Guest Post: The Human Rights Impact of Drone Strikes

[Jonathan Horowitz is writing in his personal capacity. He is the Associate Legal Officer at the Open Society Justice Initiative’s National Security and Counterterrorism Program.]

When assessing the legality of drone strikes, attention is often focused on the State that carries out the strike—usually the United States.  On May 8th, for example, the U.S. Congressional Progressive Caucus Peace and Security Taskforce held a hearing on the United States use of weaponized drones abroad and heard testimony that detailed specific incidents of civilian harm and encouraged transparency, after-action investigations, accountability, and greater fidelity to traditional understandings of international law. (Harold Koh, the former Legal Advisor to the U.S. Department of State, made similar pleas around transparency during his May 7 speech at Oxford.)

These are all critical points that Congress and others should be hearing, but I would like to shift the focus—away from U.S. responsibilities and on to the responsibilities of the States that consent to the use lethal force on their territories.  This is part of the “drone” discussion (or, to be more accurate, the “extraterritorial use of lethal force outside an active battlefield” discussion) that has not received enough attention. Yet, it is worth exploring how the legal responsibilities of the consenting State interact with the notion of what I’ll call “transnational non-international armed conflict (NIAC) targeting.”

“Transnational NIAC targeting” occurs when a State, which is engaged in a NIAC in one country, targets with lethal force an enemy fighter who happens to be in another country.  Or, to quote John O. Brennan when he was Assistant to the President for Homeland Security and Counterterrorism, it is based on the notion that, “[t]here is nothing in international law that …prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat.” (i.e., an Al Qaeda commander who is fighting the United States in Afghanistan but has traveled to Yemen seeking recruits and cash for arms.)

First, I should make clear that lethal targeting outside an active battlefield is, in certain circumstances, permissible under international law. For example, as a matter of jus ad bellum, a State can use lethal force against an enemy fighter abroad in self-defense, including one who is an imminent threat, provided the force is both necessary and proportionate.  (In fact, under the jus ad bellum, it makes no difference whether the individual is seen as an enemy fighter or not. All that matters is that he or she is attacked out of self-defense or he or she poses an imminent threat.) (See David Kretzmer’s EJIL article here on the typology of proportionality.)

Separate from that, the notion that transnational NIAC targeting is permissible when the host State provides its consent is deeply problematic. This is because, at its extreme, it would permit a “shoot-to-kill” and “civilians-can-die-if-the-harm-is-proportionate” approach to attacking an enemy when that enemy is walking around in a State that is not party to the conflict. (Naz Modirzadeh and I discuss some of the issues relating to the idea of a transnational NIAC here and here.) Moreover – as Naz brought to my attention – while the United States may hold that transnational NIAC targeting is permissible outside an active battlefield, the Executive’s targeting approval process (see Mark Mazzetti’s 2012 story here and Gregory S. McNeal’s 2013 article here) perhaps signals internal discomfort with that position. If NIAC targeting is in fact applicable outside Afghanistan, why isn’t the transnational NIAC targeting process more akin to a normal, and far less onerous, wartime targeting process?

Some of the discomforts associated with transnational NIAC targeting (which is a more technical and palatable term compared to, but nonetheless brings with it the characteristics of, a “global war on terror”) are revealed, and addressed, when we analyze the constraints that international law places on the State that is purportedly giving consent, rather than focusing on the State that is using force.  This is where human rights law becomes important, because human rights law should inform the host State’s decision of whether it should provide its consent.

As noted above, the scenario we are discussing involves a foreign State using lethal force through the permission of the host State.  Also, in this scenario, the host State may or may not be a party to a NIAC, but if it is, the individual who the foreign State deems targetable under its NIAC is not an individual who the host State deems targetable under its (different) NIAC.  This being the case, we need to ask if the host State is automatically allowed to permit the foreign State to use NIAC’s targeting privileges on its territory? More simply, if the host State has no legal justification for targeting the person who the foreign State wishes to target, can the host State allow the foreign State to target that person? (A similar, but reverse, issue arose with respect to CIA’s first drones strike in Pakistan – when the CIA targeted an individual who Pakistan wanted eliminated but who was not a United States target.)

When making this determination, it is important to consider that the host State has human rights obligations that protect the right to life of the individual who the foreign State wishes to kill. At the same time, however, it cannot be ignored that the foreign State, which is engaged in a NIAC abroad, might claim it has the right to target the individual via the claim to a law of transnational NIAC targeting. But how do these two seemingly co-applicable interests interact, and which one ultimately prevails?

Human rights treaty law requires the host State to protect that individual from arbitrary deprivation of life. And because the host State does not consider the individual to be a NIAC target of its own, even though he or she would be a NIAC target of the foreign State, it seems the host State must continue to protect that individual’s right to life through the human rights interpretation of the word “arbitrary,” and not through the law of armed conflict’s much looser rules for when a person may be killed.  In other words, there is no justification for invoking lex specialis; the host State’s use of lethal force consent considerations must be informed by the law enforcement framework (i.e., lethal force is an exceptional measure of last resort).  For this reason, it would seem the host State must, as a legal obligation, not give its consent to the foreign State to use lethal force on its territory against that individual.  The foreign State, meanwhile, despite being in a NIAC, must respect the host State’s decision—provided the foreign State does not need to act in self-defense and the target does not pose an imminent threat.

To put it another way, in the context of transnational NIAC targeting, while the foreign State needs to make the jus in bello considerations about who it can target and how, it also needs to make the jus ad bellum considerations about whether it can use force and to what degree. These jus ad bellum considerations will, amongst several issues, have to be based on whether the host State grants the foreign State permission to use lethal force, and the host State’s decision to give its consent or not should have been heavily informed by it human rights obligations.

Critics of my analysis may say that it eviscerates the right to self-defense and/or the law of armed conflict.  Others may say it is wishful thinking to believe that countries with troubling human rights records will invoke their human rights obligations to place limits on transnational NIAC targeting. Often, indeed, the host state may be all too happy to have assistance in ridding its territory of dangerous and powerful groups, particularly when it knows all too well that its own weak legal system cannot possibly manage these individuals through a criminal law approach. Moreover, even if a host State does refuse to provide consent for human rights related reasons, foreign States could simply “override” the non-consent with claims to self-defense through the novel concept of “elongated” imminence.

With respect to the jus ad bellum, nothing in my analysis refutes the rule that a State can use lethal forces, when it is necessary and proportionate, in self-defense, including against an imminent threat. And with respect to the law of armed conflict, nothing in my analysis precludes the long-standing element of international law that permits a State that is engaged in a NIAC on its territory to invite a foreign State to assist militarily in the NIAC. This would grant, by extension, the foreign State the authority to engage in NIAC targeting.

Finally, while it is a fair point to claim that there are many countries that would not cite their human rights obligations to prevent transnational NIAC targeting, this is no reason to let them off the hook for this transgression or for leaving unchallenged the U.S.’s novel concept of “elongated” imminence.  And they certainly should not be let off the hook simply because invoking human rights law could put them in opposition to the national security priorities of a foreign State.  This begs the question, could the U.S. government allow Israeli security officials onto American soil to kill a suspected Hezbollah commander even if U.S. law clearly prohibited that act? I would hope not, and I think other governments should be held to that same standard.