human rights council - feb. 28, 2014

8/12/2019 Human Rights Council - Feb. 28, 2014

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;ienna, on #ictims of acts of terrorism, and addressed the Commission in plenary meetingon )5 April

$$ 9n )6 April, the Special Rapporteur participated in a oint hearing of thesubcommittees on human rights and on security and defence of the European arliament onthe study Human Rights !mplications of the


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to fulfil their international legal obligations of transparency and accountability .asdescribed in the interim report2 by ma"ing public the results of their own in?uiries into thesample stri"es identified !n order to pro#ide an up+to+date source of information on theSpecial RapporteurJs continuing in?uiries, he has set up a dedicated website which reflectsand supplements the content of his reports on remotely piloted aircraft to the -eneral

Assembly and the Human Rights Council7 unsrct+dronescom/ The Special Rapporteurwill continue to see" additional information from States on the legal ustifications for theuse of deadly force in counter+terrorism operations, as well as the ustification forindi#idual attac"s Subect to the consent of the State concerned, the responses recei#edwill be posted on the official web page of the mandate

B) Recent developments

) Civilian casualty rates

Afghanistan

)6 !n the interim report the Special Rapporteur noted the assessment of the


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33 The Special Rapporteur has adopted and applied this standard to a sample selectionof indi#idual stri"es in which remotely piloted aircraft are alleged to ha#e been implicatedin the infliction of ci#ilian casualties Ha#ing considered the a#ailable sources the SpecialRapporteur has identified 3% stri"es .out of a total of 3: stri"es initially brought to hisattention2 in which there is a plausible indication that ci#ilians were "illed or sustained life+

threatening inuries, or in which ci#ilian li#es were put at immediate ris" ith theassistance of a team of researchers he has sifted the a#ailable e#idence to determinewhether there is a plausible and credible allegation of ci#ilian casualties, from apparentlyreliable sources, so as to trigger the duties of in#estigation and transparency

35 The list below is intended to be illustrati#e rather than e*hausti#e The criteriaadopted for including a stri"e in the list are .a2 that there is an allegation emanating from anapparently reliable source, or from multiple independent sources, that ci#ilians ha#e been"illed, seriously inured or had their li#es put at immediate ris" in an operation in whichremotely piloted aircraft are alleged to ha#e been in#ol#edI .b2 that in the absence of anyofficial public e*planation from the State.s2 responsible, the number and/or proportion ofci#ilians harmed arguably raises a reasonable suspicion that the action ta"en may ha#e been

unlawfulI and .c2 that there is sufficient information to identify the location, the date andappro*imate time of the incident !n those cases where it has not been possible to identitythe #ictim.s2 and in?uire into their bac"grounds, the Special Rapporteur has re?uired othercredible indications that the #ictims were, or included, ci#ilians

36 !t is important to emphasi>e that the mere e*istence of credible allegations thatci#ilians were "illed or inured in these incidents does not necessarily establish any#iolation of international humanitarian law or international human rights law Still lessdoes it pro#ide clear e#idence of the commission of a war crime !ndeed, most of therele#ant e#idence which could confirm or dispel such a suspicion remains in the e*clusi#e

possession of the alleged perpetrator States Howe#er, in each of the cases identified, theSpecial Rapporteur has e#aluated the a#ailable sources, loo"ing for indicia of reliability,

and has udged the information and e#idence he has seen to be sufficient to cross thethreshold identified in his interim report as imposing a duty on the rele#ant States topro#ide a public e*planation of the circumstances and the ustification for the use of deadlyforce

3' !n the opinion of the Special Rapporteur the States responsible are under a presentand continuing obligation to ma"e public, in as much detail as possible, and subect only tosuch redactions as are strictly necessary to meet legitimate national security concerns, theresults of any fact+finding in#estigations that ha#e been conducted into the incidentsidentified in this section of the report !f no fact+finding in#estigation has so far ta"en

place, the Special Rapporteur considers that the States concerned are under an obligation toindicate this publicly, and pro#ide an e*planation

