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A. Draft
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B. Draft
recommendation
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Report | Doc. 13731 | 16 March 2015
Drones and targeted killings: the need to uphold human rights and international law
Committee on Legal Affairs and Human Rights
Summary
The Committee on Legal Affairs and Human Rights considers that the use of armed drones for targeted killings raises serious human rights and other international law issues. Armed drones allow for the carrying out of attacks remotely, without placing the attacker’s own personnel at risk of injury or capture. These advantages have contributed to lowering the threshold for intervention and increasing the number of drone strikes in recent years. At the same time, the increased precision of drone strikes provides the opportunity to improve compliance with international humanitarian and human rights law.
The committee is alarmed at the high number of lethal drone attacks, which have also caused considerable unintended “collateral damage” to non-combatants.
All member and observer States should, in particular, scrupulously respect the limits placed on targeted killings under international law, international humanitarian law and human rights law, lay down clear procedures for authorising strikes, which must be subject to constant supervision by a high-level court and post-strike evaluation by an independent body, avoid widening the notion of “non-international armed conflict”, fully and effectively investigate all deaths caused by armed drones, increase transparency in this respect, and refrain from using or assisting in certain particularly problematic types of strikes, in particular automated procedures based on data collected through mass surveillance techniques, so-called “signature strikes” and “double-tap strikes”.
A. Draft
resolution 
(open)1. The Parliamentary Assembly considers that the use
of armed drones for targeted killings raises serious human rights
and other international law issues.
2. The Assembly notes that several member States and States enjoying
observer status with the Council of Europe or the Parliamentary
Assembly have used combat drones as weapons of war or for carrying
out targeted killings of people suspected of belonging to terrorist
groups in a number of countries, including Afghanistan, Pakistan,
Somalia and Yemen.
3. Several Council of Europe member States have purchased combat
drones or are considering doing so, or have shared intelligence
with States using combat drones for targeted killings, thus assisting
them in carrying out drone attacks.
4. Armed drones allow for the carrying out of attacks remotely,
without placing the attacker’s own personnel at risk of injury or
capture. The ability of drones equipped with powerful sensors to
loiter over a potential target for some time enables the decision
on launching a strike to be based on particularly precise and up-to-date information.
These advantages have contributed to lowering the threshold for
intervention and increasing the number of drone strikes in recent
years. At the same time, the increased precision of drone strikes
provides the opportunity to improve compliance with international
humanitarian and human rights law.
5. The Assembly is alarmed at the high number of lethal drone
attacks, which have also caused considerable unintended “collateral
damage” to non-combatants, in contrast with the “surgical” nature
of such strikes claimed by those launching them. The constant fear
of drone attacks engendered by strikes hitting schools, weddings
and tribal assemblies has disrupted the life of traditional societies
in the countries of operation.
6. Drone strikes raise serious legal issues, which differ depending
on the circumstances in which the strikes are launched:
6.1. national sovereignty and the
respect for territorial integrity under international law forbid
military interventions of any kind on the territory of another State
without valid authorisation by the legitimate representatives of
the State concerned. Military or intelligence officials of the State
concerned tolerating or even authorising such interventions without
the approval or against the will of the State’s representatives
(in particular the national parliament) cannot legitimise an attack;
exceptions from the duty to respect national sovereignty can arise
from the principle of the “responsibility to protect” (for example
in the fight against the terrorist group known as “IS”);
6.2. under international humanitarian law, which applies in
situations of armed conflict, only combatants are legitimate targets.
In addition, the use of lethal force must be militarily necessary
and proportionate and reasonable precautions must be taken to prevent
mistakes and minimise harm to civilians;
6.3. under international human rights law, which generally
applies in peacetime, but whose application has permeated also into
situations of armed conflict, an intentional killing by State agents
is only legal if it is required to protect human life and there
are no other means, such as capture or non-lethal incapacitation,
of preventing that threat to human life;
6.4. in particular, under Article 2 of the European Convention
on Human Rights (ETS No. 5), as interpreted by the European Court
of Human Rights, the deprivation of the right to life must be absolutely necessary
for the safeguarding of the lives of others or the protection of
others from unlawful violence. Article 2 also requires timely, full
and effective investigations to hold to account those responsible
for any wrongdoing;
6.5. in order to justify a wider use of targeted killings,
the notion of non-international armed conflict has been extended
by some countries so as to include numerous regions across the world
as “battlespaces” of the “global war on terror”. This threatens
to blur the line between armed conflict and law enforcement, to
the detriment of the protection of human rights.
7. Despite some recent progress due to successful court challenges,
in particular by the American media, attacks by combat drones are
still largely shrouded in secrecy. This relates to both the actual
outcome of individual attacks, including the extent of any “collateral
damage”, and the decision-making process for targeting individuals
and balancing potential harm to non-combatants.
