Transparency and accountability contribute to establishing legitimacy and credibility of operations, along with legality, and ultimately strengthen democracy and the rule of law at all levels.
Often in discussions around armed drones and targeted killings, recommendations emerge that urge greater transparency and accountability on the part of states and actors deploying drone technology. However, it is rarely clear what is meant by these notions and what their adoption would mean in terms of operational requirements (both from a legal perspective and related to their political costs in outward-facing military campaigns). In this regard, calls for transparency are relevant not only in relation to where, when and how armed drones are being deployed, but also to the legal framework within which states have the ability to deploy drones in the first place. This section will not examine in depth the legal framework requirements in targeting decisions of the jus ad bellum (the laws governing the conditions under which states may resort to the use of force), IHRL and IHL, as this has been done elsewhere, but it will note some requirements for transparency under each of the regimes.
Transparency is valuable to all actors involved in using armed drones, as well as to other stakeholders, such as civil society and communities that are affected by uses of force from armed drones. It must be noted that transparency and accountability, though intimately linked, are separate notions: both, however, require the provision of detailed information. As Jessica Dorsey wrote in 2017:
Transparency merely ‘links access to information with accountability and oversight – in short, the existence of checks and balances on power’. It is also important to note the need for nuance regarding levels of transparency in a political sense as opposed to a military sense, in which transparency may have to be limited for reasons of operational effectiveness. Political transparency is the main focus of the next section: the concept entails an outward- or public-facing ability to transfer information, disseminating it to the general public in an open manner through publication, debate and civil discourse.
Transparency rationale
As a study by Columbia University found:
The rationale for transparency in military operations is intimately connected with the notion of accountability, both in a legal sense and with respect to the legitimacy of operations. Under a human rights framework, transparency is crucial in understanding when violations of fundamental rights (e.g. the right to life) occur, and it is key to the notion of accountability for those violations. Under the framework of IHL, the issue is brought more sharply into focus through the lens of legitimacy. As Laurie Blank remarks: ‘In recent years, legitimacy’s central issue has morphed from the justification for the use of force to the measure of international law compliance in the conduct of war.’
The content of transparency obligations
Engagement with the process of adopting elements of transparency or accountability could be spearheaded at regional level by the EU: this process would be better framed as having its basis in guiding principles and best practices, rather than as requiring the adoption of a formal (legal) position. A legally binding document would make for a more robust framework on the use of armed drones; however, given political considerations such as acquisition and maintaining relevance for defence forces, this will likely be more difficult to achieve. Any kind of language regarding transparency at the national level must be driven by governmental actors and must include specific reference to national security, though this must not be used to preclude a reasonable amount of access to information. When it comes to civilian casualties, for example, governments should strive to provide information on the age, identity and affiliation of intended targets, although the provision of information with such a high level of accuracy may not always be possible. Interaction between governments and civil society organizations is highly desirable, especially between and among those actors who are producing differing statistics on civilian casualties versus combatant or military target casualties. Through increasing opportunities for dialogue among multiple stakeholders, the level of transparency should improve. Only an open dialogue can overcome the challenges outlined above, providing an opportunity to improve military operations and to mitigate civilian casualties in situations where force is used outside of recognized armed conflicts.
Transparency benefits for multiple stakeholders
The international community and the general public
It is integral to the legitimacy of operations involving the use of armed drones, especially outside of recognized armed conflict, that all actors provide full transparency. Common interests, shared by the international community, also warrant this. As highlighted later in this paper, transparency and accountability contribute to establishing legitimacy and credibility of operations (along with legality) and ultimately strengthen democracy and the rule of law at all levels.
States
Achieving greater levels of transparency is also in the interest of states. As the UN’s Office for Disarmament Affairs (UNODA) reported in 2015, through greater transparency and a more robust accountability and oversight mechanism, mutual confidence in adherence to relevant international law can be increased; the unlawful use of armed drones and related technology by others can be prevented; and civilian protection can be improved. In line with European values and fundamental freedoms, greater transparency can promote international peace and security, as well as the legitimacy of any counterterrorism operations that states may undertake; it can assist in any necessary investigation of violations of human rights; and it can facilitate the implementation of relevant export controls at the national and international levels.