3: By way of illustration, the Special Rapporteur draws attention to the one instance inwhich the gan The attac" occurred $) "m from the #illage of Fhod inthe Shahidi Hassas district Remotely piloted aircraft under the control of the


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later issued a statement indicating that it was aware of possible ci#ilian casualties resultingfrom the operation)5

5) 9n $) =o#ember )%$), precision+guided munitions were reportedly discharged inthe Sha?ti ala area of Bara"i Bara" district of 4ogar pro#ince Remotely piloted aircraftunder the control of !SA8 .ai, Reuters, )3 9ctober)%$), a#ailable athttp7//wwwreuterscom/article/)%$)/$%/)3/us+afghanistan+taliban+id


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D!n the case of the : September


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targeted indi#iduals reportedly had affiliations with non+State armed groups He also notesthe precision nature of this stri"e =onetheless the Special Rapporteur considers that sincethe li#es of apparent non+combatant ci#ilians were lost or put at serious ris" it satisfies thecriteria identified at paragraph 35 abo#e

9n $: @arch )%$$, precision+guided munitions were reportedly fired at a tribal councilmeeting .irga2 ta"ing place in an open space adacent to the =omada bus depot in (attaFhel, =orth a>iristan Remotely piloted aircraft under the control of the and aheed iristan Remotely piloted aircraftunder the control of the


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The sole #ictim, a '0 year old woman named as @anama Bibi, was "illed instantlyEyewitness reports from members of her family indicate that at the time of the attac" the#ictim was pic"ing #egetables, and was in an isolated position in the middle of a field,some distance away from the nearest road or building !n?uiries into her affiliations andacti#ities suggest that she was a ci#ilian !n 9ctober )%$3 Amnesty !nternational reported

the results of field research into this incident)0

Yemen

63 9n $5 &uly )%$$, munitions were reportedly launched at a police station in the townof Al+adeJa in Abyan pro#ince Aircraft under the control of either the


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Salem Ben Ahmed Ben Salim Ali &aber, an !mam of the al+@utadharirin mos?ue, and anoutspo"en opponent of AA The other was alid Abhallah Abdelhamud Ben Ali &aber,a relati#e of the !mam and a local traffic policeman !n?uiries into the affiliations andacti#ities of these two #ictims strongly suggest that both men were ci#ilians !n 9ctober)%$3 Human Rights atch reported the results of field research into this incident3% The

Special Rapporteur notes that the targeted indi#iduals who were with Salem Ben AhmedBen Salim Ali &aber and alid Abhallah Abdelhamud Ben Ali &aber were reportedlyengaged in military acti#ities, and he notes the precision nature of the attac" =onethelesshe considers that since two ci#ilians were also "illed in the attac", it merits in#estigationand satisfies the criteria identified at paragraph 35 abo#e

6: 9n ) September )%$), precision+guided munitions were fired at a #ehicle that wasbeing used as a ci#ilian shuttle bus in the #icinity of Rada in the alad Rabi district of al+Bayda pro#ince The attac" reportedly occurred whilst the #ehicle was stationary at theintersection of two roads leading to the #illages of Sabool and @anasseh Aircraft underthe control of the


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the security situation on the ground which has se#erely limited media access to certain partsof the country, and imposed significant constraints on the le#el of reliable independentreporting The Special Rapporteur has e*amined information concerning a number ofspecific stri"es, but has concluded that only one of the incidents e*amined met the criteriain paragraph 35 abo#e That is not to be ta"en to imply that the le#el of ci#ilian deaths in

Somalia as the result of the use of remotely piloted aircraft is lower or higher thanelsewhere !t merely confirms that there was #ery little reliable independent e#idence ofci#ilian casualties in the limited number of stri"es in Somalia that ha#e been brought to theattention of the Special Rapporteur

