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2014 | Drones at Trial. State and Individual (Criminal) Liabilities for Drone Attacks, by G. A. Knoops, International Criminal Law Review Vol. 14 (1) 2014

“Civilian victims of drone operations which contravene human rights principles governing law enforcement operations, can resort to civil litigation on the basis of state responsibility as delineated in the El-Masri judgment of the ECHR” – Knoops p. 76.

Whether drone attacks may give raise to a criminal offence or (third) state liability, is depending on the applicable legal framework. Within the context of an armed conflict, international humanitarian law applies. In a war setting, in essence drone bombings are unlawful when executed in disregard of the principles of distinction and proportionality, or when awareness is demonstrated that a drone attack bears a risk that the consequence of the operation will violate the principles of distinction and proportionality. In such situation, a drone strike may constitute a war crime.  

In absence of an armed conflict, human rights law governs the rules for the lawful use of lethal force in the context of law enforcement operations: intentional lethal force is only allowed as a last resort against a concrete, specific, and imminent threat of grave harm. The author advances in this article that for drone operations under the law enforcement model, analogous parameters seem to apply.

Apart from potential criminal liabilities, drone bombings may incur state (civil) liabilities under public international and human rights law. The author addresses state liabilities for drone attacks by contemplating the parameters set forth by the European Court of Human Rights (ECHR), in particular the case of El-Masri v. the former Yugoslav Republic of Macedonia. The El-Masri case models for state responsibility for states which directly or indirectly fail to take reasonable steps to avoid a risk of ill-treatment about which the authorities knew or ought to have known. The parallel to drone attacks under the law enforcement system emerges in the event third states provide information about individuals (for instance, their mobile phone records and numbers or location) knowing that this information will expose that person to ‘a real risk’ of being (extra-judicially) killed by a drone strike.

In El-Masri the court ruled that the particular third state was responsible for violating Articles 3 (prohibition of torture), 5 (right to liberty and security), 8 (respect for family and private life) as well as Article 13 (right to an effective remedy). This leads the author to conclude that “civilian victims of drone operations which contravene human rights principles governing law enforcement operations, can resort to civil litigation on the basis of state responsibility as delineated in the El-Masri judgment.”

However at the time of writing (March 2017), no judicial precedents are yet available dictating the criteria under which military and political leaders can be held (criminally) accountable for launching drone attacks within and outside an armed conflict.