligence and conduct aerial surveillance and reconnaissance. The first reported use of an armed drone was in 1919, when Elmer Sperry successfully sunk a captured German battleship with a pilotless aircraft.17

Later on, drones were deployed on a large scale for aerial surveillance and reconnaissance in armed conflict by the United States, namely in Vietnam in the 1960s,18 and in Bosnia and Herzegovina and then in Kosovo in the 1990s.19 Their functions gradually expanded to areas such as search and rescue, communications systems relay, suppression of hostile air defence, and direct attacks against selected targets.20

Over the last 10 years, the use of armed drones for counterterrorism purposes has seen “explosive” growth, beginning with the drone attacks in the Israeli-occupied areas since 2000, with a view to killing Osama bin Laden,21 continuing the Second Gulf War (2003-2011), and reaching its current peak in the course of the US’ drone strikes at suspected terrorists or members of armed groups in Afghanistan since 2001. It has been claimed that their first drone strike occurred in November 2001, targeting a high-level Al Qaeda meeting in Kabul.22 Anna Lindh, Former Swedish foreign minister, described the killing of suspected Al Qaeda member Qaed Sinan al-Harithi in Yemen in November 2002 as “a summary execution that violates

17

US Army UAS Center of Excellence, “Eyes of the Army”; Robert P. Barnidge, Jr., “A Qualified Defense of American Drone Attacks in Northwest Pakistan under International Humanitarian Law”.

18_{David Cenciotti, “The dawn of the robot age: US Air Force testing air-launched UCAVs capable to fire}

Maverick and Shrike missiles in 1972”.

19

X., “Predator drones and unmanned aerial vehicles (UAVs)”.

20_{US Dep’t of Defense, “Unmanned Systems Integrated Roadmap FY2011-2036”, 21.} 21_{See, e.g., Daniel Benjamin and Steven Simon, The Age of Sacred Terror.}

22_{See, e.g., John Yoo, “Assassination or Targeted Killings After 9/11”, citing also James Risen, “A nation}

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13 human rights”.23 The US also developed armed drones in Pakistan, Yemen and Somalia, which are not theatres of US military operations.24

1.2 Recent Developments

The United Nations Global Counter-Terrorism Strategy25 was the first comprehensive, collective and internationally approved framework for tackling the problem of terrorism worldwide.26 The main recommendations contain the defence of human rights and the upholding of the rule of law while countering terrorism.27

Under Barack Obama’s presidency, the use of drones “out-of-theatre” has increased significantly comparing to Bush’s counterterrorism actions.28 More drone strikes were carried out in Obama’s first year in office than in the previous 8 years combined under Bush and in 2010, Obama’s administration is said to have authorized more than twice as many drone strikes in north-west Pakistan as it did in 2009.29 The tables below give a comparison of the US drone strikes under Bush and president Obama.30

The Bush Years

Total CIA drone strikes 51 Total reported killed 410-595 Civilians reported killed 167-332 Children reported killed 102-129 Total reported injured 175-277

CIA Strikes Obama 2009 2010 2011 2012 2013 2014 2015

23_{Brian Whitaker and Oliver Burkeman, “Killing probes the frontiers of robotics and legality”.} 24

Anthony Dworkin, “Drones and targeted killing: Defining a European position”, 47.

25_{Adopted by the UN General Assembly in its resolution A/60/288.}

26_{Today, the UN General Assembly has adopted more than sixty resolutions on international terrorism. Its first}

resolution on the subject of human rights and terrorism was adopted in 1993, in which it underlined that the right to life is the most essential and basic human right (A/RES/48/122). In 1995, it affirmed that all measures to counter terrorism should be in strict compliance with international human rights standards (A/RES/50/186). Since 2003, annual resolutions on the protection of human rights and fundamental freedoms while countering terrorism have been adopted, which have increasingly dealt with specific human rights questions that might arise while countering terrorism. (A/65/258, par. 23; Bibi van Ginkel, The Practice of the United Nations in

Combating Terrorism from 1946 to 2008: Questions of Legality and Legitimacy.)

27_{See A/60/825; A/65/258, paras. 19 and 24; A/RES/60/288, annex, par. 3; A/RES/57/219.} 28_{Anthony Dworkin, “Drones and targeted killing: Defining a European position”, 47.} 29

Peter Bergen and Katherine Tiedemann, “Hidden war, there were more drone strikes – and far fewer civilians killed”.

30_{Data from the Bureau of Investigative Journalism, available at www.thebureauinvestigates.com. Please note}

that the data change according to the current understanding of particular strikes. These data represent the present best estimate.

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14 Total CIA drone

strikes 52 128 75 50 27 25 6 Total reported killed 465-744 755-1.108 363-666 199-410 109-195 115-186 29-41 Civilians reported killed 100-210 89-197 52-152 13-63 0-4 0-2 0 Children reported killed 36-39 23 6-11 1-2 0-4 0-2 0 Total reported injured 262-397 351-428 158-236 100-212 43-89 53-76 9-14

Of the estimated 465 non-battlefield US targeted killings since November 2002, approximately 98 percent were carried out by drones.31 The number of strikes by the US appear to have peaked in 2010 in Pakistan and in Yemen in 2012.32

Figures from Afghanistan for 2013 indicate that drone strikes accounted for almost 40% of the total number of civilian fatalities inflicted as the result of aerial attacks by pro-Government forces. This represents a threefold increase in the number of recorded civilian casualties from the use of remotely piloted aircraft as compared to 2012, and a significant increase in the number of civilian casualties from drone strikes as a percentage of the overall number of civilian casualties from drone operations.33 The table below gives an overview of the reported US drone strikes in Afghanistan for the year 2015.34

Reported US strikes, Afghanistan 2015

Confirmed US strikes Possible US strikes

Total reported strikes 6 5

Total reported killed 44-57 33

Civilians reported killed 0 0-1

Children reported killed 0 0-1

Total reported injured 0 9

31

Sarah Kreps, “The Foreign Policy Essay: Preventing the Proliferation of Armed Drones”.

