Using drones: principles, tactics and results (amended title)

[jmm99]

Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism (by Ben Emmerson, 18 Sep 2013):

The present report is the third annual report submitted to the General Assembly by the current Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.

The key activities undertaken by the Special Rapporteur between 10 January and 8 August 2013 are listed in section II. Section III is an interim report to the General Assembly on the use of remotely piloted aircraft in counter-terrorism operations. The Special Rapporteur intends to submit a final report on this subject to the Human Rights Council in 2014.

The salient conclusion of the report is simply this:

77. If used in strict compliance with the principles of international humanitarian law, remotely piloted aircraft are capable of reducing the risk of civilian casualties in armed conflict by significantly improving the situational awareness of military commanders.

The devil is always in the details; and the question here is what does Mr Emmerson (who is a practitioner and not a foggy academic) mean by the term "in strict compliance" with international humanitarian law (aka Laws of Armed Conflict; aka Laws of War).

He delineates "strict compliance" in two earlier paragraphs. The first reads (in pertinent part):

23. Section B provides an overview of the capabilities and deployment of weaponized remotely piloted aircraft and the levels of reported civilian casualties.[4]

4 Differences of view about the forms of activity that amount to direct participation in hostilities under international humanitarian law will almost inevitably result in different assessments of civilian casualty levels. The Special Rapporteur adopts herein the interpretative guidance on direct participation in hostilities promulgated by the International Committee of the Red Cross (ICRC) in Nils Melzer:http://www.icrc.org/eng/assets/files...c-002-0990.pdf (Geneva, ICRC, 2009); see paras. 69-72.

Thus, Mr Emmerson has adopted the most restrictive test for "combatants" (and, conversely, the most expansive test for "civilians"). The 2009 ICRC's "Interpretive Guidance" was and still is controversial; e.g., as per these snips from pp. 65, 67:

Measures preparatory to the execution of a specific act of direct participation in hostilities, as well as the deployment to and the return from the location of its execution, constitute an integral part of that act.
...
A deployment amounting to direct participation in hostilities begins only once the deploying individual undertakes a physical displacement with a view to carrying out a specific operation. The return from the execution of a specific hostile act ends once the individual in question has physically separated from the operation, for example by laying down, storing or hiding the weapons or other equipment used and resuming activities distinct from that operation.

The 2009 ICRC "guidance" wholeheartedly endorses the concept of the "transitory guerrilla" (aka "freedom fighter"), which has morphed the Laws of War since the 1977 APs to the GCs.

The second major point made by Mr Emmerson is this:

24. The Special Rapporteur does not use the expression “targeted killing” herein because its meaning and significance differ according to the legal regime applicable in specific factual circumstances. In a situation qualifying as an armed conflict, the adoption of a pre-identified list of individual military targets is not unlawful; if based upon reliable intelligence it is a paradigm application of the principle of distinction. Conversely, outside situations of armed conflict, international human rights law prohibits almost any counter-terrorism operation that has the infliction of deadly force as its sole or main purpose (A/HRC/14/24/Add.6, paras. 28 and 32-33). The threshold question therefore is not whether a killing is targeted, but whether it takes place within or outside a situation of armed conflict (see paras. 62-68 below).

Again, drawing "a line" between what is and what is not an "armed conflict" (aka "war") has its restrictive proponents and its expansive proponents. The logic tends to be a priori - which some admit, and others do not.

Specific legal points made by Mr Emmerson (in parts C & D) belong to the thread, The Rules - Engaging HVTs & OBL.

Regards

Mike