2019 | Overflying Justiciability? Drones and Avoidance Doctrines Before National Courts, by L. Gervasoni in Use and Misuse of New Technologies by E. Carpanelli and N. Lazzerini (eds.) 2019
Drone strikes not only kill pre-selected targets, they also cause death and other forms of injury to innocent civilians. To what extent do these victims have access to justice and reparations? This article shows that the majority of domestic suits related to targeted killing have been dismissed on procedural grounds before ever reaching an adjudication on their merits, mainly as a result of domestic courts’ reliance on avoidance doctrines. Avoidance doctrines originate from a state’s constitutional separation of powers system and are defined as judicially-made doctrines that allow courts to refrain from exercising their established jurisdiction, thus shielding certain actions of the executive from judicial review. The political question doctrine  and Foreign Act of State doctrine  are examples of dominant avoidance doctrines recently applied in civil drone suits. The latter was relied on by the United States District Court of Colomb ia in the Al-Aulaqi cases in 2010 and 2014 and the Faisal bin Ali Jaber case, while the United Kingdom High Court of Justice and the Court of Appeals in respectively 2012 and 2014, dismissed the case of Noor Khan v. Secretary of State relying on the former doctrine.
In applying these non-justiciability theories, courts create a clash with international law, under which states are obliged to investigate alleged breaches of human rights law (HRL) and International Humanitarian Law (IHL), and to grant victims an “effective remedy” against violations, including access to justice, reparations and accountability. According to the author, the right to an effective remedy has arguably attained customary law status. Moreover, the joint operability of HRL and IHL requires states to harmonize their internal legal systems with the relevant international provisions.
Alternative legal venues for redress
To escape from domestic courts’ avoidance doctrines, the author presents four alternative judicial venues. First, recent judgements show that a proper interpretation of domestic law in light of international law can fully respect both legal systems, by taking into account the extent to which fundamental rights are engaged by the issues raised - such as access to justice and the right to life. Second, victims could hold third states responsible for their facilitating role in the unlawful act before the third states’ domestic courts. Notably, international (quasi-) judicial bodies have already delivered judgments on the responsibility of a state for its complicity in a third party’s human rights violations. Third, victims could turn to the courts of those states on whose territories drone strikes have taken place. Finally, the author suggests resorting to universal criminal and civil jurisdiction in States other than those directly involved in or by targeted strikes. The assumed customary law status of the right to access to justice and reparation creates obligations erga omnes and thus every State has a right to demand the cessation of human right and/or IHL violations and reparation for the persons affected.
Acknowledging that neither alternative is free from significant hurdles, the author concludes that the most effective way to pursue justice and accountability remains the continuation of suits before domestic courts.
More on doctrines barring judicial review of claims filed by victims or armed conflict can be found here.
 Requiring courts to refrain from any interference with “issues of political delicacy in the field of foreign affairs” as well as with third countries’ determinations.
 According to which the judiciary would be prevented from conducting inquiries into third States’ actions.