It would be of benefit to both the EU and the UK to work together on developing guidance on best practices for improving transparency and accountability around the use of armed drones.
With more and more countries acquiring armed drones, there is a risk that the controversies surrounding how drones are used and the challenges these pose to international legal frameworks, as well as to democratic values such as transparency, accountability and the rule of law, could also increase. This is accentuated further, given that the use of drones continues to expand and to evolve in new ways, and in the absence of a distinct legal framework to regulate such use.
It cannot be assumed that European countries will use drones to conduct targeted killings outside armed conflict, or in the same permissive ways as the US has done so far. Nonetheless, given the interest that the EU has in supporting a rules-based international order, and given that it was founded on principles that include democratic values and respect for human rights, the EU has an opportunity to play an important role in shaping the norms concerning how drones are used in future. The troubling implications surrounding the use of armed drones should not be left solely as a concern for countries that may use them in permissive ways, particularly as those countries would arguably have the least interest in addressing such challenges. By demonstrating their willingness to address those implications, European states would keep those issues in the political agenda and could potentially exert some pressure for positive change. Furthermore, in light of indications that some activities on the part of European countries may feed into what could be unlawful drone strikes by the US, it is also important to ensure that this is not the case, especially as individually wrongful actions could incur criminal prosecution before domestic or international courts.
With this in mind, the EU could spearhead the development of a guidance document on best practices for improving transparency and accountability mechanisms for the use of armed drones. While it is the case that a legally binding document would make for a stronger legal framework, this would require a level of unity and commitment among EU countries that would be difficult to achieve, and might therefore end up stalling attempts at reaching a common understanding on armed drone use.
In light of indications that some activities on the part of European countries may feed into what could be unlawful drone strikes by the US, it is also important to ensure that this is not the case, especially as individually wrongful actions could incur criminal prosecution before domestic or international courts.
Although the UK has now left the EU, it should take part in this process too; not only because it shares the same democratic values as those on which the EU is founded, but also given that, with the publication in March 2021 of its Integrated Review of Security, Defence, Development and Foreign Policy, the UK government has signalled its intention to adopt a more active role in shaping the international order of the future, including with the aim of protecting democratic values and the rule of law. The UK is also one of only four European countries so far confirmed as possessing armed drone capabilities – the others being France, Serbia and Ukraine. Hence it is one of the few ‘drone powers’ in the region, which makes it fundamental that it should be brought into the fold. Moreover, after the UK set a precedent for conducting drone strikes outside military operations, and – as discussed above – shifted towards a broader conception of imminence, it incurred heavy criticism concerning the lack of transparency and accountability that this development has brought. It would therefore be of benefit to both the EU and the UK to collaborate on developing guidance on best practices to improve measures for transparency and accountability around the use of armed drones. In addition, with decisions on the use of armed drones being surrounded by complex issues of legality, as well as by national security imperatives and military strategies, it is imperative that these be given due attention in any such guidance.
Developing a best practices guide
The suggestions put forward here are informed by discussions that took place at a workshop at Chatham House in 2019. The authors are especially thankful to all the experts who contributed to the discussions, and remain solely responsible for the content and for any omission.
Improving transparency
The language used when including transparency requirements in national policies must be such that it will bring governments into the fold, and should therefore recognize the need to take national security into account. The existence of different legal systems in different EU member states must be given further consideration and must be taken into account in any kind of guidance document.
A best practices document could include the following measures for improving transparency:
- The provision by states of their legal and policy guidelines, both on the use of armed drones, and on the sharing of information that may feed into targeted killings;
- The publication of national government policies on security assistance;
- The publication of the relevant rules of engagement by countries using armed drones outside armed conflict zones;
- The publication of risk assessments regarding IHL, IHRL and civilian casualties;
- Details of a national process on decision-making regarding drone strikes;
- Reporting requirements for civilian casualties that detail the age, identity and affiliation of intended targets – while recognizing such a level of accuracy may not always be possible.
There should be separate consideration (in terms of transparency measures) of activities that feed into drone strikes at different levels, as set out in Table 4.
