Guest Post: The Human Rights Impact of Drone Strikes

by Jonathan Horowitz and Naz Modirzadeh

[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.

http://opiniojuris.org/2013/05/20/guest-post-the-human-rights-impact-of-drone-strikes/

12 Responses

  1. Definitey a topic in need of further analysis, as I pointed out here: http://www.harvardilj.org/2013/01/online_54_deh/

  2. John. Thanks for sharing this link. I know a lot of people turn to IHL to answer questions about wartime targeting, but, as you point out in your thought provoking piece, IHL doesn’t answer all the answers raised by today’s conflicts. In fact, it creates several problems if it’s the only law looked to.

  3. So much confusion:
    1) there is no such thing in international law as a transnational NIAC — such would be an internationalized armed conflict, a conflict of an international character.  Further, every state should insist that the members of its armed forces who are fighitng in another country are participating in an international armed conflict so that they can be “combatants” with “combatant immunity” for lawful acts of war as well as pows. Otherwise, they do not have such a status or protection.
    2) if targeting is permissible either under the law of self-defense or the laws of war, such is not “arbitrary” even if human rights law applies.
    3) human rights law applies in all social contexts (e.g., in time of war) and is not trumped by some imagined latinized phrase but in fact trumps inconsisent international agreements through UN arts. 55(c), 56, and 103.  However, re: U.S. targetings of persons in Pakistan from drones at 14,000 feet, etc., such persons are not in the actual “power or effective control” of the U.S. and do not have h.r. protections vis a vis the U.S.
    4) there is no customary international law that permits self-defense against an “imminent threat” because an “imminent” threat is not even a threat and self-defense against a mere threat, once it actually exists, is “preemptive” self-dfense (al la the old discreditd Bush doctrine) and unlawful, it is not even anticipatory self-defense against an “imminent attack” (note the difference!), which itself is onconsistnet with the language in UN art. 51.
    5) when a person is DPH in Pakistan (directly participating in the international armed conflct occuring in Afghanistan against U.S. soldiers), the theatre of war migrated de facto to where such person directly participates, and the laws of war allow the targeting of the person who is DPH during an international armed conflict per Geneva Protocol I, art. 51(3). see, e.g., http://ssrn.com/abstract=1718548
     

  4. This analysis seems to have made the assumption that should a State locate a person in the territory of another state who could arguably be categorised as an “enemy combatant”, the former state has the option of either killing that combatant or doing nothing. It seems to completely overlook the most obvious and humane path to take — ie working with the host State to arrest the combatant and either have the individual extradited to the foreign State or prosecuted in the host State.
    I think the lack of consideration of that option led to the following question being raised:
    > “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.”
    To me, this question is irrelevant to the issue under consideration in this post, simply because the US is both willing and able to capture and prosecute any Hezbollah commander on its territory, so Israel would have no reason for killing that person on US soil. Targeted killings should be and are a last resort, when the threat posed by the individual being targeted cannot be neutralised through any alternative means.
    That is why targeted killings of this nature by both Israel and the US are always conducted in foreign States that are either unwilling or unable to arrest the targets. In Israel’s case, the host State is itself hostile and is generally supporting the target and providing their organisation with arms and finances. In America’s case, the target is generally in a place over which the host State exercises little or no control, meaning that any form of arrest is almost impossible. As the original post even noted:
    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.”
    So what if the host State is not “all too happy to have assistance”, and rather is intent on protecting said “dangerous and powerful groups”? That is hardly unheard of. Under Horowitz’s formulation, the foreign State would have to simply accept the host State’s decision, notwithstanding the threat that continues to be posed by the individual.
    It seems rather bizarre to suggest that an enemy combatant who is a valid target under IHL would cease to be so merely by the fact of crossing into a neutral third country. The threat that the individual poses would not diminish whatsoever—the only change would be to his/her physical location. This feels like an unnecessarily rigid positivist interpretation of the law.

  5. Jonathan, thanks for responding. I completely agree that resort to IHL and jus ad bellum alone doesn’t account for everything in situations where the host state consents to force against a nonstate actor within its borders but with which it is not itself engaged in armed conflict.  Among many projects I have going, this is a topic I continue to research.  It would be great to discuss it further with you at some point in the future!

  6. Daniel, Thanks for your comment to the post. Much of what you’ve set out I agree with. In many ways, by highlighting the detention option, you’ve unpacked how the host State’s human rights obligations should be operationalized in coordination with the foreign State’s IHL objectives when consent is provided by the host State. With the host State’s consent, there is also nothing under international law that bars the foreign State from bringing its resources and expertise to arrest someone who the host State can’t (provides of course that the detention is permissible by law). In this sense, I do believe there is an option in between killing and doing nothing – it’s just an option that hasn’t been given as much attention as it should be. 
    I would push back however on the problem you pose where the host State does not provide consent to a foreign State that wishes to use lethal force against an individual engaged in that foreign State’s NIAC. In such a scenario, for that person to be targeted by the foreign State I would propose that he/she would have to be the subject of an attack based on the principle of self-defense or in response to an imminent threat, and such targeting would have to be necessary and proportionate. I don’t believe it is not enough for the individual to pose any lesser threat and certainly it’s not enough for the person to be a member of a group within the (foreign) NIAC. If this weren’t the case, I think there is a threat that the concept of sovereignty would unravel if it is subjugated to the concept of transnational NIAC targeting.