8. The Assembly calls on all member and observer States, as well
as States whose parliaments have observer status with the Assembly,
to:
8.1. scrupulously respect the
limits placed on targeted killings under international law and international
humanitarian and human rights law, in particular with respect to
the use of combat drones;
8.2. lay down clear procedures for authorising strikes, which
must be subject to constant supervision by a high-level court and ex post evaluation by an independent
body;
8.3. to avoid widening the notion of “non-international armed
conflict” by continuing to respect established criteria, including
the requisite degree of organisation of non-State groups and a certain degree
of intensity and localisation of violence;
8.4. fully and effectively investigate all deaths caused by
armed drones in order to hold to account those responsible for any
wrongdoing and to compensate any victims of wrongful attacks or
their relatives;
8.5. publish the criteria and procedures used for targeting
individuals and the results of the investigations carried out into
deaths caused by the use of combat drones;
8.6. refrain from using, or providing intelligence information
or other input for:
8.6.1. any automated
procedures for targeting individuals based on communication patterns or
other data collected through mass surveillance techniques;
8.6.2. so-called “signature strikes” not based on the precise
identification of a targeted person, but on the target’s pattern
of behaviour (except in situations of armed conflict, provided the
rules of international humanitarian law are respected);
8.6.3. so-called “double-tap strikes”, involving a second strike
targeting first responders (for example persons providing medical
assistance to the victims of a first strike).
B. Draft
recommendation
(open)1. The Parliamentary Assembly, referring to Resolution
… (2014) on drones and targeted killings: the need to uphold human
rights and international law, invites the Committee of Ministers
to undertake a thorough study of the lawfulness of the use of combat
drones for targeted killings and, if need be, develop guidelines
for member States on targeted killings, with a special reference
to those carried out by combat drones. These guidelines should reflect
the States’ duties under international humanitarian and human rights
law, in particular the standards laid down in the European Convention
on Human Rights (ETS No. 5), as interpreted by the European Court
of Human Rights.
C. Explanatory memorandum by Mr Díaz Tejera, rapporteur
(open)1. Procedure
1. The motion for a resolution entitled “Drones and
targeted killings: the need to uphold human rights” (Doc. 13200) was referred to the Committee on Legal Affairs and
Human Rights for report in June 2013. On 4 September 2013, the committee
appointed Ms Marina Schuster (Germany, ALDE) as rapporteur. I was appointed
rapporteur to replace Ms Schuster on 12 November 2013. At its meeting
on 3 March 2014, the committee considered my introductory memorandum and authorised me to hold a hearing with
experts. On 30 September 2014, the committee had an exchange of
views with the following three experts:
and authorised me to hold a hearing with
experts. On 30 September 2014, the committee had an exchange of
views with the following three experts:
- Ben Emmerson, the United Nations Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism;
- Irmina Pacho, Director of Strategic Litigation, Polish Helsinki Foundation for Human Rights;
- Markus Wagner, Associate Professor of Law, University of Miami School of Law.
2. Introduction
2.1. Some facts and figures
2. The motion for a resolution underlying the present
report focuses on the widening use of unmanned combat aerial vehicles
(“combat drones”) for the purpose of carrying out targeted killings.
3. The use of drones as such, and even of armed drones, does
not constitute a human rights problem. Armed
drones (or more precisely, the weapons carried by drones as carrier
systems) are not considered as unlawful weapons. As is the case with all weapons, from
handguns to fighter-bomber jets, it is the way they are used, and
against whom and for which reasons, which determines whether they
pose a human rights problem. There is, however, one consideration
which makes the use of drones “special”, in comparison with manned
aircraft: the availability of unmanned craft may well reduce the
threshold of actually using them, in particular abroad. Democratically
elected governments – rightly – place a high value on the lives
of their soldiers and abhor the consequences of their being killed
or taken prisoner by a foreign power. They may be less hesitant
to use a weapon not involving exposure of their own forces to death,
injury or capture than, for example, sending in a conventional,
manned aircraft or a group of special forces soldiers to intervene
on the ground. Also, in view of technological advances,
As is the case with all weapons, from
handguns to fighter-bomber jets, it is the way they are used, and
against whom and for which reasons, which determines whether they
pose a human rights problem. There is, however, one consideration
which makes the use of drones “special”, in comparison with manned
aircraft: the availability of unmanned craft may well reduce the
threshold of actually using them, in particular abroad. Democratically
elected governments – rightly – place a high value on the lives
of their soldiers and abhor the consequences of their being killed
or taken prisoner by a foreign power. They may be less hesitant
to use a weapon not involving exposure of their own forces to death,
injury or capture than, for example, sending in a conventional,
manned aircraft or a group of special forces soldiers to intervene
on the ground. Also, in view of technological advances, “drones can be expected to become more sophisticated and available in more compact form, and also to become less expensive and therefore more accessible. They are likely to form part of the arsenals of an increasing number of States that may be able to deploy such force across international borders in relatively non-intrusive and sometimes non-attributable ways, on the battlefield and to pursue targets far removed from what would traditionally be seen as zones of armed conflict”.
4. At the same time, the increased precision of drone strikes
compared to bombings by conventional aircraft also
provides a real opportunity for improving compliance with international
humanitarian and human rights law.
also
provides a real opportunity for improving compliance with international
humanitarian and human rights law.5. The type of weaponry with which combat drones are armed, the widely reported increase
in their use by the United States with respect to certain targeted
killings also outside of the International Security Assistance Force
(ISAF) mission in Afghanistan and the lack of transparency surrounding
these operations are worrying from the human rights perspective,
with regard to the right to life of combatants and civilians alike –
either as intended targets or as “collateral damage”.
