Sample Article Review Paper on Unmanned Aerial Vehicles: Call for an African Union Resolution on the Use of Drones in Africa.

On March 15, 2013 Chief Judge Merrick Garland of the US Court of Appeals Circuit in
ACLU & Anor – Vs- CIA dismissed the CIA’s standard Glomar response to its
expanded and clandestine programme to carry out targeted killings on suspected
terrorist. Barely two months later, on 9 th May 2013 a Pakistani High Court at Peshawar
held that the continued use of drone strikes …”are a blatant violation of Basic Human
Rights and are against the UN Charter, the UN General Assembly Resolution …and a
violation of the Sovereignty”. Whereas not fully specific on the Human Rights
instruments violated, these judicial pronouncements point to an increasing
dissatisfaction by the International Community on the lack of a clear concise and
regulated use of the “CIA’s angry birds”.
This note, seeks to merely highlight possible violations to various rights including the
right to life, right to fair trial as well as the right to privacy all enshrined in the African
Charter and call upon the African Union through its various organs to promote more
transparency on the use of drones and foster the enactment of a continental regulatory
framework to govern the use of Unmanned Aerial Vehicles by western nations on
African soil.
The use of drones in the African Airspace has been on the steep rise. The latest
documented incident was on 27 th May 2013 when Al Shabaab allegedly shot down a
UAS Camcopter S-100 near the town of Buulo Mareer, Southern Somalia. The London
based Bureau of Investigative Journalism estimates that over 200 persons mostly non
combatants have been killed in Somalia since 2003. American drone support bases
have been reportedly set up in Arba Minch, Ethiopia, Seychelles, Camp Lemonnier
Djibouti and recently in Somali’s shell-crated international airport in Mogadishu. A 2012,
a study by Stanford Law School and New York University's School of Law cited that
there were more civilians and innocent residents killed in the drone strikes than militants
throughout the period of the drone program.
However, despite the exponential rise in the use of the CIA’s angry birds from above,
their legality, whether deployed to undertake signature strikes (in which the drones
targets suspicious-looking groups of people without knowing their specific identities) on
non-combatants, or to undertake unarmed reconnaissance missions in African has had
the very problematic effect of blurring the boundaries of the applicable legal framework.
Have these missions mirrored extrajudicial killings or even constituted an arbitrary or
unlawful interference with privacy?

Surprisingly, despite a decade of drone strikes, the legality of their deployment remains
void of any public administrative or meaningful judicial oversight, whether in domestic,
regional or even in continental Africa courts/commissions. While debate on legality of
their deployment is rife, human rights activists assert that this is murky at best and a
downright violation of human rights at worst thanks to the Glomar responses and the
veil of secrecy by the authorities. Sadly, “the angry birds from CIA” are here to stay.
The office of the UN Special Rapporteur on Extra Judicial, Summary and Arbitrary
executions, in report to the A.HRC.14.24.Add6 of May 28 th 2010 criticizes the use of
drones in targeted killings as “ a play station mentality that can only be justified when the capturing
the target with non-lethal tactics is impossible.” Ben Emmerson Q.C, UN Special Rapporteur on
Counter Terrorism and Human Rights on 24 th January 2013, launched an investigation
on the continued use of armed drones to undertake targeted killings. The report argues
that those States using this technology, and those States on whose territory it is used,
are under an international law obligation to establish effective independent and impartial
investigations into any drone attack in which it is plausibly alleged that civilian casualties
were sustained. Shouldn’t the African Union jointly with other independent Human
Rights Organizations probe the use of this technology in Africa? Why have these
authorities condoned the use of this technology amongst member states?
Use of Force
International law prohibits the use of force in the territory of other states, except in
narrow circumstances, including self-defense and consent.
Art 2(4) of the U. N Charter prohibits the threat or the use of force against the territorial
integrity or political independence of any other state.
“All Members shall refrain in their international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the
United Nations”
Indeed, UNGA Resolution No. 2625 (XXV) “Declaration of Principles of
International Law Concerning Friendly Relations provides:-
“Every State has the duty to refrain in its international relations from the threat or use of force against the
territorial integrity or political independence of any State, or in any other manner inconsistent with the
purposes of the United Nations. Such a threat or use of force constitutes a violation of international law and
the Charter of the United Nations and shall never be employed as a means of settling international issues”
The use of force may be only a lawful act of self-defense in response to an armed
attack or imminent threat of armed attack. Art. 51 of the UN Charter provides:-
“Nothing in the present Charter shall impair the inherent right of individual or collective self defense