32_{Jack Serle, “Yemen: Reported US covert actions 2015”, Covert Drone War, Get the data: Drone Wars; Karen}

DeYoung and Greg Miller, “U.S. curtails drone strikes in Pakistan as officials there seek peace talks with Taliban”; Patrick Galey, Jack Serle and Alice K. Ross, “Drone strikes in Yemen”.

33

A/HRC/25/59, par. 25; Jack Serle, “Get the data: A list of US air and drone strikes, Afghanistan 2015”, Covert

Drone War, Get the data: Drone Wars.

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15 During 2012, there has been a marked drop in reported civilian casualties from attacks by drones in Pakistan.35 Figures from the Bureau for Investigative Journalism of the end of 2013 confirm that there has been a significant de-escalation in the number of recorded drone strikes,36 and reports by human rights NGO’s have used similar estimates.37

Obama said that “the core of Al Qaeda in Afghanistan and Pakistan is on the path to defeat” and, that while Al Qaeda franchises and other terrorists continue to plot against the US, “the scale of this threat closely resembles the types of attacks we face before 9/11”. The President further promised that “systematic effort to dismantle terrorist organizations must continue. But this war, like all wars must end.”38

In contrast, the frequency of reported drone strikes in Yemen has increased since 2013, resulting in a significant number of reported civilian casualties in the final weeks of 2013.39 The table below gives an overview of covert US drone operations in Yemen for the year 2015.40

35_{A/68/389, par. 33.}

36_{The Bureau for Investigative Journalism estimates that US drone strikes in Pakistan have killed between 416}

and 951 civilians, including as many as 200 children. Craig Whitlock, “Drone Strikes Killing More Civilians than U.S. Admits, Human Rights Groups Say”.

37_{Matt Sledge, “The Toll of 5 Years of Drone Strikes: 2.400 Dead”.}

38_{Speech Barack Obama, 23 May 2013, at the National Defense University at Fort McNair in Washington.} 39_{Since 2009, the United States has conducted at least 86 lethal counterterrorism operations, using drones,}

killing up to 500 people (HRW, A wedding that became a funeral: US Drone Attack on Marriage Procession in

Yemen). See A/HRC/25/59, paras. 59 and 60.

Covert US operations, Yemen 2015 Confirmed drone strikes Possible drone strikes Additional US attacks

Total reported strikes 3 4 0

Total reported killed 10-13 10-17 0

Civilians reported killed 1-2 0 0 Children reported killed 1 0 0

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16 Members of the European Union note their differences with the US policy of targeted killings. According to an opinion poll, people in all European countries sampled are opposed to the use of drones to kill extremists outside the battlefield. In addition, the majority of European legal scholars believe that many, if not all, of these strikes are unlawful.41

On 25 February 2014, the European Parliament (EP) passed a resolution on the use of armed drones42 calling for the adoption of a common position for the EU on their use. The Parliament expresses its grave concern over the use of armed drones outside the international legal framework and urges the EU “to develop an appropriate policy response at both European and global level which upholds human rights and international humanitarian law.” It concluded that “drone strikes outside a declared war by a State on the territory of another State without the consent of the latter or of the Security Council, constitutes a violation of international law and of the territorial integrity and sovereignty of that country.” Further, the EP stresses that the EU has to promote greater transparency and accountability on the part of third countries in the use of armed drones with regard to the legal basis for their use and to operational responsibility. States also have to allow judicial review of drone strikes and ensure that victims of unlawful strikes have effective access to remedies.43

41

Pew Research Center, “Global Opinion of Obama Slips, International Policies Faulted”, Pew Research Global Attitudes Project, 13 June 2012, available at www.pewglobal.org/2012/06/13/chapter-1-views-of-the-u-s-and-american-foreign-policy-4/#drones.

42_{2014/2567(RSP).} 43

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Chapter II

The Legal Frameworks Applicable to the Use of

Armed Drones

“Drones are a form of weapon that poses challenges. The legal framework is already established, and what is needed is implementation and respect of this law.”44

- Christoph Heyns.

Drones are not unlawful weapons per se, because of the ease with which they can unlawfully be used for targeted killings, but are often being used in an unlawful way.45 Therefore, they create specific challenges and are necessarily subject to special scrutiny. The use of armed drones happens in counterterrorism and military contexts, but also increasingly in ordinary policing and law enforcement.46 The proliferation of weaponized drone technology, taken together with the increasingly asymmetrical nature of modern conflicts, poses challenges for the framework of international law. This has led some to argue that the existing rules require “translation” to take account of changing circumstances.47 Some delegations at the HRC panel call for the use of armed drones to be regulated at the international level. One delegation even suggests to place a moratorium on the use of new forms of warfare until issues of the legality of their use has been clarified under international law.48

Many of the practices of targeted killings violate straightforward applicable legal rules. To the extent that customary law is invoked to justify a particular interpretation of an international norm, Philip Alston states that the starting point must be the policies and practice

44_{A/HRC/28/38, par. 11.} 45

“The use of drones per se is not illegal. It is not about the weapons but the use of the weapon, and this must be governed by IHRL, unless used in the context of the armed conflict.” (A/HRC/28/38, par. 34.)