the widely reported increase
in their use by the United States with respect to certain targeted
killings also outside of the International Security Assistance Force
(ISAF) mission in Afghanistan and the lack of transparency surrounding
these operations are worrying from the human rights perspective,
with regard to the right to life of combatants and civilians alike –
either as intended targets or as “collateral damage”.6. Furthermore, in countries such as Pakistan, Yemen and Somalia,
where the use of combat drones for targeted killings is reported
to be commonplace, the enduring threat of drone strikes encroaches
on human dignity and other fundamental rights. To minimise the risk
of becoming a target of an attack, ordinary inhabitants feel compelled
to stay on the move and avoid gathering in groups, including for social, educational and
economic purposes and even funerals. This
challenges the sustainability of long-standing rural and tribal
cultures and the long-term development of societies, which live
in constant fear of drones. The “sample strike analysis” by Ben
Emmerson, UN Special Rapporteur on Human Rights and Counter-Terrorism, in
his final report to the United Nations Human Rights Council provides an
impressive account of concrete examples of collateral damage caused
by drone strikes in Afghanistan, Pakistan, Yemen, Somalia and Gaza.
including for social, educational and
economic purposes and even funerals. This
challenges the sustainability of long-standing rural and tribal
cultures and the long-term development of societies, which live
in constant fear of drones. The “sample strike analysis” by Ben
Emmerson, UN Special Rapporteur on Human Rights and Counter-Terrorism, in
his final report to the United Nations Human Rights Council provides an
impressive account of concrete examples of collateral damage caused
by drone strikes in Afghanistan, Pakistan, Yemen, Somalia and Gaza.7. While the most frequent user of drone strikes has been the
United States, Israel has also acknowledged a practice of “targeted
killings in self-defence … because the Palestinian Authority was
failing to prevent, investigate and prosecute terrorism and, especially,
suicide attacks directed at Israel”; this
practice includes the use of combat drones. Some member States of the Council
of Europe are also considering the purchase of combat drones.
this
practice includes the use of combat drones. Some member States of the Council
of Europe are also considering the purchase of combat drones. 8. The lack of transparency surrounding the use of combat drones
makes it difficult to assess the number of targeted killings using
drones. However, as noted by the UN Special Rapporteur on extrajudicial,
summary or arbitrary executions, civil society has conducted considerable
research on drone strikes. The
UN Special Rapporteur saw fit to rely on estimates provided by organisations
such as the Bureau of Investigative Journalism (BIJ) and the New America Foundation (NAF).
The
UN Special Rapporteur saw fit to rely on estimates provided by organisations
such as the Bureau of Investigative Journalism (BIJ) and the New America Foundation (NAF).9. Whilst figures on the number of drone strikes and of combatant
and civilian casualties vary, the United Nations Special Rapporteur
on Extrajudicial, Summary or Arbitrary Executions noted that all
sources agreed that there had been a “dramatic increase in their
use” in
the three years preceding his report on “Follow-up to country recommendations
– United States of America”, issued on 30 March 2012. The Bureau
of Investigative Journalism estimates the number of deaths since
the first reported strike in 2002 as
up to 4 000 (including up to 1 000 civilians).
in
the three years preceding his report on “Follow-up to country recommendations
– United States of America”, issued on 30 March 2012. The Bureau
of Investigative Journalism estimates the number of deaths since
the first reported strike in 2002 as
up to 4 000 (including up to 1 000 civilians). 10. Ben Emmerson indicated, in June 2013, that following a meeting
with Central Intelligence Agency (CIA) officials, he expected there
to be a significant reduction in global US drone strikes, attributable
to the strikes being taken over by the US military (they had previously
been carried out under the auspices of the CIA). Yet, a single attack in Pakistan
in early June 2013, for example, was alleged to have killed seven
people. In 2014, the number
of US drone strikes in Pakistan has reportedly decreased considerably,
to eight strikes (until September). But at the same time, the number
of drone strikes in Yemen increased considerably.
Yet, a single attack in Pakistan
in early June 2013, for example, was alleged to have killed seven
people. In 2014, the number
of US drone strikes in Pakistan has reportedly decreased considerably,
to eight strikes (until September). But at the same time, the number
of drone strikes in Yemen increased considerably. 11. Some European States have reportedly contributed to United
States drone attacks by providing intelligence or logistics.
12. To conclude this factual introduction, I should like to point
out that, as predicted by UN Special Rapporteur Alston, drone technology
has also been obtained and used by non-State armed groups.
2.2. Related previous work of the Assembly
13. The legal and human rights issues connected with
targeted killing, using drones, concern some themes which the Assembly
has addressed previously, in particular, its work on respect for
human rights in the fight against terrorism. In particular, the Assembly has
highlighted the dangers of treating terrorists as soldiers rather
than criminals.
In particular, the Assembly has
highlighted the dangers of treating terrorists as soldiers rather
than criminals.14. Moreover, the lack of transparency surrounding drone strikes
resonates with the Assembly’s previous work on the “Abuse of State
secrecy and national security: obstacles to parliamentary and judicial
scrutiny of human rights violations”. This is not only the case in respect
of States that carry out drone strikes, but also those which refuse
to confirm or deny whether intelligence has been shared in furtherance
of drone strikes.
