9

 

 

 

Written evidence from Columbia Law School Human Rights Clinic (DRO0023)

 

 

A. Introduction

 

  1. This submission summarizes some of the key international law and rule of law concerns raised by the international community about the use of drones for targeted killings in counter-terrorism responses.

 

  1. As the Parliamentary Joint Committee for Human Rights considers United Kingdom (U.K.) Government policies in this area, this submission is intended to assist in the identification of critical areas for inquiry, so that lessons may be learned from practice in other jurisdictions.

 

  1. This submission outlines concerns related to: (1) the compliance of lethal force operations with international law; (2) transparency for targeting policy and practice; and (3) accountability for the use of military force.

 

B. About the Columbia Law School Human Rights Clinic

 

  1. The Columbia Law School Human Rights Clinic works around the world to advance respect for international law and human rights. Its work includes a focus on lethal force, counter-terrorism, armed conflict, and new weapons. It carries out investigations and advocacy to promote compliance with international law, transparency in the use of force, and accountability for legal violations, and has issued numerous reports and public statements on targeted killings and drone strikes.[1]

C. The International Community’s Concerns Regarding The Use of Drones for Targeted Killings

 

  1. International and domestic civil society groups, United Nations (U.N.) independent experts, and other actors in the international community have raised concerns about whether: (1) targeted killings and drone strikes comply with applicable international law; (2) transparency exists around government practice and policies for the use of force; and (3) there is effective oversight and accountability for the use of lethal force. This submission provides a brief overview of each of these critical issues.

 

1. Concerns about compliance with international law: an overview

 

  1.                  The use of drone strikes for targeted killings must comply with all applicable international law regimes, including international human rights law (IHRL) and international humanitarian law (IHL).

 

  1. In determining the legality of the use of drone strikes for targeted killings in particular instances, states must use the specific definitions and interpretations of key legal concepts as defined under the applicable international legal framework. Much criticism of the use of targeted killings and drone strikes has focused on the potentially problematic interpretations and definitions applied to key legal terms and concepts, including: “imminence,” “direct participation in hostilities,” “feasible precautions,” and “associated forces.”[2] In addition, international actors have expressed concern about states’ reference to IHL as the predominant or sole legal framework for their actions when international law clearly mandates that IHRL should apply as either a primary (where no armed conflict exists) or complementary framework (during armed conflict) when evaluating the legality of the use of force.

 

1(a) Concerns about compliance with international law: jus ad bellum

 

  1. The U.N. Charter requires that “[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”[3]

 

  1. This prohibition on the use of force is not violated if the State in which force is used consents.[4] Such consent “must be freely given and clearly established,” and “there can be no ambiguity about the existence of consent.”[5] The prohibition is also not violated where the Security Council “determine[s] the existence of any threat to the peace, breach of the peace, or act of aggression”[6] pursuant to Article 39, Chapter 7 of the U.N. Charter and authorizes States to “take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.”[7]

 

 

  1. The use of extraterritorial force is also permissible where a state lawfully exercises the right of “individual or collective self-defence.”[8] If such a measure is taken, it must be “immediately reported to the Security Council.”[9] Self-defence is allowed as a response to an “armed attack” that poses a “grave and persisting danger.”[10] “An armed attack is a ‘massive armed aggression . . . that imperils [a State’s] life or government.” [11] The right to self-defence also includes the right to act in anticipation of an “imminent” armed attack. An “imminent” armed attack means “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.”[12] The use of force “must comply with the two conditions of necessity and proportionality.”[13]

 

  1. In the drone strike context, the international community has expressed serious concern about whether states have applied a too-broad definition of “imminence,” expanding the term beyond its legal definition.[14] Concern has also been expressed about states not reporting cases of self-defence force to the U.N. Security Council.[15]  

 

  1.               Even if the use of force in the territory of another state is lawful, the attacking state must still comply with IHRL and/or IHL when targeting specific individuals.[16] Under international law, “even where consent or a self-defense justification for inter-state force is present, it does not obviate the need for further inquiry into whether the demands of IHL or IHRL have been met in respect of the particular use of force.”[17]

 

1(b) Concerns about compliance with international law: international human rights law

 

  1.               Central to IHRL is the right to life, as well as the State’s duty to protect this basic right. Under Article 6(1) of the International Covenant on Civil and Political Rights: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”[18] This right is non-derogable and is binding at customary international law.[19]

 

  1.               Outside of armed conflict and under IHRL, the intentional use of lethal force is only permissible where “strictly necessary to protect against an imminent threat to life.”[20] This means that lethal force such as the use of a drone strike must be a “last resort in order to protect life.”[21] This is a strict standard, and U.N. Special Rapporteurs have noted that drone strikes will “rarely be lawful outside a situation of armed conflict.”[22]

