Achieving a consensus on the applicable legal principles

There is thus an urgent and imperative need to reach a consensus between States on, inter alia, the following issues:

• Does the international law principle of self-defence entitle a State to engage in non-consensual lethal counter-terrorism operations on the territory of another State against a non-State armed group that poses a direct and immediate threat of attack even when the armed group concerned has no operational connection to its host State? If so, what are the conditions under which such a right of self-defence arises? Does such a right arise where the territorial State is judged to be unable or unwilling to prevent the threat from materialising?¹

• Is the international law principle of self-defence confined to situations in which an armed attack has already taken place, or does it entitle a State to carry out pre-emptive military operations against a non-State armed group on the territory of another State, without the territorial State's consent, where it judges that there is an imminent risk of attack to its own interests? If so, how is imminence to be defined?²

• Does the international humanitarian law test of intensity of hostitilies (which is one of the criteria that determines whether a state of non-international armed conflict has come into existence) require an assessment of the severity and frequency of armed attacks occurring within defined geographical boundaries? In applying the intensity test to a non-State armed group operating transnationally, is it legitimate to aggregate armed attacks occuring in geographically diverse locations in order to determine whether, taken as a whole, they cross the intensity threshold so as to amount to a non-international armed conflict? If it is possible for a State to be engaged in a non-international armed conflict with a non-State armed group operating transnationally, does this imply that a non-international armed conflict can exist which has no finite territorial boundaries?³

• Does international humanitarian law permit the targeting of persons directly participating in hostilities who are located in a non-belligerent State, and if so, in what circumstances?⁴

• Does the pattern, frequency and severity of the armed attacks currently being perpetrated by Al Qaida, and its various affiliate organisations in different parts of the world, satisfy (or continue to satisfy) the criteria of organisation, intensity and co-ordination required under international humanitarian law to qualify as a single state of armed conflict without finite and defined geographical boundaries?⁵

• Assuming that a state of non-international armed conflict exists, is the test of “continuous combat function” adopted by the International Committee of the Red Cross (“ICRC”) for determining whether a person is a “member” of an armed group (such that they may be targeted with lethal force at any time) the appropriate internationally recognised standard? If not, what is the correct test?⁶

• In the context of non-international armed conflict, does the test of “direct participation in hostilities” require that a person who engages in an armed attack ceases to be a legitimate military target if there is a pause in their active involvement in such operations? Is the guidance promulgated by the ICRC for “direct participation in hostilities” the appropriate internationally recognised standard? If not, where are the boundaries to be drawn between combatant and non-combatant civilians in an asymmetrical armed conflict? Does providing accomodation, food, financing, recruitment or logistical support amount to “direct participation in hostilities” for targeting purposes?⁷

• In the context of non-international armed conflict, when (and under what circumstances) does international humanitarian law impose an obligation to capture rather than kill a legitimate military target where this is feasible?⁸

In the meantime, however, he urges the Human Rights Council to adopt a resolution:

• Urging all States to ensure that any measures taken to counter terrorism, including the use of remotely piloted aircraft, comply with their obligations under international law, including international humanitarian law and international human rights law, in particular the principles of precaution, distinction and proportionality.

• Urging all States to ensure that, in any case in which there is a plausible indication from any apparently reliable source that civilians have been killed or injured in a counter-terrorism operation, or their lives put at immediate risk, including through the use of remotely piloted aircraft, the relevant authorities conduct a prompt, independent and impartial fact-finding inquiry, and provide a detailed public explanation.

• Urging all States that use remotely piloted aircraft for lethal counter-terrorism operations, and all States that give valid consent for such operations to be conducted by other States on their territory, to clarify their position on the legal and factual issues raised in the present report; to declassify, to the maximum extent possible, information relevant to lethal extraterritorial counter-terrorism operations; and to release their own data on the level of civilian casualties inflicted through the use of remotely piloted aircraft, together with information on the evaluation methodology used.

• Requesting the Office of the High Commissioner for Human Rights to convene a high level panel of experts to further deliberate on the issues identified in paragraph 67 above, and to report to the Council on its principal conclusions and recommendations.

¹ For a discussion of the issues see the Special Rapporteur's interim report to the General Assembly, A/68/389 at paras. 55 to 56; and the report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, A/68/382 at paras. 88 to 92.
²A/68/389 at paras. 57 to 58; A/68/382 at para. 92.
³A/68/389 at paras. 62 to 65; A/68/382 at paras. 64 to 66.
⁴Ibid.
⁵A/68/389 at paras. 66 to 69; A/68/382 at paras. 55 to 63. For a comprehensive and up-to-date assessment of the threat of armed attack by Al Qaida and its various affiliate organisations, and the degree of operational co-ordination, organisation and leadership amongst the various groups, see the 15th Report of the Analytical Support and Sanctions Monitoring Team established pursuant to resolution 1526 (2004), S/2014/41, Letter dated 22 January 2014 from the Chair of the Security Council Committee pursuant to resolutions 1267 (1999) and 1989 (2011) concerning Al-Qaida and associated individuals and entities addressed to the President of the Security Council.
⁶A/68/389 at para. 69; A/68/382 at para. 68.
⁷A/68/389 at paras. 70 to 72; A/68/382 at paras. 69 to 71.
⁷A/68/382 at paras 77 to 79.