Unmanned Aerial Vehicles: Call for an African Union resolution on the use of drones in Africa

Author: Benjamin Ng’aru
Legal Assistant, Local Authorities Pensions Trust; Volunteer Programmes Assistant, Legal Exchange Centre, Nairobi, Kenya

On 15 March 2013 Chief Judge Merrick Garland of the United States (US) Court of Appeals Circuit in American Civil Liberties Union Foundation v Central Intelligence Agency (CIA) dismissed the CIA’s standard Glomar response to its expanded and clandestine programme to carry out targeted killings on suspected terrorist. Barely two months later, a High Court in Peshawar, Pakistan, held that drone strikes (and their continued use) “are a blatant violation of Basic Human Rights and are against the [United Nations] (UN) Charter, the UN General Assembly Resolution …and a violation of the sovereignty [of Pakistan]”. Whereas not fully specific on the human rights instruments violated, these judicial pronouncements point to an increasing dissatisfaction by the international community on the lack of a concise and regulated use of the “CIA’s angry birds”.

This note seeks to merely highlight possible violations of various rights including the right to life, right to fair trial as well as the right to privacy, which are all enshrined in the African Charter; and call upon the African Union (AU), through its various organs, to promote more transparency on the use of drones and foster the enactment of a continental regulatory framework to govern the use of Unmanned Aerial Vehicles by western nations on African soil.

The use of drones in African’s airspace has been on a steep rise. The latest documented incident was on 27 May 2013 when Al-Shabaab allegedly shot down a UAS Camcopter S-100 near the town of Buulo Mareer, southern Somalia. The London based Bureau of Investigative Journalism estimates that over 200 persons, mostly non-combatants, have been killed by drone strikes in Somalia since 2003. American drone support bases have been reportedly set up in Arba Minch (Ethiopia), Seychelles, Camp Lemonnier (Djibouti) and recently in Somali’s shell-crated international airport in Mogadishu. A 2012 study by Stanford Law School and New York University’s School of Law indicated that there were more civilians and innocent residents killed in the drone strikes than militants throughout the period of the drone program.

However, despite the exponential rise in the use of the “CIA’s angry birds”, their legality, whether deployed to undertake signature strikes (in which the drones targets suspicious-looking groups of people without knowing their specific identities) on non-combatants, or to undertake unarmed reconnaissance missions in African has had a problematic effect of blurring the boundaries of the applicable legal framework.  Have these missions mirrored extra-judicial killings or even constituted an arbitrary or unlawful interference with privacy?

Surprisingly, despite a decade of drone strikes, the legality of their deployment remains void of any public administrative or meaningful judicial oversight, whether in domestic, regional or even in continental African courts or commissions. While the debate on the legality of their deployment is rife, human rights activists assert that this is murky at best and a downright violation of human rights at worst thanks to the Glomar responses and the veil of secrecy by the authorities. Sadly, “the angry birds from the CIA” are here to stay.

The office of the UN Special Rapporteur on Extra Judicial, Summary and Arbitrary executions, in a report to the Human Rights Commission criticises the use of drones in targeted killings as “a play station mentality that can only be justified when the  capturing the target with non-lethal tactics is impossible”. Ben Emmerson Q.C, UN Special Rapporteur on Counter Terrorism and Human Rights on 24 January 2013, launched an investigation on the continued use of armed drones to undertake targeted killings. The report argues that those states using this technology, and those states on whose territory it is used, are under an international law obligation to establish effective independent and impartial investigations into any drone attack in which it is plausibly alleged that civilian casualties were sustained. Should the AU, jointly with other independent human rights organisations, not probe the use of this technology in Africa? Why have these authorities condoned the use of this technology amongst member states?

Use of Force

International law prohibits the use of force in the territory of other states, except in narrow circumstances, including self-defence and consent.

Article 2(4) of the UN Charter prohibits the threat or the use of force against the territorial integrity or political independence of any other state.

“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

Indeed, UN General Assembly Resolution No. 2625 (XXV) “Declaration of Principles of International Law Concerning Friendly Relations” provides that:

“Every State has the duty to refrain in its international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations. Such a threat or use of force constitutes a violation of international law and the Charter of the United Nations and shall never be employed as a means of settling international issues.”

The use of force may only be a lawful act of self-defence in response to an armed attack or an imminent threat of an armed attack. Article 51 of the UN Charter provides:

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security.”

Some scholars have argued that a state may use force in these circumstances even without the host state’s consent, provided the host state is unwilling or unable to take appropriate action. However, this argument is debatable. This note shall not delve into the argument.

The resort to the use of force (drones) in self-defence (jus ad bellum) relates to issues of state sovereignty; any US operations in Africa whether on a third state or on the drone-host state would still need to satisfy the applicable requirements of humanitarian law (jus in bello) and human rights law. Further, the legality of reliance on Article 51 (especially self-defence in response to an imminent attack) by the US to undertake targeted killings in Somalia, northern Kenya and other parts of Africa needs further interrogation.

