Promotion and protection of human rights/Counter-terrorism operations/Gaza – Sp. Rapporteur report (Emmerson) – SecGen note (excerpts)

Promotion and protection of human rights and fundamental

freedoms while countering terrorism

Note by the Secretary-General

The Secretary-General has the honour to transmit to the General Assembly the report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ben Emmerson, submitted in accordance with General Assembly resolution 66/171 and Human Rights Council resolution 15/15.

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*Reissued for technical reasons on 18 October 2013.

* A/68/150.

Report of the Special Rapporteur on the promotion and

protection of human rights and fundamental freedoms while

countering terrorism

I. Introduction

1. The present report is submitted to the General Assembly by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ben Emmerson, pursuant to General Assembly resolution 66/171 and Human Rights Council resolutions 15/15, 19/19 and 22/8. It sets out the activities of the Special Rapporteur conducted between 10 January and 8 August 2013. Section III is an interim report to the General Assembly on the use of remotely piloted aircraft in counter-terrorism operations. The Special Rapporteur

intends to submit a final report on this subject to the Human Rights Council in 2014.

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III. Interim report to the General Assembly on the use of

remotely piloted aircraft in counter-terrorism operations

A. Introduction

20. In January 2013, the Special Rapporteur launched an inquiry into the use of remotely piloted aircraft, or drones, in extraterritorial lethal counter-terrorism operations, including in the context of asymmetrical armed conflict. The central objective of the inquiry is to evaluate allegations that the increasing use of remotely piloted aircraft has caused disproportionate civilian casualties, and to make recommendations concerning the duty of States to conduct independent and impartial investigations. The present report is in parallel to that submitted to the General Assembly by the Special Rapporteur on extrajudicial, summary or arbitrary executions (A/68/382). While the two reports are separate and independent, they cover, to some extent, the same ground.

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B. Overview of deployment of remotely piloted aircraft and reported

civilian casualty rates

25. In conventional theatres of armed conflict, the primary function of remotely piloted aircraft is the provision of intelligence, surveillance, targeting and reconnaissance. Since 1999, remotely piloted aircraft have been used in a direct combat role for target acquisition, using laser markers to designate a target that is then attacked by precision-guided missiles discharged from conventional fixed-wing or rotary-blade aircraft. In February 2001, a missile was remotely test-fired for the first time from a Predator remotely piloted aircraft. The tactical military advantage of arming remotely piloted aircraft, rather than using them simply for the purposes of intelligence, surveillance, targeting and reconnaissance, is said to be speed of response from the moment of sighting a target to the swift delivery of deadly force by precision-guided missile.

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Gaza

39. Remotely piloted aircraft have been implicated in a significant number of lethal counter-terrorism operations by Israel. During Operation Cast Lead, from 27 December 2008 to 18 January 2009, remotely piloted aircraft were used by the Israel Defense Forces in conjunction with fixed-wing and rotary-blade aircraft. The availability of virtually real-time intelligence and the extensive use of precision-guided munitions notwithstanding, Israel has acknowledged that its military operation resulted in “many civilian deaths and injuries, and significant damage to public and private property in Gaza”.¹⁵ Israel has not to date released disaggregated civilian casualty estimates in a form that would enable an analysis of the specific impact of remotely piloted aircraft (either as a direct weapons-delivery system or for the purposes of target acquisition). Human rights organizations, however, have identified a number of instances in which munitions apparently launched from remotely piloted aircraft hit civilians in circumstances where there was no readily identifiable military target in the vicinity.¹⁶ Investigations carried out by the competent Israeli authorities concluded that there was no evidence warranting criminal charges in respect of the incidents.