46_{Ibid, par. 11.}

47_{See, e.g., Harold Hongju Koh, “How to end the forever war?”.} 48

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18 of the vast majority of States and not those of the handful which have conveniently sought to create their own personalized normative frameworks. Furthermore, he states that it should be added that any of the justifications for targeted killings offered by one or other of the relevant States in particular current contexts would in all likelihood not gain their endorsement if they are to be asserted by other States in the future.49

The most important international legal frameworks which govern the use of force are human rights law and, in situations of armed conflict, IHL. Where States use armed force extraterritorially, it may also give rise to issues of State sovereignty and of territorial sovereignty50 and the UN Charter prohibition on inter-State force.51 For a drone strike to be lawful under international law, all measures adopted by States for the purpose of countering terrorism must comply with all the distinct requirements posed by the various constitutive parts of international law, namely the UN Charter, IHRL and, in the context of armed conflict, IHL,52 for the right to life to be adequately secured.53

2.1 International Humanitarian Law

The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism recalls that in situations of armed conflict both international human rights law and international humanitarian law regimes apply and overlap with regard to targeted killings.54

49_{A/HRC/14/24/Add.6, par. 4.} 50_{A/68/382, par. 23.}

51

See, e.g., A/HRC/14/24/Add.6; Nils Melzer, Targeted Killing in International Law; Robert M. Chesney, “Who May Be Killed? Anwar al-Awlaki as a case study in the international regulation of lethal force”.

52_{A/HRC/28/38, par. 36. Also according to the delegations of Pakistan and Indonesia, the use of armed drones}

should comply with the principles of precaution, distinction and proportionality. However, in the opinion of the delegation of Cuba, armed drones shall not be considered legal as they cannot guarantee the distinction between persons involved in combat activities and civilians. Also the ICRC says that the in case of drone strikes against persons participating directly in hostilities from the territory of a non-belligerent state, or moves into such territory after taking part in an ongoing armed conflict, as has been the case with Pakistan, IHL will not be applicable, meaning that such an individual should not be considered a lawful target under IHL, and other frameworks will govern such cases, in particular IHRL and domestic law.” Advising otherwise would mean that the whole world is potentially a battlefield and that a person moving around the glove could be lawfully targeted under IHL in the territories of States not party any armed conflict,” as stated by ICRC delegate at the panel. (UNOG, “Human Rights Council holds panel on remotely piloted aircraft or armed drones in counterterrorism and military operations”.)

53_{A/68/382, par. 24.}

54_{In IHRL, the targeted killing of an individual is rarely justifiable or lawful and has different connotations,}

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19 Under international law, a targeted killing by a Government can only be lawful if that State itself is party to an ongoing armed conflict and when some cumulative conditions are met. Namely, the conflict has to be between identified parties, be they States or armed groups that can be distinguished from other organized or non-organized actors and meet the criteria of being capable of being party to an armed conflict. Further, any person who is identified as a target is associated with such a party to an armed conflict, and fourth, personally a legitimate target. Lastly, the killing has to take place within a geographical space that constitutes a “theatre” for the ongoing armed conflict or has a genuine nexus with the actual theatre because operations within the theatre are being carried out or directed from the outside55

The use of drones for targeted killings has generated significant controversy. IHL places limits on the weapons a State may use, and weapons that are inherently indiscriminate are prohibited.56 Some have suggested that drones as such are prohibited weapons under IHL because they cause necessarily indiscriminate killings of civilians, or at least have that effect.57 However, the legal question, whether its use is compatible with IHL, is the same for a drone because a missile fired from a drone is not different from any other commonly used weapon.58 Therefore, States must ensure that the criteria they apply to determine who can be targeted and killed59 do not differ based on the choice of weapon.60

If drones are used in strict compliance with the principles of IHL, they are capable of reducing the risk of civilian casualties in armed conflict by significantly improving the overall situational awareness. Therefore, the ability of drones to loiter and gather intelligence for long periods before a strike, coupled with the use of precision-guided munitions, is a positive advantage from a IHL perspective.61 As noted by the International Committee of the Red Cross (ICRC), “any weapon that makes it possible to carry out more precise attack, and helps to avoid or minimize incidental loss of civilian life, injury to civilians, or damage to civilian objects, should be given preference over weapons that do not.”62

55_{Martin Scheinin, “The lawful scope for targeted killings by governments, and resulting considerations about}

transparency and accountability”, par. 2.

56

The general prohibition under IHL is against weapons that violate the principle of distinction or cause unnecessary suffering. (See HPCR Commentary, section C.)

57_{Murray Wardrop, “Unmanned Drones Could be Banned, Says Senior Judge”.} 58_{A/HRC/14/24/Add.6, par. 79.}

59

I.e. who is a lawful combatant, or what constitutes “direct participation in hostilities” that would subject civilians to direct attack.

60_{A/HRC/14/24/Add.6, par. 80.} 61_{A/68/389, paras. 28 and 77.} 62

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2.1.1 Drone Strikes Within the Theatre of an Armed Conflict

International law also recognizes that States have the right to use armed force outside their own borders when doing so is necessary to prevent an imminent attack.63 The most important prerequisite for the applicability of IHL is the existence of an “armed conflict”, and thus the starting point for legal judgments on drone strikes in the context of the fight against terrorism is the definition of “armed conflict”.64

Common Article 2 of the Geneva Conventions (GC) defines international armed conflict (IAC) as between two or more High Contracting Parties to the Treaty, that is States. The article is less clear on the role of non-State actors and whether non-State actors have to be sponsored by a State.65 Non-international armed conflicts (NIAC) are defined as between governmental forces and non-governmental armed groups, or between such groups only.66

The precise meaning and scope of this notion has become the subject of renewed controversy. Most notably, the US’ concept of a global “War on Terror” against Al Qaeda and affiliated groups has sparked an intense controversy as to whether the US counterterrorist campaign could accurately be described as an “armed conflict” and, if so, whether this meant that IHL would automatically apply wherever the US decided to target or detain suspected terrorists.67 The key challenge is the question of geographic limitation and assessment of the intensity and organization of the conflict, and the frequency and seriousness of the conflict.68

63_{Stimson Task Force on Drone Policy Report of 26 June 2014, 12 and 34. See also Ashley Deeks, “’Unwilling}

or Unable’: Toward an Normative Framework for Extra-Territorial Self-Defense”.