 

  1.               In an armed conflict, “[i]t is now a well-established principle of international law that international human rights law continues to apply . . . as a complement to international humanitarian law.”[23] During armed conflict, and during the conduct of hostilities, the specific rules for the use of use of force would be drawn from IHL.[24]

 

  1.               The international community has raised concerns about whether states are properly applying human rights law extraterritorially, and also whether they are applying human rights law during armed conflict, and, where there is no armed conflict, applying its strict tests to lethal strikes.[25] Further, concern has been expressed about whether some states are improperly applying a “stand-alone” self-defence test (applying the UN Charter and states’ right of self-defence), without then applying human rights law as the specific framework governing targeting of persons as required by international law.[26]

 

1(c) Concerns about compliance with international law: international humanitarian law

 

  1.               International humanitarian law (IHL) applies only in armed conflict—international armed conflict (IAC) between states, or non-international armed conflict (NIAC) between a state and non-state armed actors.[27] The existence of an armed conflict is determined by objective criteria.[28]

 

  1.               Under IHL, parties must distinguish civilian persons and objects from combatants and military objectives, directing attacks only at the latter.[29] In cases of doubt as to civilian status, individuals should be presumed civilian.[30] Parties may target persons who are not members of the armed forces or any non-state armed group only as long as such persons take a “direct part in hostilities.”[31] In a NIAC, a state may lawfully target members of a non-state armed group “where they take a direct part in hostilities” and, potentially, if the individual is someone with a “continuous combat function.”[32]

 

  1.               Under IHL, attacks must also satisfy the rule of proportionality. This rule requires that incidental losses to civilian life must not be “excessive in relation to the concrete and direct military advantage anticipated from an attack against a military objective.”[33] Proportionality is assessed based on “whether a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack.”[34]

 

  1.               In addition, under international humanitarian law, “[i]n the conduct of military operations, constant care must be taken to spare the civilian population, civilians and civilian objects. All feasible precautions must be taken to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects.” [35] “Feasible” precautions are “those precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations.”[36]

 

  1.               Over the last five years, the international community has consistently expressed concern over whether states engaging in targeted killings and drone strikes are properly applying or complying with the rules of IHL.[37] Some have raised concern about whether the use of drones for targeted killings, because they expand the circumstances in which strikes can take place, has facilitated or created motivation for expanding legal limitations on the use of force.[38] In particular, there are concerns that some states have applied too wide a definition of “direct participation in hostilities,” and may have thus expanded the scope of “lawful” targets.[39] Concerns have also been expressed regarding the criteria to identify targets, and the use of patterns of behaviour or “signatures” in determining an individual’s affiliation with an armed group,[40] as well as about whether “rescuers” have been targeted.[41] These concerns reflect a general concern about unclear definitions of “civilian,” and “militant” or “combatant.”[42] Some reported strike practices raise concerns about violation of the principles of distinction and feasible precautions in attack. In addition, the international community has expressed concern about whether the non-state armed actor groups targeted are in fact parties to an armed conflict with the attacking state.[43]

 

2. Concerns about transparency

 

  1.               The international community has consistently expressed serious concern about the lack of public disclosure of “use of force” legal and policy standards, of safeguards in place to ensure that strikes are lawful, and about the facts of targeted and other strikes, including who is targeted, and any civilian harm. [44] Independent expert U.N. country investigation reports have repeatedly called for transparency on particular strikes concerning use of lethal force.[45]

 

  1. Many states affirmed their commitment to transparency in targeted killing operations and drone strikes at the U.N. General Assembly in 2013.[46] However, some states have made only minimal progress in practice. International human rights organisations, including the Open Society Justice Initiative, Human Rights Watch, and Amnesty International have frequently raised concerns about lack of factual and legal transparency for strikes, and called for the publication of such information.[47] A grave consequence of the lack of transparency and accountability is the undermining of the legal framework protective of human rights, both in times of war and outside of war. [48] A refusal to acknowledge civilian harm is contrary to the rule of law, denies victims the justice they deserve, and compounds anger in impacted communities. These concerns heighten the need to ensure that there are effective mechanisms to track and respond to civilian harm.[49]

 

  1. Greater disclosure of legal and policy standards, and procedural mechanisms, is a prerequisite to informed assessment and debate. Furthermore, this disclosure is an essential first step toward ensuring accountability and redress.