This is not only the case in respect
of States that carry out drone strikes, but also those which refuse
to confirm or deny whether intelligence has been shared in furtherance
of drone strikes.2.3. Reports of the United Nations Special Rapporteurs on human rights and counter-terrorism and on extrajudicial, summary or arbitrary executions
15. The UN Special Rapporteur on human rights and counter-terrorism
and, Mr Ben Emmerson, has carried out an inquiry into the civilian
impact and human rights implications of the use of drones and other
forms of targeted killing for the purpose of counter-terrorism and
counter-insurgency. After an interim
report in October 2013, presented to the UN General Assembly in
New York, his
final report was published in February 2014. Almost simultaneously,
the UN Special Rapporteur on extrajudicial, summary or arbitrary
executions, Mr Christof Heyns, submitted a report to the General
Assembly focusing specifically on issues of concern regarding armed
drones and the right to life. I have followed both Mr Emmerson’s
and Mr Heyns’ work as best I could and I am indebted to them for
the input their work provided for this report. I am particularly
grateful to Mr Emmerson for his presentation at the hearing before
the committee on 30 September 2014, during which he summed up the
results of his study clearly and convincingly.
After an interim
report in October 2013, presented to the UN General Assembly in
New York, his
final report was published in February 2014. Almost simultaneously,
the UN Special Rapporteur on extrajudicial, summary or arbitrary
executions, Mr Christof Heyns, submitted a report to the General
Assembly focusing specifically on issues of concern regarding armed
drones and the right to life. I have followed both Mr Emmerson’s
and Mr Heyns’ work as best I could and I am indebted to them for
the input their work provided for this report. I am particularly
grateful to Mr Emmerson for his presentation at the hearing before
the committee on 30 September 2014, during which he summed up the
results of his study clearly and convincingly.2.4. Resolution of the European Parliament
16. On 25 February 2014, the European Parliament adopted
a resolution on the use of armed drones calling
for the adoption of a common position within the European Union
and for the promotion of
calling
for the adoption of a common position within the European Union
and for the promotion of “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, to allow for judicial review of drone strikes and to ensure that victims of unlawful drone strikes have effective access to remedies”.
17. The European Parliament also finds that
and
recalls that
and 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 UN Security Council constitute a violation of international law and of the territorial integrity and sovereignty of that country”,
“in the event of allegations of civilian deaths as a result of drone strikes, States are under the obligation to conduct prompt, independent investigations and, if the allegations are proved correct, to proceed to public attribution of responsibility, punishment of those responsible and provision of access to redress, including payment of compensation to the families of victims”
“international human rights law prohibits arbitrary killings in any situation; whereas international humanitarian law does not permit the targeted killing of persons who are located in non-belligerent States”.
3. The legal regime for targeted killings
3.1. Definition
18. According to the UN Special Rapporteur on extrajudicial,
summary or arbitrary executions, a targeted killing is “the intentional,
premeditated and deliberate use of lethal force, by States or their
agents acting under colour of law, or by an organised armed group
in armed conflict, against a specific individual who is not in the physical
custody of the perpetrator”. This
definition comprises all key legal elements: intention to kill;
pre-planning; identification of specific targets who are not detained;
and, fundamentally, the “accordance with law” requirement (actual
or purported).
This
definition comprises all key legal elements: intention to kill;
pre-planning; identification of specific targets who are not detained;
and, fundamentally, the “accordance with law” requirement (actual
or purported).3.2. Legal regime: international humanitarian or human rights law
19. Although criteria as to when States take life are
in the first instance laid down in national law, these are subject
to far-reaching limitations in treaty law and customary international
law. These include the absolute prohibition of the arbitrary deprivation
of life as well as fundamental principles of legal certainty, transparency and
proportionality when life is taken in accordance with the law.
and customary international
law. These include the absolute prohibition of the arbitrary deprivation
of life as well as fundamental principles of legal certainty, transparency and
proportionality when life is taken in accordance with the law.20. International humanitarian law applies to situations of armed
conflict, whereas international human rights law principally applies
in times of peace, including situations where “violence exists,
but falls short of the threshold for armed conflict”. That said, it is
today widely accepted that international human rights law also applies
in situations of armed conflict (whether of an international or
non-international character). Thus, international
humanitarian law and international human rights law form two complementary
and mutually reinforcing bodies of law creating obligations for
States in armed conflict, with the rules of international humanitarian
law taking precedence as lex specialis.
That said, it is
today widely accepted that international human rights law also applies
in situations of armed conflict (whether of an international or
non-international character). Thus, international
humanitarian law and international human rights law form two complementary
and mutually reinforcing bodies of law creating obligations for
States in armed conflict, with the rules of international humanitarian
law taking precedence as lex specialis. 21. In an armed conflict, which can be international (between
States) or non-international (typically between States and organised
non-State armed groups, or between such groups), deadly force can
legitimately be used against enemy combatants, provided certain
well-established principles are respected such as that of distinction
(between combatants and non-combatants), proportionality (between
the expected military gain and the “collateral damage” to civilians)
and precaution (reasonable care taken to minimise unavoidable and proportionate
“collateral damage”).
22. Outside of an armed conflict, the principles governing law
enforcement (prevention or punishment of crimes) apply, under which
the use of deadly force by State agents is legal only in very rare
circumstances. For State Parties to Protocol No. 6 to the European
Convention on Human Rights (ETS No. 114), even the execution of
a person found guilty of a capital crime by a court of law is not
permissible, and for States Parties to Protocol No. 13 (ETS No.
187) this even applies in times of war.