64_{James DeShaw Rae, Analyzing the Drone Debates: Targeted Killings, Remote Warfare, and Military}

Technology, 52. IHL treaty law also establishes a distinction between non-NIACs in the meaning of common

Article 3 GC and NIACs falling within the definition provided in Article 1 of AP II. (ICRC, “How is the Term “Armed Conflict” Defined in International Humanitarian Law?”.)

65_{A/68/389, par. 53.} 66

ICRC, “How is the Term “Armed Conflict” Defined in International Humanitarian Law?”.

67_{See US Department of State, Speech Koh (2010); US White House, Speech Brennan (2012). Today, the US no}

longer uses the notion of the “War on Terror” officially but still asserts that it is engaged in an “armed conflict” against Al Qaeda, the Taliban and associated forces.

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21 Some argue that there is a NIAC69 between the US and Al Qaeda and thus, the latter is to be considered as an “organized armed group.”70 If the organizational requirement is not satisfied in a situation, IHL cannot be applicable.71 It has been discussed whether Al Qaeda fulfils the organizational requirement to be described as an armed group under IHL.72 The acts of persons funded, supported, trained, or even inspired by the core group of fighters directly linked to Osama bin Laden should be considered acts of Al Qaeda, in particular when that group takes credit for the attacks.73 Colonel David Wallace, concludes that the killing of Osama Bin Laden was legal.74 Anthony Dworkin concludes that the US is engaged in an armed conflict with Al Qaeda and associated forces, and might thus lawfully kill any member of the opposing forces wherever they are found, and this remains in place to serve as a precedent for other States that wish to claim it.75

Today, the situations in Afghanistan, Iraq, and with the Taliban, Al Qaeda, and associated forces have consistently been characterized as that of an armed conflict governed by the laws of war.76 Namely, the hostilities between the US and Al Qaeda are considered sufficiently intense and Al Qaeda is considered sufficiently organized to constitute an armed conflict.77 Consequently, the Government may properly utilize law of war methods78 as well as criminal

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Two requirements are needed for the existence of a NIAC under international law, namely “protracted armed violence” and “a certain level of organization”. (Timur Demir, “The organizational requirements for the threshold of non-international armed conflict”, 127.)

70_{David Wallace, “Operation Neptune’s Spear: The lawful killing of Osama Bin Laden”, 373.} 71

Timur Demir, “The organizational requirements for the threshold of non-international armed conflict”, 127.

72_{See David Wallace, “Operation Neptune’s Spear: The lawful killing of Osama Bin Laden”; Kai Ambos and}

Josef Alkatout, “Has ‘justice ben done’? The legality of Bin Laden’s killing under international law”; Rogier Bartels, “More on the organizational requirement: Al-Qaida and two new articles dealing with the killing of Osama Bin Laden”.

73_{See Jordan J. Paust, “Self-Defensive Targetings of Non-State Actors and Permissibility of US Use of Drones}

in Pakistan”, 237.

74_{“Notwithstanding its loose and decentralized network configuration, it would be incorrect to characterize Al}

Qaeda as a group of terrorist criminals rather than an organized armed group. Al Qaeda operates as an ‘omni-directional, non-hierarchical network for tactical purposes, but with a cohesive and centrally articulated ideology’.” (David Wallace, “Operation Neptune’s Spear: The lawful killing of Osama Bin Laden”, 371-372.)

75_{Anthony Dworkin, “Drones and targeted killing: Defining a European position”, 53.} 76

See, e.g., Harold Hongju Koh, Legal Advisor, U.S. Dep’t of State, Keynote Address at the American Society for International Law Annual Meeting: The Obama Administration and International Law, 25 March 2010; Exec. Order No. 13234, 66 Fed. Reg. 221, 9 November 2001; Exec. Order No. 13239, 66 Fed. Reg. 241, 12 December 2001; Military Oder, 66 Fed. Reg. 222, 13 November 2001); Respondents’ Memorandum Regarding the Government’s Detention Authority Relative to Detainees Held at Guantanamo Bay, In re Guantanamo Bay

Detainee Litigation, No. 08-442, 3, D.C. 13 March 2009); President Barack Obama, Remarks by the President

on National Security, National Archives, 21 May 2009); Human Rights Council, U.S., Nat’l Report Submitted in Accordance with Par. 15 (a) of the Annex to Human Rights Council Res. 51, A/HRC/WB.6/9USA/1, 23 August 2010.

77_{ICTY, Prosecutor v Boskoski, Judgment of 10 July 2008, 78-93; Andrew C. Orr, “Unmanned, Unprecedented}

and Unresolved: The Status of American Drone Strikes in Pakistan under International Law”, 743.