40. The Office of the United Nations High Commissioner for Human Rights has similarly reported that in the run-up to, and during, Operation Pillar of Defence, from 14 to 21 November 2012, Israel used remotely piloted aircraft in Gaza, some of which reportedly caused civilian casualties (A/HRC/22/35/Add.1). In a recent report on investigations into alleged humanitarian law violations during this operation, the Israel Defense Forces noted that the operation “was primarily based on precision airstrikes”.¹⁷ The report points out that such strikes “are relatively highly documented”. It acknowledges that “there is indeed a basis for the claim that as a result of [Israel Defense Forces] attacks, uninvolved civilians were killed or injured or civilian property was damaged, usually as unintended damage resulting from an attack against military targets, or alternatively from operational errors, where civilians were mistakenly identified as terrorist suspects”.¹⁸ The investigation found evidence of what it termed “professional flaws” in some of the incidents examined up to April 2013, but did not consider that there was evidence warranting a criminal investigation.

C. Accountability and transparency

41. The single greatest obstacle to an evaluation of the civilian impact of drone strikes is lack of transparency, which makes it extremely difficult to assess claims of precision targeting objectively (see A/HRC/14/24/Add.6). As the United Nations High Commissioner for Human Rights pointed out during an address to the Security Council on 18 August 2013, the current lack of transparency creates an accountability vacuum and affects the ability of victims to seek redress.¹⁹

42. In February 2013, the Public Commission to Examine the Maritime Incident of 31 May 2010 (Turkel Commission) published its careful and comprehensive review of Israeli mechanisms for examining and investigating complaints and claims of violations of the laws of armed conflict according to international law. The Commission recommended that principles derived from international human rights law should apply, with appropriate modifications, to the investigation of alleged violations of international humanitarian law. From an analysis of a broad range of sources, the Commission concluded that a preliminary inquiry (which it referred as a “fact-finding assessme nt”) must take place in any case in which there have been, or appear to have been, civilian casualties that were not anticipated when the attack was planned.²⁰ According to the Commission, the requirement for such an inquiry does not depend on the existence of a prima facie suspicion of the commission of a war crime. A preliminary fact-finding investigation is required in any case where the information about possible civilian casualties is partial or circumstantial. The

Commission rightly stressed that the information necessary to trigger such an inquiry could come from any plausible source, including a non-governmental organization.

43. Where an initial fact-finding investigation discloses reasonable grounds to suspect that a war crime may have been committed, a formal criminal investigation must be opened. The context in which civilian casualties have occurred will determine whether such a suspicion exists. Any criminal investigation must meet the core international human rights law standards of independence, impartiality, promptness, effectiveness and transparency, suitably adapted to the context. The requirement for independence and impartiality does not preclude an investigation conducted within the framework of a military justice system. As the Commission emphasized, however, those conducting the investigation must be independent of those under investigation, and certainly not subject to the same chain of command. The requirements of promptness and effectiveness must of course be applied in a manner that takes account of the circumstances of the conflict.

44. Significantly, the Commission considered that the principle of transparency should apply to investigations into alleged war crimes because it enhances public scrutiny and contributes to accountability. As the Commission rightly observed, transparency promotes the central objectives of humanitarian law, namely increasing compliance with the principles of distinction, proportionality and precaution, and deterring the commission of future violations.

45. Although the Commission’s recommendations on transparency were directed primarily to formal criminal investigations, the purposive considerations that it identified apply with equal force to preliminary fact-finding inquiries. Indeed, where there is found to be no basis for opening a criminal investigation into civilian deaths, the need for transparency is arguably heightened. Put simply, there is an onus on any State using lethal force to account for civilian casualties. In a modest extension of the approach adopted by the Commission, the Special Rapporteur considers that the principle of transparency should apply to the preliminary fact-finding inquiries required in any case where there are grounds to believe that civilians may have been killed or injured. Subject to redactions on grounds of national security, a full explanation should be made public in each case. In the view of the Special Rapporteur, this obligation ought to be viewed as an inherent part of the State’s legal obligations of accountability under international humanitarian law and international human rights law.

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Israel

50. The current system for investigating alleged violations of humanitarian law in Israel is described in detail in the Turkel Commission report, in which the Commission recommended a number of significant changes to improve independence and accountability (see para. 42). Israel has not to date publicly acknowledged or explained the role played by remotely piloted aircraft in its counter-terrorism operations in Gaza. In 2006, however, the Israeli Supreme Court issued specific guidance on the circumstances in which it was lawful for the State to engage in preventative strikes against persons involved in the planning, dispatching or commission of terror attacks.²⁵ On the subject of accountability and transparency, the Court held that after such an attack there should be a thorough and independent investigation by a specially appointed commission concerning the identification of the target and the circumstances in which the attack was carried out, which would itself be subject to judicial review.

