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:
- 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,
“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.
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”.
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.
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.
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).
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).
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.
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.
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.
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.
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
“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
“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”,
and
recalls that
“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”
and that
“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).
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.
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.
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?
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.
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”:
“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.
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”.
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
“[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.
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,
“[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.
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)
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;
and
iii. 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; and
47.2.3.5. 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:
“… 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.
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.
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
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.
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.