Home EJIL Analysis Human Rights and the Targeting by Drone

Human Rights and the Targeting by Drone

Published on September 18, 2015        Author: 

The UK government has justified its targeting and killing of three people who were engaged in hostilities as part of the ‘Islamic State’ forces by relying on international law. This is to be applauded, as compliance with international law is in the interest of long-term peace and security in the UK and in the international community, and on the rule of law. It does not necessarily mean that their justification of self-defence, or even collective self-defence, is accurate or sustainable once the full facts are known.

However, even if the UK argument of reliance on self-defence is in accordance with a part of international law, that is not sufficient to conclude that the targeted killing is in compliance with all of international law. It only means that the armed force by the drone could be used lawfully by the UK in Syrian territory. There are at least two other areas of international law that are also relevant and should be complied with: international humanitarian law (IHL); and international human rights law (IHRL). The former concerns the lawfulness of force within the armed conflict once it commences, and the latter applies at all times. I will focus here on the application of IHRL, including its interaction with IHL.

IHRL does not allow the targeting of individuals to kill them except in strictly limited circumstances. This was confirmed by the UN Special Rapporteur on Arbitrary Killings in his 2013 report (para 60):

International human rights law prohibits arbitrary killing. This prohibition is reflected in specific treaty obligations and forms part of customary international law. Outside situations of armed conflict, the use of deadly force by the State is lawful only if strictly necessary and proportionate, if aimed at preventing an immediate threat to life and if there is no other means of preventing the threat from materializing. It follows that lethal remotely piloted aircraft attacks will rarely be lawful outside a situation of armed conflict, because only in the most exceptional of circumstances would it be permissible under international human rights law for killing to be the sole or primary objective of an operation.

This statement is consistent with the decision of the European Court of Human Rights in McCann v UK, which concerned the UK security forces’ shoot to kill policy in relation to alleged IRA terrorists in Gibraltar. The Court held that these actions violated the European Convention on Human Rights (ECHR), at least because the UK’s forces could have taken alternative action instead of killing them.

IHRL applies in peace and conflict, as was confirmed by the ICJ in DRC v Uganda and its Advisory Opinion on the Wall. The issue is, therefore, if a specific rule of IHL applies to set aside the normal IHRL prohibition on arbitrary killing. In most instances, the two international law regimes reinforce each other e.g. they both prohibit torture, IHRL can help clarify what is an ‘arbitrary detention’ and IHRL may have the supervisory bodies to bring a IHL claim. In this instance, the situation in Syria is one of a non-international armed conflict (i.e. an internal conflict or NIAC) and so only those IHL rules with respect to that type of conflict could apply.

IHL does allow the killing of those ‘directly participating in hostilities’ in a NIAC. However, in this instance, the ‘hostilities’ in which the ‘Islamic State’ group were participating – as far as is known – are in relation to the NIAC in Syria. This view appears to be supported by the approach of the International Committee of the Red Cross’ Interpretative Guidance on Direct Participation in Hostilities, as it requires, inter alia, a ‘belligerent nexus’ between the harm caused and a party to the conflict for there to be a direct participation in hostilities. The UK is not (or has not been) a party to the hostilities in Syria, though it has been in Iraq. It may be difficult to argue that the ‘Islamic State’ group is participating in hostilities with the UK in Syria to enable the UK to be able lawfully to target them under IHL, though, if those hostilities are in Iraq then there is an issue about the lawfulness of the pursuit of the group into Syria. It should also be noted that there may have been civilians killed by the drones, as the death of civilians who are near to (supposedly targeted) drones attacks continue to occur.

The fact that the killing occurred in another State does not mean that the UK has no IHRL obligations. Even if there had been consent by Syria to the UK action, no State can give consent to a violation of human rights by another State. There have been a series of cases that have decided that the UK’s obligations under the Human Rights Act (as applying the ECHR) continue to apply to situations where the UK has effective control or jurisdiction, such as in detention centres in Iraq and Afghanistan (see the Court of Appeal in Serdar Mohammed). It could be considered that here there was no such control, as it was an overflight by a drone over Syria, as was the case with the Bankovic situation of NATO strikes on a Serbian TV tower. Yet the development of the case law in this area has been to increase the responsibilities of States in relation to their actions violating human rights outside its territory, on the basis of the perpetrator being a State agent rather than about the effective control by a State of an area (see Hassan v UK and Jaloud v The Netherlands). In those latter cases, there was some territorial link in the relevant state due to the presence of on the ground military forces. In my view, the location of the arbitrary killings in Syria when the UK is not a participant in the hostilities in Syria, and the fact that there seems to be no direct territorial link, makes finding a violation of IHRL by the UK unlikely though certainly not impossible.

