A
new report from U.N. Special Rapporteur on Human Rights Ben
Emmerson looks at international drone strikes and other targeted
killings, detailing 30 instances where civilians were harmed by
such attacks, allegedly including 300 or more civilian deaths. The
product of a year-long investigation, Emmerson’s
report is not explicitly anti-drone, but he does believe it is
imperative to set international legal standards for such
strikes.
“If used in strict compliance with the principles of
international humanitarian law, remotely piloted aircraft are
capable of reducing the risk of civilian casualties in armed
conflict,” Emmerson concludes. But there is little accountability
when it comes to drone attacks and civilian casualties. Emmerson
suggests that any “plausible indication …that civilian casualties
may have been sustained” should lead the responsible state “to
conduct a prompt, independent, and impartial fact-finding inquiry
and to provide a detailed public explanation.”
That’s crucial,
explains Sarah Knuckey at Just Security. “In
essence,” she writes, “the report states that it is governments who
now bear the legal burden of explaining the strikes.”
Emmerson also addresses the need for intergovernmental
discussion about drone-related legal issues on which there is
currently no clear international consensus or “where current
practices and interpretations appear to challenge established legal
norms.” Conor Friedersdorf
summarizes those legal issues at The
Atlantic, arguing that as drone use proliferates, the norms
the Obama administration has established could be disastrous,
internationally and for Americans:
1) Does the right to self-defense under international law
entitle a state to kill people in another state without its
permission, if the target is an armed group that poses a direct and
immediate threat of attack, but has no connection to its host
state? If so, what conditions must be present to justify such an
attack? Does it arise when the host state is judged unable or
unwilling to prevent the threat from materializing?2) Is the principle of self-defense “confined to situations
in which an armed attack has already taken place,” or does it
entitle a state to act preemptively on the territory of another
state “where it judges that there is an imminent risk of attack to
its own interests?” And if so, how is the standard of imminence to
be defined?3) International law decides whether or not a state of
“non-international armed conflict” has come into existence
based in part on the intensity of hostilities. Does this test
“require an assessment of the severity and frequency of armed
attacks occurring within defined geographical boundaries?” When
applying the test, “is it legitimate to aggregate armed attacks
occurring in geographically diverse locations in order to determine
whether, taken as a whole, they cross the intensity threshold?” If
a state can be engaged in a non-international armed conflict with a
non-state armed group that operates transnationally, does that mean
a non-international armed conflict can exist without finite
boundaries?
Other international legal issues Emmerson identifies: whether
humanitarian law allows targeting people “directly participating in
hostilities who are located in a non-belligerent state” and under
what circumstances; whether the pattern, frequency, and intensity
of Al Qaeda attacks still make them equivalent to “a state of armed
conflict”; whether the Red Cross’s standard for determining which
individuals may be targeted by lethal force is adequate; whether
individuals who have ceased active involvement in hostilities are
still legitimate targets; whether providing food, financing, or
logistical support amounts to “direct participation in hostilities”
for targeting purposes; and when legitimate military targets must
be captured rather than killed.
Ultimately, Emmerson offers two specific recommendations: 1)
States that conducted any of the 30 documented civilian-harming
drone strikes should publicly explain them, and 2) the U.N. Human
Rights Council should establish a panel of experts to report on
legal issues arising from the use of drones for targeted
killings.
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