23. The question whether an armed conflict exists in territories
where drone strikes have occurred depends on the factual circumstances
on the ground and not only the subjective declarations of States. As Philip Alston says,
“the situation in each country should be assessed on a case-by-case
basis in order to determine the existence or not of armed conflict”. A related question
arises when a combatant participates in hostilities in an armed
conflict from the territory of a non-belligerent State, or moves
into such territory after participating in an ongoing armed conflict.
Which legal framework (international humanitarian law or international
human rights law) applies to the use of lethal force against such
a person?
As Philip Alston says,
“the situation in each country should be assessed on a case-by-case
basis in order to determine the existence or not of armed conflict”. A related question
arises when a combatant participates in hostilities in an armed
conflict from the territory of a non-belligerent State, or moves
into such territory after participating in an ongoing armed conflict.
Which legal framework (international humanitarian law or international
human rights law) applies to the use of lethal force against such
a person?24. In order to justify the application of international humanitarian
law, which allows for a wider use of targeted killings than international
human rights law, the notion of non-international armed conflict
has been given such a wide interpretation by some States as to include
numerous regions across the world as “battlefields” of the “global
war on terror”. In my view, this threatens to blur the line between
armed conflict and law enforcement to the detriment of the protection
of human rights and should therefore be resisted. In the extreme,
“[a]dvising otherwise would mean that the whole world is potentially
a battlefield and that a person moving around the globe could be
lawfully targeted under international humanitarian law in the territories
of States not party to any armed conflict”.
25. This said, I would have little doubt that the fight against
the terrorist group known as “IS” or
against organised guerilla groups acting under the banner of Al
Quaida is warfare and not police work, so the use of armed drones
would be assessed under international humanitarian law. The same
is true for many regions of Afghanistan, where a fully fledged war
against the Taliban is being waged.
or
against organised guerilla groups acting under the banner of Al
Quaida is warfare and not police work, so the use of armed drones
would be assessed under international humanitarian law. The same
is true for many regions of Afghanistan, where a fully fledged war
against the Taliban is being waged.3.3. International human rights law standards
26. Under international human rights law the standard
is that: “A State killing is legal only if it is required to protect
life … and there is no other means, such as capture or non-lethal
incapacitation, of preventing that threat to life.”
27. The European standard for the lawfulness of State-occasioned
or endorsed deprivation of life, under Article 2 of the European
Convention of Human Rights (ETS No. 5, “the Convention”) is that
it must be no less than “absolutely necessary” for the safeguarding of
the lives of others or protection of others from unlawful violence,
which is a higher threshold for State action than that placed on
most rights protected by the Convention, namely that of being “necessary
in a democratic society”:
for the safeguarding of
the lives of others or protection of others from unlawful violence,
which is a higher threshold for State action than that placed on
most rights protected by the Convention, namely that of being “necessary
in a democratic society”:“149. In this respect the use of the term ‘absolutely necessary’ in Article 2 para. 2 (art. 2-2) indicates that a stricter and more compelling test of necessity must be employed from that normally applicable when determining whether State action is ‘necessary in a democratic society’ under paragraph 2 of Articles 8 to 11 (art. 8-2, art. 9-2, art. 10-2, art. 11-2) of the Convention. In particular, the force used must be strictly proportionate …”
28. The European Court of Human Rights has laid down this high
threshold for intentional killings by the authorities in a case
involving the intentional killing by SAS operatives of three IRA
terrorists in Gibraltar who had been suspected of planting a car
bomb to be detonated by a remote control device they carried with
them.
29. The Court, in interpreting Article 2, stressed the paramount
importance of the right to life in a democratic society and held
that:
“150. In keeping with the importance of this provision (art. 2) in a democratic society, the Court must, in making its assessment, subject deprivations of life to the most careful scrutiny, particularly where deliberate lethal force is used, taking into consideration not only the actions of the agents of the State who actually administer the force but also all the surrounding circumstances including such matters as the planning and control of the actions under examination.”
30. Following a meticulous analysis of the planning of the operation,
the information available to the authorities, the instructions given
to the SAS operatives and their actions, the Court concluded:
“213. In sum, having regard to the decision not to prevent the suspects from travelling into Gibraltar, to the failure of the authorities to make sufficient allowances for the possibility that their intelligence assessments might, in some respects at least, be erroneous and to the automatic recourse to lethal force when the soldiers opened fire, the Court is not persuaded that the killing of the three terrorists constituted the use of force which was no more than absolutely necessary in defence of persons from unlawful violence within the meaning of Article 2 paragraph 2 (a) (art. 2-2-a) of the Convention.”
31. By comparison, the American understanding of the requirement
that lethal force be used only in response to an imminent threat
seems to be far more expansive, encompassing “considerations of
the relevant window of opportunity to act, the possible harm that
missing the window could cause to civilians, and the likelihood
of heading off future disastrous attacks”.
3.4. International humanitarian law standards
32. Under international humanitarian law:
“Targeted killing is only lawful when the target is a ‘combatant’ or ‘fighter’ or, in the case of a civilian, only for such time as the person “directly participates in hostilities”. In addition, the killing must be militarily necessary, the use of force must be proportionate so that any anticipated military advantage is considered in the light of the expected harm to civilians in the vicinity, and everything must be done to prevent mistakes and minimize harm to civilians.”