 

 

 

 

3. Concerns about lack of accountability

 

  1.               With the increasing use of armed drones, of central importance is the existence of effective and accessible accountability mechanisms.[50]

 

  1.               Accountability concerns raised by the international community about drone strike use to date have included that: states’ post-strike investigations may not be adequate; states do not regularly publicly acknowledge strike errors or legal violations; meaningful judicial review may be foreclosed or limited through domestic processes; and oversight from the legislative organs of government may be inadequate.[51]

 

  1.               To promote accountability, states should “investigate, track, and respond to allegations of unlawful strikes and civilian harm,”[52] and publicly release the results of individual investigations, as well as statistical information about casualty rates.[53] Not doing so adequately places great constraints on any independent assessment of the basis for the strikes, the legality of such strikes, and the extent of any civilian casualties.

 

  1.               In parallel, states should ensure independent review and oversight, in order to advance accountability in individual cases and to enable an informed public to democratically hold officials accountable.[54] To promote accountability in individual cases, states should ensure that meaningful judicial review of the legality of strikes is possible and not foreclosed through national-level processes.[55] Such judicial review would assist in clarifying the scope of the government’s authority to use lethal force, and establish the limits of governmental legal authority to engage in targeted killings.[56]

 

  1.               International oversight is also critical. Human rights organizations and U.N. independent experts have raised concerns to the U.N. Human Rights Council about state use of armed drones for targeted killings.[57] To advance effective international level oversight, it is important that U.N. member states participate in and share information at the international level, particularly with international mechanisms which investigate and seek to ensure accountability.[58]

 

  1.               Finally, as a measure of accountability, states should ensure that civilian victims, including family members, are able to obtain redress and reparation. International law requires that states provide remedies where violations have occurred.[59] Ensuring that these remedies are available will help ensure compliance with international law and prevent any appearance of impunity.  In addition, regardless of legal violation, states should offer amends or solatia to victims and family members as an acknowledgment and recognition of the harm caused and to reduce the suffering of survivors.[60]

 

D. Conclusion

 

  1. In 2010, the U.N. Special Rapporteur on extrajudicial, summary and arbitrary executions submitted an influential 2010 report that highlighted the extent to which drone strike and/or targeted killings practices are spreading, and warned that they pose a significant and rapidly growing challenge to the international rule of law.[61] The report warned of the risks of overly expansive interpretations of the law being adopted by other states in the future, and cautioned that without transparency and accountability for targeted killings and drone strikes, grave damage would be done to the international legal framework protecting the right to life.

 

  1. These risks are not inevitable. The Parliamentary Joint Committee for Human Rights hearing is important and timely, as aspects of the U.K. Government’s practice, policy, and legal interpretation regarding the use of drone strikes for targeted killing are currently being shaped. How the U.K. deploys drone strikes and targeted killings, and how the government interprets the relevant frameworks of international law and implements policies of transparency and accountability will have important implications for international practice, policy, and law as more states acquire and use this technology. The U.K. Government has an opportunity to set a positive standard for the responsible and lawful use of lethal force within the framework of international law. This leadership can help ensure that as more countries acquire and deploy the ability to use drone strikes for targeted killing, they will do so in compliance with the rule of law and international law framework—a framework that has helped to protect fundamental rights and promote peace and security for civilians around the globe.

 

26 November 2015

 

[1] See, e.g., Joint Letter from Columbia Law School Human Rights Clinic and Other Civil Society Organizations to President Obama Regarding “Targeted Killings” and Drone Strikes (May 13, 2015), https://www.hrw.org/news/2015/05/13/
joint-letter-president-obama-regarding-targeted-killings-and-drone-strikes; Joint Letter from Columbia Law School Human Rights Clinic and Other Civil Society Organizations to U.N. Human Rights Council on Targeted Killings and the Use of Armed Drones (Sept. 17, 2014), https://www.hrw.org/pt-br/node/255245; Columbia Law School Human Rights Clinic, Joint Statement to Senate Judiciary Committee Hearing: “Drone Wars: The Constitutional and Counterterrorism Implications of Targeted Killings” (Apr. 11, 2013), https://web.law.columbia.edu/sites/default/files/microsites/human-rights-institute/files/
Letter%20to%20President%20and%20Statement%20on%20Targeted%20Killings.pdf; Columbia Law School Human Rights Clinic & Center for Civilians in Conflict, The Civilian Impact of Drones: Unexamined Costs, Unanswered Questions (Sept. 30, 2012), http://civiliansinconflict.org/uploads/files/publications/The_Civilian_Impact_of_Drones_w_cover.pdf; Columbia Law School Human Rights Clinic, Counting Drone Strike Deaths (Oct. 2012), http://web.law.columbia.edu/sites/default/
files/microsites/human-rights-institute/files/COLUMBIACountingDronesFinal.pdf; Drone Technology and Humanitarian Law Implications (C-SPAN Mar. 25, 2011), http://www.c-span.org/video/?298673-1/drone-technology-humanitarian-law-implications (interviewing representatives from the Columbia Law School Human Rights Clinic); Columbia Law School Human Rights Clinic, Targeting Operations with Drone Technology: Humanitarian Law Implications (Background Note for the American Society of International Law Annual Meeting Mar. 25, 2011), http://www.law.columbia.edu/ipimages/
Human_Rights_Institute/BackgroundNoteASILColumbia.pdf; Letter from Columbia Law School Human Rights Clinic to Michael Posner, Assistant Secretary of State, Bureau of Democracy Labor and Human Rights, U.S. Department of State, Harold Hongju Koh, Legal Adviser, Office of Legal Adviser, U.S. Department of State, David Sullivan, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State, Scott Busby, Director for Human Rights, Office of Multilateral Affairs and Human Rights, National Security Council (Feb. 17, 2011), http://www.law.columbia.edu/ipimages/Human_Rights_Institute/UPRTargetingColumbiaFINAL.pdf.