Militaries and military operators
In operational contexts, a shift to greater transparency can also contribute to an evaluation of the effectiveness of certain tactics in countering terrorism or during particular military operations; it can promote debate and facilitate trust-building in international relations. Furthermore, it can facilitate engagement on difficult issues and allow for existing concerns to be given consideration. For militaries, transparency can be an asset in controlling the narrative and shaping public perception about particular operations or missions. By providing timely and accurate information on the use of armed drones in counterterrorism operations, states can also shape the narrative regarding extremism. Post-strike investigations and the publication of available data can counter the dissemination of inaccurate information and garner public trust in the operational value of the military strike in question.
For militaries, transparency can be an asset in controlling the narrative and shaping public perception about particular operations or missions.
Another benefit of transparency concerns the well-being of armed forces, in that they are enabled to speak about their own experiences, albeit within the confines of legitimate military and national security interests (see Transparency challenges, below). For example, a Dutch pilot involved in an F-16 airstrike in 2015 on the Iraqi city of Mosul in which four civilians were killed was not authorized to speak about the incident, and was therefore unable to address some of the psychological aftermath he suffered as a result of the strike. This kind of experience, from pilots of more conventional aircraft (such as the F-16, as referenced here), may be compounded for drone pilots, given that operators are, in many cases, much more intimately connected to their target through the surveillance capabilities of the platform, having observed them for sometimes hundreds of hours. Some studies have indicated that as many as 75 per cent of drone operators can experience grief, remorse and sadness, with many being affected by these feelings for a month or longer. The US Air Force has reported that some analysts in the ‘kill chain’ have a higher exposure to graphic violence (specified as viewing ‘destroyed homes and villages’ or seeing ‘dead bodies or human remains’) than do their Special Forces counterparts operating on the ground. Additionally, for these analysts and operators, not being able to speak about their experiences is detrimental to the optimization of operational capability.
Some commentators are eager to point out an important distinction between military transparency (i.e. regarding military operations and the need for operations security – OpSec) and political transparency (i.e. information about armed drone operations, available to the public at large). Some military analysts argue that OpSec limits the possibilities of transparency before operations (although after they are conducted, OpSec may not hinder releasing particularly relevant information about the operations to the public at large). This is an intriguing distinction to note, and could be a prime area for future research and clarification.
Transparency challenges
Often, transparency (and concomitant accountability) is avoided when access to information is denied on the grounds of national security. This links specifically with the right to information for the general public and the perception of legitimacy and the rule of law. Although there are indeed times when operational sensitivities rightly prevent a full disclosure of information by states, that should not provide carte blanche for those states not to share non-sensitive information about general legal and policy frameworks for the use of armed drones, for the reasons outlined above. It is noteworthy in this context to point out that the Global Principles on National Security and the Right to Information (Tshwane Principles) offer guidance on this issue that may assist states in formulating their own policy and operational guidelines. Principle 3 (Requirements for Restricting the Right to Information on National Security Grounds) reads as follows:
In summary, an appropriate level of transparency is overwhelmingly in the interests of multiple stakeholders in military operations, including – but not limited to – the international community and the general public, states, militaries and their operators. Therefore, the highest possible levels of transparency are desirable in the context of the use of armed drones, especially in situations in which they are deployed beyond recognized areas of armed conflict.
Accountability challenges
Many issues come to the fore in respect of accountability challenges. ‘Accountability is the act of ensuring that relevant officials or institutions are answerable for actions, and that there is recourse in situations where obligations are not met.’ This notion ‘implies consequences for wrongdoing and efforts to prevent it from reoccurring’; it also implies a relationship of power.
As detailed above (see Transparency benefits for multiple stakeholders), the 2015 study by UNODA outlined several reasons why, in the specific case of armed drones, it is in states’ best interests to establish full transparency, together with oversight and accountability mechanisms.
The international law of state responsibility sets a general principle of reparations for any violation of international law, and this is augmented by more specific rules in other areas of law, such as IHRL and IHL. Within human rights, an integral element of the modern conception of the rule of law is the following principle, cited in the 2013 report to the UN General Assembly of the then UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns: ‘[…] those responsible for violations must be held to account. A failure to investigate and, where applicable, punish those responsible for violations of the right to life in itself constitutes a violation of that right.’ Only in situations where the public has access to relevant information can there be a meaningful and effective path to enforcing international obligations and overseeing adherence to the same. Heyns goes further, noting that whenever violations of IHL or IHRL occur, states have a duty to provide accountability.
