The Government’s policy on the use of drones for targeted killing Contents

Annex 3: Law of War and Human Rights Law compared

The Law of War

Human Rights Law

Sources:

Customary international law

Geneva Conventions

Interpretive statements of the International Committee of the Red Cross

Sources:

Right to life recognised and protected by:

Customary international law (including Universal Declaration on Human Rights)

International Covenant on Civil and Political rights (ICCPR)

European Convention on Human Rights (ECHR)

Case law of the European Court of Human Rights

Decisions of the UN Human Rights Committee

Applicability:

Only applies where there is an armed conflict

By its nature applies extra-territorially

Applicability:

Applies generally in relation to any person within UK’s jurisdiction

Applies extra-territorially where the state exercises legal authority or uses physical force

Applies whether or not there is an armed conflict

Does not apply if State has derogated

Derogation from right to life only permitted for “deaths resulting from lawful acts of war”

Relevant standards on lethal force:
Use of lethal force in armed conflicts permissible if satisfies principles of:

• distinction (civilians not a legitimate target)

• proportionality

• necessity

• humanity

No requirement of imminence

Targeting rules depend on whether armed conflict is international or non-international

Relevant standards on lethal force:
Use of lethal force only permissible if:

• absolutely necessary

• to avert imminent threat of unlawful violence to self or others

• strictly proportionate to the threat

In armed conflict, human rights law standards are interpreted in light of specific standards in the Law of War

Outside armed conflict, only human rights law standards apply

Accountability:

Obligation to conduct at least preliminary investigation of most serious cases (eg.
alleged war crimes)

Accountability:

Obligation to conduct independent and effective investigation capable of leading to accountability for violations of right to life

Comparison with Human Rights Law:

The Law of War more permissive towards
use of lethal force

More scope for civilian casualties to be justifiable

Lighter accountability obligations

= Lower protection of right to life

Comparison with Law of War:

Stricter standards of necessity and proportionality

Civilian casualties more difficult to justify

More onerous obligation to investigate and hold to account

= Higher protection of right to life





© Parliamentary copyright 2015

9 May 2016