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Germany and its Involvement in the US Drone Programme before German Administrative Courts

Published on April 8, 2019        Author: 
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On 19th March 2019, the German Higher Administrative Court for North Rhine-Westphalia rendered a highly interesting and important judgment. It addresses no less than the compatibility of US drone strikes in Yemen with international law, the role of domestic courts with regard to international law, and the scope – and limits – of judicial review in foreign affairs.

The case was brought by Yemeni claimants against Germany for its alleged involvement in the US drone programme. While Germany neither publicly supports nor actively participates in the US drone programme, it is nearly undisputed that the US Air Base in Ramstein, Germany, plays a vital role therein (see here). The Court held that, first, Germany is constitutionally obliged to ascertain that the US drone strikes conducted via Ramstein are compatible with international law. Secondly, in case the government finds the US practice to be legally contentious, German authorities have to take efforts in order to ensure that international law is complied with.

The full reasoning of the decision is not yet available in writing, but the press release (see here for an unofficial English translation) and the transcript of the oral pronouncement of the decision (see here) allow for some preliminary remarks. (Note that the Higher Administrative Court on the same day rendered a second judgment that concerned US drone strikes, albeit in Somalia (see here). This contribution, however, focuses on the “Yemen case”.)

The Facts

In 2012, Salem bin Ali Jaber, a Yemeni imam known for openly criticising Al Qaeda was invited to deliver a sermon at the local mosque of Khashamir, Yemen, where he attended a family wedding. In that course he was approached by three members of Al Qaeda requesting a meeting. Salem asked his relative, and local police officer, Waleed to accompany him. Shortly after the meeting commenced, US drones fired a series of four Hellfire rockets on the group killing both Salem and Waleed bin Ali Jaber as well as the three Al Qaeda members.

This prompted Read the rest of this entry…

 

The International Legal Framework Regulating Armed Drones

Published on March 25, 2017        Author: 
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Last week I had the pleasure and honour of delivering the International and Comparative Law Quarterly’s Annual Lecture for 2017 together with Lawrence Hill-Cawthorne. Our lecture was based on an article – “International Legal Framework Regulating Armed Drones” – that we co-authored with Professor Christof Heyns and Dr Thompson Chengeta which was published in Volume 65 (2016) of the ICLQ. The article arose out of a project to support Christof’s work in his capacity as United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions. We began the collaboration in the summer of 2013 in the lead up to Christof preparing a report for the 68th session of UN General Assembly on “Armed Drones and the Right to Life”. The project commenced with an expert workshop organized by the Oxford Institute for Ethics, Law and Armed Conflict and the Oxford Martin Programme on Human Rights for Future Generations and has concluded with this article which is an expanded version of the UN GA report.

As the abstract of the article sets out:

This article provides a holistic examination of the international legal frameworks which regulate targeted killings by drones. The article argues that for a particular drone strike to be lawful, it must satisfy the legal requirements under all applicable international legal regimes, namely: the law regulating the use of force (ius ad bellum); international humanitarian law and international human rights law. It is argued that the legality of a drone strike under the ius ad bellum does not preclude the wrongfulness of that strike under international humanitarian law or international human rights law, Read the rest of this entry…

 

New Drone Report by UK Parliament’s Joint Committee on Human Rights

Published on May 10, 2016        Author: 
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Following up on yesterday’s post on the Eye in the Sky, today the UK Parliament’s Joint Committee on Human Rights published an important new report on the UK’s resort to drone strikes. Most interestingly, the report contains a number of clarifications of the UK’s policy on drone strikes, on the basis of the evidence obtained by the Committee, especially in situations outside active armed conflict. One of the report’s conclusions is that the UK does, in fact, reserve the right to use drones outside armed conflict, and that such strikes would be governed by human rights law rather than the law of war, but that in limited circumstances such strikes could be lawful. The report also calls on the UK Government to respond with further clarifications. As a general matter the report is written clearly and the legal analysis is reasonably nuanced and rigorous.

 
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Eye in the Sky

Published on May 9, 2016        Author: 
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Last week I had the pleasure of seeing the new movie starring Helen Mirren and the late great Alan Rickman, Eye in the Sky. I was simply floored. Not only is Eye in the Sky an example of film-making at its best, with intelligent pacing and stellar acting throughout, it is also one of the most sophisticated treatments that I have seen of the legal, policy and moral dilemmas that people who make targeting decisions are faced with. It even has words like necessity and proportionality in it, and generally used correctly at that! I could totally envisage a vigorous classroom discussion of the various issues raised after every ten minutes of the movie. I just couldn’t recommend it more for anyone even remotely interested in the legal and moral aspects of targeted killings by drones.  *MINOR SPOILERS FOLLOW*

Read the rest of this entry…

 
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UK Parliamentary Inquiry into UK Policy on the Use of Drones for Targeted Killing

Published on December 23, 2015        Author: 
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In August this year, the United Kingdom carried out a drone strike in Syria for the purpose of targeting a member of ISIS (see previous discussion on this blog here and here). At the end of October, the Joint Committee on Human Rights of the UK’s Parliament launched an inquiry into the UK government’s policy on the use of drones for targeted killing. Unlike the US, which has published a white paper setting out the legal framework for the US of lethal force against US citizens who are senior members of Al Qaeda, the UK had not previously set out its policy for the use of lethal force in areas outside of active hostilities.  The inquiry by the Joint Committee (joint because its membership is drawn both from the House of Commons and the House of Lords) is not particularly directed at the drone strikes that occurred this past summer but has a more general focus. It is intended to tease out the following issues:

  • clarification of the Government’s policy and its legal basis
  • the decision-making process that precedes the Government’s use of drones for targeted killing, including the safeguards to ensure the sufficiency of evidence
  • accountability for actions taken pursuant to the policy (what independent checks exist before and/or after a strike; should there be independent scrutiny and, if so, who should carry it out?)

The Joint Committee invited the submission of written evidence as part of its inquiry and you can find the evidence submitted to the Committee here. That evidence came from a range of sources, including academics and civil society.  Christof Heyns (the UN Special Rapporteur on Extrajudicial, Arbitrary and Summary Executions), Lawrence Hill-Cawthorne, Thompson Chengeta and I put in a written submission which is essentially an article that we are writing on “The Right to Life and the International Law Framework Regulating the Use of Armed Drones” – but which starts with a 7 page summary of the article. That article is a much expanded version of the Report that Christof presented to the UN General Assembly on 25 October 2013, (UN Doc, A/68/30532).

UK Memo to the Committee

The UK Government submitted a 4 page memo to the Joint Committee setting out its response to the issues raised by the Committee. That memo sets out very briefly the UK’s policy on the use of lethal force. Much of what is says is very familiar and simply restates the position of the UK government on a number of important issues regarding the use of force: Read the rest of this entry…

 
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