33. Treaty law, in particular the Additional
Protocol 1 to the Geneva Conventions, enshrines principles protecting civilians caught up
in armed conflict, such as distinction, proportionality and precaution, which also form part of customary
international law. These principles apply, in particular, to the
type of weapons that can be used and their actual use.
which also form part of customary
international law. These principles apply, in particular, to the
type of weapons that can be used and their actual use.34. Article 51.4.b of Additional
Protocol 1 provides that attacks must not be indiscriminate by nature,
in that they are not able to avoid civilian damage when targeting
combatants. Further, Article 48 obliges States “at all times” to
“distinguish between the civilian population and combatants”.
35. The doctrine of proportionality, as it applies to armed conflict,
requires States to “examine whether the expected collateral [civilian]
damage from an attack would be excessive in relation to the anticipated
military gain”. Article 51.5.b provides
that attacks that would be excessive in this manner are classed
as indiscriminate and are thus prohibited.
36. Article 57 provides for a precautionary approach that requires
taking all feasible precautions before attacking a target, including
the verification of a target as military and not civilian. “Feasible”,
in this context, generally means “that which is practicable or practically
possible, taking into account all circumstances prevailing at the
time, including humanitarian and military considerations”. ,
, 37. It should be noted that neither the US nor Israel is a party
to Additional Protocol 1. However, given the peremptory nature of
the protection of civilians in armed conflict, the International
Committee of the Red Cross (ICRC) has stated that such protection
is reflective of customary international law, which
applies also to the United States and Israel. This includes Articles
48, 51.4.b, 51.5.b and
57. In the same vein, the International Court
of Justice has characterised the principles of distinction and proportionality
as “intransgressible principle[s] … of international customary law”.
which
applies also to the United States and Israel. This includes Articles
48, 51.4.b, 51.5.b and
57. In the same vein, the International Court
of Justice has characterised the principles of distinction and proportionality
as “intransgressible principle[s] … of international customary law”. 38. The general standards under international human rights law
and international humanitarian law apply independently from the
weapon used for the killing. They apply to the specific issues related
to the legality of using combat drones for targeted killings, procedures
for the verification of the identity of targets, the imminence and
credibility of threats posed by targets, the assessment of the necessity,
the existence of other means to quell such threats, the efforts
made to co-operate with territorial authorities, and the proportionality of
carrying out targeted killings, with particular regard to collateral
civilian damage.
3.5. Sovereignty issues under international law
39. The use of drones to target persons located in another
State must also comply with the rules on the use of inter-State
force. Christoph Heyns points out in his report on extrajudicial,
summary or arbitrary executions that
that “[w]hile international humanitarian and human rights law are aimed at protecting the individuals concerned, the law on the use of inter-State force serves primarily to protect the legal rights of States, including the right and interest of the State to have the lives of its citizens and inhabitants protected from aggressive acts”.
40. The general prohibition of the threat or use of inter-State
force is laid down in Article 2.4 of the United Nations Charter,
subject to limited exceptions, including consent of the State concerned,
action taken in self-defence and authorisation by the United Nations
Security Council.
41. Consent must actually be expressed rather than merely presumed;
it must be given freely and clearly by the State’s highest government
authorities rather than by regional authorities or particular agencies,
and States cannot validly consent to violations of international
humanitarian or human rights law on their territory. Ideally, national
parliaments should monitor any authorisations given by the executive.
Ideally, national
parliaments should monitor any authorisations given by the executive.42. Self-defence is also subject to stringent limitations under
Article 51 of the United Nations Charter and customary international
law. The International Court of Justice held that for an attack
to enable the State to exercise its right to use force in self-defence,
the scale and effects of the attack must reach a certain threshold of
gravity. A State
relying on self-defence must also satisfy the requirements of necessity
and proportionality under customary international law. As Mr Heyns
points out,
A State
relying on self-defence must also satisfy the requirements of necessity
and proportionality under customary international law. As Mr Heyns
points out, “[t]hese requirements … are closely linked to the aim of a lawful act of self-defence. Thus, necessity and proportionality mean that self-defence must not be retaliatory or punitive; the aim should be to halt and repel an attack”.
43. Controversy surrounds the notion of anticipatory self-defence. While the use of lethal force
in anticipation of a threat, including a threat emanating from non-State
actors, will usually be unlawful, there may be exceptional circumstances
in which it could be lawful. Anticipatory self-defence can only
be permissible, however, if an attack is imminent and could not
be averted by any other means, and where the anticipatory military
action is proportionate. The problem is that, as with the notion
of anticipatory self-defence itself, the concept of imminence is
likewise vague and there currently exists no consensus on the threshold
to be applied when determining imminence.
While the use of lethal force
in anticipation of a threat, including a threat emanating from non-State
actors, will usually be unlawful, there may be exceptional circumstances
in which it could be lawful. Anticipatory self-defence can only
be permissible, however, if an attack is imminent and could not
be averted by any other means, and where the anticipatory military
action is proportionate. The problem is that, as with the notion
of anticipatory self-defence itself, the concept of imminence is
likewise vague and there currently exists no consensus on the threshold
to be applied when determining imminence. 44. It would appear that many drone attacks documented by the
two UN Special Rapporteurs fall well short of these principles governing
the use of inter-State force. As regards drone strikes on Pakistani
territory, it should be noted that the President of Pakistan publicly
opposed drone strikes after secret agreements between the CIA and
Pakistani security services authorising such strikes were made public
in October 2013.
