Achieving Human Rights Compliance in Drone Operations
A Case for the Human Rights Council‘s Special Procedures (HRCSP)
Essay 2015 11 Pages
Achieving Human Rights Compliance in Drone Operations: A Case for the Human Rights Council‘s Special Procedures (HRCSP)
In this essay I will argue that the added-value of the HRCSP lies in the special rapporteurs’ (SR) role as facilitators for norm compliance. Doing so, I will focus on the post-9/11 debate on the use of armed drones for targeted killings in military and counter-terrorism operations. Its main point of contention surrounds the achievement of consistency in legal standards, as well as of coherent policy responses with view to the “war on terror”, which has led some states to prioritize security concerns over human rights (HR) and humanitarian standards.
In presenting my argument I will make reference to actor behavior theory to show the nexus between HRCSP and strategic agency. Thereby, I shall concentrate on mechanisms of social influence such as coercion, persuasion, incentives, and capacity building as identified by Risse and Popp (R&P). (2013, 12-22) Also, I will address the element of acculturation, found as a major force for compliance by Goodmann and Jinks (G&J) (2004), and touch on domestic mechanisms, such as executive power, litigation, and group demands (Simmons, 2009), and the power of domestic constituencies (Dai, 2004). During the analysis, I will be mindful of a possible crowding-out effect as suggested by G&J, where one social mechanism could negatively affect the operation of another. (2013, 105)
In this sense I will elaborate on the opportunities and challenges of the HRCSP regarding compliance with the right to life in human rights law (HRL) and humanitarian law (IHL) with view to targeted killings. I will focus on the HRCSP because they embody the permanent tools of the Human Rights Council (HRC) composed of independent experts, compared to the Universal Periodic Review (UPR), which, due to its politicized nature, is rather silent on the subject matter. The analysis will show how the Special Rapporteur for Extrajudicial, Summary and Arbitrary Executions (SRESAE) and the Special Rapporteur on Terrorism and Human Rights (SRTHR), in concerted action and by application of various elements of socialization, facilitate the compliance process.
First, they do so by facilitating the process of institutionalizing norms (G&J, 2004), through standard setting, interpretation and elaboration. This is evidenced by the scope of their mandate and the endorsement of their reports by the HRC and other treaty bodies. (Abresh et al., 2008, 195-197) This interactive process aiming for norm clarity provides potential in that it might offset the “crowding-out effect” brought about by scrutinizing norm violating countries, which often leads them to interpret their legal obligations rather differently. (Clark, 2013, 144)
Second, they facilitate the discursive socialization process through a) monitoring and fact-finding, b) inviting for dialogue, and c) conferring with civil society organizations. Empowering victims through individual petitions might threaten states into compliance. (Clark, 2013) But coercion might be less effective when it comes to public procedures since states tend to conceal information as low response rates to communications suggest. (G&J, 2004) Despite country responses being mostly based on national priorities, this might reflect an opportunity for a more consultancy-oriented approach (Limon and Piccone (L&P), 2014, 25) and encourage follow-up, the weakest link by far. In terms of dialogues, strategic positioning seems the rule. This is evidenced by voting behavior and positions adopted during HRC debates. (UNOG (1), 2014). Nevertheless, the “contagion effect” - countries adopting the position of allies or regional partners – is suggested to hold equal potential for counter-hegemonic and pro-hegemonic norm diffusion. (G&J, 2004, 653) Finally, civil society organizations exposing governments’ misconduct constitute a valuable source of information for the SR. The adoption of soft law instruments by the US exemplifies the importance of “naming and shaming” by civil society actors, and domestic regimes for compliance with authoritative decisions. (Simmons, 1998, 78)
I will conclude that the SR are not an end but a means for achieving compliance. There is also no one solution regarding the socialization process, which seems to strongly depend on the right sequencing of elements sensitive to certain scope conditions and the level, or “continuum of commitment” (Dai, 2013, 86-87), states prescribe themselves to depending often on domestic mechanisms of influence. Hence, a lack of cooperation shouldn’t bring doubt about the SR nor lead to their discontinuation. It is in this face of strategic agency that the post-9/11 discourse calls for independent experts with strong mandates.