78_{Some violations of the right to life are considered to be war crimes. For instance, if one drone strike is}

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22 law enforcement methods for enforcement, detention, and prosecution of terrorists, depending on the circumstances.79

2.2.2 The Use of Drones Away from the Battlefield

The overwhelming majority of drone strikes have been conducted within the context of armed conflict.80 The US, however, has publicly asserted a right under international law to use lethal force in counterterrorism operations conducted outside areas of active hostilities. According to Ben Emmerson, this gives rise to a number of issues on which there is either clear international consensus, nor US policy appears to challenge established norms.81

The Stimson Center created a distinguished task force on US Drone Policy. The task force members disagree with those critics who declare that US targeted killings are “illegal”, but they continue by saying that changing technologies and events have made it increasingly difficult to apply IHL and the law on the use of force in a consistent and principle manner.82

Al Qaeda certainly uses force, but it is not a State and has global geography of adherents that are not easily identifiable. Therefore, a State cannot engage in an armed conflict with Al Qaeda, and consequently, the CIA is in control of drone strikes in Pakistan.83 Some scholars argue that hostilities between the US and Al Qaeda do not rise to the level of an armed conflict. Moreover, Al Qaeda is actually a network of separate, loosely affiliated entities, and it does not make sense to characterize every act of violence carried out in the name of Al Qaeda as actually the work of a single, well-defined organization.84 Kai Ambos et al. conclude that the killing could not be justified by referring to IHL as to consider that there was no armed conflict between the US and Al Qaeda at the time of the killing of Osama Bin

targets, it will constitute a war crime. (See Nils Melzer, “Human rights implications of the usage of drones and unmanned robots in warfare”, 18. See also Nils Melzer, Targeted Killing in International Law, 177-221.) Other violations are considered crimes against humanity. (See, ICTY, Prosecutor v. Mile Mrkzic and Vezelin

Sljivancanin, Judgement of 5 May 2009.)

79_{Ryan J. Vogel, “Drone Warfare and the Law of Armed Conflict”, 106-107.} 80_{A/68/389, par. 59.}

81_{White House, “Fact sheet: U.S. policy standards and procedures for the use of force”; Daniel Bethlehem,}

“Self-defence against an actual or imminent armed attack by non-state actors”.

82_{Stimson Task Force on Drone Policy Report of 26 June 2014, 12 and 34.} 83_{X., “An act of self-defense? More on the legality of drone strikes in Pakistan”.}

84_{Matthew C. Waxman, “The Structure of Terrorism Threats and the Laws of War”, Duke Journal of}

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23 Laden could not be seen as an “organized armed group.”85 But, as already indicated above, the situations between the US and Al Qaeda have consistently been characterized as an armed conflict and are thus governed by the laws of war.86

Some argue that targeting operations conducted outside the geographical battlefield do not fall under the law of armed conflict at all, but under criminal law, and therefore such operations constitute unlawful killings.87 Legal Adviser at the US Department of State, Harold Koh, notes that the decision of whether a particular individual will be targeted in a particular location will depend upon considerations specific to each case, including those related to the imminence of the threat, the sovereignty of the other State involved, and the willingness and ability of those States to suppress the threat the target poses.88 The Direct of International Law and Protection Programmes at the International Commission of Jurists notes that in cases that do not rise to the level of an armed conflict, IHL is relevant in the determination of whether a killing is unlawful or arbitrary.89

2.2 International Human Rights Law

“Discussions of armed drones have largely focused on the question of whether their use is compatible with the rules and principles of international humanitarian law, which is

85

“While, with the attacks of 11 September 2001, Al Qaeda has shown an organisational structure and it capacity to pose a military threat, and it has therefore rightly been regarded as an organized armed group, years later, Al Qaeda’s activity had slowed down. It therefore no longer posed a serious military threat, nor did it have a centralized military command structure. Worldwide attacks which are attributed to, or claimed by, the network might have occurred to bin Laden’s satisfaction but not under his control. He did not, like the commander of an organization within the meaning of IHL, dispose of direct authority on subordinated individuals.” (Kai Ambos and Josef Alkatout, “Has ‘justice ben done’? The legality of Bin Laden’s killing under international law,” 349-350.)

86

See, e.g., Harold Hongju Koh, Legal Advisor, U.S. Dep’t of State, Keynote Address at the American Society for International Law Annual Meeting: The Obama Administration and International Law, 25 March 2010; Exec. Order No. 13234, 66 Fed. Reg. 221, 9 November 2001; Exec. Order No. 13239, 66 Fed. Reg. 241, 12 December 2001; Military Oder, 66 Fed. Reg. 222, 13 November 2001); Respondents’ Memorandum Regarding the Government’s Detention Authority Relative to Detainees Held at Guantanamo Bay, In re Guantanamo Bay

Detainee Litigation, No. 08-442, 3, D.C. 13 March 2009); President Barack Obama, Remarks by the President

on National Security, National Archives, 21 May 2009); Human Rights Council, U.S., Nat’l Report Submitted in Accordance with Par. 15 (a) of the Annex to Human Rights Council Res. 51, A/HRC/WB.6/9USA/1, 23 August 2010.

87_{See, e.g., Anthony D. Romero, Open Letter to President Obama, Commentary on oversight & governmental}

reform; Mary Ellen O’Connell, “Rise of Drones II: Unmanned Systems and the Future of Warfare: Hearing before the U.S. House Subcommittee on National Security and Foreign Affairs”; Reply Memorandum in Support of Plaintiffs Motion for a Preliminary Injunction and in Opposition to Defendant’s Motion to Dismiss, 16-20,

AlAulaqi v. Obama, D.D.C. 8 October 2010.

88_{Harold Hongju Koh, Legal Advisor, U.S. Dep’t of State, Keynote Address at the American Society for}

International Law Annual Meeting: The Obama Administration and International Law.

89

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24 applicable in situations of active hostilities in the context of an armed conflict. But international human rights law applies at all time, including in situations of armed conflict.”90

- Flavia Pansieri.