[2] See, e.g., United Nations Office for Disarmament Affairs, Study on Armed Unmanned Aerial Vehicles 4 (2015), http://www.un.org/disarmament/publications/more/drones-study/drones-study.pdf; U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions, Extrajudicial, Summary or Arbitrary Executions ¶ 13, U.N. Doc. A/68/382 (Sept. 13, 2013), http://www.un.org/en/ga/search/view_doc.asp?symbol=A/68/382.

[3] U.N. Charter art. 2(4). This prohibition is also “universally accepted as a norm of customary international law.” See also United Nations Office for Disarmament Affairs, Study on Armed Unmanned Aerial Vehicles 4 (2015), http://www.un.org/disarmament/publications/more/drones-study/drones-study.pdf.

[4] Articles on Responsibility of States for Internationally Wrongful Acts, art. 20 (2001), http://legal.un.org/docs/?path=../ilc/texts/instruments/english/draft_articles/9_6_2001.pdf&lang=EF (“Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent.”).

[5] Ibid.

[6] U.N. Charter art. 39.

[7] U.N. Charter art. 42.

[8] U.N. Charter art. 51.

[9] Ibid.

[10] N. Lubell, Extraterritorial Use of Force Against Non-State Actors 53 (2010).

[11] Antonio Cassesse, International Law 354, 469 (2005).

[12] Letter from Mr. Webster to Lord Ashburton, Department of State, Washington (Aug. 6, 1842), http://avalon.law.yale.edu/19th_century/br-1842d.asp; see also Noam Lubell, Extra-Territorial Use of Force Against Non-State Actors 56 (2010); Gabcikovo-Nagymaros Project (Hungary v. Slovakia), Judgment, [1997] ICJ Rep 7, http://www.icj-cij.org/docket/files/92/7375.pdf.

[13] United Nations Office for Disarmament Affairs, Study on Armed Unmanned Aerial Vehicles 23 (2015), http://www.un.org/disarmament/publications/more/drones-study/drones-study.pdf; see also Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons [1996], ICJ Rep, 226, at ¶ 41, http://www.icjcij.org/docket/files/95/7495.pdf; Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) [1986], ICJ Rep 14.

[14] See, e.g., Columbia Law School Human Rights Clinic, Joint Statement to Senate Judiciary Committee Hearing: “Drone Wars: The Constitutional and Counterterrorism Implications of Targeted Killings” 7 (Apr. 23, 2013), http://web.law.columbia.edu/human-rights-institute/counterterrorism/drone-strikes/statement-targeted-killings; U.N. Special Rapporteur on extrajudicial, summary or arbitrary Executions, Extrajudicial, Summary or Arbitrary Executions ¶ 92, U.N. Doc. A/68/382 (Sept. 13, 2013) (by Christof Heyns).

[15] See, e.g., U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions, Extrajudicial, Summary or Arbitrary Executions ¶ 93, U.N. Doc. A/68/382 (Sept. 13, 2013) (by Christof Heyns).

[16] United Nations Office for Disarmament Affairs, Study on Armed Unmanned Aerial Vehicles 25–26 (2015), http://www.un.org/disarmament/publications/more/drones-study/drones-study.pdf.

[17] Christof Heyns & Sarah Knuckey, The Long-Term International Law Implications of Targeted Killing Practices, 54 Harv. In’l L.J. 101, 108 (2013), http://www.harvardilj.org/wp-content/uploads/2013/01/Heyns-to-publish.pdf; U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions; see also U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions, Extrajudicial, Summary or Arbitrary Executions51, U.N. Doc. A/68/382 (Sept. 13, 2013) (by Christof Heyns) (concluding that “any positive action by a State, on its own territory or that of another State, must be carried out in compliance with its human rights obligations under all applicable rules of international law [including International Human Rights Law].”).

