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Drone Law: A Reply to UN Special Rapporteur Emmerson

by Michael N. Schmitt ~ Aug 19, 2014

In January 2013, Ben Emmerson, the UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, began examining the use of remotely piloted aircraft (RPA or “drones”) in extraterritorial lethal targeting, commonly labeled “targeted killing.” The following October, he released an interim report surveying the legal framework for the operations. It came on the heels of a report on the same topic by UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions Christof Heyns. The two documents marked a sea-change in the ongoing debate over RPAs. Sophisticated yet accessible, the reports surgically dissected jus ad bellum (law governing the resort to force by States), jus in bello (international humanitarian law or IHL), and human rights norms. Together, they helped disentangle the often emotive, counter-factual and counter-normative dialogue that had obfuscated objective analysis.

This March, Emmerson released his 2013 annual report. It analyzes thirty-seven RPA strikes involving civilian casualties, proffers a sample strike analysis, and includes recommendations. In the report, Emmerson invites States to answer various legal questions regarding which “there is currently no clear international consensus, or where current practices and interpretations appear to challenge established legal norms.” States are to do so in advance of the 27th Session of the Human Rights Council in September. For Emmerson, “[l]egal uncertainty in relation to the interpretation and application of the core principles of international law governing the use of deadly force in counter-terrorism operations leaves dangerous latitude for differences of practice by States. . . . [T]hus an urgent and imperative need to reach a consensus” exists. The author agrees.

This essay examines Emmerson’s queries — replicated verbatim below — in an effort to assist States that answer his call. For States that do not, the analysis can serve as a useful tool in evaluating the responses of other States, as well as refining their own legal policy positions regarding RPA operations. Although the author provides his own views, he makes every effort to highlight competing positions.

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