'% 9n )5 8ebruary )%$), precision+guided munitions hit a con#oy of #ehicles in an areain the 4ower Shabelle region, appro*imately '% "ilometers south of @ogadishu Remotely

piloted aircraft under the control of the enship had beenremo#ed in )%$% on suspicion of his in#ol#ement in terrorism associated with Al ShabaabSources conflict in relation to the number and identity of the deceased Howe#er, one

witness has identified @a*amed Abdullahi, a local tribesman, camel+herdsman andmediator, as ha#ing been among the dead !n?uiries suggest that he was a ci#ilian

#a$a

9n ): (ecember )%%0, precision+guided munitions reportedly struc" an outdoor locationon a street opposite the -a>a Technical College in -a>a City Remotely piloted aircraftunder the control of !srael are alleged to ha#e been in#ol#ed in the operation Twel#e

people were confirmed to ha#e been "illed in the stri"e 35 The confirmed identities of thedeceased can be found at7 unsrct+dronescom/ Reports concerning the affiliations andacti#ities of the #ictims suggest that all but one were ci#ilians =ine of those "illed werereportedly students at the college Human Rights atch and BJTselem ha#e published theresults of field research into this incident36 The Special Rapporteur understands that thecompetent !sraeli authorities in#estigated this incident, but concluded that there was noe#idence warranting criminal charges The details of this in#estigation, and the reason forits conclusion, ha#e not been made public

'$ 9n 5 &anuary )%%1, precision+guided munitions reportedly struc" a house in -a>aCity "illing two young people Remotely piloted aircraft under the control of !srael arealleged to ha#e been in#ol#ed in the operation The deceased ha#e been named as @ahmudFhaled JAlayyan al+@asharawi .aged $)2 and Ahmad Fhader (iyab Subayh .aged $:2Reports concerning the affiliations and acti#ities of the #ictims suggest that they were bothci#ilians !n &une )%%1 Human Rights atch published the results of field research intothis incident3' The Special Rapporteur understands that the competent !sraeli authoritiesin#estigated the allegations made by Human Rights atch but concluded that there was no

35 The Special Rapporteur has been informed of the identity of oneadditional casualty who reportedly died later in hospital of wounds sustained duringthe attac" This information has not been independently #erified

36 recisely rong, Human Rights atch, &une )%%1, a#ailable athttp7//wwwhrworg/reports/)%%1/%'/3%/precisely+wrongI alestinians ho (id =otTa"e art in the Hostilities and ere Filled by !sraeli Security 8orces .=ot !ncludingthe 9bects of Targeted Fillings2 in the 9ccupied Territories, BJTselem, a#ailable athttp7//wwwbtselemorg/statistics/fatalities/any/by+date+of+e#ent/wb+ga>a/palestinians+"illed+during+the+course+of+a+targeted+"illing+not+hisul

3' recisely rong, Human Rights atch, &une )%%1, a#ailable athttp7//wwwhrworg/reports/)%%1/%'/3%/precisely+wrong

/
http://www.hrw.org/reports/2009/06/30/precisely-wronghttp://www.btselem.org/statistics/fatalities/any/by-date-of-event/wb-gaza/palestinians-killed-during-the-course-of-a-targeted-killing-not-hisulhttp://www.btselem.org/statistics/fatalities/any/by-date-of-event/wb-gaza/palestinians-killed-during-the-course-of-a-targeted-killing-not-hisulhttp://www.hrw.org/reports/2009/06/30/precisely-wronghttp://www.hrw.org/reports/2009/06/30/precisely-wronghttp://www.btselem.org/statistics/fatalities/any/by-date-of-event/wb-gaza/palestinians-killed-during-the-course-of-a-targeted-killing-not-hisulhttp://www.btselem.org/statistics/fatalities/any/by-date-of-event/wb-gaza/palestinians-killed-during-the-course-of-a-targeted-killing-not-hisulhttp://www.hrw.org/reports/2009/06/30/precisely-wrong


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e#idence warranting criminal charges The details of this in#estigation, including thereasons for its conclusion, ha#e not been made public