45. In exceptional cases, exceptions from the rule that national
sovereignty must be respected can also be justified by the responsibility
to protect.
4. Legal basis put forward for targeted killings using combat drones (the US approach)
46. On 23 May 2013, President Obama made a speech on
the US counter-terrorism strategy, simultaneously releasing a document
entitled “U.S.
Policy Standards and Procedures for the Use of Force in Counter-Terrorism
Operations Outside the United States and Areas of Active Hostilities”. This marks some measure of progress in terms of transparency,
as we now know at least the purported legal basis for drone attacks.
However, there remain two issues in the report which should be subject
to analysis:
a. whether the legal criteria set out comply with international human rights law and international humanitarian law;
b. whether the legal criteria set out is adhered to in practice.
47. The following is a summary of the legal basis outlined by
President Obama:
a. US policy is to capture targets, rather than use lethal force, where “feasible”;
b. Lethal force is not pursued as a substitute for punishment or prosecution; it is only used when there are no reasonable alternatives and the following preconditions are met:i. There must be a legal basis;ii. The target must pose a “continuing and imminent” threat; andiii. The following criteria must be met:47.2.3.1. “Near certainty” that the target is present;47.2.3.2. Near certainty that non-combatants will not be injured or killed;47.2.3.3. An assessment has been made that capture is not feasible at the time of the operation;47.2.3.4. An assessment that the relevant governmental authorities in the relevant territory cannot or will not effectively address the threat to US persons; and47.2.3.5. There are no reasonable alternatives to address the threat to US persons.iv. That the use of force is compatible with national sovereignty and international law.
48. It can be observed that some of the terms used in
these criteria are inherently subjective and indeterminate, such
as “feasible”, “effective”, “reasonable”, “continuing and imminent”
and “near certainty”. Mr Wagner, in his presentation before the
committee on 30 September 2014, pointed out that there is currently considerable
disagreement over the international humanitarian law interpretation
of the principles of distinction and proportionality. Modifiers
such as those used in the US policy do appear to allow for expansive interpretation,
and there is thus a need for strict adherence to well-established
interpretations of international human rights law. A second issue
pointed out by Mr Wagner is the increased “proceduralisation” of
the decision-making of targeted killings. The danger lies in so-called
“false legitimacy” resulting from proceduralisation when substantive
improvements do not actually take place. I agree with Mr Wagner’s analysis
that the key is the quality of the inputs – both in terms of knowledge
of the facts (presence of a legitimate target, danger for civilians,
etc.) and the appropriateness of the legal rules applied to the
given situation.
49. The publication, by President Obama, of this policy document
is a significant step forward in terms of transparency and accountability
surrounding drone attacks, also in the eyes of the UN Special Rapporteur
on Human Rights and Counter-Terrorism. But in the words of
Ben Emmerson:
But in the words of
Ben Emmerson: “… important questions remained unanswered. On a close reading of the text of the speech and of the guidelines, some key questions remain obscure. Some information will of course always have to remain classified in the interests of national security, such as information that might put sources at risk or reveal intelligence methodology.
However, I am confident that more information about the drone program can safely be put into the public domain. I will be engaging with the Administration over the coming months in an effort to further narrow the transparency gap. I very much hope that this engagement will bear fruit, and I will be reporting the results of the process in due course to the UN General Assembly.”
50. The focus of further efforts to increase transparency should
be on providing more details concerning the justifications for individual
strikes, as far as possible without violating legitimate national
security interests. The publication of abstract legal criteria on
its own is of limited practical use in terms of accountability for
killings.
5. Implications for Council of Europe member States
51. As noted above, most drone strikes, to date, appear
to be carried out by the United States and Israel (the former is
an observer State to the Council of Europe, the latter’s parliament
has observer status with the Parliamentary Assembly). But the United
Kingdom, Italy and more widely ISAF participants, which include
a number of Council of Europe member States, have also used drones
in the armed conflict with the Taliban in Afghanistan. France reportedly intends to purchase
drones from the United States to use in its military action in Mali. It has also been reported that Russia,
Turkey, Germany and Poland are considering the acquisition of combat
drones. Member States of the Council of Europe may also be accused
of aiding and abetting unlawful drone strikes by third States, for
example through sharing intelligence. In
such a case, a State that does not carry out targeted killings itself
may be accountable for aiding and abetting human rights violations
by other States. Responsibility
depends on whether the aiding State is aware of the circumstances
of the violation of international law by the aided State, and whether
the action in question would be a violation of international law
if committed by the aiding State itself.
France reportedly intends to purchase
drones from the United States to use in its military action in Mali. It has also been reported that Russia,
Turkey, Germany and Poland are considering the acquisition of combat
drones. Member States of the Council of Europe may also be accused
of aiding and abetting unlawful drone strikes by third States, for
example through sharing intelligence. In
such a case, a State that does not carry out targeted killings itself
may be accountable for aiding and abetting human rights violations
by other States. Responsibility
depends on whether the aiding State is aware of the circumstances
of the violation of international law by the aided State, and whether
the action in question would be a violation of international law
if committed by the aiding State itself. 52. Adam Bodnar and Irmina Pacho of the Polish Helsinki Foundation
for Human Rights have analysed whether Council of Europe member
States’ use of drones for targeted killing can ever be lawful under
the European Convention on Human Rights, in light of the extra-territorial
application thereof and the Convention’s strict limits on targeted
killings, even within warfare.