[18] International Covenant on Civil and Political Rights, art. 6(1), Dec. 16, 1966, S. Treaty Doc. No. 95-20, 6 I.L.M. 368 (1967), 999 U.N.T.S. 171. The U.K. ratified the ICCPR on May 20, 1976.

[19] Id. at art. 4; Nils Melzer, Targeted Killing in International Law 180–89 (2009).

[20] United Nations Office for Disarmament Affairs, Study on Armed Unmanned Aerial Vehicles viii (2015), http://www.un.org/disarmament/publications/more/drones-study/drones-study.pdf.

[21] Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, rule 4 (Sept. 7, 1990) (“Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result.”); Id. at rule 9 (“Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.”).

[22] U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, U.N. Doc. A/68/389 (Sept. 18 2013) (by Ben Emmerson); U.N. Special Rapporteur on extrajudicial, summary or arbitrary Executions, Extrajudicial, Summary or Arbitrary Executions ¶ 35, U.N. Doc. A/68/382 (Sept. 13, 2013) (by Christof Heyns).

[23] U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions, Extrajudicial, Summary or Arbitrary Executions ¶ 40, U.N. Doc. A/68/382 (Sept. 13, 2013), http://www.un.org/en/ga/search/view_doc.asp?symbol=A/68/382; see also Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons [1996], ICJ Rep. 226, at ¶ 24–25, http://www.icjcij.org/docket/files/95/7495.pdf; Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Rep. 2004, at ¶ 106, http://www.icj-cij.org/docket/files/131/1671.pdf.

[24] See United Nations Office for Disarmament Affairs, Study on Armed Unmanned Aerial Vehicles 17 (2015), http://www.un.org/disarmament/publications/more/drones-study/drones-study.pdf.

[25] Amnesty International, “Will I Be Next?”: US Drone Strikes in Pakistan 44 (Oct. 22, 2013), http://www.amnestyusa.org/sites/default/files/asa330132013en.pdf; Amnesty International, USA: ‘targeted killing’ policies violate the right to life 1, 5 (June 15th, 2012) http://www.amnestyusa.org/sites/default/files/usa_targeted_killing.pdf

[26] See Christof Heyns & Sarah Knuckey, The Long-Term International Law Implications of Targeted Killing Practices, 54 Harv. In’l L.J. 101, 108 (2013), http://www.harvardilj.org/wp-content/uploads/2013/01/Heyns-to-publish.pdf; U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions; U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions, Extrajudicial, Summary or Arbitrary Executions51, U.N. Doc. A/68/382 (Sept. 13, 2013).

[27] See, e.g., U.K. Ministry of Defence, The Manual of the Law of Armed Conflict 27-35 (2004); Dietrich Schindler, The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols, Collected Courses of the Hague Academy of International Law, Tome 163, 1979-II, 125-156 at 147; International Committee of the Red Cross, How is the Term ‘Armed Conflict’ Defined in International Humanitarian Law?, Opinion Paper (Mar. 2008), https://www.icrc.org/eng/assets/files/other/opinion-paperarmed-conflict.pdf; The Prosecutor v. Dusko Tadic, IT-94-1-A, Decision of the Defence Motion for Interlocutory Appeal on Jurisdiction, ¶ 70 (Int’l Crim. Trib. for the Former Yugoslavia Oct. 2, 1997); The Prosecutor v. Fatmir Limaj, IT-03-66-T, Judgment, ¶¶ 94-170 (Int’l Crim. Trib. for the Former Yugoslavia Nov. 30, 2005), http://www.icty.org/x/cases/limaj/tjug/en/ lim-tj051130-e.pdf; The Prosecutor v. Haradinaj, IT-04-84-T Judgment, ¶¶ 49, 60 (Int’l Crim. Trib. for the Former Yugoslavia Apr. 3, 2008), http://www.icty.org/x/cases/haradinaj/tjug/en/080403.pdf.

[28] See Proseuctor v. Fatmir Limaj Haradin Bala Isak Musliu, IT-03-66-T, Judgment, 89 (Int’l Crim. Trib. for the Former Yugoslavia Nov. 30, 2005) (“The ascertainment whether there is a non-international armed conflict does not depend on the subjective judgment of the parties to the conflict; it must be determined on the basis of objective criteria . . .”) (quoting an ICRC working paper); Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment, 538 (Mar. 14, 2012), https://www.icc-cpi.int/iccdocs/doc/doc1379838.pdf (referencing a list of factors to determine whether an armed conflict existed);  see also U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions, Study on Targeted Killings ¶ 46, U.N. Doc. A/HRC/14/24/Add.6 (May 28, 2010) (by Philip Alston).