The most important human right affected by the use of drones is the human right to life.91 It is widely regarded as the supreme right,92 since it is described as a rule of CIL, a general principle of international law and seen by some as a rule of jus cogens 93 In addition, at the global as well as at regional levels, it also enjoys wide treaty protection.94 IHRL is binding on all States and provides the default protection of the right to life. The right to life proscribes the arbitrary deprivation of life, and lethal force may be used only if necessary and proportionate.95

2.2.1 The Prohibition of Arbitrary Deprivation of Life and Lethal Force May Be

Used Only if Necessary and Proportionate

A State cannot use deadly force merely because capture is not feasible. In the opinion of Philip Alston, targeted killings are only allowed in concrete and immediate circumstances

90_{UNOG, “Human Rights Council holds panel on remotely piloted aircraft or armed drones in counterterrorism}

and military operations”.

91

Nils Melzer, “Human rights implications of the usage of drones and unmanned robots in warfare”, 15.

92_{HRC, CCPR General Comment No. 6: the right to life; HRC, CCPR General Comment No. 14, par. 1; HRC,}

Suarez de Guerrero v. Colombia, (Communication), par. 13.1; Yoram Dinstein, Models of autonomy, 114 and

115; Manfred Nowak, UN Covenant on Civil and Political Rights, CCPR Commentary, Article 6, mns. 1 and 2.

93

Human Rights Committee, general comment No. 24 (1994), on issues relating to reservations made upon ratification or accession to the International Covenant on civil and Political rights, par. 10.

94_{An argument that supports the applicability of human rights is that human rights obligations exist on account}

of the adoption of the UDHR, treated by many as an authoritative interpretation of human rights obligations. When the UN General Assembly proclaimed the Universal Declaration of Human Rights in 1948 “as a common standard of achievement for all peoples and all nations”, the human rights as fundamental freedoms enshrined therein were meant to be promoted and respected universally. The Declaration is not legally binding but it certainly is a strong indicator of a shared legal opinion of the international community. It is included in the Universal Declaration of Human Rights in its Article 3. (A/65/258, par. 17.) Article 3 UDHR; Article 6 ICCPR; Article 6 of the Convention on the Rights of the Child; Article 11 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; Article 11 of the Convention on the Rights of Persons with Disabilities; Article 4 of the African Charter on Huma and Peoples’ Rights.

95

Christof Heyns, “Taking a holistic view of the use of drones and the right to life”, 28. The use of deadly force by a State is lawful only if strictly necessary and proportionate, if aimed at preventing an immediate threat to life and if there are no other means of preventing the threat from materializing. (Philip B. Heymann and Juliette N. Kayyem, The Long-Term Legal Strategy Project for Preserving Security and Democratic Freedoms in the War

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25 under human rights law,96 and intentional, premeditated, and deliberate killing by law enforcement officials cannot be legal because killing cannot be the sole objective of an operation unlike in armed conflict, rather attempts to capture or incapacitation with non-lethal force are required.97

It is now a well-established principle of international law that the human rights prohibition on arbitrary killing is designed to apply at all times, including in situations of armed conflict to which the rules of IHL are applicable complementary, not mutually exclusive.98 The test of whether a deprivation of life is arbitrary under human rights law during armed conflict must thus be determined by the applicable lex specialis, namely by relying on the interpretative effect of the applicable targeting rules of IHL within the framework of IHRL,99 because accountability for the arbitrary deprivation of the right to life is also a key element of IHL, including the duty to investigate and punish those who are responsible, where appropriate.100

The protection of life remains the ideal.101 Therefore, the human right to life places stringent conditions on the use of lethal force. As reflected in Article 6 (1) of the International Convention on Cultural and Political Rights (ICCPR) the first and foremost dimension of the right to life is the prohibition against arbitrary deprivation of life.102 As a general rule, human rights treaties state that any deprivation of life must be non-arbitrary.103 International security

96_{Nils Melzer, Targeted Killing in International Law, 59.} 97

A/68/382, paras. 11-14 and 25.

98_{HRC, General Comment No. 31 (2004), on general state obligations, par. 11; and building upon earlier}

General Comment No. 29 on states of emergency. See the express references to “war” in human rights treaties, e.g. Article 27 (1) ACHR, Article 15 (1) ECHR, and the express or implicit references to “war” in human rights treaties, e.g. Preamble AP II, Articles 51 (1) and 72 AP I. See also the practice of the ICJ, e.g. Legality on the

Threat or Use of Nuclear Weapons, Advisory Opinion, paras. 24-25; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, paras. 105-106; the practice of the UN HRC,

e.g. General Comments No. 29, 2001, par. 3; No. 31, 2004, par. 11; the practice of the IACHR, e.g. Coard and

others v. United States, par. 39; Coard and others v. United States, par. 158; the practice of the UN GA, e.g.

Resolutions 2252 of 4 July 1967; 2444 of 19 December 1968; 2675 of 9 December 1970; 58/96 of 9 December 2003, paras. 3 and 5; 58/99 of 9 December 2003, paras. 2 and 5; and the practice of the UN SC, e.g. Resolutions 237 of 14 June 1967; 1041 of 29 January 1996; Presidential Statement of 12 February 1999, S/PRST/1999/6, paras. 2 and 7. The ECHR permits derogations from the right to life, but only within the limits of lawful acts of war. (A/68/382, par. 41.)

99_{ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 226; ICJ, Legal Consequences of}

the Construction of a Wall, par. 106; ICJ, Armed Activities on the Territory of the Congo, par. 216.

100

A/HRC/28/38, par. 12.