') 9n 5 &anuary )%%1, precision+guided munitions reportedly struc" the al+Habbashfamily house in the al+ShaJf area of -a>a City "illing two children and se#erely inuringthree other young people Remotely piloted aircraft under the control of !srael are allegedto ha#e been in#ol#ed in the operation The deceased ha#e been named as Sha>a al+JAbd@uhammad al+Habbash .aged $%2 and !sra usai @uhammad al+Habbash .aged $)2Those sustaining non+fatal inuries were named as &amila al+Abd al+Habbash .aged $52,@ahmud JAmr al+Habbash .aged $62 and @uhammad JAmr al+Habbash .aged $'2 Reportsconcerning the affiliations and acti#ities of the #ictims suggest that they were all ci#ilians!n &une )%%1 Human Rights atch published the results of field research into thisincident3: The Special Rapporteur understands that the competent !sraeli authoritiesin#estigated the allegations made by Human Rights atch but concluded that there was noe#idence warranting criminal charges The details of this in#estigation, including thereasons for its conclusion, ha#e not been made public

'3 9n 6 &anuary )%%1, precision+guided munitions reportedly struc" the JAllaw familyhouse in the al+ShaJf area of -a>a City "illing one child and inuring two others Remotely

piloted aircraft under the control of !srael are alleged to ha#e been in#ol#ed in theoperation The deceased has been named as @uJmin @ahmoud Talal JAllaw .aged $%2Those sustaining non+fatal inuries were named as @uhammad JAllaw .aged $32 and !manJAllaw .aged 02 Reports concerning the affiliations and acti#ities of the #ictims suggestthat they were all ci#ilians !n &une )%%1 Human Rights atch published the results offield research into this incident30The Special Rapporteur understands that the competent!sraeli authorities in#estigated the allegations made by Human Rights atch but concludedthat there was no e#idence warranting criminal charges The details of this in#estigation,including the reasons for its conclusion, ha#e not been made public

'5 9n 1 &anuary )%%1, precision+guided munitions reportedly struc" the Salha familyhouse in the Beit 4ahia Housing roect in -a>a, "illing two women and si* childrenRemotely piloted aircraft under the control of !srael are alleged to ha#e been in#ol#ed inthe operation The deceased ha#e been named as Randa Salha .aged 352, 8atma Salha .aged))2, Rouala Salha .aged $2, Baha al+(in Salha .aged 52, Rana Salha .aged $)2 and (iya al+(in Salha .aged $52 Reports concerning the affiliations and acti#ities of the adult #ictimssuggest that they were all ci#ilians !n &uly )%%1 Amnesty !nternational published theresults of field research into this incident31

'6 9n $1 =o#ember )%$), precision+guided munitions reportedly struc" an area offarmland adacent to a house in Ahmad Oassin Street, north of -a>a City, "illing three

people Remotely piloted aircraft under the control of !srael are alleged to ha#e been

in#ol#ed in the operation The deceased were a father, his $) year old daughter, and his $1year old son All three were reportedly pic"ing spearmint at the time of the attac"!n#estigations conducted by the 9ffice of the High Commissioner of Human Rights

3: !bid30 !bid31 9peration Cast 4ead7 )) (ays of (eath and (estruction, Amnesty

!nternational, &uly )%%1, a#ailable athttp7//wwwamnestyorg/en/library/@(E$6/%$6/)%%1/en/0f)11%03+1a:5+5063+0'%f+%6'3:)6e'33a/mde$6%$6)%%1enpdf

0
http://www.hrw.org/reports/2009/06/30/precisely-wronghttp://www.hrw.org/reports/2009/06/30/precisely-wrong


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indicate that all three #ictims were ci#iliansI that no warnings were issued to residents priorto the attac"I and that no militant acti#ities were being carried out in the location5%

'' 9n )$ =o#ember )%$), precision+guided munitions struc" an oli#e farm east ofFhan Oounis, southern -a>a Strip, "illing two people and inuring a third Remotely

piloted aircraft under the control of !srael are alleged to ha#e been in#ol#ed in theoperation The deceased ha#e been named as !brahim Abu =asser .05 years old2 andAmira Abu =asser .his $5 year old granddaughter2 @ohamed Abu =aser .aged 5)2sustained non+fatal inuries in the attac" !n 8ebruary )%$3 Human Rights atch publishedthe results of field research into this incident5$ !n#estigations conducted by the 9ffice ofthe High Commissioner of Human Rights indicate that all three #ictims were ci#iliansI thatthey were wor"ing on the farm at the time of the attac"I that no warnings were issued toresidents prior to the attac"I and that no militant acti#ities were being carried out in thelocation5)