IHL also outlines states’ obligations as regards accountability in cases where individuals are alleged to have breached the rules of armed conflict. The Geneva Conventions contain a number of provisions (e.g. Common Article 1, the provisions related to grave breaches of the Conventions; and Additional Protocol I on the protection of victims of international conflicts) that specify when investigations into alleged crimes must take place. This includes, for example, when there are allegations of the civilian population or individual civilians being the object of attack. Article 91 of Additional Protocol I states:
Some commentators view this as containing an individual right to compensation for victims of IHL violations.
Furthermore, the EU has recently published its Guidelines on the Promotion of Compliance with International Humanitarian Law, which ‘set out operational tools for the EU to promote compliance with international humanitarian law (IHL) through its relations with the rest of the world’, based on the obligations set forth in Article 3(5) of the Treaty on the European Union, which stipulates the values on which the EU is founded (principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law).
Accountability benefits for multiple stakeholders
The international community and the general public
Accountability is fundamental if states are to uphold their commitment to the international rule of law. Holding wrongdoers to account increases perceptions of legality and legitimacy, and can serve to strengthen the rule of law. As Deidre Curtin and André Nollkaemper write, accountability is an ‘instrument to secure control of public power’; and Robert Keohane has also pointed out that: ‘Properly applied, it can be a useful tool to limit abuses of power.’
States
In coalitions and partnerships, understanding that a state is committed to following the rule of law, and enforcing this through accountability mechanisms if and when things go wrong in military or counterterrorism operations increases trust among allies or partners and establishes clear grounds for cooperation, based on a shared vision and understanding of legal, ethical and moral obligations in joint operations. The residual effect of this trust among states is also felt at the level of a state’s own public. The public perception of respect for the rule of law thereby leads to an increase in trust in the legitimacy of operations.
Militaries and military operators
A full and open internal accounting mechanism allows for improvements to be made in military process, including acknowledging if and when operations go awry. This helps in establishing international standards for the respect of the rule of law by giving the chance to integrate best practices into rules of engagement for future operations. Song Tianying has outlined a number of reasons why accountability is in the best interests of militaries themselves, including strengthening legitimacy and public support, providing military advantages (including efficacy, economic benefits and the realization that violations are counterproductive to military operations), and fostering reciprocal respect (respect of the rules by one party may encourage the same from other parties, just as, conversely, violations may do the same), as well as core values and personal integrity (adherence to core IHL values has positive effects on the morale of the military, and civilian deaths have the effect of making military operators feel violated themselves). Roberta Arnold echoes these sentiments when she notes: the ‘misconduct of a few servicemen may have a boomerang effect not only on the deployed troops, who may lose the hearts and minds of the host nation’s population, but also on the sending state’s government, which may lose the necessary political support for the continuation or deployment of similar operations.’
The intersection of legality, transparency and accountability
Many of the aforementioned values and functions of transparency and accountability rely on the adherence to the rule of law, or are adjacent to its being respected and enforced. When the three elements are balanced for stakeholders, they overlap and result in a functional level of legitimacy of operations, benefiting military operators, militaries, coalitions, states and ultimately the international community. If one of the three elements is lacking or less in focus than the others, this imbalance will also affect the perception and democratic legitimacy of the operation.
Military actors are interested in the perception of their operations as legitimate: in fact, some argue that it is at the heart of the success of any military operation. As Larry Lewis and Diane Vavrichek point out – with reference to US operations, but equally relevant to other (European) allies:
The value of democratic legitimacy is also important politically, with respect to the continuation of missions or the joining together of allied forces in particular operations. Three main factors are at play here: legality of operations, transparency and accountability (oversight). When these factors are in balance, legitimacy of operations is at its highest. This also serves to further reinforce respect for the rule of law, keeping the rule of law viable and keeping intact a strong system of international security. See Figure 1 for a visual rendering of this concept.