101_{Christof Heyns, “Taking a holistic view of the use of drones and the right to life”, 25.}

102_{Martin Scheinin, “The lawful scope for targeted killings by governments, and resulting considerations about}

transparency and accountability, par. 4.

103

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26 and the protection of the right to life depend on the principle that the use of force is a matter of last resort.104

In any situation other than active hostilities in an armed conflict, IHRL requires that the prohibition of the arbitrary deprivation of life implies that the intentional use of lethal force is lawful only when an individual poses an imminent threat to the life of another and where the use of lethal force is strictly unavoidable to protect life.105 Thus, an agent of the State may take or endanger the life of an individual only if it is strictly necessary and proportionate to protect against an imminent threat to life. There may be no other means than the use of lethal force to protect the life of another person.106 Those international human rights standards govern the use of armed drones in law enforcement situations.107

Armed drones are often not used to counter an imminent threat, or in situations where there are no other alternative means. According to the Legal Director of the Foundation for Fundamental Rights, there must be prove of an imminent threat to human life.108 He recalls that in all cases, the onus is on the state using armed drones to prove that the use of force was absolutely necessary and proportional. The experience in Pakistan showed that this simply was not the case. The obligation is not upon individuals to prove they pose no threat, but the obligation is upon the State firing the armed drone to show that their use of force was necessary.109

In the EU, Member States have not yet tried to formulate a common position on the use of lethal force outside battlefield conditions. The default assumption would be that the threat of terrorism should be confronted within a law enforcement framework which would not absolutely prohibit the deliberate killing of individuals, but it would set an extremely high threshold for its use, such as, for instance, it might be permitted where strictly necessary to prevent an imminent threat to human life or a particularly serious crime involving a grave

104

A/68/382, paras. 21 and 32. See also principle 10.

105_A/68/382_{, paras. 6 and 35.}

106_{A/HRC/28/38, par. 12; Article 3 Code of Conduct for Law Enforcement Officials.}

107_{A/68/382, paras. 6 and 38; CCPR/CO/78/ISR, par. 15; ICRC, “Interpretive Guidance on the Notion of Direct}

Participation in Hostilities under International Humanitarian Law”.

108

To illustrate its point, Shahzad Akbar refers to the case of Tariq Aziz, a teenager involved in documenting the effect of drone strikes in North Waziristan. Three days before he died, he had attended an international conference on drones in Islamabad. Upon his return home, he was killed in a drone strike together with his younger cousin, outside his aunt’s house. (A/68/382, par. 16.)

109

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27 threat to life.110 Every use of force would have to be justified as a necessary and proportionate response to an imminent threat. Moreover, Member States might agree that in context of an (imminent) armed attack, States can use force on the territory of another State without its consent, if that State is unable or unwilling to act effectively to restrain the attack.111

2.2.2 Applicability Outside the Conduct of Hostilities

Casey Maslen writes that “although human rights may apply during armed conflict, away from the battlefield, the use of drone strikes will often amount to a violation of fundamental human rights. Respect for the right to life cannot be ignored and may also apply during hostilities.”112 Whenever States resort to force outside the conduct of hostilities,113 they must comply with law enforcement standards which are derived primarily from human rights law and case law on human rights.114

I share the opinion of Alex Conte, Director of International Law and Protection Programmes in the International Commission of Jurists, and Christof Heyns, stating that a careful assessment must be made as to whether each situation does rise to an armed conflict because where armed drones are not used in situations of armed conflict, domestic law and human rights law are the primary and exclusive laws applicable regarding the lethal use of armed drones.115

Illustrative, the Bush administration asserted that the US is not in an armed conflict with Al Qaeda, and that by consequence essentially no law governs.116 But, sharing the view of DeShaw Rae, human rights law is always applicable, certainly where an armed conflict does not exist but arguable at all time, anywhere, for all people. Civilians in any affected area

110_{Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.} 111_{Anthony Dworkin, “Drones and targeted killing: Defining a European position”, 54.} 112

Stuart Casey Maslen, “Pandora’s Box? Drone Strikes Under Jus ad Bellum, Jus in Bello, and International Human Rights Law”, 599 and 620.

113_{For instance against suspected criminals or as a measure of crowd control or border security.}

114_{ICJ, Legality on the Threat or Use of Nuclear Weapons, Advisory Opinion, par. 106: “As regards the}

relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law”. Confirmed by the ICJ in the

Congo case, par. 216.

115_{A/HRC/28/38, par. 15; Christof Heyns, “Taking a holistic view of the use of drones and the right to life”, 28.} 116_{See Memorandum of White House Counsel Alberto Gonzales to President Bush, 25 January 2002, based on}

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28 possess basis human rights that cannot be bargained away by an insensitive or supine government and innocent people must be safe and secure from the collateral impact of drone strikes and should never be expendable in a choice to target a prominent figure in the opposing force.117

In this context, the US White House notes that the use of force in counterterrorism operations outside the US and areas of active hostilities, “lethal force will only be used “when capture is not feasible and no other reasonable alternatives exist to address the threat effectively”. It will only be used against a target “that poses a continuing, imminent threat to US persons”, and there must be “near-certainty that non-combatants will not be injured or killed.”118

However, the impact of this US policy will mostly depend on how the concept of a continuing, imminent threat is interpreted. The draft white paper of the US Department of Justice says that it “does not require the United States to have clear evidence that a specific attack on US persons or interests will take place in the immediate future” and that it “must incorporate considerations of the relevant window of opportunity, the possibility of reducing collateral damage to civilians, and the likelihood of heading off future disastrous attacks on Americans.”119

Accordingly, some scholars that president Barack Obama may authorize targeted killing outside an active combat zone but must provide the Congress with “evidence that the killing was necessary to prevent a greater, reasonably imminent danger to US lives, that there was no reasonable alternative to save US lives and that the action would not unreasonably endanger innocent individuals.”120

117

James Rae DeShaw is deeply skeptical about the armed conflict model of combating terrorism that simply accepts America’s cause as just and recognizes American forces as the only lawful combatants, and would prefer to see the adoption of an aggressive law enforcement approach coupled with greater diplomatic cooperation among States impacted by non-State threats of terrorism or insurgency. Authority over all drone strikes should be transferred to the Defense Department and uniformed military to prosecute openly under the laws of war. (James DeShaw Rae, Analyzing the Drone Debates: Targeted Killings, Remote Warfare, and Military

Technology, 126 and 128.)