53. As explained by Ms Pacho during the committee hearing on 30
September 2014, the European Court of Human Rights has illustrated
its approach to the extra-territorial applicability of the Convention
in two judgments issued in 2011, namely Al
Skeini and others v. the United Kingdom and Al-Jedda
v. the United Kingdom. In the first case, the Court had
maintained that the exercise of public authority in south-east Iraq had
created an obligation for the United Kingdom to respect the Convention.
In the second case, it held that countries whose military forces
were part of multinational forces remained accountable for the actions
of their soldiers. Referring to the duality of legal regimes potentially
applicable (international humanitarian or human rights law), Ms
Pacho confirmed that human rights law was generally regarded as
applying at all times. The prohibition of arbitrary killings under
human rights law continued to apply in a situation of armed conflict.
But the test of whether a deprivation was arbitrary had to be determined
by reference to the rules of international humanitarian law, as
summed up above.
and Al-Jedda
v. the United Kingdom. In the first case, the Court had
maintained that the exercise of public authority in south-east Iraq had
created an obligation for the United Kingdom to respect the Convention.
In the second case, it held that countries whose military forces
were part of multinational forces remained accountable for the actions
of their soldiers. Referring to the duality of legal regimes potentially
applicable (international humanitarian or human rights law), Ms
Pacho confirmed that human rights law was generally regarded as
applying at all times. The prohibition of arbitrary killings under
human rights law continued to apply in a situation of armed conflict.
But the test of whether a deprivation was arbitrary had to be determined
by reference to the rules of international humanitarian law, as
summed up above. 54. Ms Pacho rightly recalled that Article 2 of the Convention
also imposed a strict procedural obligation upon Contracting Parties
to effectively investigate cases of deprivation of life with a view
to determining whether the use of lethal force was strictly necessary.
In sum, the use of armed drones by States Parties to the Convention
– wherever this occurs – could be subject to the scrutiny of the
European Court of Human Rights in times of peace, during states
of emergency and in times of armed conflict.
6. Issues of particular concern
55. There have been reports of drone strikes possessing
certain characteristics which would be almost certainly illegal,
regardless of the context and legal regime in which they occur:
a. “Signature strikes”,
b. Strikes with ulterior purposes (other than counter-terrorism or self-defence),
c. Successive strikes at the same location, to target “first responders”,
d. Autonomous weapons systems (AWS) currently under development would have the ability to operate independently from human input and engage targets without being programmed to specifically target an individual object or person.
56. Such strikes or weapons systems would not appear to fulfil
the conditions of legality for drone strikes either in the context
of an ongoing armed conflict, or under the law-enforcement paradigm.
57. As shown by the experts during the hearing on 30 September
2014, signature strikes have, in the past, caused much havoc by
hitting unintended targets such as wedding parties or tribal assemblies.
Unless the “signature” is defined very cautiously in such a way
as to pinpoint only legitimate targets – signature strikes cannot
fulfil the principles of distinction and precaution required under
international humanitarian law. “Signatures” that would not be permissible
are, for example, the fact of being a military-age male, “consorting with
known militants”, or being armed in areas where this is usual behaviour.
58. Strikes with ulterior purposes would appear to lack any legitimate
military objective at all; and double-tap strikes targeting first
responders are likely, in my view, to qualify as war crimes. Outside
of an armed conflict, these types of drone strikes would be even
less likely to be legal under international human rights law, as
the absolute necessity of such killings for preventing violence
threatening loss of life can hardly be justified.
59. Autonomous weapons systems are not capable of observing the
principles of distinction and proportionality in a way that would
satisfy the requirements of either international humanitarian law
or international human rights law. Whilst technology is expected
to progress further, it is too early
to even consider the legality of the use of such systems. The combination
of mass surveillance practices such as those disclosed by Edward
Snowden, of “signature strikes” and of autonomous weapons systems
is enough to make me shudder.
it is too early
to even consider the legality of the use of such systems. The combination
of mass surveillance practices such as those disclosed by Edward
Snowden, of “signature strikes” and of autonomous weapons systems
is enough to make me shudder.7. Conclusions
60. As we have seen, targeted killings using armed drones
raise a number of serious issues, regarding both facts and applicable
law.
61. In terms of facts, the use of armed drones for killings in
remote places with little or no risk to one’s own forces raises
the issue of lowering the threshold to the point of trivialising
such interventions and of accountability for the actual outcome
of each strike.
62. In terms of law, the main issue is not the use of armed drones
as such, but the fact of targeting individuals for intentional killing.
The decision-making process leading to such strikes must not be
allowed to deteriorate into a routine procedure leading to death
sentences passed by members of the executive without “the accused” even
being informed of the grounds for suspicion against him or her,
let alone given a chance to defend him or herself. I am not convinced
that the procedure and substantive criteria indicated by the Obama
administration satisfy the requirements under international law
and international human rights and humanitarian law.
63. The Assembly should therefore recall the basic principles
governing the use of lethal force under international law, in particular
international humanitarian and human rights law, and urge all Council
of Europe member and observer States to respect these principles,
and to provide sufficient transparency to ensure that adherence
to these principles can be independently monitored. The Committee
of Ministers should be invited to lay down relevant guidelines.
This is the purpose of the draft resolution and draft recommendation
preceding the present report.