Whereas America’s (or any other states’) right to undertake acts of self-defence, is undisputable, it is imperative that African states should pay attention to “how much of an imminent threat of an armed attack threshold is required to trigger the right under Article 51”? Credible sources cited by the Bureau of Investigative Journalism indicates that out of the estimated 3 000 killed by drone strikes, the majority were neither Al-Qaeda nor Taliban leaders. Instead, most were low-level operatives engaged in campaigns against their own governments rather than plotting active terrorist plots.

In light of the Glomar responses or the veil of secrecy by the CIA and the Pentagon’s Joint Special Operations Command on the drones programme, do African states condone the violation of the human rights and international law within their territories or those of third parties?

What is clear is that there are certain regional and international obligations that African states and the AU must adhere to while supporting/ condoning the use of their territory as drone launch pads for such operations, especially for purposes of strikes or “intelligence gathering” in other countries .

Article 3(b) of the Constitutive Act of the AU provides that the objective of the AU shall be to:

“Defend the sovereignty, territorial integrity and independence of its Member States.”

It has been argued that the use of drones to attack certain non-state actors such as the Islamic Courts Union or Al-Qaeda in Somalia is impermissible because only armed attacks by state actors trigger the right to use force.  The International Court of Justice has given a narrow interpretation of this right, as only applicable against state actors (see Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory (Advisory Opinion) 2004 I.C.J [139] and also the Nicaragua case).

Whereas certain elements of Al-Qaeda in Somalia have been sponsored or their activities condoned by certain quarters of the Somali authorities, their activities cannot be wholly attributable to Somalia or even any other host state. Human Rights Watch argues that for these attacks to be justifiable, there must be an armed conflict: hostilities must be between the US and a group that is sufficiently organised and must reach a level of intensity that is distinct from sporadic acts of violence. Outside of an armed conflict, where international human rights law applies, the US can only target an individual if he poses an imminent threat to life and only employ lethal force as a measure of last resort.

Article 3(h) of the Constitutive Act of the AU obligates member states to:

“Promote and protect human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights and other relevant human rights instruments.”

Article 23(1) of the African Charter on Human & People’s Rights (Banjul Charter) provides that:

“All peoples shall have the right to national and international peace and security. The principles of solidarity and friendly relations implicitly affirmed by the Charter of the United Nations and reaffirmed by that of the Organization of African Unity shall govern relations between States.”

Whereas the AU and its member states have an obligation to co-operate with other states in the promotion of international peace and security, this note argues that such co-operation ought to be within the confines of human rights. This has been well noted under Article 3(e) of the Constitutive Act: encourage international cooperation, taking due account of the UN Charter and the Universal Declaration of Human Rights (UDHR).

As argued, Glomar responses coupled with little or no transparency on the use of such technology has meant that drone-host states may have insufficient information on the particular missions undertaken by the predator drones to confirm whether or not these strikes violate human rights. Consequently, the use of African states’ territories such as Arba Minch in Ethiopia to launch drone strikes in Somalia or even in northern Kenya may be a violation of the objectives of the Constitutive Act by such drone-host states. The Republic of Djibouti, the Federal Democratic Republic of Ethiopia together with the Republic of Seychelles all remain members of the AU and signatories of the Constitutive Act.

Article 3 of the UDHR, provides that:

“Everyone has the right to life, liberty and security of person.”

Article 6 of the International Covenant on Civil and Political Rights (ICCPR), provides that:

“Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”

It is therefore argued that the right to life extends not only to persons who are civilians, in non-combat situations, but also to persons involved in an armed conflict.

Article 2(1) of the ICCPR to which the African states are parties provides that:

“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

More disturbing are media reports that, persons not actively involved in hostilities such as rescuers, mourners and attendees of funerals of drone strikes victims, are deliberately targeted by subsequent drone strikes. Whereas it may be impossible to independently verify these claims, it brings to the fore, the likely extra-judicial nature of these strikes are a clear violation of Article 3 of the UDHR and Article 6 of the ICCPR at the very least.

What Way forward?

While acknowledging the unlikely move to terminate the drone program, it is imperative that there should be accountability and respect for international human rights law as well as international humanitarian law. The time has come for African judicial bodies or even the African Court of Human and People’s Rights to exercise their mandates to uphold and protect the rule of law and safeguard human rights in the region. The lack of a clear AU policy, or resolution at the very least, calling for a legal framework on the use of or hosting of drones in Africa is alarming.

Further, it is imperative that appropriate legal and operational structures are urgently put in place to regulate the use of drones in a manner that complies with the requirements of international law, international human rights law, international humanitarian law and international refugee law.

About the Author:
Benjamin Ng’aru is a Legal Assistant at the Local Authorities Pensions Trust and is also a Volunteer Programmes Assistant at the Legal Exchange Centre in Nairobi, Kenya. He is studying towards his Bachelors of Laws (LLB) at the Catholic University of Eastern Africa (Kenya). His research interests are international law and human rights.