A/HRC/44/38 IV. The Lawfulness of the Strike under International Human Rights Law 40. The Human Rights Committee (HRC) in its General Comment No. 36 (GC36), clarifies that “[T]he guarantees against arbitrary deprivation of life contained in article 6 continue to apply in all circumstances, including in situations of armed conflict and other public emergencies.52 The right to life must be protected and no arbitrary deprivations of life is allowed. 41. The right to life must also be respected extraterritorially. The International Court of Justice, 53 the Human Rights Committee 54 , the Inter-American Commission on Human Rights55 and the European Court of Human Rights56 have all confirmed that human rights treaty obligations apply in principle to the conduct of a State outside its territory. 42. With regard to the right to life, the HRC has emphasised the functional dimension of extraterritorial human rights obligations and jurisdiction 57, one that derives from a State’s (uniquely located) capacities to respect or protect human rights, including the right to life, of people over which they have some degree of control: a State “has an obligation to respect and to ensure the rights under article 6 of all persons who are within its territory and all persons subject to its jurisdiction, that is, all persons over whose enjoyment of the right to life it exercises power or effective control”.58 This is a position that the Special Rapporteur endorses and has applied in her thematic reports.59 43. Using a drone to target an individual anywhere he or she may be, including at home, is “indeed the ultimate exercise of physical power and control over the individual who was shot and killed.”60 To argue otherwise is an anachronism when the physical presence of a State official was necessary to assert control. A targeted drone killing requires monitoring, tracking, surveillance and a specific decision to kill a particular person – all exercises of power over that person. 61 As the reach of a State’s power expands, so too do its responsibilities. 44. States parties engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6 of the Covenant 62 while States parties that fail to take all reasonable measures to settle their international disputes by peaceful means might fall short of complying with their positive obligation to ensure the right to life. 63 45. The Special Rapporteur recognizes that context and situation matter in determining whether a State killing is arbitrary. Reacting to threats is not an exact science, and governments understandably should want to err on the side of caution, proportionality and protection. Indeed, Article 6, ICCPR, “imposes a positive obligation on the State to protect life, including by taking effective preventive measures against a real and immediate risk to life from a terrorist attack.” 64 The “existence and nature of a public emergency which 52 53 54 55 56 57 58 59 60 61 62 63 64 Human Rights Committee, General Comment No. 36, para. 67. See also Legality of the Threat or Use of Nuclear Weapons, 1996, ICJ Rep, para 25; Legal Consequences of the Construction of a Wall in the Occupied Territory 2004, ICJ Rep136 para. 106; see also UNSC Resolution 2249 (2015). Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, para. 109. General comment No. 31 (2004). Coard and others v. United States, 1999, para. 37. For instance, Al-Skeini and others v. the United Kingdom, application No. 55721/07. M. Milanovic, “The Murder of Jamal Khashoggi” at 36, 2019 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3360647Milanovic. Human Rights Committee, General Comment No. 36, para. 63. A/HRC41/36; A/HRC/38/44; A/74/318. Al Saadoon v Secretary of State for Defense, [2015], para 117. Nils Meltzer, Targeted Killing in International Law (Oxford, United Kingdom, Oxford University Press, 2008). Human Rights Committee, General Comment No. 36, para 64. Human Rights Committee, General Comment No. 36, para 70. House of Lords, House of Commons, Joint Committee on Human Rights, The Government’s Policy on the Use of Drones for Targeted Killing, Second Report of Session 2015–16, at 8. https://publications.parliament.uk/pa/jt201516/jtselect/jtrights/574/574.pdf. 31