The use of drones to carry out targeted killings has attracted a considerable degree of analysis and critical comment particularly in relation to operations conducted by the United States of America. Despite numerous concerns and questions, it has not been declared unlawful in all circumstances. The following is a necessarily brief look at some of the reports presented to the United Nations.
Professor Christof Heyns - 2013:
A Report 13th September 2013 by Professor Christof Heyns (UN special rapporteur on extrajudicial, summary or arbitrary executions) made a number of recommendations including asking States to be transparent about the development, acquisition and use of armed drones - "They must publicly disclose the legal basis for the use of drones ..." (See pages 22-24 of the report). The report does NOT condemn the use of drones for targeted killings in all circumstances. Professor Heyns noted that - "Under international human rights law standards, the intentional, premeditated killing of an individual would generally be unlawful. Where intentional killing is the only way to protect against an imminent threat to life, it may be used. This could be the case, for example, during some hostage situations or in response to a truly imminent threat."
Ben Emmerson QC - 2014:
Report dated 11th March 2014 by Ben Emmerson QC (UN Special Rapporteur on the promotion of human rights and fundamental freedoms while countering terrorism). Again, this report did not indicate that targeted killings by drones are inevitably unlawful but several concerns were raised. Emmerson pointed to lack of consensus between States on several issues (see para 71). These included:
"Does the international law principle of self-defence entitle a State to engage in non-consensual lethal counter-terrorism operations on the territory of another State against a non-State armed group that poses a direct and immediate threat of attack, even when the armed group has no operational connection to its host State? If so, under what conditions does such a right of self-defence arise? Does such a right arise where the territorial State is judged to be unable or unwilling to prevent the threat from materializing? If so, what are the criteria for determining "unwillingness" or "inability" to act?"
"Is the international law principle of self-defence confined to situations in which an armed attack has already taken place, or does it entitle a State to carry out pre-emptive military operations against a non-State armed group on the territory of another State, without the territorial State's consent, where it judges that there is an imminent attack to its own interests? If so, how is imminence to be defined?"
Clear answers to those questions are not readily available.
Intelligence available to a government may indicate that a threat is to be carried out at some precise time. However, a more likely scenario is that no precise time can be determined but the threat is a real one and will be carried out at some time in the near future. In one sense, the threat is ever-present. The USA has argued that it may time its responses to such threats by taking into account factors such as the need to reduce collaterial damage to civilians etc. Imminence is discussed at paragraphs 57 and 58 of this UN report.
The problem for decision-makers:
Reports such as those of Professor Heyns and Ben Emmerson and an earlier report (2010) by Philip Alston (see here) only serve to highlight the uncertainties existing in international law with regard to use of force in self-defence particularly where the action is pre-emptive.
The killing of Khan brings together several areas of difficulty: it was a pre-emptive strike and took place in a Sovereign State (Syria) and Khan was a non-State actor.
Serious concerns have been raised by the Rapporteurs but their reports do not go so far as to say that a killing such as that of Reyaad Khan would inevitably be unlawful. In this penumbra, national decision-makers have to operate and they will be faced with difficult decisions. As Mr Cameron said in Parliament - "I am not prepared to stand here in the aftermath of a terrorist attack on our streets and explain to the House why I did not take the chance to prevent it, when I could have done."
Philip Alston - 2010:
Alston's report (in 2010) said that "outside the context of armed conflict, the use of drones for targeted killing is almost never likely to be legal (para 85) and, outside of actual hostilities, there are few situations where the test for anticipatory self-defence would be met (para 86). It is clear that the UK (and some other States) are engaged in armed conflict against ISIS. Air strike action within Iraq was approved by the House of Commons in 2014 and, at that time, the government reserved a right to act against Islamic State within Syria in an emergency.
a) Given the obvious fact that many more States and even non-State actors will acquire drones for military use, it is incumbent on international bodies to bring forward answers to the various uncertainties highlighted in the reports.
b) The report by Professor Heyns called for States to ensure meaningful oversight of the use of drones and, where appropriate, investigation and accountability as well as reparations for their misuse. Philip Alston's report also pointed to lack of transparency by States in "disclosing the safeguards in place to ensure that killings are lawful and justified and the accountability mechanisms that ensure wrongful killings are investigated, prosecuted and punished" (Alston, 2010 para 87). At para 89, Alston indicated some safeguards that should be in place. Keir Starmer QC MP has recently called for drone strikes to have independent scrutiny and transparency. The Guardian 8th September- Drone strikes in Syria must have independent Scrutiny and Transparency
Clearly, achieving accountability would be difficult given that a lot must inevitably remain secret. Nevertheless, as Keir Starmer has argued - "Accountability also requires some form of after-the-event scrutiny of each strike. While it may not be possible for such scrutiny to be wholly in the public domain, someone independent and standing outside the decision-making team must have a line of sight on the evidence and be able to form a view on the legality of the action and/or whether the policy in force was followed. His or her conclusions should then be published."
Ben Emmerson QC
Professor Christof Heyns
Here are some links to articles relating to Non-State actors.
Peace Palace Library - Non State actors
Application of international law to non State armed groups
Audio-visual library of international law - Rethinking the role of Non State actors