118_{White House, “Fact Sheet: U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism}

Operations Outside the United States and Areas of Active Hostilities”.

119_{Dep’t of Justice White Paper Draft, “Lawfulness of a Lethal Operation Directed Against a US Citizen Who is}

a Senior Operational Leader of Al Qaeda or An Associated Force”, 7.

120_{Philip B. Heymann and Juliette N. Kayyem, The Long-Term Legal Strategy Project for Preserving Security}

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29

2.2.3 Extra-Territorial Use of Armed Drones and the Enjoyment of Human

Rights

States owe their human rights obligations primarily to those within their territory.121 Yet, this conception is inadequate in an increasingly globalized world, and in a post 9/11 environment where several States have waged a war on terrorism abroad, often to the detriment of people’s rights.122

It has been held that human rights treaties cannot be interpreted so as to allow a State party to perpetrate violations of the treaty on the territory of another State, which it could not perpetrate on its own territory.123 The same must apply to the right to life as a part of general international law and custom. Any positive action by a State, on its own territory or that of another State, must be carried out in compliance with its human rights obligations under all applicable rules of international law.124 Thus, respective of the applicability of treaty provisions recognizing the right to life, States are bound to ensure the realization of the right to life when they use force. Whether inside or outside their borders, human rights treaty obligations apply in principle to the conduct of States.125 The ECHR has held that “the jurisdictional competence of a State is primarily territorial,” in the context of human rights treaties, and only applicable extraterritorially in exceptional cases, such as where the State exercises effective control over territory outside its borders.126

Ben Emmerson refers to Article 2 (1) of the ICCPR which requires each State party to respect and ensure to all persons subject to its “jurisdiction” the rights guaranteed by the Covenant without any distinction of any kind.127 Also Article 1 of the ECHR provides that the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of the Convention. However, the meaning of “jurisdiction” is

121_{See, e.g., ECHR, Bankovic and others v Belgium and 16 Other Contracting States, par. 61.} 122

Hugh King, “The Extraterritorial Human Rights Obligations of States”, Human Rights Law Review 2009, Vol. 9, 522.

123_{ECHR, Issa and others v. Turkey, judgment of 16 November 2004, par. 71.}

124_{A/68/382, par. 51. According to Christof Heyns, IHRL applies to all positive actions of the State and thus, the}

obligation to protect the right to life applies at all times. This rule also applies when a State is acting on the territory of another State. (A/HRC/28/38, par. 12.)

125_{Christof Heyns, “Taking a holistic view of the use of drones and the right to life”, par. 43.} 126_{ECHR, Bankovic and others v. Belgium and 16 Other Contracting States, par. 71.} 127

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30 disputed and the extent to which States owe their human rights obligations abroad is uncertain.128

The enjoyment of the Covenant rights must be available to all individuals who may find themselves in the territory or subject to the jurisdiction of a State Party. The ICCPR also applies to the use of force by States outside of their territory, including to the use of drones, because this principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory,129 and therefore a State cannot avoid its international human rights obligations by taking action outside its territory.130

2.3 The Law on the Use of Inter-State Force

An important component of controlling the geographical spread of the use of force is the protection of State sovereignty. To the extent that attacks by armed drones interfere with the sphere of sovereignty of another State, their international lawfulness depends not only on humanitarian law and human rights law, but additionally also on the law governing the use of inter-State force.131

In the opinion of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, “legal uncertainty, in relation to the interpretation and application of the core principles of international law governing the use of deadly force in counterterrorism, leaves dangerous latitude for differences of practices by States. This runs counter to the obligation identified in paragraph 6 (s) of resolution 68/178 on the protection of human rights and fundamental freedoms while countering terrorism.” According to this provision, States are urged to ensure that any measures taken or means employed to counter terrorism, including the use of remotely piloted aircraft, comply with

128

See, e.g., ECHR, R (on the application of Al-Skeini) v Secretary of State for Defence, 2007; R (on the

application of Al-Saadoon) v Secretary of State for Defence, 4 February 2009; R (on the application of Khadhim

Resaan Hassan) v Secretary of State for Defence, 2009.

129_{HRC, CCPR General Comment No. 31, par. 10: “A State party must respect and ensure the rights laid down}

in the Covenant to anyone within the power or effective control of the State Party, even if not situated within the territory of the State Party: Legality on the Threat or Use of Nuclear Weapons, Advisory Opinion, par. 111, states: “The International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory”. See also ICJ, Case Concerning Armed Activities on

the Territory of the Congo, paras. 178-180; HRC, Sergio Euben Lopez Burgos v Uruguay, par. 176.

130_{A/HRC/28/38, par. 39; HRC, CCPR General Comment No. 31. South Africa is concerned that the use of}

armed drones violates pertinent provisions of the ICCPR and the 1949 GC on the protection of civilians in armed conflicts. ECHR, Al-Skeini and others v. the United Kingdom.

131