Agnes Callamard, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, submitted her report on “targeted killings through armed drones and the case of Iranian General Qassem Soleimani” to the 44th session of the Human Rights Council on July 10, which was registered as the document A/HRC/44/38.
Callamard has submitted her report to the Human Rights Council pursuant to Council resolution 35/15. The report addresses the issue of targeted killings through armed drones, particularly in light of the proliferation in the use of drones and their expanding capability over the last five years and makes recommendations designed to regulate their use and enhance accountability.
She has pointed to the drone strike in January 2020 against Iran’s General Soleimani and the strike carried out by Yemen’s Houthi forces against Saudi Arabia’s oil facilities in 2019, saying drone attacks are responsible for a weakening compliance with applicable international law and stressing the need for accountability for the use of armed drones. In 2013, then Special Rapporteur Christoff Heyns warned against the expansive use of armed drones and the structural damage they do to the cornerstones of international security. Seven years later, the world has entered what has been called the “second drone age” with more advanced drone technologies whose employment is a major and fast becoming international security issue.
Callamard’s report has focused on the growing use of armed drones, noting that as of 2020, at least 102 countries had acquired an active military drone inventory, while 35 States are believed to possess the largest and deadliest class. It is expected that a growth in commercial and drone technologies exports within the next ten years will pave the way for an increase in the use of drones. Drones are growingly employed for military purposes because of low cost and low-risk conflict engagement. Moreover, Class III military drones’ systems can remain airborne for over 20 hours and fly more than 1,000 kilometers at speeds over 300 km/hour. On the destructive power and civilian casualties from drone strikes, Callamard says analysis of classified data on US drone strikes in Afghanistan from 2010 to 2011 reveals that drone strikes had been ten times more likely to cause civilian casualties than conventional air attacks. In her report, she has carried out a detailed study of the use of military drones in various critical regions, particularly the Middle East. Due to the lack of transparency in the impacts of drone operations on the target communities, it is difficult to carry out a detailed assessment of the results and extent of casualties, which makes it impossible to determine the vacuums and weak points of the governments, and, accordingly, obstructs the achievement of accountability process.
The rapporteur has tried to explicate various aspects of the use of drones, including the relationship between targeted killings and the international law, and has introduced supportive solutions to arbitrary killings by making reference to customary international law, peremptory norms of general international law (Jus cogens), the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights. She says the targeted killing of an individual would be unlawful, unless it is a means of last resort and strictly necessary to protect against an imminent threat to life. This has been verified by the human rights treaties and the international references. The International Committee of the Red Cross maintains that international humanitarian law does not permit the targeting of persons directly participating in hostilities who are located in non-belligerent States, given that, otherwise, the whole world is potentially a battlefield.
Another key legal point in the report is preemptive self-defense, which could only be invoked against a threat to prevent an imminent attack.
Another legal discussion raised in the report relates to the violation of sovereignty of a third State in armed drone operations. According to the prevalent understanding of sovereignty, self-defense against an armed group on the territory of another State can be justified only where the actions of the group are imputable to the host State. Absent that, extraterritorial use of force 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.
After legal discussions on the use of drones for killing a person or target group in the territory of a third country, Callamard has referred to the assassination of General Qassem Soleimani on Iraqi soil by the American drones, saying the targeted killing of General Soleimani is the first known incident in which a State invoked self-defense as a justification for an attack against a State-actor, in the territory of another state, thus implicating the prohibition on the use of force in Article 2(4) of the UN Charter. Some key findings about the assassination of General Soleimani mentioned in the report include:
- The use of force by the United States was directed not only at Iran but also at Iraq. By killing General Soleimani on Iraqi soil without first obtaining Iraq’s consent, the US violated the territorial integrity of Iraq.
- The justifications advanced by the US (and then later by Iran) in defense of its January 8 actions, include no evidence that threats were imminent (US) and indeed make no reference to them (Iran). The full implications of the drone targeted killing of a State actor for future conduct are unknown at this point. What is known is that legal distortions of the last twenty years, coupled with the technological prowess of the “second drone age”, have enabled a substantial increase in applications of the use of force. The recurrence of such measures in future would undermine the pillars of international law. To be lawful a targeted killing must satisfy the legal requirements under all applicable international legal regimes: the law regulating inter-state use of force (jus ad bellum) and international humanitarian law (IHL). Some drone strikes, but not all, raise difficulties as to their legal assessment, given that IHL and international human rights law (IHRL) can sometimes provide diverging answers to the crucial question of when it is legally permissible to kill another person. The strike against General Soleimani is one such situation. General Soleimani, his companions in the Islamic Revolution Guards Corps (IRGC), and those of Iraq’s Popular Mobilization Forces (PMF) all had a military status. Had the strike occurred within the setting of an armed conflict, under international humanitarian law they could have constituted legitimate military targets as combatants. The international humanitarian law (IHL) does not prohibit the killing of belligerents, but it does prohibit killings of civilians and persons hors de combat, as well as indiscriminate attacks and those resulting in an excessive loss of civilians. Whether and how this legal regime applies to all those killed, i.e. not only to General Soleimani but also to all his Iraqi and Iranian companions, is thus crucial to the determination of the lawfulness of the strike.
A range of scholarly sources and media outlets referred to the state of US-Iran relations in the months and indeed over the years preceding the strike as amounting to “shadow wars”, a concept widely used to denote covert hybrid military and intelligence operations waged in countries against which the US and, in this case, Iran have no official or acknowledged armed conflicts. However, “shadow war” has no legal meaning under international humanitarian law. The United States report to the Security Council about the strike makes no reference to General Soleimani himself, speaking only of leadership elements of the IRGC Quds Force.
The rapporteur then refers to Article 51 of the UN Charter, explicating the legal restrictions on resorting to the article. She believes that the US should have brought evidence, in a form that protected its sources, to the Security Council for public examination. Otherwise, Article 51 becomes a convenient excuse for any use of force at the whims of a State against another State.
The attack on General Soleimani raises three issues at least, which are in contradiction to the human rights standards:
1)the planning inherent to a drone strike indicating premeditation and the absence of considering alternative options;
2) the absence of evidence that the target presented an imminent or even actual threat to life;
3) The information provided by the US authorities are remarkably vague and inconsequential as far as a possible imminent threat is concerned. Moreover, the killing of nine other persons, who individually have not been identified and assessed as presenting imminent threats, was illegal. Five of these were civilians of Iraq, a US partner.
The rapporteur finally offers solutions to tackle the challenges posed by armed drones and targeted killings, stressing that the States, international decision-making bodies, and other concerned actors should develop and commit to robust standards for transparency, oversight and accountability in the use of armed drones. She also stresses the need to undertake effective measures to control the proliferation of armed drones through export and multilateral arms control regimes and/or under international treaties. She also recommends that all allegations of unlawful deaths in relation to the use of drones should be investigated.
(The opinions expressed are those of the authors and do not purport to reflect the opinions or views of the IPIS)