Rafiq ur Rehman, a primary school teacher in Pakistan, and his two kids, Zubair,
13, and Nabila, 9, gave the US Congress the first evidence from civilians whose
loved ones had been slain by fatal drone strikes in October 2013. Monima Bibi, a
midwife who was 67 years old, was shot and killed by a drone as Nabila and
Zubair were picking okra with their grandma.
According to Rehman's testimony,
despite press reports claiming four to five militants were killed in the attack,
only his mother was murdered.1 Entesar Qadhi, a Yemeni youth activist, spoke
movingly about the horror her town experiences as American drones hover over,
ready to strike. During a briefing to the US Congress in November 2013. Faisal
bin, Ali Jaber described the horrifying experience of witnessing his family
being brutally torn apart by drones at the same meeting.
Despite this testimony
and others like it was given to the Senate earlier in 2013. Drone strikes
continued to kill civilians. The deaths culminated in a strike at a wedding
party in December 2013 that resulted in the deaths of fourteen unarmed Yemenis.2
The tide has not changed despite numerous United Nations (un) official's
condemnations of these deadly strikes. At least 6,800 and maybe 9,900 people
were killed by drones between January 2009 and October 2017, according to
published reports, including many children.
The Central Intelligence Agency
(CIA) believed drone strikes boost rather than decrease support for terrorism,
according to a document leaked in 2014. However, the attacks continue, and some
observers claim that, in the name of combating terrorism, "America trades
torture for drones." Lethal US drone strikes appear to be expanding right now.
For instance, the US military has asked Niger for permission to launch armed
drone strikes there.3 In addition, it's rumoured that the Trump administration
is narrowing its target list while tightening the requirements for pre-attack
To undertake drone strikes, the CIA requested more authority and
autonomy as of September 2017 under the direction of new director Mike Pompeo.
In fact, more frequent strikes, like those in Pakistan, have already been made
in previously off-limits CIA locations like Syria. Following Trump's designation
of an "area of active hostilities," a drone strike was carried out against al-Shabaab
inSomalia in June 2017.
The Presidential Policy Guidance on Procedures for
Approving Direct Action Against Terrorist Targets of President Obama had been
excluded due to that categorization. Separately, in August 2017, it was
announced that the Trump administration would reassess the Obama
administration's stringent drone export policy.4 This action raises concerns
that more than a dozen nations having weaponized drones may soon increase.
Reviewing US drone strikes in this situation is still a pressing concern for
This article discusses the application of the International
Covenant on Civil and Political Rights (the ICCPR or the Covenant) to civilian
casualties brought on by drone attacks to aid in such an examination.5 It
examines whether duties States parties that use drones to target people fatally
are subject to under the Covenant.
It also looks at the obligations of State
parties under the ICCPR concerning individuals murdered by drones while they are
on their territory or under their authority. Because most civilian drone deaths
worldwide are caused by drones owned and operated by the US and the fact that
recent US government action suggests an expansion rather than a reduction in the
use of armed drone strikes, the primary focus is on civilian drone deaths
brought on by US actions. However, all ICCPR States parties must abide by the
Understanding The Legal Context Of Lethal Drones Attacks In Times Of War And Peace
Given that the US continues to change its mind about who it is at war with and
when and where drone strikes are used, it is crucial to assess the Covenant's
applicability in both situations. The US has used terminology to support its
deadly drone strikes for the past fifteen years to invoke a state of war and the
rules of war.6 Since 2001, the US has declared a "war on terror" and claimed to
be at war with Al Qaeda.
According to the US, it is permissible to do "whatever
is required" to track down and eliminate Al Qaeda leaders. In 2013, American
officials asserted that the US uses lethal drone attacks to counter 'imminent'
threats from senior Al Qaeda members, that this is a legitimate exercise of the
US's inherent right to self-defense under international law, and that this is
done following the rules of war.
While the present legal and policy framework on
the subject argues that operations against ISIL and several other terrorist
organizations are based on the same legal justifications as the fight against Al
Qaeda, the US placed the use of drones in an IHL context in 2016. Despite these
claims, the US "war on terror" may be contested as semantics rather than a
legitimate justification for using IHL.7 The requirement that "must be
restricted to armed contentions between organized groups of individuals that are
properly identifiable based on objective criteria" is one of the critical
components of the international legal definition of armed conflict. For the law
of armed conflict, the groups that the US claims to be fighting, do not seem to
According to criticism, the US security strategy of
proactive self-defense does not adhere to the legal requirements of Article 51
of the UN Charter, which would authorize the use of force, further makes the
term "war" inapplicable.8 The US further falls short of meeting the requirements
of international law since its "war on terror" "is of undetermined length and
undefined territorial bounds." If this is the case, then a law enforcement
response, as opposed to one based on active hostilities during the armed war, is
required for the US response to terrorism. Official US government declarations,
which have changed over time, raise more questions about the 'war on terror's
legal standing.9 We have rejected traditional and customary international laws
that define armed war.
