Event Summary – In Pursuit of Human Rights and Accountability: Challenges Around Regulating the Use of Force with Armed Drones
Almost two decades after their first deployment outside situations of armed conflict, the use of drones has now become routine for many nations and non-state actors alike. In a side-event to the 48th Session of the UN Human Rights Council, organized on 24 September 2021 by Reprieve and PAX, state representatives, families of victims, human rights lawyers and UN experts discussed ongoing human rights and accountability challenges surrounding armed drone use.
The panelists included HE Mr Mir Shahzad Akbar, Advisor to the Prime Minister of the Islamic Republic of Pakistan on Accountability and the Interior; Prof. Fionnula D. Ní Aoláin, UN Special Rapporteur on Counterterrorism and Human Rights; Ms. Jelia Sane, specialized practitioner in international law at Doughty Street Chambers; Ms. Ishraq Al Maqtari, Human Rights lawyer and investigator at the UN-mandated National Commission for Investigation into Allegations of Violations of Human Rights of Yemen; and Mr. Ahmed Ali Jaber, lead claimant in drone strike litigation. During the question round, Ms. Adriana Edmeades Jones, legal advisor to Prof. Fionnula D. Ní Aoláin, spoke on behalf of the mandate of the UN Special Rapporteur on Counterterrorism and Human Rights. The webinar was moderated by Ms. Jennifer Gibson (Reprieve). Welcome words were given by Ms. Alejandra Muñoz (PAX).
HE Mr Mir Shahzad Akbar reflected on the tireless, yet unsuccessful efforts over the years of victims of CIA drone strikes in Pakistan to demand justice and accountability. Nevertheless, had it not been for these efforts, the world would not have learned about the devastating consequences of these drone attacks on the lives of civilians, including women and children. In the absence of any international forum or mechanism to bring a complaint against unlawful drone attacks, he had mostly turned to domestic litigation before Pakistani courts. He referred to the recent US drone strike in Kabul, Afghanistan that killed 10 civilians, including 7 children, as illustrative of a failure to learn from the past. He stressed the need for a strong regulatory framework to govern armed drone use, including repercussions for any misuse.
In her talk, Prof. Fionnula D. Ní Aoláin outlined how the use of armed drones both in the formal confines of armed conflict and as part of an asserted global terrorism response remains a matter of substantial legal controversy and poses ongoing risks to civilians. In spite of ongoing attempts to urge states to agree on fundamental legal standards on armed drone use, little progress has been made in this area. She stressed such agreements are crucial, not merely in the interests of greater regulation and transparency, but also to put a stop to the current situation of legal grey zones. She explained that the current absence of an internationally agreed definition of what constitutes terrorism has enabled an environment with enormous latitude to operations carried out under the protective cover of states’ own definition and rhetorical framing. She finally listed as key priorities the need (I) for international legal clarification to regulate the use of drone technologies (ii) to address the ongoing impunity for previously carried out unlawful drone attacks, and (iii) to ensure adequate compensation and acknowledgement for victims.
During the event, several panelists shed light on the broader impacts of drone strikes and drone operations on communities. Speaking on behalf of the mandate of the UN Special Rapporteur on Counterterrorism and Human Rights, Ms. Adriana Edmeades pointed out that the framing of appropriate regulatory framework for armed drone use should take into account a wider set of human rights violations, going beyond the arbitrary deprivation of the right to life. Mr. Akbar added that drone operations have not achieved their intended purpose of reducing terrorism, but rather have had the opposite effect, creating more division and hugely impacting entire communities.
Ms. Jelia Sane explained that in spite of the disproportionate and long-term effects of armed violence on children, their experiences are often overlooked. She described a case filed by Reprieve and Doughty Street Chambers to challenge six US drone strikes in Yemen. Due to procedural bars in the US legal system, which has effectively eliminated the right of drone strike victims to access legal remedies, the case was brought before the Inter-American Commission on Human Rights. Amongst those killed by the strikes were 17 children, all of them under the age of 15. In addition to an arbitrary deprivation of the right to life, the claimants argued that the psychological harm for the next of kin of the direct victims caused as a direct result of the strike as well as by the constant hovering of drones and the anticipation of future attacks constitute violations of the right to humane treatment. She stressed the importance that lawyers capture all the ways in which drone use affects fundamental rights, which will also increase clients’ chances of access to remedy.
Ms. Ishraq Al Maqtari described the work of the National Commission for Investigation in Yemen, which commenced its activities in 2016 and thus far has completed investigations of 27 incidents of drone strikes, with 112 recorded civilian casualties. Another 23 civilians were injured in these strikes, many of which are now living with disabilities. She also mentioned other impacts, including psychological harms, financial difficulties caused by the loss of a breadwinner in the family, stigma, environmental damage, forced displacement and the destruction of property. She explained the difficulties of obtaining accurate statistics of drone strike victims and other human rights violations in Yemen, including the fact that the majority of incidents take place in areas where illiteracy is widespread, a general lack of awareness on how to report, the weak financial capacity of civil society organizations to assist in monitoring and documentation, the lack of media coverage and a general failure to accurately assess the identity of the victims.
Finally, a video was played of Mr. Ahmed Ali Jaber, the lead claimant in a case against the German government for rendering crucial assistance to a US drone strike in Yemen that killed his uncle and cousin. In the video, he narrated the impacts these drone operations have had on him, his family and the entire community. Among others, he explained to have trouble sleeping, whereas his wife experienced vivid nightmares. Many of the children in the village who witnessed the strike from nearby still suffer from long-term psychological impacts, including wetting their beds or having trouble speaking. He and his family never received any apology from the US government. He will continue to seek justice for the death of his family members.
The panelists’ remarks prompted several questions from the audience. Ms. Sane was asked whether the US drone strikes brought before the Inter-American Commission on Human Rights could be legally justified as unavoidable counterterrorism operations where the military gain outweighed the civilian loss. She responded that this was simply not the case, among others due to the absence of any evidence that the individuals targeted were members of AQAP (al-Qa’ida in the Arabian Peninsula), as had been alleged by the US. Professor and international law expert Mary Ellen O’Connell referred back to the observations made by former UN Special Rapporteur Ms. Asma Jahangir in 2003, who concluded that a 2002 US drone strike in Yemen that killed six people constituted an extrajudicial killing. She asked what steps could be taken for the UN to adopt such positions again and use these to assess drone attacks. In light of the remarks made on the wider impacts of drone use, Professor Nick Grief highlighted a current initiative called the Airspace Tribunal that considers the case for a specific newly recognized human right to live without physical or psychological threat from above, and suggested this could help to enhance protection against drones. Ms. Edmeades responded that both points made very valuable and announced that the mandate of the Special Rapporteur on Counterterrorism and Human Rights is currently in the process of developing an updated position on the drone issue.
A recording of the event will be uploaded soon.