Tools to Violate International Law: Armed Drones in Germany and the Government’s Legal Position

[Andreas Schueller directs the International Crimes and Accountability program at the European Center for Constitutional and Human Rights (ECCHR).]

The current German coalition agreement says that the German government “categorically rejects extrajudicial killings, also by drones”. Nevertheless, the German armed forces leased drones that can be armed – yet without the respective weapons. The German government declared that it will employ these drones only in accordance to the law. At the same time, German courts and many German academics (here, here and here) have assessed the government’s views on international law in the context in which armed drones are deployed as being unlawful. As long as these circumstances do not change, Germany should refrain from drone armament. Otherwise the German armed forces would be equipped with a tool that has facilitated other states’ violations of international law.

The coalition agreement furthermore says, “The German parliament will decide on arming drones after a comprehensive assessment of international and constitutional law as well as ethics.” What this “comprehensive assessment” would look like in practice remains unclear. In any case, the German Ministry of Defense organized a panel discussion on 11 May 2020, announced further events, and intends to submit a draft bill for parliament to discuss and vote on in June 2020. Hope remains that the government’s “comprehensive assessment” will include more than the Defense Ministry’s – hopefully controversial – panel discussions.

What’s it all about?

Primarily, the international law discussion concerns the question of whether expanding military force globally can be justified in accordance with the UN Charter. This mainly involves the use of force against non-state actors, for example in the fight against international terrorism. General Qasem Soleimanis’ extrajudicial killing by US drones in early January 2020, Turkey’s use of armed drones for example in northern Syria, and the deployment of China- and Turkey-made combat drones in Libya have all expanded the field of potential drone operations. The Soleimani case brought the topic of extrajudicial killings to the inter-state level.

Germany has remained silent about the US and UK’s extensive expansion of military force and  attempts to adjust international law to that aim. This mainly concerns the prohibition of the use of force in the UN Charter, international humanitarian law and the respective human rights protections.

A small group of countries openly state (for example in declarations under Article 51 of the UN Charter to the UN Security Council) that their legal opinion deviates from the decades-long, solidified interpretation of recognized exceptions to international law’s prohibition of the use of force. This is how they justify the use of military force (e.g. with armed drones) on other states’ territories. Those voicing this opinion are mainly the US and UK – two of the Security Council’s five permanent members – lending it powerful political weight.

A starting point for this opinion is the threshold determining whether the use of force can be justified in self-defense. Countries like the US and UK quickly interpret threats, attacks and assassinations of non-state actors as armed attacks that, within the framework of self-defense, justify a military operation in a foreign state without its consent. So far, the threshold has been interpreted rather strictly in order to prevent a reckless misuse of the prohibition of the use of force.

Another point of discussion is the intensity of counter-attacks (like drone strikes). Traditionally, a counter-attack should only serve to end the previous armed attack, and must not initiate a following attack. Here, the dimension of time plays a role because acts of self-defense must immediately follow an armed attack. Otherwise, they would constitute an unlawful reprisal. Counter-attacks should not occur massively ahead of attacks, nor to ward off an abstract threat. Preemptive strikes are only allowed within very narrow boundaries – they must be against imminent attacks, and proportionality must be considered.

Attack on the prohibition of the use of force

Germany mostly remains silent about international drone operations and breaches of international law. In some cases, however, the German government has commented in similar contexts. This is worrisome. While the German Foreign Office has initiated a multilateralism and international law campaign, the German government’s position risks damaging the global order of international law long-term.

On 10 December 2015, Germany issued an Article 51 Declaration to the UN Security Council concerning its participation in the anti-Islamic State coalition and the use of German Tornado aircrafts in Syrian airspace. Germany stated that ISIL’s armed attacks, for example in France, are sufficient to activate the collective right to self-defense under Article 51 of the UN Charter. This position implicitly assumes that the right to self-defense also applies against non-state actors and that the affected state’s consent – here, Syria – is not necessary because it previously lost control over parts of its territory to ISIL. The declaration is extremely short, and Germany has avoided explaining how the terrorist attacks in France reached a threshold of an armed attack. Nor does the government elaborate on the extent to which the right to self-defense applies when the affected state does not support the non-state group (as opposed to, for example, the Taliban government’s support for al-Qaida in Afghanistan in 2001), and even fights the non-state group on its territory itself (with coalition partners). The declaration gives the impression of this being common state practice and the dominant opinion in international law, which definitely is not the case.

If this legal opinion were applied to the use of armed drones, Germany could operate militarily around the world against non-state groups with stable territory that initiate terrorist attacks. Other states that do not feel bound by international law are already increasingly doing this, e.g. in Turkey’s cross-border drone strikes in Syria and Iraq. Step by step, this dissolves the UN charter’s long-established prohibition of the use of force in inter-state relations.

In one of the few court decisions that deal with the international prohibition of the use of force, the Higher Administrative Court in North Rhine-Westphalia ruled in its 19 March 2019 judgment (see English translation of the court’s summary of the decision here), that the initial attack must have a certain gravity in order to activate the right to self-defense. This must also involve temporal proximity: belated reprisals are just as unlawful as preventive strikes without an immediate and direct threat.

The German Ministry of Defense’s position in this case hardly deviated from the US position. While the German government stayed rather vague in its Article 51-declarations, its arguments before the Higher Administrative Court were much more extensive, surpassing previous arguments in international law. The German government supported the expansion of the right to self-defense, as well as the US position of preventive self-defense. This would allow for preventive self-defense in future, non-defined attacks. The court rejecting this view in its decision. The proceedings are pending before the Federal Administrative Court, as the Ministry of Defense appealed the case.

Does international humanitarian law restrict drone strikes?

Jus ad bellum is only part of the international law debate around the use of armed drones. Another question is whether a state is engaged in armed conflict if it exerts military force through drone strikes. If it is considered part of armed conflict, international humanitarian law would apply. Again, the question arises whether non-state actors can be parties to the conflict due to their structure, strategy and chain of command, and the level of intensity of an exchange of hostilities. Are individual terrorist attacks in different places around the world sufficient for reciprocal hostilities to become so intense that it can be considered an armed conflict? Hardly. One can only safely speak of a conflict situation when non-state groups fight on a determined territory, like ISIL did in parts of Syria and Iraq at certain points in time.

And if international humanitarian law applies, what is permitted? Who can be attacked lawfully? The principle of distinction applies and must be strictly followed. Algorithm-based air strikes on people who fulfill certain criteria of fighters, meaning legitimate military targets, but cannot be individually identified as such do not comply with the principle of distinction under international humanitarian law.

Laying the legal groundwork for international law violations

The German government’s legal position does not bode well for a “comprehensive assessment” of international law. Armed drones are – particularly for the US – the method of choice to enforce political aims with unlawful means. If Germany arms its drones, expanding its military operations e.g. in Mali and the Sahel could lead to a cross-border terrorist hunt with deadly force – in violation of international law. On paper, Germany has already prepared the legal groundwork for this step.

Author`s note: ECCHR, together with Reprieve, initiated and supported the above proceedings before the Higher Administrative Court in North Rhine-Westphalia.

A previous version of this blog has been published in German at Verfassungsblog.de:

Schüller, Andreas: Werkzeuge für den Völkerrechtsbruch: Die Drohnenbewaffnung in Deutschland und Rechtspositionen der Bundesregierung, VerfBlog, 2020/5/07, https://verfassungsblog.de/werkzeuge-fuer-den-voelkerrechtsbruch/.