After much expectation, the Special Rapporteur on Counter-terrorism and Human Rights, Ben Emmerson QC, has released his interim report on his investigation into the use of drones. His final report will be submitted to the Human Rights Council in 2014. The original parameters of his inquiry were to examine evidence that drone strikes, together with other kinds of remote targeted killing, are causing, in some instances, disproportionate civilian casualties. While the UK is one of the countries under consideration, it is the use of this technology by the United States which is the primary focus of this report.
From a UK perspective (and a brief first reading), the following points are interesting to note. With reference to the UK’s participation in NATO’s campaign in Libya in 2011, the Rapporteur comments that the UK carried out its own investigations into incidents where civilian casualties may have been caused by British “assets”, though none involved drones (para 36). On the subject of investigations, the MoD has told him that
under operating procedures followed by the United Kingdom in Afghanistan, every remotely piloted aircraft weapons discharge is the subject of internal review involving the senior qualified weapons instructor. A mission report is prepared and is then reviewed by the most senior British officer at the Combined Air Operations Centre in Afghanistan and his or her legal adviser. This includes a review of video footage and communications reports. If there is any indication of civilian casualties, the incident is referred to the Joint Incident Assessment Team at ISAF, whose personnel are independent of the chain of command involved in any strike. Individuals are presumed to be civilian for this purpose unless it can be established that they were directly involved in immediate attempts or plans to threaten the lives of ISAF personnel.
While this approach is to be welcomed, we have to respectfully argue that the Government does not go far enough in providing transparency to Parliament as to the use of this technology, especially as the Government continues to re-iterate its claim that it has only killed four civilians, in an incident in March 2011, in the duration of its drones campaign in Afghanistan.
The Rapporteur also highlights the use of “pattern of life analysis” by the RAF for targeting purposes. The amount that such analysis actually contributes to the identification and execution of such targets is not clear though the statement is worrying and perhaps explains, in part, the low levels of identifiable civilian casualties caused by UK drone strikes.
the United Kingdom has specifically informed the Special Rapporteur that in making targeting decisions involving the use of remotely piloted aircraft in Afghanistan it does not authorize strikes on the basis that the infliction of civilian casualties would be proportionate to a high-value military target.
Emmerson’s report comes on hot on the heels of that by the Special Rapporteur on extrajudicial, summary or arbitrary executions, whose inquiry into drones “examines the ways in which the constitutive regimes of international law, including international human rights law, international humanitarian law and the law on the inter-State use of force, regulate the use of armed drones.” His report makes a number of recommendations that it would be beneficial for the UK government to engage with as these echo many of the concerns raised by NGOs, Parliamentarians and the public, particularly around the need for transparency, in relation to the development, acquisition and use of drones, and respect for existing legal frameworks.
Relevant for our purposes is the call for states to
publicly disclose the legal basis for the use of drones, operational responsibility, criteria for targeting, impact (including civilian casualties), and information about alleged violations, investigations and prosecutions.
…and must ensure meaningful oversight of the use of drones and, where appropriate, investigation and accountability as well as reparations for their misuse.
The devastating impact of drones were once again the focus of attention from NGOs last week with Amnesty International’s in-depth investigation report into drone strikes in Pakistan by the United States. The report considers the provision of intelligence, and other assistance, by the UK to the US drone campaign in Pakistan and highlights the relevant consequences for the UK’s international human rights obligations. Further, the report states
The authorities of all states who assist the USA in carrying out drone strikes in Pakistan, including those of Pakistan, must carry out independent and impartial investigations into any organs or officials implicated in involvement in US drone strikes that may constitute human rights violations.
The UK is also encouraged to hold the US to account in relation to its own international legal obligations – a role that the APPG has previously highlighted.
This report has been complemented by the publication, by Human Rights Watch, of their report examining “the Civilian Cost of US Targeted Killings in Yemen”. Between a Drone and Al-Qaeda calls for the US and Yemen to implement “measures to reduce civilian casualties from targeted killings in Yemen and to ensure these strikes comply with international law” and, like those reports discussed above, calls for prompt, thorough and impartial investigations.
These reports all make a positive contribution to increasing transparency and accountability on the use of drones and it is hoped, will be carefully considered by the US, UK and other relevant Governments.