[29] International Committee of the Red Cross (ICRC), Customary International Humanitarian Law rule 1, 2005, https://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule1 (“The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.”); see also Art. 48, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), adopted Jun. 8 1977 (“In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”); U.K. Ministry of Defence, The Manual of the Law of Armed Conflict 24 (2004). 

[30] International Committee of the Red Cross (ICRC), Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law 75–76 (May 2009), https://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf (“[I]n case of doubt, the person . . . must be presumed to be protected against direct attack.”).

[31]See Id. at 20 (“For the purposes of the principle of distinction in international armed conflict, all persons who are neither members of the armed forces of a party to the conflict nor participants in a levee en masse are civilians and, therefore, entitled to protection against direct attack unless and for such time as they take a direct part in hostilities.”); see also International Committee of the Red Cross (ICRC), Customary International Humanitarian Law rule 6, 2005, https://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule6 (“Civilians are protected against attack, unless and for such time as they take a direct part in hostilities.”); Art. 51(3), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), adopted Jun. 8 1977 (“Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities.”); U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions, Study on Targeted Killings ¶ 30, U.N. Doc. A/HRC/14/24/Add.6 (May 28, 2010) (by Philip Alston).

[32] International Committee of the Red Cross (ICRC), Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law 33 (May 2009), https://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf (“Consequently, under IHL, the decisive criterion for individual membership in an organized armed group is whether a person assumes a continuous function for the group involving his or her direct participation in hostilities . . .”).

[33] International Committee of the Red Cross (ICRC), Customary International Humanitarian Law rule 14, 2005, https://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule14 (“Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.”); see also Art. 51(4), (5)(b), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), adopted Jun. 8 1977; U.K. Ministry of Defence, The Manual of the Law of Armed Conflict 25 (2004). 

[34] Prosecutor v. Stanislav Galic, Case No. IT-989-29-T, Trial Chamber Judgment, ¶ 58 (Int’l Crim. Trib. for the Former Yugoslavia Dec. 5 2003), http://www.icty.org/x/cases/galic/tjug/en/gal-tj031205e.pdf.

[35] International Committee of the Red Cross (ICRC), Customary International Humanitarian Law rule 15, 2005, https://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule15 (“In the conduct of military operations, constant care must be taken to spare the civilian population, civilians and civilian objects. All feasible precautions must be taken to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects.”); see also Art. 57(1), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), adopted Jun. 8 1977 (“In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.”); U.K. Ministry of Defence, The Manual of the Law of Armed Conflict 81 (2004).

[36] International Committee of the Red Cross (ICRC), Customary International Humanitarian Law rule 15, 2005, https://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule15.

[37] See, e.g., U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions, Report Of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Addendum: Summary of Cases Transmitted to Government and Replies Received, Human Rights Council, 342-61, U.N. Doc. A/HRC/4/20/Add. 1 (Mar. 12, 2007) (by Philip Alston); U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions, Addendum : Observations on Communications Transmitted to Governments and Replies Received, Human Rights Council, §8, U.N. Doc. A/HRC/20/22/Add.4 (Jun. 18, 2012) (by Christof Heyns) (concerning alleged use of drones in targeted killing by U.S. Government in Yemen).

[38] See, e.g.,Christof Heyns & Sarah Knuckey, The Long-Term International Law Implications of Targeted Killing Practices, 54 Harv. In’l L.J. 101, 103 n.5 (2013), http://www.harvardilj.org/wp-content/uploads/2013/01/Heyns-to-publish.pdf; U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions, Interim Rep. of the Special Rapporteur on extrajudicial, summary or arbitrary executions, ¶¶ 80–86, U.N. Doc. A/65/321 (Aug. 23, 2010) (by Philip Alston).

[39] See, e.g., U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions, Extrajudicial, Summary or Arbitrary Executions ¶¶ 68–70, U.N. Doc. A/68/382 (Sept. 13, 2013) (by Christof Heyns).

[40] Id. at 72; see also Open Society Justice Initiative, Death by Drone: Civilian Harm Caused by U.S. Targeted Killings in Yemen 2 (April 2015), https://www.opensocietyfoundations.org/reports/death-drone (discussing the U.S. practice of “signature” strikes).

