A/HRC/28/38
15.
The Director of International Law and Protection Programmes at the International
Commission of Jurists noted that the application of international law to the use of armed
drones was too often based on an incorrect point of departure. He noted that, as was
concluded by the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human
Rights of the International Commission of Jurists, States had inappropriately used the war
paradigm to contextualize counter-terrorism operations, and that this also applied to the use
of armed drones.1 He noted first, that armed drones had not always been used in situations
of armed conflict under international humanitarian law. Many instances of targeted killings
appeared to have occurred outside the context of hostilities between two or more parties to
an identifiable conflict within the meaning of international humanitarian law (see, for
example, A/68/389 and A/HRC/25/59). In a number of instances in which drones had been
deployed, including in the context of countering terrorism, the level of intensity of armed
operations and/or of organization of the armed groups had not reached the level which
would engage international humanitarian law. He also emphasized that a careful assessment
must be made as to whether each situation did in fact rise to the level of armed conflict.
When armed drones were not used in a situation of armed conflict, domestic law and
international human rights law were the primary laws that applied to the lethal use of
drones. In a situation that did rise to the level of an armed conflict, international
humanitarian law was relevant in determining whether a killing was unlawful or arbitrary,
but international human rights law remained applicable concerning investigations, criminal
accountability and the need for effective remedies and reparations.
16.
The Legal Director of the Foundation for Fundamental Rights elaborated on the
principles of proportionality and necessity in the use of lethal force. He recalled that where
a State claimed that it was necessary to use deadly force because it had no other means of
capturing a suspected terrorist, it must prove that the individual in question posed an
imminent threat to human life. He noted that armed drones were often not used to counter
an imminent threat or where there were no other alternatives and that he had documented
dozens of drone strikes in North Waziristan where there was no evidence that the individual
killed posed an imminent threat to another individual, or to the State. In order to illustrate
the point, he referred to the case of Tariq Aziz, a teenager involved in documenting the
effect of drone strikes in North Waziristan. Three days before he died, he had attended an
international conference on drones in Islamabad. Upon his return home, he was killed in a
drone strike together with his younger cousin, outside his aunt’s house. Mr Akbar recalled
that in all cases, the onus was on the State using armed drones to prove that the use of force
was absolutely necessary and proportional.
17.
Mr. Akbar also referred to the practice of engaging in “signature strikes”, a term
used to distinguish strikes conducted against individuals who match a pre-identified
“signature” of behaviour, which is said to be linked to militant behaviour, which takes no
account of the principles of necessity and proportionality in the use of force. To illustrate
this, he referred to three drone strikes between 2006 and 2009, on a jirga (grand council)
meeting in which 40 attendees were killed; on a madrasa, in which 80 children, the
youngest aged seven, were killed; and on a funeral at which 80 individuals were killed. He
stressed that in none of those cases was there evidence, or even a claim, that “high value
targets” or “named, known militants” were killed. He concluded that the current use of
drones in Pakistan threatened and undermined the right to life and the rule of law more
broadly.
1
6
Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights, Assessing Damage,
Urging Action (International Commission of Jurists, Geneva, 2009).
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