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Reply to Recommendation | Doc. 13928 | 08 December 2015
Drones and targeted killings: the need to uphold human rights and international law
1. The Committee of
Ministers has studied Parliamentary Assembly Recommendation 2069
(2015) on “Drones and targeted killings: the need to uphold human
rights and international law” and has forwarded it to the Committee
of Legal Advisers on Public International Law (CADHI) and the Steering
Committee for Human Rights (CDDH), for information and possible
comments.
2. The Committee of Ministers notes that the CAHDI uses the terms
“unmanned aerial vehicle” (UAV) when referring to “drones”. The
Committee of Ministers will use both terms. The Committee of Ministers
notes that the use of armed drones is relatively recent and has
greatly increased in the past years. It also notes that there is
a broad agreement that armed drones themselves are not illegal weapons
and that relevant rules of international law regulating the use
of force and the conduct of hostilities as well as of international
human rights law apply to their use. However, different views have
been expressed in the international community concerning the interpretation
or application of these rules.
3. The international community has made efforts to address the
issues raised by the increasing use of armed UAVs. The Committee
of Ministers notes that wide academic literature has been developed
and that armed UAVs have been debated in various forums of the United
Nations, intergovernmental bodies and national governments and courts.
4. In particular, two reports have been submitted by Mr Ben Emmerson,
Special Rapporteur on the promotion and protection of human rights
and fundamental freedoms while countering terrorism, respectively on
18 September 2013 to the United Nations General Assembly and on
10 March 2014 to the Human Rights Council, in which Mr Emmerson
examines the use of armed UAVs in extraterritorial lethal counter-terrorism operations,
including in the context of asymmetrical armed conflicts, and allegations
that the increasing use of armed UAVs has caused a disproportionate
number of civilian casualties. Furthermore, a report has been submitted
by Mr Christof Heyns, Special Rapporteur on extrajudicial, summary
or arbitrary executions on 13 September 2013 to the United Nations
General Assembly, in which Mr Heyns focuses on the use of lethal force
through armed UAVs from the perspective of protection of the right
to life. In these three reports, the Special Rapporteurs examine
the ways in which the constituent regimes of international law,
including international human rights law, international humanitarian
law and the law on inter-State use of force are applicable to the
use of armed UAVs. They make conclusions and recommendations, notably
to the United Nations and in particular their Human Rights Council,
to States using armed UAVs, States on whose territory armed UAVs
are used as well as other actors.
5. Furthermore, the Committee of Ministers notes that the Human
Rights Council, in Resolution 25/22 of 24 March 2014 has urged States
“to ensure that any measures employed to counter terrorism, including
the use of remotely piloted aircraft or armed drones, comply with
their obligations under international law, including the Charter
of the United Nations, international human rights law and international
humanitarian law, in particular the principles of precaution, distinction
and proportionality”. Pursuant to this resolution, the Human Rights
Council decided to organise on 22 September 2014 an interactive
panel discussion of experts in order to examine issues related to
ensuring the use of armed UAVs in counterterrorism and military
operation in accordance with international law, including international
human rights and humanitarian law. In addition, in Resolution 28/3
of 19 March 2015, the Human Rights Council has decided to “[invite]
the United Nations High Commissioner for Human Rights and relevant
special procedures of the Human Rights Council and the human rights
treaty bodies to pay attention, within the framework of their mandates,
to violations of international law as result of the use of remotely
piloted aircraft or armed drones” as well as to remain seized of
the matter.
6. As it also appears in the above-mentioned reports and resolutions,
the Committee of Ministers agrees with the Parliamentary Assembly
and with the CAHDI that given the fact that the number of States
with the capacity to use armed drones is likely to increase, a greater
consensus on the terms of their use should be reached in order to
ensure compliance with public international law. The Committee of
Ministers notes in this regard that the CAHDI underlines that for
a particular armed UAV strike to be lawful under international law,
it must satisfy the relevant and applicable requirements under the
law applicable for the use of inter-State force, international humanitarian
law and international human rights law.
7. Concerning the law applicable for the use of inter-State force,
the Committee of Ministers recalls that under the United Nations
Charter and customary international law, States are prohibited from
the threat or use of force against the territorial integrity or
political independence of any State, or in any other manner inconsistent
with the Purposes of the United Nations. However, as the CAHDI points
out on the subject of applicable legal regimes, even if there is
a valid legal basis for the use of force, a drone strike may, depending on
the circumstances, still be deemed unlawful under international
humanitarian law and/or international human rights law.
8. Concerning international humanitarian law applicable during
armed conflict, the Committee of Ministers recalls that all attacks
on persons and/or objects are subject to the rules on conducting
hostilities. In particular, in the conduct of military operations,
constant care shall be taken to spare the civilian population, civilians
and civilian objects. More specifically, those who plan or decide
upon an attack shall do everything feasible to verify that the objectives
to be attacked are neither civilians nor civilian objects and are
not subject to special protection but are military objectives. Furthermore,
precautions should also be taken in the choice of means and methods
of attack with a view to avoiding, and in any event to minimising,
incidental loss of civilian life, injury to civilians and damage
to civilian objects.
9. Concerning international human rights law, the Committee recalls
the relevant jurisprudence of the European Court of Human Rights,
according to which, consistently with the jurisprudence of the International Court
of Justice, “even in situations of international armed conflict,
the safeguards under the Convention continue to apply, albeit interpreted
against the background of the provisions of international humanitarian
law”.
10. In the light of what it has stated above, the Committee of
Ministers considers that many legal issues raised by the increasing
use of armed UAVs need to be addressed while taking into account
the work of the United Nations as well as of the International Committee
of the Red Cross (ICRC). It does not find that there is a need at
the present stage to draft guidelines along the lines suggested
by the Assembly, but will ask the CAHDI to keep the issue on its
agenda and follow developments closely. It will expect CAHDI to
signal any major developments to the Committee of Ministers and
also to signal whether there is a need, in CAHDI’s opinion, for
the Council of Europe to take further action. The Committee of Ministers
will keep the Assembly informed.