[41] Christof Heyns & Sarah Knuckey, The Long-Term International Law Implications of Targeted Killing Practices, 54 Harv. In’l L.J. 101, 111 (2013), http://www.harvardilj.org/wp-content/uploads/2013/01/Heyns-to-publish.pdf.

[42] Columbia Law School Human Rights Clinic, Joint Statement to Senate Judiciary Committee Hearing: “Drone Wars: The Constitutional and Counterterrorism Implications of Targeted Killings” (Apr. 11, 2013), https://web.law.columbia.edu/sites/default/files/microsites/human-rights-institute/files/Letter%20to%20President%20and%20Statement%20on%20Targeted%20Killings.pdf. Also of concern is the lack of clarity around who is considered an “operational leader” or “high-value target.” Id.

[43] Christof Heyns & Sarah Knuckey, The Long-Term International Law Implications of Targeted Killing Practices, 54 Harv. In’l L.J. 101, 110 (2013), http://www.harvardilj.org/wp-content/uploads/2013/01/Heyns-to-publish.pdf. (The question is whether these groups are “associated forces” or “co-belligerents.”); see also Columbia Law School Human Rights Clinic, Joint Statement to Senate Judiciary Committee Hearing: “Drone Wars: The Constitutional and Counterterrorism Implications of Targeted Killings” (Apr. 11, 2013), https://web.law.columbia.edu/sites/default/files/microsites/human-rights-institute/files/Letter%20to%20President%20and%20Statement%20on%20Targeted%20Killings.pdf.

[44] U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions, Extrajudicial, Summary or Arbitrary Executions ¶¶ 95–101, U.N. Doc. A/68/382 (Sept. 13, 2013) (by Christof Heyns).

[45] See, e.g., U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions, Follow-up to country recommendations – United States of America ¶¶ 57–70, 76–84, U.N. Doc. A/HRC/20/22/Add.3 (Mar.30 2012) (by Christof Heyns); U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions, Mission to the United States of America ¶¶ 48–73, U.N. Doc A/HRC/11/2/Add. 5 (May 28, 2009) (by Philip Alston).

[46] See, e.g., Letter from Columbia Law School Human Rights Clinic and Other Civil Society Organizations to U.N. Human Rights Council on Targeted Killings and the Use of Armed Drones (Sept. 17, 2014), https://www.hrw.org/pt-br/node/255245.

[47] See, e.g., Open Society Justice Initiative, Death By Drone: Civilian Harm Caused by U.S. Targeted Killings in Yemen 12, (Apr. 2014) (recommending that the U.S. “[p]ublicly disclose the full legal basis for U.S. targeted killings . . .”); Open Society Foundations, After the Dead Are Counted: U.S. and Pakistani Responsibilities to Victims of Drone Strikes 4 (Nov. 2014) (recommending that the U.S. Government “publicly disclose key targeted killing standards and criteria” for drone strikes in Pakistan); Human Rights Watch, A Wedding That Became a Funeral (Feb. 19, 2014), https://www.hrw.org/report/2014/02/19/wedding-became-funeral/us-drone-attack-marriage-procession-yemen (recommending that the U.S. Government “[e]xplain the full legal basis on which the United States carries out targeted killings . . . [and p]ublicly clarify all policy guidelines for targeted killings.”); Amnesty International, “Will I Be Next?”: US Drone Strikes in Pakistan 49–50 (Oct. 22, 2013), http://www.amnestyusa.org/sites/default/files/asa330132013en.pdf (expressing concern over the secrecy surrounding the U.S. Government’s targeted killings program).

[48] U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions, Interim Report, U.N. Doc. A/65/321 (Aug. 23, 2010) (by Philip Alston).

[49]  Letter from Columbia Law School Human Rights Clinic and Other Civil Society Organizations to U.N. Human Rights Council on Targeted Killings and the Use of Armed Drones (Sept. 17, 2014), https://www.hrw.org/pt-br/node/255245.

[50] U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions Addendum: Summary of Cases Transmitted to Governments and Replies Received, U.N. Doc. E/CN.4/2006/53/Add.1 (August 26, 2005)