3) !chieving a consensus on the applica4le legal principles

': The Special RapporteurJs interim report to the -eneral Assembly identified anumber of legal issues on which there is currently no clear international consensus, orwhere current practices and interpretations appear to challenge established legal norms 534egal uncertainty in relation to the interpretation and application of the core principles ofinternational law go#erning the use of deadly force in counter+terrorism operations lea#esdangerous latitude for differences of practice by States This runs counter to the obligationidentified in -eneral Assembly resolution A/RES/'0/$:0, paragraph '.s255I fails to pro#ideade?uate protection for the right to lifeI poses a threat to the international legal orderI andruns the ris" of undermining international peace and security

'0 There is thus an urgent and imperati#e need to reach a consensus between States on,inter alia, the following issues7

.a2 (oes the international law principle of self+defence entitle a State to engagein non+consensual lethal counter+terrorism operations on the territory of another Stateagainst a non+State armed group that poses a direct and immediate threat of attac" e#enwhen the armed group concerned has no operational connection to its host StateU !f so,under what conditions does such a right of self+defence ariseU (oes such a right arisewhere the territorial State is udged to be unable or unwilling to pre#ent the threat frommaterialisingU !f so, what are the criteria for determining Dunwillingness or Dinability toactU56

5% Report of the a Airstri"es ;iolated 4aws of ar, Human Rights atch,8ebruary )%$), a#ailable at http7//wwwhrworg/news/)%$)/%)/$)/israel+ga>a+airstri"es+#iolated+laws+war

5) Report of the


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.b2 !s the international law principle of self+defence confined to situations inwhich an armed attac" has already ta"en place, or does it entitle a State to carry out pre+empti#e military operations against a non+State armed group on the territory of anotherState, without the territorial StateJs consent, where it udges that there is an imminent ris" ofattac" to its own interestsU !f so, how is imminence to be definedU5'

.c2 (oes the international humanitarian law test of intensity of hostilities .whichis one of the criteria determining whether a non+international armed conflict e*ists2 re?uirean assessment of the se#erity and fre?uency of armed attac"s occurring within definedgeographical boundariesU !n applying the intensity test to a non+State armed groupoperating transnationally, is it legitimate to aggregate armed attac"s occurring ingeographically di#erse locations in order to determine whether, ta"en as a whole, they crossthe intensity threshold so as to amount to a non+international armed conflictU !f it is

possible for a State to be engaged in a non+international armed conflict with a non+Statearmed group operating transnationally, does this imply that a non+international armedconflict can e*ist which has no finite territorial boundariesU5:

.d2 (oes international humanitarian law permit the targeting of persons directly

participating in hostilities who are located in a non+belligerent State, and if so, in whatcircumstancesU50

.e2 (oes the pattern and fre?uency of the armed attac"s currently beingperpetrated by Al aida, and the #arious affiliate organisations in different parts of theworld that claim allegiance to Al aida, satisfy .or continue to satisfy2 the criteria oforganisation and intensity re?uired under international humanitarian law to ?ualify as astate of armed conflictU51

.f2 Assuming that a non+international armed conflict e*ists, does the test ofDcontinuous combat function, as elaborated by the !nternational Committee of the RedCross .D!CRC2 for determining whether a person is a Dmember of an armed group .suchthat they may be targeted with lethal force at any time2 reflect customary international lawU!f not, what is the correct testU6%

.g2 (oes the guidance promulgated by the !CRC for Ddirect participation inhostilities reflect customary international lawU !n particular, does an indi#idual who has

participated in hostilities cease to be targetable during a pause in his or her acti#ein#ol#ementU (oes pro#iding accommodation, food, financing, recruitment or logisticalsupport amount to Ddirect participation in hostilities for targeting purposesU6$