Following the 1949 Geneva Conventions, it has been
declared that the "war on terror" is neither an international nor a
non-international armed conflict and that "any customary principles of
international law that apply to armed conflicts do not bind the President or the
US armed forces." However, the Justice Department and US Supreme Court have
ruled that the US and Al Qaeda are engaged in non-international military combat.
This analysis has received harsh criticism for, among other things, failing to
show that Al Qaeda is an organized armed organization.
The US President has also
clarified that Al Qaeda cannot be a party to a conflict under the Geneva
Conventions. However, the Supreme Court partially adjusted this statement. Thus,
by claiming that drone strikes are legitimate under international law, which
permits self-defense and the use of force, the US is seeking to reject
international law and assert that its acts are protected by it. Importantly,
even if all of these objections are rejected, the right to life still holds when
there is an armed conflict. Conflict includes not just open hostilities but also
actual events like occupation, policing-like action, and incarceration.
result, the IHL governing hate conduct must be read in conjunction with the
ICCPR and other IHRL during armed conflict. This is true even if IHL is regarded
as lex specialist when there are current hostilities.10 It may be necessary to
refer to the fundamentals of IHL when determining what constitutes "arbitrary"
conduct during the battle for the ICCPR's article 6 protection against the
arbitrary deprivation of life. These include discrimination, proportionality,
and military necessity-conventional and customary IHL concepts that are not
mentioned in the language of the ICCPR.
Threshold Issues: Extraterritorial Applicability Of The Iccpr And Jurisdiction
Whether the person(s) experiencing the violation(s) are on the territory of, or
under the jurisdiction of, a state party is a prerequisite to assessing
violations under the ICCPR. It is important to note that numerous judicial and
political organizations have confirmed the application of IHRL to the actions of
States acting outside of their territories before coming to the issues of
jurisdiction within the ICCPR. In its Advisory Opinion on the Wall and the Congo
Case, the ICJ stated this.
The Inter-American human rights system has declared
that the content and purpose of human rights not only permit but also, at times
require, their extraterritorial application. The European Court of Human Rights
(ECtHR) has also determined that extraterritorial application of human rights
exists in specific scenarios.
These cases' justifications are essential to the
debate over the ICCPR's authority over deadly drone strikes.11 Even the US,
which frequently contests the extraterritorial application of a law,
acknowledges that everyone has the right to human rights, regardless of where
they live. The extraterritorial application of human rights and the obligation
that all States refrain from infringing these rights, wherever, are both based
on this fundamental idea.
The ICCPR's territorial scope is addressed in Article
2(1) of the Covenant, which reads as follows:
Each State Party to the present
Covenant undertakes to respect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights recognized in the present
Covenant, without distinction of any kind, including race, color, sex, language,
religion, political or another opinion, national or social origin, property,
birth or another status. The wording of this article highlights how crucial it
is to clarify what it means for someone to fall under a state's purview.12
According to Marko Milanovic, jurisdiction, as it relates to human rights
treaties in general and the extraterritorial application of those treaties'
provisions in particular, "refers to a particular kind of factual power,
authority, or control that a state has over a territory and consequently over
persons in that territory." But that only provides a portion of the definition.
This article argues that a territorially-bounded interpretation of jurisdiction
violates the wording of the ICCPR, undercuts the treaty's goals and objectives,
and goes against the UNHRC's understanding.
According to general international law, a state's jurisdiction is mainly
territorial. This fundamental agreement must be set apart from the IHRLs and the
ICCPR's specific jurisdiction. IHRL broadens a state's obligations even when
operating within territorial boundaries.13 The UNHRC has said numerous times
that a State is responsible to everyone under its jurisdiction, regardless of
that person's citizenship, to define the scope of this obligation.