Two final thoughts about the possible consequences of this action by the UK. First, the drone operator, who is likely to be an RAF pilot (as is the UK practice in contrast to the US) will probably not have any automatic combatant immunity as the actions taken here are probably not part of any international armed conflict (see Noor Khan v SSFCA). Second, if, as may occur all too soon, drones are operated by an armed group such as ‘Islamic State’ to target individuals and to violate IHRL, the UK actions here will mean it will have reduced its legitimate legal responses to such actions. This could have a significant impact on the international rule of law.

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8 Responses

  1. Toby Fenwick

    Thanks Robert, an interesting post.

    I’m a little surprised that you characterize Syria as solely a NIAC; whilst it can be characterised as a NIAC in Syria with respect to the Syrian government and the other rebel groups, given the extent that ISIL is operating in and against Iraq, I would argue that it can also be characterised as an IAC, too.

    From a UK perspective, as an IAC, it is then possible to argue that in an act of collective self-defence at the request of the Iraqi government, the UK took action in Syria against ISIL as the Syrian government is unwilling/unable to stop its territory being used for operations against Iraq under notions of self-help. This will of course be dependent on the facts of the case.

    It is also clear that in focussing on the LOAC considerations and the characterisation of conflict, either view is better than the Art 51 position taken publicly by HMG, with the hurdle it posed by Caroline immediacy.

    It would be very interesting to see the legal advice in full, and given the dangers of a free-for-all under Art 51, it is imperative in my view that HMG does so.

  2. One quick observation and two questions. Regarding the battlefield status of the targets, the information available in the public domain suggests that Reyaad Khan at least satisfied the criteria of a membership in an organised armed group within the meaning of the ICRC Interpretative Guidance. In other words, he was not merely DPH-ing, but carrying out a continuous combat function. This renders his belligerent nexus beyond doubt and, as a matter of LOAC, made him a lawful military objective. Whether or not his lethal targeting was permissible as a matter of jus ad bellum is, of course, a separate matter. However, whether he was targeted based on an individual self-defence or collective self-defence justification does not seem to make much difference with regard to his status as a member of an organised armed group under LOAC.

    Regarding the questions, first, did Noor Khan v SSFCA decide that combat immunity is not available in a NIAC? It seems that the court left this and related questions open (see para 19). It is difficult to see why combat immunity for lethal targeting should not be available in a NIAC if we accept that LOAC confers a legal authority to conduct status-based lethal targeting in such circumstances.

    Second, why would the lethal targeting of Khan limit the Government’s ‘legitimate legal responses’ in relation to the potential use of armed drones by Islamic State? The fact that the UK enjoys the legal authority under international law to kill members of IS who carry out a continuous combat function does not imply, logically or as a matter of law, that international law recognises that members of IS benefit from a corresponding legal authority to kill members of the British Armed Forces. Consequently, killing such members of IS (as well as DPH-ing civilians) in no way undermines the legitimacy of expecting IS not to violate LOAC.

  3. Jordan

    You are focused on UK obligations under the European Convention, but it is important to note that states that are not bound by the European Convention are limited in their killing of certain individuals under the customary and ICCPR standard of “arbitrary” killing. What is or is not “arbitrary” has to be tested in context and their is significant recognition that the standard is not a necessity standard (much less a “strictly necessary .. if there is no other means” claim — which is facially nonsense with respect to the term “arbitrary”). What is or is not “arbitrary” has been considered with reference to what is reasonable, rational. See, e.g., Human Rights on the Battlefield, . This article also demonstrates why U.N. Charter-based customary human rights apply, in general, globally and prevail over inconsistent law of war in international agreements (UN 103) and when they reflect customary jus cogens, the jus cogens human rights override inconsistent laws of war that are not of that status (for these, and as also set forth, for other reasons, a supposed law of war lex specialis override (or “set aside”) of human rights is patent nonsense.
    In any event, under the ICCPR only persons who are within the “effective control” of the country drone-targeting them would have a relevant human right. See, e.g., Human Rights on the Battlefield, at pp. 527-530. The Special Rapporteur missed this point as well.
    Why would there be an armed conflict with ISIS is Syria and not in Iraq? That does not coincide with realities in the air and on the ground. Moreover, it is an international armed conflict in several respects. See response to prior post. Otherwise, UK military could not have combatant immunity for lawful acts of war and could be prosecuted for murder, manslaughter, etc. under relevant domestic laws.