HRCSP: Facilitators for Norm Compliance
Targeted killings reached their peak in 2010, and by 2013 more than fifty countries were already reported to have drone capabilities. (ICRJ, 2013) This makes the need for compliance with the provisions on the right to life in the ICCPR and Geneva Conventions apparent. However, states’ policy responses reflect the “war on terror” and diverge widely. In this respect actor behavior theory helps to explain states’ conduct and sheds light on mechanisms of social influence the SR can employ to facilitate compliance with these conflicting norms. Here it is to mention that international relations theories acknowledge all these mechanisms. Variation lies merely in the ontological emphasis they put on them (G&J, 2004, 630-632). Such discussion is though beyond the scope of this paper.
Various approaches have been developed to explain the paradox of state compliance with non-reciprocal HR treaties lacking enforcement power. (G&J, 2004, 628-629) Amongst the scholarly literature, R&P identified four socialization mechanisms to direct states towards compliance: coercion, persuasion, incentives, and capacity building, each featuring various “modes of social action” such as i.e. sanctions & rewards, naming & shaming, discursive power, and institution-building. These mechanisms dependent on scope conditions such as regime type, consolidated/limited statehood, centralized/decentralized rule implementation, and material and social vulnerability. (2013, 12-22) Compliance is said to be higher i.e. in democratic than authoritarian countries suggesting that mechanisms like persuasion and naming & shaming will be more successful with the former and incentives with the latter.
However, when it comes to the level of commitment findings contradict this view: Hathaway shows that democracies with poor HR records are less likely to commit because treaties will lead to real changes in behavior, while countries with less democratic institutions are more likely to commit due to slim prospects of enforcement (2007). Moreover, Simmons points to democratic countries like the US, which are in principle committed but fail to ratify (“false positives”) and concludes in line with Moravcsik (2000) that transitional regimes bear most commitment potential. (2009, 58, 153) This affects the interaction between mechanisms and scope conditions and needs to be born in mind for the subsequent analysis.
Furthermore, G&J stress acculturation as a distinct social mechanism based on social and cognitive pressures, whereby states tend to assimilate upon assessment of their social relations rather than due to norm internalization or imposition of material sanctions. (2004, 639-643) Also, and most importantly G&J caution against a possible “crowding-out effect” of social mechanisms, finding that material and social incentives are often incompatible, and stress the importance of sequencing. (2013, 106;116) Finally, with view to the domestic level, Dai argues that HR treaties empower domestic constituencies, which in turn effect compliance (2005), while Simmons points to elite agenda-setting, litigation, and political mobilization as the main channels of influence. (Simmons, 2009) However, she thereby neglects to address how meaningful and possible these channels are. (Scheithauer, 2013)
In this sense, actor behavior theory suggests, among challenges, potential for the SR, which are vested with the strongest mandates among the HRCSP (L&P, 2014, 15), to facilitate the compliance process. First, they do so by facilitating the process of institutionalizing norms (G&J, 2004), through standard setting, interpretation and elaboration.
Within the debate on drone operations, major discussions on compliance between the SR and member states relate to conflicting interpretations of the law. For example, the US maintain that the HRC and HRCSP lack competence to deal with targeted killings carried out in the name of the “war on terror”. As she is in a state of war with terrorist suspects, IHL is applicable to the exclusion of HRL, which falls outside the scope of the SR mandate. (Abresh et al., 2008, 186) The UK holds a similar position concluding that the HRC is “[...] not the appropriate forum to discuss weapons on a thematic basis [...]” (UNOG (1), 2014) This fits with Clark’s assumption of countries exhibiting defensive behavior upon scrutiny starting to engage in different interpretations of their obligations. (2013, 144) But it also provides an example not corresponding to R&P’s finding on democratic regimes; nor can the US and UK be classified as “false positives” in Simmon’s sense. Nevertheless, we can agree with G&J that the applicability of social sanctions is questionable in this case. Such measure would require higher legal precision to be considered legitimate by sponsoring and targeted states. (2004, 684)
However, communications by the SR can be considered a valuable tool not only for bringing violations to attention, but also to elaborate on such standards and procedures. As stipulated in communications between the US and the SRESAE (Abresh et al., 2008), ECOSOC Res. 1235 (XLII) establishing the HRCSP requires thematic procedures to consider HR violations in all countries without limitation to particular treaties. (L&P, 2014, 7) The same goes for the SRESAE’s mandate, being defined by a phenomenon rather than a legal regime. (SRESAE Handbook, 2004-2010, 6). As to the complementarity of HRL and IHL, this is stipulated in the HRC’s Institution Building Resolution 5/1 (para.2) and was affirmed multiple times by the HRC endorsing the reports of the SR reflecting the affirmative views of various treaty and judicial bodies on this matter. (Abresh et al., 2008, 195-197)
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