if an armed attack occurs against a Member of the United Nations, until the Security Council
has taken the measures necessary to maintain international peace and security.”
Some scholars have argued that a state may use force in these circumstances even
without a host state’s consent, for so long as the host state is unwilling or unable to take
appropriate action. However, this argument is debatable. This note shall not delve into
the argument.
The resort to the use of force (drones) in self-defense (jus ad bellum) relates to issues
of state sovereignty; any U.S. operations in Africa whether on a 3 rd State or on the
drone-host State would still need to satisfy the applicable requirements of humanitarian
law (jus in bello) and human rights law. Further, the legality of reliance on Art. 51
(especially self defense in response to an imminent attack) by the US to undertake
targeted killings in Somalia, Northern Kenya and other parts of Africa needs further
Whereas the America’s (or any other States’) right to undertake acts of self defense, is
undisputable, it is imperative that the African States should address their minds to “how
much of an imminent threat of an armed attack threshold is required to trigger the right
under Art. 51?” .Credible sources cited by the Bureau of Investigative Journalism
indicates that out of the estimated 3,000 persons killed by drone strikes, the majority
were neither Al- Qaeda nor Taliban leaders. Instead, most were low-level operatives
engaged in campaigns against their own governments rather than plotting active
terrorist plots.
In light of the Glomar responses or the veil of secrecy by the CIA and the Pentagon’s
Joint Special Operations Command (JSOC) on the drones programme, have African
states condoned the violation of the Human Rights and International Law within their
territories or those of 3 rd States?
What is clear is that there are certain regional and international obligations that African
states and the African Union must adhere to while supporting/ condoning the use of
their territory as drone launch pads for such operations especially for purposes of
strikes or “intelligence gathering” in third countries .
Art. 3 (b) of the Constitutive Act of the AU provides that the objective AU shall be to:-
“Defend the sovereignty, territorial integrity and independence of its Member
It has been argued that the use of drones to attack certain non-state actors such as the
Islamic Courts Union or the Al-Qaeda in Somalia is impermissible because only armed
attacks by state actors’ triggers the right of use of self defensive force. The ICJ has
given a narrow interpretation of this right as only against state actors. (Legal

Consequences of the Construction of a Wall in Occupied Palestinian Territory, 2004,
I.C.J Para 139) [See also the Nicaragua’s Case] Whereas certain elements of the Al- Qaeda in Somalia have been sponsored or their
activities condoned by certain quarters of the Somali Authorities, their activities cannot
be wholly attributable to Somalia or even any other host state.
Human Rights Watch argues that for these attacks to be justifiable there must be an
armed conflict: hostilities must be between the United States and a group that is
sufficiently organized and must reach a level of intensity that is distinct from sporadic
acts of violence. Outside of an armed conflict, where international human rights law
applies, the United States can only target an individual if he poses an imminent threat to
life and lethal force is the last resort.
Art. 3 (h) of the Constitutive Act of the AU obligates member states to:-
“Promote and protect human and peoples' rights in accordance with the African Charter on Human
and Peoples' Rights and other relevant human rights instruments;”

Art. 23 (1) of the African Charter on Human & People’s Rights (Banjul Charter)
provides that:-
“All peoples shall have the right to national and international peace and security. The principles of
solidarity and friendly relations implicitly affirmed by the Charter of the United Nations and
reaffirmed by that of the Organization of African Unity shall govern relations between States.”
Whereas the AU and AU members states have an obligation to co-operate with other
states in the promotion of international peace and security, this note argues that such
co-operation ought to be within the confines of respect for human rights. This has been
well noted under Art. 3(e) of the Constitutive Act
(e) encourage international cooperation, taking due account of the Charter of the United Nations and the
Universal Declaration of Human Rights
As argued, Glomar responses coupled with little or no transparency on the use of such
technology has meant that drone-host states may have insufficient information on the
particular missions undertaken by the predator drones to confirm whether or not these
strikes violate human rights. Consequently, the use of African States’ territories such as
Arba Minch in Ethiopia to launch drone strikes in Somalia or even in Northern Kenya
may be a violation of the objectives of the Constitutive Act by such drone-host States.
The Republic of Djibouti, The Republic of Seychelles and The Federal Democratic
Republic of Ethiopia remain members of the AU and signatories of the Act.

Art. 3 of the UDHR, Provides that
“Everyone has the right to life, liberty and security of person..”
Art. 6 of the ICCPR, Provides that :-
“Every human being has the inherent right to life. This right
shall be protected by law. No one shall be arbitrarily deprived of his life”
It is therefore argued that the right to life extends not only to persons not only to civilians
in non- combat situations but also to persons involved in armed conflict. Indeed,
Art. 2 (1) of the ICCPR to which the African States are parties to provides that:-
“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals
within its territory and subject to its jurisdiction the rights recognized in the present Covenant,
without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.”

The legal provisions are endless.
More disturbing are media reports that, persons not actively involved in hostilities such
as rescuers, mourners and attendees of funerals of drone- strike victims, are
deliberately targeted by repeat drone strikes. Whereas it may be impossible to
independently verify these claims, it brings to the fore, the likely extra judicial nature of
these strikes which are a clear violation of Art. 3 of the UDHR and Art. 6 of the ICCPR
at the very least.
What Way forward?
While acknowledging the unlikely move to terminate the drone program, It is imperative
that accountability and respect for international human rights law as well as International
Humanitarian Law be respected. Certain human rights watchdogs have called for the
establishment of “a special court to evaluate and authorize use of lethal force” or “an
independent oversight board within the executive branch”
Time is rife for African Judicial bodies or even the African Court of Human and People’s
Rights exercise their mandates to uphold and protect the rule of law and safeguard
human rights in the region. The lack of a clear AU Policy or Resolution at the very least
calling for a legal framework on the use of or hosting of drones in the African Continents
is alarming.

Further, it is imperative that appropriate legal and operational structures are urgently put
in place to regulate its use in a manner that complies with the requirements of
international law, including international human rights law, international humanitarian
law (or the law of war as it used to be called), and international