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par Ben EMMERSON
Statement by Ben Emmerson, UN Special Rapporteur on Counter-
Terrorism and Human Rights concerning the launch of 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.
The Special Rapporteur issued the following statement at a press
conference in London :
In June of last year, at the Human Rights Council in Geneva, a group of
States, including two permanent members of the Security Council, as well as Pakistan and a number of other concerned States, made a joint
statement asking me to carry out an investigation, within the framework
of this mandate, into the use of drones in the context of counter-
terrorism operations. I issued a statement shortly afterwards to the effect that those States using this technology, and those States on whose territory it is used, are under an international law obligation to establish effective independent and impartial investigations into any drone attack in which it is plausibly alleged that civilian casualties were sustained. I also indicated that if
those States did not take steps to establish sufficiently robust and
impartial investigations it may, in the final resort, be necessary for the
UN to conduct investigations into individual drone strikes.
The Inquiry that I am launching today is a direct response to the requests made to me by States at the Human Rights Council last June, as well as to the increasing international concern surrounding the issue of remote targeted killing through the use of UAVs. The exponential rise in the use of drone technology in a variety of military and non-military contexts represents a real challenge to the framework of established international law and it is both right as a matter of principle, and inevitable as a matter of political reality, that the international community should now be focussing attention on the standards applicable to this technological development, particularly its deployment in counter-terrorism and counter-insurgency initiatives, and attempt to reach a consensus on the legality of its use, and the standards and safeguards which should apply to it. The plain fact is that this technology is here to stay, and its use in theatres of conflict is a reality with which the world must contend. It is therefore imperative that appropriate legal and operational structures are urgently put in place to regulate its use in a manner that complies with the requirements of international law, including in
ternational human rights law, international humanitarian law (or the law of war as it used to be called), and international refugee law. At present there are at least three main legal theories vying for primacy of place on this question. There are those who contend that outside situations of recognised international armed conflict, the applicable framework is international human rights law, under which it is unlawful to engage in any form of targeted killing. The standards set out in Covenant on Civil and Political Rights, and particularly the provisions of Article 6 which protects the right to life, permit
the use of lethal force only where it is strictly necessary as a matter of immediate self-defence. Under this analysis States wishing to take action against suspected terrorists located outside a recognised situation of international armed conflict must first try to effect an arrest, and may use lethal force only if the person they are seeking resists arrest and it proves strictly necessary to use firearms.
At the other end of the spectrum the analysis that has been promoted by
international lawyers in the United States, and by John Brennan, President Obama’s nominee to head the CIA, to the effect that Western democracies are engaged in a global against a state less enemy, without geographical boundaries to the theatre of conflict, and without limit of time. This analysis is heavily disputed by most States, and by the majority of international lawyers outside the United States of America.
A third way of analysing the issue is to ask whether a terrorist organisation is engaging in an internal (or non-international) armed conflict with a particular government such as the governments of Pakistan, Yemen and Somalia ; and then to ask whether and in what circumstances it is lawful for a third State to become engaged as a party to an internal armed conflict in support of the government forces. It is clear that as a matter of international law such engagement may be lawful if it takes place at the express request of the government of the State concerned. It is much less clear whether it can be lawful for an outside State such as the US to use military force without the express consent of the State concerned. International lawyers disagree on whether tacit consent or acquiescence is sufficient ; on whether the
deployment of remote targeting technology in such circumstances amounts to a violation of the sovereignty of the State on whose territory it is used ; and on whether it may nonetheless be lawful if the State concerned is either unwilling or unable to tackle the terrorist threat posed by an insurgent group operating on its territory.