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IHL, Transparency, and the Heyns’ UN Drones Report

In his critique of Christof Heyns’ new UN report on the right to life in the context of lethal drone strikes, Eric Jensen erects two straw men and then proceeds to knock them down with great alacrity.  The first is that because Heyns cites no authorities for the proposition that there must be transparency it follows that no such obligation exists.  The second is that calls for transparency amount to disabling demands that every secret should be revealed and every punch notified in advance.

First, to the specifics of the charge that no law is quoted as the basis for the assertions about the requirement of transparency contained in Christof Heyns’ UN report on the right to life in the context of lethal drone strikes.  Eric explains this “omission” on the ground that there aren’t any legal requirements requiring a degree of disclosure of information.  Thus Heyns is guilty of either misstating or misrepresenting the applicable law, and as a result his whole report can easily be discredited.  Eric might be unaware that Heyns and his fellow Special Rapporteur, Ben Emmerson, divided up the territory in their simultaneously-released reports, which were intended to be read together.  For his part, Heyns hardly needed to repeat the relevant legal analysis contained in previous UN reports on this subject (disclosure: as his predecessor I wrote the first detailed analysis of these issues).

Emmerson hardly waxes lyrical on the subject, but this can be explained by the fact that UN reports of this nature are strictly limited to 10,700 words (to discourage verbal diarrhea, to reduce translation and printing costs, and to enhance the chances of being read).  He relies primarily on the detailed review undertaken by the Turkel Commission report, an expert group appointed by the Israeli Government in the aftermath of the Gaza flotilla raid.  In identifying the principles that apply in investigating alleged violations of IHL the Commission identified five general principles: independence, impartiality, effectiveness and thoroughness, promptness, and transparency.  One aspect of the latter is what the report described as “accountability via public scrutiny,” which it argues is “central to the duty provided in international humanitarian law, namely increasing compliance and deterring the commission of future violations.”

Eric’s post makes two important claims, both of which have been oft-repeated by those who defend the secrecy surrounding US policy in this area.  The first is that there is nothing explicit in IHL about transparency.  It is true that the word is not used in the 1949 Conventions or the 1977 Protocols. Nor is it used in the principal human rights treaties.  But it is an indispensable element in making sense of (and giving content to) the clearly acknowledged pillars of IHL that require investigation of grave breaches and other violations and the prosecution of those implicated.  Without a degree of transparency, none of these obligations could be acted upon.  (See, for example, Amichai Cohen and Yuval Shany, Beyond the Grave Breaches Regime: The Duty to Investigate Alleged Violations of International Law Governing Armed Conflicts, 14 Yearbook of International Humanitarian Law 37 (2011)).

That raises the second question of how much transparency there needs to be.  Here Eric chooses to deploy a whole battalion of straw men to buttress his argument.  “Requiring a State to disclose such information ahead of an attack would be truly revolutionary.”  It would be shocking if the “defense ministry [needed to disclose] to the public targeting criteria and decisions.”  If the US were required to do this “every potential target would ensure they were continuously in a position to be untargetable.” But neither Heyns, nor any of the other UN reports, suggest such a standard of transparency.  As I stated over three years ago:

92.       Transparency and accountability in the context of armed conflict or other situations that raise security concerns may not be easy.  States may have tactical or security reasons not to disclose criteria for selecting specific targets (e.g. public release of intelligence source information could cause harm to the source).  But without disclosure of the legal rationale as well as the bases for the selection of specific targets (consistent with genuine security needs), States are operating in an accountability vacuum.  It is not possible for the international community to verify the legality of a killing, to confirm the authenticity or otherwise of intelligence relied upon, or to ensure that unlawful targeted killings do not result in impunity.  The fact that there is no one-size-fits-all formula for such disclosure does not absolve States of the need to adopt explicit policies.  A/HRC/14/24/Add.6

Eric insists that while the US has responded to the various UN critiques “by increasing transparency in small degrees,” this has been done for policy rather than legal reasons.  In fact, since the debate began in the UN almost ten years ago the US response has consisted mainly of a public relations campaign based on bland assurances contained in speeches by senior officials, combined with an incremental and (mildly encouraging) reduction in the range of targets and the circumstances under which lethal drone strikes have been used.  But none of these adjustments can make up for the fatal lack of transparency which renders any external assessment of legality or illegality impossible.  It has long been accepted in human rights law, and must apply by analogy to IHL, that where a strong case is made but the party accused of a violation fails to make available the information which is critical for an informed determination, there should be a presumption that a violation has occurred.  Any other approach simply provides an irresistible incentive for governments to maintain as much secrecy as possible and then shield behind the justification that national security prevents any disclosure.  The US has rightly hammered away at the Sri Lankan Government, at the Syrian Government, and various others, in insisting that transparency and meaningful, externally validated, investigations of alleged violations are essential in order to meet international law requirements.  If only John Kerry’s briefing notes could be rearranged so that he reads from the script written for one of these other governments next time he visits the CIA or JSOC!

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About the Author

is John Norton Pomeroy Professor of Law at New York University Law School, and was UN Special Rapporteur on extrajudicial executions (2004-10).