Drone strikes a threat to global legal order, IBA warns

Growing concern at the proliferating the use of drones by states and armed groups to deliver lethal force, and the complications for the application of international law, has been expressed by the International Bar Association's Human Rights Institute (IBAHRI).

A resolution adopted by the IBAHRI's council warns of the availability of drones that may spread armed conflict and encourage states to resort to lethal force and violate human rights. It also highlights:

• lack of clarity and transparency as to the applicable legal framework governing drone strikes;
• the undermining of effective legal oversight and accountability;
• secrecy surrounding the use of drones, leading to the preclusion of appropriate investigations;
• psychological harm reported to be suffered by those living within the regions in which drones regularly operate; and
• the lack of required infrastructure and/or access to the judicial system for victims of drone strikes to realise effective remedies.

Whether or not a drone strike occurs in the context of an armed conflict is crucial to assessing its lawfulness, IBAHRI states. The use of drones must adhere to the current law governing the use of force, which by article 2(4) of the Charter of the United Nations states that force may be lawfully used only in cases where consent has been sought and granted from the legitimate government of a territorial state, or in proportionate self-defence, or with the authorisation of the UN Security Council.

IBAHRI points out that international humanitarian law and international human rights law have different rules on when and how lethal force may be used. "The level and type of force inherent in the use of armed drones will rarely, if ever, be lawful under the more protective international human rights law framework outside of armed conflict. It is therefore of utmost importance that the existence of an armed conflict is not lightly assumed. It must be objectively assessed, on the basis of factual circumstances prevailing at the material time."

An accompanying background paper to the resolution sets out the legal framework applicable to the use of armed drones, inside and outside of armed conflict by both state and non-state actors. It details the legal context in which the resolution was adopted and highlights the importance of adhering to all applicable international legal rules governing the use of drones:

"Drones provide a simple recourse to force that would otherwise have been impossible, and this gives them a uniquely destabilising capacity. As the practical barriers to the use of force fall down, it is vital that the legal barriers are reinforced and reasserted."

IBAHRI co-chair Ambassador (ret.) Hans Corell commented: "As the tactics employed in warfare evolve, so must our legal interpretation of the laws which govern them. The growing availability of drones to both state and non-state actors, together with their remote-piloting functionality, is resulting in a number of extraterritorial and covert attacks, the perpetrators of which are not being held to account. It is essential that the international legal community pay urgent attention to this issue, lest it be perceived as essentially sanctioning murder."

The full text of the resolution can be read here: bit.ly/drones-res. It carries a link to the background paper.