Transparency, Accountability and Legitimacy—Chatham House Report on Military Drones in Europe, Part I

[Jessica Dorsey is an Assistant Professor at Utrecht University School of Law and Associate Research Fellow at the International Center for Counter-Terrorism–the Hague. Nilza Amaral is a Project Manager with the International Security Programme at Chatham House with expertise in drone technology and the conduct of war.]

Introduction

Two weeks ago, Chatham House published the research paper we authored, Military Drones in Europe: Ensuring Transparency and Accountability. This report is the culmination of two high-level expert workshops, a simulation exercise and two-years’ worth of research and analysis on issues related to the increase in armed drones procured and used by European states. The full text examines the proliferation of military drones in Europe and the challenges this poses, as well as the opportunities that arise for revisiting and recommitting to fundamental democratic norms and values such as transparency, accountability and the rule of law.

The first of our two-part contribution outlines the context of our report, including an overview of military drones in Europe, and Part II highlights legal issues surrounding transparency, accountability and legitimacy and offers a preview of recommendations and conclusions to policy makers within and beyond the European context. 

Why the Continued Focus on Armed Drones?

Readers of this blog will be familiar with the discussions over the years on armed drones. While the conversation has been ongoing, the use of this technology remains contentious, especially in conducting targeted killings outside of areas of recognized armed conflict. Questions arise related to civilian casualties, the rule of law, secrecy and the lack of transparency and accountability, among others. To date, there is no clear-cut consensus on how states answer these questions, despite the continued expansion and evolution of drone warfare. Some examples of this expansion include Pakistan, Nigeria, Iraq and Turkey, all of which have conducted drone strikes against targets within their own borders. Israel has done the same in Palestine. Turkey has been accused of violating Iraq’s sovereignty and the US launched a drone strike in Iraq, a country in which it was not in a recognized armed conflict, that killed Qassem Soleimani (Alonso Gurmendi wrote here and here on legal issues raised by this particular strike). As the number of states procuring armed drones increases, these examples can prove to be a dangerous precedent.

What’s the “Real” Issue—the Technology or the Policy?

Too often, discussions on military drones are littered with confusion and disagreement about what the “real issue” is from which criticism of armed drones stems—is it the technology (the weapons platform itself) or the policy driving how they are being used? We argue that it is both in tandem: the possibilities that this technology presents enable certain policy decisions, and conversely, these policy decisions would not be possible without the level of technical capability military drones afford. There is therefore an unbreakable link between military drone technology and the policies driving their use.

Furthermore, the criticism of how armed drones are being deployed is often met with pushback that it’s rather the activity of carrying out targeted killings than the machine doing so that is problematic. The argument often follows the line that killing individuals is also done by special ops forces or the CIA, for example, so why make the drone out to be the bogeyman? Our response is that these actions are not mutually exclusive. Certainly special ops forces and CIA killings warrant intense scrutiny, but as we argue in the report, this fact does not need to diminish efforts aimed at understanding what the particularities of military drones might be in areas of controversy.

Military Drones and Europe

Several countries in Europe already have or are in the process of acquiring military drone technology. The United Kingdom and France have already been using their machines to carry out targeted in various conflict zones. Italy has also deployed drones since 2005 and it has sought to arm them, but it remains unclear whether its drones are weaponized.

Germany has been deploying unarmed military drones for more than a decade, and leases drones that have the potential to be armed. There has been an ongoing debate in the German Parliament as to whether to arm their drones for the past several years, with the current Defense Minister in favor of doing so. Belgium and the Netherlands have recently purchased military drones from the United States, with the  Dutch parliament considering armament (see here, in Dutch). Poland also has plans for acquisition of military drones and Greece, amid tensions with Turkey, became the latest EU member state to announce its intention to acquire armed drones with leasing plans made with Israel. Switzerland has also leased drones from Israel and Serbia has acquired armed drones from China. 