D. Principal areas of legal controversy

1. International law governing the extraterritorial use of force

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Self-defence: the unable or unwilling test

55. Self-defence is the central justification advanced by the Government of the United States for the extraterritorial use of deadly force in counter-terrorism operations. The International Court of Justice has held that in the absence of consent the use of force in self-defence by one State against a non-State armed group located on the territory of another State can be justified only where the actions of the group concerned are imputable to the host State.²⁹ This may extend to situations in which a non-State armed group is being harboured by the host State.³⁰ In this analysis,

however, absent such a connection, extraterritorial use of force against a non-State armed group in another State is an unlawful violation of sovereignty, and thus potentially an act of aggression, unless it takes place with the host State’s consent or the prior authorization of the Security Council (ibid., paras. 40-41).

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IV. Conclusions and recommendations

77. If used in strict compliance with the principles of international humanitarian law, remotely piloted aircraft are capable of reducing the risk of civilian casualties in armed conflict by significantly improving the situational awareness of military commanders.

78. Having regard to the duty of States to protect civilians in armed conflict, the Special Rapporteur considers that, in any case in which civilians have been, or appear to have been, killed, the State responsible is under an obligation to conduct a prompt, independent and impartial fact-finding inquiry and to provide a detailed public explanation. This obligation is triggered whenever there is a plausible indication from any source that civilian casualties may have been sustained, including where the facts are unclear or the information is partial or circumstantial. The obligation arises whether the attack was initiated by remotely piloted aircraft or other means, and whether it occurred within or outside an area of active hostilities.

79. The Special Rapporteur identifies herein a number of legal questions on which there is currently no clear international consensus. He considers that there is an urgent and imperative need to seek agreement between States on these issues. To that end he is currently consulting Member States with a view to clarifying their position on these questions. He urges all States to respond as comprehensively as possible.

80. In particular, the Special Rapporteur urges the United States to further clarify its position on the legal and factual issues raised herein; to declassify, to the maximum extent possible, information relevant to its lethal extraterritorial counter-terrorism operations; and to release its own data on the level of civilian casualties inflicted through the use of remotely piloted aircraft, together with information on the evaluation methodology used.

Notes

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¹⁵ Israel Defense Forces, “The operation in Gaza — Factual and legal aspects”, July 2009,

available from www.mfa.gov.il/mfa/foreignpolicy/terrorism/palestinian/pages/operation_in_

gaza-factual_and_legal_aspects.aspx.

¹⁶ Human Rights Watch, Precisely Wrong: Gaza Civilians Killed by Israel Drone-Launched

Missiles (30 June 2009), available from www.hrw.org/en/reports/2009/06/30/precisely-wrong-0.

¹⁷ Israel Defense Forces, “The examination of alleged misconduct during operation ‘Pillar of

Defence’ — An update”, 11 April 2013.

¹⁸ Ibid.

¹⁹ Available from www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=

13642&LangID=E.

²⁰ In the light of the stated position of the United Kingdom and United States (see paras. 75-76),

the requirement for such a preliminary fact-finding investigation would appear to be triggered

whenever there is evidence to suggest civilian loss of life.

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²⁵ Israel High Count of Justice, The Public Committee against Torture in Israel and LAW —

Palestinian Society for the Protection of Human Rights and the Environment v. The Government

of Israel and others, HCJ 769/02, judgement of 14 December 2006, para. 2.

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²⁹ See International Court of Justice, Legal Consequences of the Construction of a Wall in the

Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136; Armed Activities

on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J.

Reports 2005, p. 168.

³⁰ See Daniel Bethlehem, “Self-defence against an actual or imminent armed attack by non-State

actors”, American Journal of International Law, vol. 106, No. 4 (2012).