[51] Many human rights groups have raised concerns about the lack of effective accountability mechanisms in the U.S. context, see Human Rights Watch, U.S./Syria: Investigate Possible Unlawful US Strikes (Sept. 27, 2014), https://www.hrw.org/news/2014/09/27/us/syria-investigate-possible-unlawful-us-strikes; Human Rights Watch, ‘Between A Drone and Al-Qaeda’, The Civilian Cost of U.S. Targeted Killings in Yemen (Oct. 4, 2013) https://www.hrw.org/sites/default/files/reports/yemen1013_ForUpload.pdf; Joint Letter from Columbia Law School Human Rights Clinic and Other Civil Society Organizations to President Obama Regarding "Targeted Killings" and Drone Strikes (May 13, 2015), https://www.hrw.org/news/2015/05/13/joint-letter-president-obama-regarding-targeted-killings-and-drone-strikes; Council on Foreign Relations, Reforming U.S. Drone Strike Policies (Jan. 2013) (by Micah Zenko), http://www.cfr.org/wars-and-warfare/reforming-us-drone-strike-policies/p29736; see also Hina Shamsi & Sarah Knuckey, We Need A Full, Transparent Review of the U.S. Targeted Killings Program, Just Security (May 4, 2015), https://www.justsecurity.org/22685/full-transparent-review-u-s-targeted-killing-program-2/.

[52] Thomas Earnest, Joint Letter from NGOs and Human Rights Groups to President Obama on Drone Program, Just Security (Dec. 5, 2013), http://justsecurity.org/4128/joint-letter-ngos-human-rights-groups-concerns-drone-program/.

[53] Hina Shamsi & Sarah Knuckey, We Need A Full, Transparent Review of the U.S. Targeted Killings Program, Just Security (May 4 2015), https://www.justsecurity.org/22685/full-transparent-review-u-s-targeted-killing-program-2/.

[54] Id.; see also Amnesty International, “Will I Be Next?”: US Drone Strikes in Pakistan (Oct. 22, 2013), http://www.amnestyusa.org/sites/default/files/asa330132013en.pdf; Jameel Jaffer, Drone Disclosures, Official and Not typo, American Civil Liberties Union (Oct. 19, 2015), https://www.aclu.org/blog/speak-freely/drone-disclosures-official-and-not; Hina Shamsi & Sarah Knuckey, We Need A Full, Transparent Review of the U.S. Targeted Killings Program, Just Security (May 4 2015), https://www.justsecurity.org/22685/full-transparent-review-u-s-targeted-killing-program-2/; Sarah Knuckey, This Debate Has Been Redacted, Foreign Policy (Feb. 20, 2014), http://www.foreignpolicy.com/articles/2014/02/20/this_debate_has_been_redacted.

[55] Jameel Jaffer, Judicial Review of Targeted Killings, 126 Harv. L. Rev. F. 185 (Apr. 9, 2013), http://harvardlawreview.org/2013/04/judicial-review-of-targeted-killings/.

[56] Jameel Jaffer, Judicial Review of Targeted Killings, 126 Harv. L. Rev. F. 185 (Apr. 9, 2013), http://harvardlawreview.org/2013/04/judicial-review-of-targeted-killings/. Thus far, many attempts by victims of strikes to obtain answers from the U.S. Government have been unsuccessful. See Ryan Devereaux “Family of Grandmother Killed in US Drone Strike Arrive for Congress Visit,” The Guardian (Oct. 27, 2013), http://www.theguardian.com/world/2013/oct/27/drones-attack-pakistan-family-rehman-congress; see also Faisal bin Ali Jaber, Letter to Obama and Hadi, Middle East Monitor (Aug. 2, 2013), http://www.middleeastmonitor.com/news/americas/6770-letter-to-obama-and-hadi-on-yemeni-drones; Nasser al-Awlaki, The Drone that Killed my Grandson, Op-ed., N. Y. Times (July 17, 2013), http://nytimes.com/2013/07/18/opinion/the-drone-that-killed-my-grandson.html.

[57] Joint Letter from Columbia Law School Human Rights Clinic and Other Civil Society Organizations to U.N. Human Rights Council on Targeted Killings and the Use of Armed Drones (Sept. 17, 2014), https://www.hrw.org/pt-br/node/255245.

[58] Id.

[59] U.N. Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant ¶ 16, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004); see also Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, G.A. res. 60/147 ¶¶ 15–23, U.N. Doc. A/RES/60/147 (Mar. 21, 2006); Open Society Justice Initiative, Death by Drone: Civilian Harm Caused by U.S. Targeted Killings in Yemen 23 (April 2015).

[60] See, e.g., Center for Civilians in Conflict, Guiding Principles for Making Amends (2013), http://civiliansinconflict.org/uploads/files/publications/Making_Amends_Principles.pdf.; International Human Rights Clinic at Harvard Law School, Legal Foundations for “Making Amends” to Civilians Harmed by Armed Conflict (2012), http://civiliansinconflict.org/uploads/files/publications/Harvard_Making_Amends_Foundations_Paper_Feb_2012%28WFInal2.10.12%29.pdf.  

[61]  U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions, Study on Targeted Killings ¶ 46, U.N. Doc. A/HRC/14/24/Add.6 (May 28, 2010) (by Philip Alston).