  7. Response…And fortunately for sovereignty, I think it is fair to say that the “unwilling or unable” “doctrine” on which the United States bases the legality of targeting people at will for the next “20 years anywhere in the world without host state consent” is slowly unraveling with new scholarship that credibly challenges the claims made by proponents that is is, in any way, settled international law rather than politics.

  8. Apologies. The last paragraph of my previous response should have read: “I would push back however on the problem you pose where the host State does not provide consent to a foreign State that wishes to use lethal force against an individual engaged in that foreign State’s NIAC. In such a scenario, for that person to be targeted by the foreign State I would propose that he/she would have to be the subject of an attack based on the principle of self-defense, including in response to an imminent threat, and that such targeting would have to be necessary and proportionate. I don’t believe it is enough for the individual to pose any lesser threat and certainly it’s not enough for the person to be a member of a group within the (foreign) NIAC. If this weren’t the case, I think there is a threat that the concept of sovereignty would unravel if it is subjugated to the concept of transnational NIAC targeting.

  9. Daniel: an “enemy combatant,” of course, would have to be a member of the regular armed forces of a party to an international armed conflict (e.g., a state, nation, or belligerent under int’l law).  When such person is in a neutral state, if such person is participating in the armed conflict from that location, that person is still targetable in an international armed conflict.  And is Hezbollah an “insurgent,” a “belligerent,” or what?
    And, we should recgonize that foreign state participation in fighting during a NIAC internationalizes the armed conflict.
    Why would it be a violation of the laws of the United States for Israel to kill a person who is DPAA (a direct participant in armed attacks against Israel, Israeli embassies or consultates, etc.) if treaty law of the United Staes (such as Article 51 of the U.N. Charter) is part of the supreme law of the United States?  And if the targeting was justified under the laws of war?

  10. Jonathan:

    I’m glad that we agree that arrest is preferable, and I agree that it should receive more attention (which is why I drew attention to it), although thankfully it has not been entirely overlooked in practice. There have been many cases of coordinated counter-terrorism arrests—mostly between Western countries, but also including examples like the joint operations between Australia and Indonesia.
     
    I still disagree with your other point, however. Consider this: as a sovereign entity, the host State has the right to refuse entry to the person being targeted, or to deport that person. By instead permitting this individual to enter and move freely within its territory, the State is essentially assuming jurisdiction over that individual in the knowledge that the individual is engaged in a NIAC with a neighbouring State. If the host State refuses to capture the individual, it is to some extent assuming a role in the conflict. Clearly this does not constitute an “armed attack”, and so would not of itself lead to an IAC, but I believe that it would at least be sufficient to justify a targeted strike by the State that the individual threatens.
     
    As for “imminent threat”, that all depends on the interpretation of the term. I can imagine a lot of activities that would fall short at least of the natural construction of “imminent threat”, but would nevertheless pose a severe threat to the State in question—eg procuring weapons or finances, recruiting soldiers to fight in the conflict, or researching more lethal effective methods of combat. None of those activities pose a threat that is “imminent” per se, but that is not to say that the threats are not severe.
     
    Then there is also the question of the extent to which the host State actually exercises effective control over the territory in which the individual is located. In many situations where targeted killings are used (Somalia, Pakistan, Yemen), the targets are in areas which are de facto separate States, even if they are not officially recognised as such by other States. Should the Pakistani government really have the right to prevent US intervention in areas which are only considered “Pakistani” when drawn on a map?

  11. Daniel,
    If you dwell deeper into current affairs and history, what you will notice is there are a number of people in the United States and other Western states that the Saudi, Pakistani, Irani and other governments, want to target for murder and terrorism charges, but who have fled abroad to escape these charges and in many instances been granted “Western citizenship” and often “political asylum” and live comfortably abroad.
    If you want a pertinent example, google “Altaf Hussain” but I am happy to furnish more examples.
    These people are not unidentifiable no-name individuals who apparently pose “imminent threats” (such as the people targeted by U.S. drone strikes in Pakistan), but identifiable individuals against whom there is reasonably credible evidence that they have engaged in countless acts of terrorism in certain cities of Pakistan and, in the case of this particular gentleman, continue to incite violence every few months via speeches.

    Now, the British government has for more than 10 years refused to do anything about this particular gentleman. Again, I would encourage you to google Mr. Hussain.
    According to your interpretation of the law, Pakistan could send a drone over to London and target this individual as long as it is “proportional and necessary” since the U.K. has not taken effective action for many years? And so could the other states?
     
     
     

  12. C.R. No, unless that person is a DPH in an international armed conflict or a DPAA with respect to ongoing armed attacks that trigger a right of self-defense.
    Daniel: “imminent threat” is a phrase, and an imminent threat does not yet pose a threat, by definition!  Sounds like to old discredited, unlawful Bush doctrine of “emerging” threat.

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