  4. Jordan

    Toby is correct that there are obvious internationalizing aspects of the armed conflict against ISIS occurring both in Syria and Iraq. See, e.g., at pages 169-170 & n.7 regarding ISIS. See also at page 580 n.57; at page 261. It is not necessary that Syria be “unwilling or unable” to control its territory regarding permissible actions in collective self-defense (see, e.g., ibid.), but Syria is certainly “unable.”

  5. Jordan

    Toby: I don’t know what you mean by “Caroline immediacy.” The UK and the US were addressing “self-defense” against ongoing NSA armed attacks and were certainly not addressing what some term anticipatory self-defense, much less preemptive self-defense couched in the widely denounced Bush doctrine — and what the heck is the Obama doctrine in view of the phrase “imminent threat” because, logically, an imminent threat is not yet a real threat, much less a threat of imminent armed attack.
    Regarding the real Caroline recognitions and debate and the focus of the US on the method and means of self-defense response to ongoing NSA armed attacks as opposed to when the right of self-defense pertains, see, e.g., 45 GT J. Int’l L. 411, 422-424 (2014), — an article that considers whether an Iranian nuclear weaponization would trigger a right of Israeli self- or collective-self defense.

  6. Toby Fenwick


    Thanks for this. The best argument that can be made for the UK’s Art 51 approach is that there was an immediate threat posed by the targeted individuals “with no moment of decision” – ie. Caroline immediacy.

    The coverage here – and I would certainly welcome the AG’s actual advice and some more of the facts in this case – suggest that this was close to pre-emption (ie, they were traveling along a road in the middle of nowhere, which is great from a collateral damage perspective) and *at the point they were conveniently traveling down said road* they were embroiled in a plot that met Caroline immediacy.

    It’s certainly possible. But the onus of proof is clearly on the British Government to demonstrate that this (very convenient) coincidence of the facts actually occurred.


  7. Jordan

    Toby: as noted in a reply to the prior posting on EJIL-Talk, if one uses a movie camera instead of a snapshot at a particular time, one might discover that Khan was a DPAA (a direct participant in armed attacks — ongoing armed attacks). Cameron’s statement, at least, speaks to “directing armed attacks” and “part of a series of actual and foiled attempts to attack” — presumably he was DPAA re: a series of armed attacks, but “foiled attempts” raises an interesting issue regarding when has an armed attack begun (e.g., does one have to wait until the gun is fired? or aimed?). Cameron also spoke of “disrupting the attacks planned and directed by this individual” — was there a series of attacks, foiled attacks, and directed attacks? A movie camera is far better than a snapshot for adequate attention to processes of armed attack and DPAA participants therein.

  8. Robert McCorquodale Robert McCorquodale

    Thank you for all your comments, which were insightful.

    By focussing on the IHRL aspects of this issue, I have tried to avoid relying on the UK justification of self-defence (individual or collective), as the legal opinion has not been published, as Toby notes. I suspect that this opinion would also reveal whether the UK considered that there was a link between the armed conflicts in Iraq and Syria. If the situation is considered to be a IAC and not a NIAC then it has some impact on IHRL but, in my view, only minimally, as the core issue of whether the human rights violation occurred within the jurisdiction still applies.

    While Jordan is correct that the HRC has views on arbitrariness in relation to killing, and there are arguments about customary international law, I am doubtful that their jurisprudence has yet developed as far as the ECtHR in not limiting “jurisdiction” solely to where a state has effective control. That extension of jurisdiction enables the possibility of an IHRL claim here.

    Aurel, you are correct that Noor Khan did not decide the issue of combatant immunity but it did show that combatant immunity cannot be assumed in a NIAC. I do, though, worry that any broadening of the powers of a state to kill someone anywhere will impact on the rule of international law.