In addition to individual countries’ efforts in acquisition, there are several joint European projects regarding development and acquisition. A few examples:

• European MALE Remotely Piloted Aircraft Systems project (RPAS) also known as Euro MALE RPAS or Eurodrone (France, Germany, Italy and Spain), a project that falls under the EU’s Permanent Structured Cooperation (PESCO) framework
• nEUROn combat drone demonstrator (France, Greece, Italy, Spain, Sweden and Switzerland
• Alliance Ground Surveillance (AGS) system (within NATO, a group of 15 allies)
• Tempest Future Combat Air System (FCAS) (Italy, Sweden and the UK)
• Under the European Defense Agency (EDA), seven EU member states formed a “drone users club” to share information and explore areas of cooperation in R&D of military drones (France, Germany, Greece, Italy, the Netherlands, Poland, Spain)

Additionally, a UK-France cooperation on FCAS demonstration program stalled in 2018 because of uncertainties related to Brexit and an FCAS development program involving France, Germany and Spain has recently encountered difficulties owing to alleged rifts between partner nations.

Though European countries each have their own nuanced approach to acquisition of drone technology and various discussions regarding weaponization, there has been a general increase in countries looking to acquire, expand or arm existing drone fleets over the past several years. Influenced by the changing nature of defense and security (including examples such as US disengagement from Europe and Russia’s military assertiveness), the growing interest from individual countries and the emergence of collaborative projects like those mentioned above, Europe will likely see further drone proliferation in the coming years.

Outlined in its 2016 EU Global Strategy Document, Europe is seeking a more strategic approach to security and autonomy. Part of this plan includes bolstering defense cooperation amongst member states and investing in defense industries. Two of the means the EU has for this end are PESCO and the European Defence Fund (EDF), the latter being the first framework in history to offer investment supporting defense cooperation amongst member states. There are currently 25 member states engaged in 46 different projects under the auspices of PESCO, including the Euro MALE RPAS mentioned above, which has already been allocated €100 million.  

The EDF, with a budget of €13 billion from 2021-2027, is also meant to increase cooperation amongst member states and it aims to fund research in innovative defense technologies. Up to 8% of this budget is allocated to funding innovation in disruptive technologies, which are meant to bring transformations and changes in the military and keep Europe on the cutting edge for strategic purposes. Such investments, as relevant to military drones include detect and avoid systems, computing platforms, space technologies, (including a satellite surveillance system),  missile systems, electronic attack capability and active stealth technologies, among others. Some of these can be integrated with the use of military drones much in the same way the US Department of Defense’s Algorithmic Warfare Cross-Functional Team (a.k.a. Project Maven) has already been doing.

Several European countries have been associated with using armed drones in ways that have been controversial, including by launching or facilitating drone strikes that have prompted questions and concerns over legality, state responsibility and civilian casualties. For example, the UK launched a drone strike that, killed British national Reyaad Khan in Syria, without Parliamentary approval to do so, and RAF Reaper drones were operating outside of Operation Shader, with the UK Ministry of Defencewithholding information regarding the nature and location of those missions.

In Germany, US use of the Ramstein Air Base, a crucial satellite relay station, has prompted accusations of complicity with US drone strikes outside formal conflict zones, which have found their way into German courts (see here and here).

Italy, which has allowed the US to launch armed drones from Naval Air Station Sigonella has also come under scrutiny. Furthermore, several European countries have been providing the US with intelligence subsequently used to locate and identify targets for drone strikes, raising legal questions about the role of these countries in unlawful drone strikes. Under Article 16 of the International Law Commission’s Articles on State Responsibility, a state can be found internationally responsible for aiding or assisting another state in the commission of an internationally wrongful act if (a) it does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that state (see further analysis here). Article 16 is an important additional obligation that attaches ancillary responsibility to those that aid or assist in the commission of a violation of international law. There are similar rules to Article 16 in IHL and IHRL themselves, which in some ways are broader in scope –e.g., Common Article 1 to the Geneva Conventions requires states to ‘respect and to ensure respect’ for the Conventions (see also para. 220 of the Nicaragua case); human rights treaties and treaty bodies have confirmed positive obligations onstates to protect those within their jurisdiction from harm by others (states and non-state actors).

Stay tuned for Part II of our contribution, which will address transparency, accountability, legality and legitimacy issues and offer a way forward in the recommendations for a best-practice document, spearheaded by the EU and the UK.