Are drone attacks legal under international law

Targeted killings by drones - current developments at UN level

Since 2001 the USA has routinely and increasingly deployed unmanned armed missiles, so-called combat drones, in foreign territories, mostly for the purpose of counter-insurgency by Islamist groups. Other states such as Great Britain and Israel also use combat drones to fight terrorism.

In July 2016, the USA published official figures for the first time on operations flown, including the number of combatants killed and civilian casualties. In general, however, the transparency of the states concerned regarding the use of combat drones still leaves something to be desired.

In addition to the restrictive information policy, the central question remains completely underexposed as to whether and under what conditions targeted extraterritorial killings by drones are permissible from the point of view of international law. Two UN special rapporteurs addressed the issue in 2013. As a result, the UN General Assembly and the UN Human Rights Council held several debates and passed the first resolutions. A study published in October 2015 by the UN Office for Disarmament Affairs examines, among other things, the question of applicable international law. Special Rapporteur Emmerson submitted his final report in February 2017.

Currently, the debate at the UN level is primarily about the transparency of drone operations, the export of drone technology and future technical developments (keyword: autonomous weapon systems).

Expert group at the UN General Assembly 2016

As part of the 71st UN General Assembly, a group of experts met in October 2016 on the subject of “New Challenges for States on Armed Drones Use and Proliferation”. The need for more transparency in the use of combat drones was once again emphasized.

The development of new international standards, which are intended to create a binding framework for the use of combat threats, is also emphasized as a central element. However, such standardization should not be left to those states that are already using combat drones. The "Joint Declaration for the Export and Subsequent Use of Armed or Strike-Enabled Unmanned Aerial Vehicles" written by the US government in October 2016 is an example of such a unilateral approach.

At the 72nd UN General Assembly in 2017, the subject of combat drones has so far only been raised by Portugal and Lebanon. Portugal noted in its opinion that increased transparency should be promoted and a new legal framework may need to be created in order to guarantee the protection of civilians and human rights.

UN General Assembly 2013: Sharp criticism of the USA

As early as October 2013, at the UN General Assembly, the state representatives discussed the problem of targeted killings using drones and the two special rapporteurs Ben Emmerson (special rapporteur on the protection of human rights in the fight against terrorism) and Christof Heyns (special rapporteur on extrajudicial, arbitrary and fast-track executions) heard. Some states then sharply criticized the USA in particular, as it was responsible for by far the greatest number of deadly drone operations.

The US took the position, however, that the targeted killings by drones were necessary and fair. In addition, the government has taken the necessary steps towards greater transparency by introducing new guidelines and standards. For example, the Obama administration arranged for the CIA to transfer responsibility for drone operations to the military department in 2014.

Human Rights Council 2014: USA boycott the discussion

After that, the Human Rights Council also dealt with the issue. Pakistan and Yemen submitted a draft resolution to the Council during the 25th session in March 2014, which led to several lengthy debates. The resolution appeals to all states that use drones to ensure that these operations comply with their obligations based on the ratified international agreements, in particular the UN Charter and human rights treaties, as well as with the principles of security, differentiation and proportionality («precaution, distinction and proportionality »). Unfortunately, the US delegation boycotted the deliberations from the start.

Finally, the Human Rights Council passed two resolutions that explicitly mention the drone problem: Firstly, resolution A / HRC / RES / 25/7 on the protection of human rights and fundamental freedoms in the fight against terrorism, which was reached by consensus; on the other hand, the controversial resolution A / HRC / RES / 25/22 of Pakistan mentioned above. This resolution was passed by 27 votes to 6 and 14 abstentions. Incidentally, Switzerland voted for the resolution, and several NATO members abstained.

Based on the Pakistan resolution, an interactive panel discussion on the drone problem was held at the 27th session of the Human Rights Council in September 2014. The participants came to the conclusion that the existing legal framework was clear and sufficient. In principle, human rights are always applicable when it comes to targeted killings by drones. Even an armed conflict, if any, does not change that. If the latter is the case, both international humanitarian law and human rights are applicable. However, the participants expressed doubts as to whether targeted killing using combat drones could even be carried out in accordance with international law.

It is also of particular importance to ensure responsibility for violations of the right to life, including an independent and impartial investigation into the relevant incidents. In addition, the right of victims of human rights violations to effective redress must be respected.

