UN Drone Reports Chide US Transparency Gap

By Jaya Ramachandran | IDN-InDepth NewsAnalysis

NEW YORK (IDN) – Armed drones are the subject of two landmark reports presented to the 193-nation General Assembly – the main deliberative, policymaking and representative organ of the UN – in October: one urging transparency over the killing of civilians by U.S. drones in Pakistan, Afghanistan and Yemen; and the other warning against “the use of drones by States to exercise essentially a global policing function to counter potential threats”.

The report by Ben Emmerson, UN ‘Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism’ says that the CIA-led drone strikes have killed far more civilians than U.S. officials have publicly acknowledged – at least 400 in Pakistan and as many as 58 in Yemen. It chides Washington for failing to aid the investigation by disclosing its own figures.

According to Emmerson, the U.S. had created “an almost insurmountable obstacle to transparency”, adding that he does not accept that “considerations of national security justify withholding statistical and basic methodological data of this kind”.

NBC News investigations reveal that U.S. intelligence officials have consistently downplayed the number of civilian deaths from drone strikes. In a June 2011 speech, White House counter-terrorism advisor John Brennan, who is now CIA director, said that “for nearly the past year, there hasn’t been a single collateral death because of the exceptional proficiency [and] precision” of U.S. counter-terror strikes.

Later, the CIA acknowledged some civilian casualties, but told Congress that they were in the “single digits,” according to a February 2013 statement by Senate Intelligence Committee chair Sen. Diane Feinstein, D.-Calif, NBC News says.

NBC News quotes a statement by the White House spokesperson Laura Magnuson who said, “We are aware that this report has been released and are reviewing it carefully.” She noted that at the National Defense University on May 23, “[T]he President spoke at length about the policy and legal rationale for how the United States takes action against al Qaeda and its associated forces. As the President emphasized, the use of lethal force, including from remotely piloted aircraft, commands the highest level of attention and care. Of particular note, before we take any counter-terrorism strike, there must be near-certainty that no civilians will be killed or injured – the highest standard we can set.”

Protection of life

Another report – by the UN Special Rapporteur Christof Heyns, a Professor of Human Rights Law, Co-director of the Institute for International and Comparative Law in Africa at the University of Pretoria – says: “Although drones are not illegal weapons, they can make it easier for States to deploy deadly and targeted force on the territories of other States.

“As such, they risk undermining the protection of life in the immediate and longer terms. If the right to life is to be secured, it is imperative that the limitations posed by international law on the use of force are not weakened by broad justifications of drone strikes.”

In the 24-page report Heyns says: “Drones can be expected to become more sophisticated and available in more compact form, and also to become less expensive and therefore more accessible.

“They are likely to form part of the arsenals of an increasing number of States that may be able to deploy such force across international borders in relatively non-intrusive and sometimes non-attributable ways, on the battlefield and to pursue targets far removed from what would traditionally be seen as zones of armed conflict.

In fact, some States may also wish to use armed drones in domestic law enforcement contexts, such as for border patrols, operations against organized crime and crowd control in demonstrations.

Besides, armed drones may fall into the hands of non-State actors and may also be hacked by enemies or other entities. “In sum, the number of States with the capacity to use drones is likely to increase significantly in the near future, underscoring the need for greater consensus on the terms of their use.”

Also, the ready availability of drones may lead to States, where they perceive their interests to be threatened, increasingly engaging in low-intensity but drawn-out applications of force that know few geographical or temporal boundaries. This would run counter to the notion that war – and the transnational use of force in general – must be of limited duration and scope, and that there should be a time of healing and recovery following conflict .

Recommendations

In view of this, the report stresses: “The established international legal framework for the use of force (international human rights law, international humanitarian law and inter-State force) should be regarded as setting forth an adequate framework for the use of armed drones.”

“It is a matter of concern that there is uncertainty about which States are developing and acquiring armed drones. States should be transparent, and be called upon to be transparent by the international community and by domestic actors in this regard,” adds the report.

With an eye on the UN, the Special Rapporteur points out that even where self-defence is exercised in accordance with the Charter of the United Nations, Security Council endorsement is desirable. The role of the Council in ensuring multilateral supervision of the use of armed drones should be strengthened,” it says.

Further: “The Security Council should seek transparency from States on the reasons for self-defence when invoked, if this is neither provided nor clear.”

It impresses upon States using armed drones the need to be transparent about the development, acquisition and use of armed drones. “They must 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.”

International humanitarian law

Also: “States must bring their practices and policies in line with international standards, including their standing orders and rules of engagement as well as their targeting norms. This includes adhering to the rule, in the context of international humanitarian law, that if there is doubt whether a person is a civilian, the person must be considered a civilian.”

Further: “States must ensure meaningful oversight of the use of drones and, where appropriate, investigation and accountability as well as reparations for their misuse.

“States must recognize the extraterritorial applicability of human rights treaties, in addition to the global applicability of the right to life on the basis of customary law and the general principles of international law, including during armed conflict.

“Drone operators must not be placed within a chain of command that requires them to report within institutions that are unable to disclose their operations.

“States that invoke the right to self-defence to use inter-State force should submit a report to the Security Council pursuant to Article 51 of the Charter in respect of each State on whose territory they use force. If a conflict is extended to the territory of a new State, a new report should then be submitted.

“Whether or not they recognize this as a legal obligation, States should capture rather than kill during armed conflict where feasible.”

The UN Special Rapporteur asks States on whose territory armed drones are used to “continue to honour their own human rights obligations and recognize that they cannot consent to the violation of human rights or international humanitarian law by foreign States”.

Besides: “They must recognize that the duty to protect the right to life of their subjects rests primarily with them. States must investigate allegations of violations of the right to life through drone killings and provide redress where applicable. Where States consent to the use of force, they should do so openly and clearly.”

The UN Special Rapporteur adds: “Intergovernmental organizations, States and others, especially those with an interest in using armed drones or against whose territory and constituents they are used, should engage in individual and collective consensus-seeking processes to determine the correct interpretation and application of the established international standards for the use of drones that are equally applicable to all States.”

“Civil society should continue and, where possible, expand its assessment and monitoring of the use of drones,” he adds. [IDN-InDepthNews – October 19, 2013]

2013 IDN-InDepthNews | Analysis That Matters

Image: A group photo of aerial demonstrators at the 2005 Naval Unmanned Aerial Vehicle Air Demo | Credit: Wikimedia Commons

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