“Classic Human Rights Law Territory”: Why the HRC need to talk about drones
A US drone strike killed two suspected militants in northwest Pakistan last Saturday, in an attack which marks the seventh this past week, and the sixteenth this year. These latest strikes interrupt a six-month hiatus in drone strikes in Pakistan, and follow the first time that the use of armed drones has been discussed at the Human Rights Council. In an unprecedented step, HRC resolution 25/22 called for an expert panel to discuss the use of armed drones, and while some member states objected, there is increasing consensus around the decision to ‘officially’ consider drone use as a human rights issue.
The panel was held on 22 September 2014 and opened with a series of interventions objecting to HRC as an inappropriate forum to discuss drones. The Council should not – according to the UK delegation – take up weapons “on a thematic basis”, or – according to the US delegation – address the “law of armed conflict”. Drone use, however, is very much a “Council issue”, as was demonstrated in discussions about the legal frameworks applicable to the use of armed drones, the human rights impact of drone strikes, and the human rights requirement for transparency and accountability.
The Legal Framework Applicable to Armed Drones
Even in times of armed conflict, a states’ international humanitarian law obligations are always complemented by its international human rights law obligations. Flavia Pansieri, Deputy High Commissioner for Human Rights, reflected that “discussions of armed drones have largely focused on the question of whether their use of compatible with the rules and principles of international humanitarian law, which is applicable in situations of active hostilities in the context of an armed conflict. But international human rights law applies at all time, including in situations of armed conflict”.
Many legal questions have arisen when a person participates directly in hostilities from the territory of a non-belligerent State, or moves into such territory after taking part in an ongoing armed conflict (such has been the case with Pakistan). The ICRC delegate at the panel noted in this scenario IHL would not be applicable, meaning that such an individual should not be considered a lawful target under IHL, as “advising otherwise would mean that the whole world is potentially a battlefield and that a person moving around the globe could be lawfully targeted under IHL in the territories of States not party to any armed conflict”.
The Human Rights Impact of Drone Strikes
Drone strikes have a grave and widespread impact on the lives of individuals and their communities, and have compromised the enjoyment of individual rights including rights to peaceful assembly; to education; to health; freedom of association; and freedom of religion, among others. In addition to loss of life, armed drones create an atmosphere of fear in affected communities, and this fear interrupts education, religious and cultural practices, and the enjoyment of basic human rights and fundamental freedoms.
Transparency and Accountability
Both transparency and accountability are key to ensuring that victims of human rights violations can exercise their right to a meaningful remedy. Lack of transparency concerning the circumstances in which armed drones are used, as well as the involvement of intelligence agencies in their use, create obstacles to determining the applicable legal framework and ensuring compliance. As Special Rapporteur Ben Emmerson told the HRC, the duty to investigate and
transparency are “classic human rights law territory” (see his earlier statements on drone use here).
As the boundaries of trans-national counter-terrorism operations expand, increased use of remotely piloted aircraft underlines the need for greater consensus on how to apply the international laws that regulate lethal force. Any measures employed to counter terrorism, including the use of remotely piloted aircraft or armed drones, must comply with Charter of the United Nations, international human rights law and international humanitarian law, and respect the principles of precaution, distinction and proportionality. It would seem, then, that more UN involvement is needed, not less.