As a result, the Human Rights Council passed a resolution (A / HRC / RES / 28/3) during the 28th session in April 2015, which was again passed under the leadership of Pakistan. The resolution calls on the relevant UN bodies and special reporters to remain vigilant with regard to human rights violations as a result of drone operations and demands that the problem must continue to be closely monitored. The resolution was adopted with 29 to 6 votes. The United States, England, France, Japan, South Korea and Macedonia voted against.

  • Resolution (A / HRC / RES / 28/3) on ensuring use of armed drones in accordance with international law
    Document on the UNHCHR website, April 2015 (pdf, 2 pages)
  • Summary of the Human Rights Council interactive panel discussion of experts on the use of remotely piloted aircraft or armed drones in compliance with international law
    Document on the UNHCHR website, December 2014 (pdf, 16 pages)
  • Resolution (A / HRC / RES / 25/7) on protection of human rights and fundamental freedoms while countering terrorism
    Document on the UNHCHR website, April 2014 (pdf, 4 pages)
  • Resolution (A / HRC / RES / 25/22) on ensuring use of remotely piloted aircraft or armed drones in counter-terrorism and military operations in accordance with international law, including international human rights and humanitarian law
    Document on the UNHCHR website, April 2014 (pdf, 3 pages)
  • EU Parliament calls for clear limits for armed drones
    News ticker, Feb. 27, 2014
  • Over US objection, UN Human Rights Council votes to probe legality of drone strikes
    Mc Clatchy DC Foreign Service, March 28, 2014

Studies and reports from 2013 to 2017

In September / October 2013, four studies and reports on various aspects of armed drone operations were published. On the one hand, Amnesty International and Human Rights Watch did documentation work and published a study each on the effects of drone attacks in Pakistan and Yemen, respectively (see below).

Almost at the same time, two UN special representatives published their respective reports on drone operations. These focus on the analysis of legal issues. The experts come to the conclusion that a lack of transparency and the failure of the responsible states to fulfill their duty to account for civilian victims are currently the biggest problem.

Emmerson: Make data on civilian casualties public

"I call on the states to release the relevant information about their extra-governmental machinations against terrorism as much as possible," said Ben Emmerson, UN Special Rapporteur on the protection of human rights in the fight against terrorism in the fall of 2013 in New York. Particularly important are data on the number of civilian victims who can be traced back to the use of armed drones. Emmerson calls on the USA in particular to publish its data on the consequences of armed drone operations and to provide information on the number of civilian victims of these operations.

Ben Emmerson announced in January 2013 that he would take a closer look at a number of selected drone attacks suspected of causing civilian casualties. His team then gathered evidence of what happened during 37 selected attacks. The analysis involved states that use drones (the USA, Israel and Great Britain) and states that have been the target of drone attacks (Afghanistan, Pakistan, Yemen, Libya, Iraq, Somalia and Gaza). The evidence-gathering process has taken a long time because states are barely releasing any information. For this reason, Emmerson presented the results of his research in two stages. He published a first interim report (A / 68/389) in Sep. 2013 as part of the 68th UN General Assembly. In it, he describes, among other things, the legal framework, the need for transparency and accountability as well as the functionality of combat drones. In the supplementary final report (A / HRC / 25/59) from March 2014, Emmerson then goes into the specific circumstances of the 37 attacks investigated.

To the content of the two reports

In the interim report, Emmerson explains what tasks armed drones can perform in conflicts, where and by whom they have been used, and details the number of known civilian casualties of such operations. The analysis is apparently based in particular on data from NGOs and media reports. Occasionally, Emmerson was able to fall back on official statements. The reference to the domestic follow-up of drone missions is interesting, for example. According to the UN expert, the British military department investigates every armed drone deployment, among other things to clarify the consequences for the civilian population on the ground. However, the results of these investigations will not be published. The report does not reveal whether similar investigations are taking place in the USA and Israel.

Essentially, this deals with the legal framework in which the use of drones is permitted. It sets out the points that are controversially discussed by states and UN bodies today. Last but not least, they are related to the different assessments of the actual threat situation posed by terrorist groups such as Al-Qaeda.

The interim report by UN Special Rapporteur Emmerson assesses the drone attacks by the USA in northern Pakistan in particular as legally problematic. According to its own statements, the US is fighting terrorist groups associated with al-Qaeda on the border with Afghanistan. Killing by drones is an important weapon. The Pakistani government has not given its consent to the use of the drones on its territory. The US takes the position, however, that it has received approval from the Pakistani military and the secret service. Emmerson states in his report that such approval must necessarily come from the political head of the elected government.