.h2 !n the conte*t of non+international armed conflict, when .and under whatcircumstances2 does international humanitarian law impose an obligation to capture ratherthan "ill a legitimate military target where this is feasibleU6)

5' A/'0/301 at paras 6: to 60I A/'0/30) at para 1)5: A/'0/301 at paras ') to '6I A/'0/30) at paras '5 to ''50

!bid51 A/'0/301 at paras '' to '1I A/'0/30) at paras 66 to '3 8or acomprehensi#e and up+to+date assessment of the threat of armed attac" by Al aidaand its #arious affiliate organisations, and the degree of operational co+ordination,organisation and leadership amongst the #arious groups, see the $6th Report of theAnalytical Support and Sanctions @onitoring Team established pursuant to resolution$6)' .)%%52, S/)%$5/5$, 4etter dated )) &anuary )%$5 from the Chair of the SecurityCouncil Committee pursuant to resolutions $)': .$1112 and $101 .)%$$2 concerningAl+aida and associated indi#iduals and entities addressed to the resident of theSecurity Council

6% A/'0/301 at para '1I A/'0/30) at para '06$ A/'0/301 at paras :% to :)I A/'0/30) at paras '1 to :$6) A/'0/30) at paras :: to :1

%2


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'1 The Special Rapporteur in#ites @ember States to e*press their #iews on these?uestions prior to the twenty+se#enth session of the Human Rights Council and .subect toany re?uests for confidentiality2 will publish the responses as they are recei#ed on theofficial web page of the mandate

:% The Special Rapporteur recommends to the Human Rights Council that it shouldta"e effecti#e steps, by means of an appropriate resolution aimed at7

"rging all States to ensure that any measures ta"en to counter terrorism, includingthe use of remotely piloted aircraft, comply with their obligations under internationallaw, including international humanitarian law and international human rights law, in

particular the principles of precaution, distinction and proportionality

"rging all States to ensure that, in any case in which there is a plausible indicationfrom any apparently reliable source that ci#ilians ha#e been "illed or inured in acounter+terrorism operation, including through the use of remotely piloted aircraft,the rele#ant authorities conduct a prompt, independent and impartial fact+finding

in?uiry, and pro#ide a detailed public e*planation"rging all States that use remotely piloted aircraft for lethal counter+terrorismoperations, and all States on whose territory such operations occur, to clarify their

position on the legal and factual issues raised in the present report and the SpecialRapporteurJs interim report to the -eneral Assembly .A/'0/3012I to declassify, to thema*imum e*tent possible, information rele#ant to lethal e*traterritorial counter+terrorism operationsI to ma"e public the results of all fact+finding in#estigations intoalleged ci#ilian casualties resulting from such operationsI and to release their owndata on the le#el of ci#ilian casualties inflicted through the use of remotely pilotedaircraft, together with information on the e#aluation methodology used

:$ 8urther, the Special Rapporteur recommends to the Human Rights Council that itshould con#ene an interacti#e panel discussion of e*perts at its twenty+se#enth session tofurther deliberate on the issues raised in the present reportI and should mandate the 9fficeof the High Commissioner for Human Rights to present a summary of the deliberations ofthe panel discussion at the twenty+eighth session of the Human Rights Council

(#) Conclusions and recommendations

:) The Special Rapporteur5

6a7 Callsupon the States identified in section C of the present report to

disclose the results of any fact-finding in8uiries into the alleged incidents listed

therein, or to e9plain why no such in8uiries have 4een made)

647 Calls upon the States on whose territory those stri1es reportedly too1

place, to provide as much information as possi4le in connection with those

stri1es)

6c7 Encouragesall States to respond to his re8uests for clarification of their

position in relation to the 8uestions raised in paragraph / of the present

report)

6d7 Recommends to the Human Rights Council that it should adopt a

resolution in the terms outlined in paragraphs /* and /+ of the present report)

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human rights council - feb. 28, 2014

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