made it clear in General Comment No. 31 that:
The enjoyment of Covenant rights
shall be available to everyone, including those who may find themselves on the
territory of or under the authority of a State party, including asylum seekers,
refugees, migratory workers, and others, regardless of nationality or
statelessness. These terms play a significant role in interpreting the
relationship between States Parties and noncitizens when they exercise
jurisdiction over aliens outside their own territory and define the scope of
territorial responsibilities.14 No matter the environment or the nationality of
the individual a State has jurisdiction over, they express obligations based on
Territories or jurisdictions serve as equal bases for treaty obligations under
The way the Committee described the equality of rights between citizens and
noncitizens in General Comment 31-by explicitly stating that the text of article
2(1) should be substantively interpreted as containing a "or" rather than a
"and"-has direct ramifications for the extraterritorial application of the ICCPR
that is covered in more detail below. Lethal drone attacks against immigrants
carried out on another state's soil have further implications for the equality
of rights between citizens and noncitizens that was previously discussed.15
Committee's comments about the nature of a human right as attaching to an
individual-"The beneficiaries of the rights recognized by the Covenant are
individuals"-must be understood in conjunction with the obligations of States as
attaching when they have authority over an individual. The phrase "within its
territory and subject to its jurisdiction" (emphasis added) appears in the
article. However, the UNHRC has regarded these two terms as two different
grounds for the applicability of responsibilities for States parties. As a
result, even if a person is outside of a state party's borders, they can still
be considered within its borders for treaty purposes.
"States Parties are bound
by article 2, paragraph 1, to respect and to ensure the Covenant rights to all
persons who may be within their territory and to all persons subject to their
jurisdiction," according to General Comment No. 31. Therefore, it states, "A
State Party shall respect and ensure the rights provided for in the Covenant to
anybody within its power or effective control, even if such person is not
situated inside the State Party's territory."16 This principle "also applies to
persons within the power or effective control of the troops of a State Party
acting outside its territory," General Comment No. 31 states in its conclusion.
Targeted Killings And The Right To Life: An UNHCR Commentary
When responding to Israel's execution of alleged terrorists, the Committee
addressed the issue of how targeted performances relate to the right to life.
Not every drone strike is comparable to this real-world example. But the
justification offered by the Committee for the connection between a State's
targeted killing practices and the right to life, whether during the actual or
imagined conflict, continues to be broadly relevant.
For instance, a ban on
targeted killings for deterrent purposes applies equally to drone strikes and
the death of criminal suspects.17 This distinction between rhetorical claims of
an impending threat in an armed war and the factual reality of a law enforcement
scenario in which criminal justice goals like deterrence are at stake is
Many current analyses of deadly drone strike center on the IHL framework or
debate the best legal framework. On the other hand, a human rights analysis of
drone-related fatalities is still urgently required. Although many scholars and
professionals have discussed the IHRL framework's relevance, allusions to IHL
continue to dominate state speech. The ICCPR continues to be a crucial
instrument for holding the US and other armed drone users responsible in an era
where the US seems intent on escalating fatal drone strikes and withdrawing from
international law responsibilities.
The ICCPR also makes it easier for States
that carry out deadly attacks to implement accountability procedures. Legal
experts like Philip Alston have already asserted that "drones for targeted
killing is rarely likely to be legal outside of the context of armed conflict."
However, the US's continued assertion that its deadly drone strikes occur during
armed conflict has appeared to provide a legal defense against such judgments.
- N Lennard, 'Yemenis Tell Capitol Hill of Drone Terror' Salon (20 November 2013)
- See H Almasmari, 'Yemen Says us Drone Struck a Wedding Convoy, Killing 14' cnn (Atlanta, 13 December 2013) .
- See 'Drone Warfare' (The Bureau of Investigative Journalism, 13 October 2017), accessed 26 October 2017.
- See e.g., P Dorling, 'Drone Strikes Counterproductive, says Secret CIA Report' Sydney Morning Herald (Sydney, 19 December 2014) .
- K Gilsinan, 'America Trades Torture for Drones' The Atlantic (Washington, dc, 9 Dec 2014) .
- R Brown, 'us Sought to Arm Drones in Niger Prior to Attack' cnn (26 October 2017).
- K Gilsinan, 'America Trades Torture for Drones' The Atlantic (Washington, dc, 9 Dec 2014)
- See e.g., P Dorling, 'Drone Strikes Counterproductive, says Secret CIA Report' Sydney Morning Herald (Sydney, 19 December 2014) .
- Peter Bergen and others, 'World of Drones-3. Who Has What: Countries with Armed Drones' (New America, 2017) .
- See infra seq
- Concluding Observations on the Fourth Periodic Report of the United States of America' (23 April 2014) un Doc. ccpr/c/usa/co/4, para. 9.
- See e.g., N Melzer, Targeted Killings in International Law (oup 2008) 91�139.
- OAS Treaty Series No. 36, art. 4, (entered into force 18 July 978).
- unga Res 217 a(iii), un Doc. a/810 at 71 (adopted 10 December 1948)
- See Barack Obama, 'Remarks by the President at the National Defense University' (Washington, dc, 23 May 2013).
- Melzer, supra n 32, 263
- See e.g., J Crawford, Brownlie's Principles of Public International Law (8th ed., oup 2012) 752 and H Duffy, The
'War on Terror' and the Framework of International Law (cup 2005) 209�12.