According to the final report from March 2014, the situation in Pakistan improved dramatically. On the one hand, much fewer drone missions were carried out in Pakistan and, on the other hand, significantly fewer civilian fatalities were recorded. However, the final report also draws attention to the fact that the number of civilian fatalities in Afghanistan and Yemen has risen massively over the same period. In 2013, drone strikes in Afghanistan were responsible for 40% of all civilians killed in air strikes.

Conclusion and recommendations from Emmerson

International law requires the warring states to protect the civilian population as best as possible. If there is any suspicion that civilians have been harmed, the responsible state must initiate an immediate, independent and objective investigation and provide a detailed public statement. Special Rapporteur Emmerson concludes that this obligation applies regardless of whether the attack was carried out by drones or other weapons and regardless of whether or not it occurred inside or outside a region that is actively involved in a conflict. In this sense, the existing agreements in international humanitarian law are sufficient, no new regulations are necessary.

The two Emmerson reports record what has been said elsewhere. Emmerson quotes, for example, a statement by the UN High Commissioner to the UN Security Council in the summer of 2013: The current lack of transparency about the consequences of drone operations leads to a vacuum in which no one is held accountable for civilian casualties. This makes it impossible for the civilian victims to obtain redress, compensation or other remedial action. At the same time, the UN expert notes that drones are not illegal weapons. If they are used in strict accordance with the principles of international law, drones could even reduce the risk of civilian casualties in armed conflict, as they can help military commanders in a war to have a better overview of the war situation, explains Emmerson.

Final report from the Emmerson

The last report by UN Special Rapporteur Emmerson, published in February 2017, states once again that the use of armed drones is not illegal per se, but that it must be guided by clear guidelines. Those responsible for the use of armed drones are bound by the requirements of international humanitarian law and human rights, especially in the context of the fight against terrorism.

Emmerson recognizes that the United States and England are showing increased transparency in this regard. The publication of specific figures by the USA regarding the number of combatants killed (2,372 - 2,581) and civilian victims (64 - 116) of around 473 drone missions outside of active armed conflicts between 2009 and 2012 is particularly to be welcomed. Emmerson points out however, point out that these numbers differ considerably from the estimates of NGO circles. He refers to the research by Human Rights Watch and the Bureau of Investigative Journalism. In his last report, however, Emmerson did not refer to the revelations surrounding the American drone program, which were published by the journalistic website The Intercept.

Heyns draws similar conclusions

The second UN report published in October 2013 comes from Christof Heyns, special rapporteur on extrajudicial, arbitrary and accelerated executions. His report deals in part with the same subjects and comes to similar conclusions. However, he examines the killings by drones in particular from the perspective of the right to life. Heyns expressly endorsed the essential demands of his colleague Emmerson before the UN General Assembly. Incidentally, Heyns' predecessor, Philip Alston, had already sharply criticized warfare with deadly drones in a report in 2010. However, this criticism had long had no lasting effect.

documentation

Media reports and releases

Amnesty: "USA must hold those responsible to account"

Amnesty International's report "Will I be next?" US Drone Strikes in Pakistan »One of the most comprehensive studies on drone strikes and human rights presented. This report was also published in October 2013. The report details nine of a total of 45 drone attacks in North Waziristan between January 2012 and August 2013. It is based on around 60 interviews with victims, relatives of the murdered, eyewitnesses, residents, members of armed groups and Pakistani government officials. For the first time, several attacks by unmanned US drones have been documented in detail.

The US has been guilty of unlawful killings and possibly even war crimes with its drone strikes in Pakistan, according to Amnesty International. The human rights organization is particularly critical of the secrecy policy surrounding the US drone program. "With the strict secrecy surrounding its drone program, the USA gives itself a license to kill outside the sphere of influence of the courts and beyond basic human rights standards," criticizes Mustafa Qadri, Pakistan expert from Amnesty International. "The US must finally get its drone program in order and bring those responsible for such human rights violations to account."

As part of the 72.In October 2017, Amnesty International published specific proposals regarding the use and proliferation of combat drones. The paper contains 8 key principles, which refer to the legal framework, transparency, accountability and export controls, among other things.

Human Rights Watch also published a study on drones and human rights in October 2013. In the report "Between a Drone and Al-Qaeda’: The Civilian Cost of US Targeted Killings in Yemen ", the human rights organization investigates the effects of drone operations in Yemen. On around 100 pages, Human Rights Watch documents six targeted killings that the United States carried out in Yemen between 2009 and 2013.