The Domino Effect

Following the first UN debate on increasing extra-territorial use of armed drones, the UN General Assembly Third Committee has approved a draft resolution on the protection of human rights and fundamental freedoms while countering terrorism. In it, the Committee considers drone use by member states. The draft recalls the duty to comply with international law when operating remotely piloted aircraft and asks members to (i) conduct prompt, independent fact-finding inquiries when there are plausible indications of civilian harm and (ii) engage in dialogue on the application of human rights and humanitarian law pertaining to drone use.  

This closely reflects the interim recommendations of Special Rapporteur Ben Emmerson QC, in particular his conclusions that (i) the obligation to conduct an inquiry is ‘triggered whenever there is a plausible indication from any source that civilian casualties may have been sustained…within or outside an area of active hostilities’ and (ii) there is an ‘urgent and imperative need to seek agreement between States on….legal questions on which there is currently no clear international consensus’.

The UN resolution is the second practical proposal to follow the Special Rapportuers’ reports. The first was a proposed amendment to introduce a statutory requirement on the US President to report on the number of civilian casualties in targeted operations including drone strikes. The amendments to the Intelligence Authorisation Act for 2014 were adopted by the Senate Intelligence Committee and put to the House Permanent Select Committee on Intelligence, although rejected by a 15-5 vote.

These are small but welcome steps on the road to transparency and oversight. The statutory amendment would have meant that US drone operations outside Afghanistan would have to be acknowledged and declassified, and that the government would have to release its own data on civilian casualties. It is encouraging that this proposal was taken seriously. The UN resolution would be a practical first step which should at least engage members with opposing views on the legality of operations outside UN mandated warzones. More significantly for the purposes of the APPG, the resolution would require EU members – including the UK Government –  to formulate clear, public policies on drone use and the law in order to participate in the debate. Sitting on the fence – saying that armed drone use is a ‘matter for the states involved’ for example – would not cut the mustard.

For many, the draft resolution does not go far enough. In particular, the UN Ambassador Masood Khan has indicated Pakistan’s concern that the resolution leaves open the possibility that the law may follow the drone, rather than the drone follow the law, as warned against by Special Rapportuer Christof Heyns. Khan commented: ‘ we appreciate that the resolution, for the first time, includes references to the use of unmanned aerial aircraft for counter-terrorism and emphasises the urgent and imperative need to seek agreement between member states on the legal questions pertaining to such aircraft operations…[but] it is not justifiable to launch strikes in the context of non-international armed conflict on the Pakistan-Afghanistan border area.’

Pakistan’s response to the resolution may have been influenced by the recent US drone strike of an Islamic seminary in Khyber Pakhtunkhwa. The strike was unusual because Khyber is a settled area of Pakistan outside the semi-autonomous Federally Administered Tribal Areas. In protest against the strike, Imran Khan’s political party Tehreek-e-Insaf disclosed the name of CIA’s highest ranking officer in Pakistan and continued to block NATO supply routes through Khyber. 

Meanwhile over the border, Afghan President Hamid Karzai has accused the US of a drone strike which killed a 2 year old child and wounded 2 women in Helmund. As a direct result, Karzai has vowed not to sign the long-term Bilateral Security Agreement if similar ‘oppressions by foreign forces’ continue. In stark contrast to the Khyber strike, General Joseph Dunford apologised directly to President Karzai on Friday and promised a full ISAF investigation. It is hoped that President Karzai will clarify his proposed restrictions to drone strikes in and from Afghanistan and will scrutinise the investigation. In a twist that has not been picked up by the British media, it is not clear that the Helmund drone was supported by UK or US military personnel: both operate drones from Helmund, as do the CIA. Either way, pressure to implement the Special Rapporteurs’ recommendations is on.

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