In November 2019 Chatham House hosted a one-day role-playing simulation exercise to explore reactions, responses and decision-making around the use of armed drones, with a focus on legal, military and political considerations. Rather than reproducing the exact conditions and role functions under which decisions on drone strikes are made, the simulation was designed as a learning exercise, bringing together drone experts from different backgrounds to exchange knowledge and think collaboratively about critical areas concerning the use of armed drones. This was achieved through the creation of a fictional scenario, presented through the introduction of injects to the exercise during the day.
Role-playing participants included experts from military and academic backgrounds, as well as civil servants. A separate group of experts, mostly from the NGO sector, also had the opportunity to observe the exercise and listen to the deliberations. Focused on legal, military and political aspects, the discussions that took place during the simulation exercise highlighted the challenges involved in the decision-making process and drew out key issues that had a significant impact on the final decision.
The simulation exercise also involved a one-hour session that was open to Chatham House members. This was held as a fictional press conference, at which, after a montage was presented summarizing the events leading to the final decision, questions were posed on that decision to preselected representatives of the decision-making group. This format ensured that, in preparation for the session, the decision-makers would consider what justifications they were willing to give publicly for their final decision.
The context
Participants were assigned the role of advisers as part of one of three different groups, focusing on the legal, military and political elements involved in the decision-making process concerned with launching a drone strike.
The scenario was based on deciding whether drone strikes should be launched in response to an attack by a proscribed terrorist organization (henceforth referred to as PTO) known to have a global network of fighters. The attack took place during a joint conference of military officials representing several countries engaged in an international coalition committed to preventing and suppressing terrorist acts committed by PTO. Several people were killed and others were seriously wounded in the attack, including military officials attending the conference and civilians who were in the vicinity at the time.
The international coalition had a UN mandate to conduct operations against PTO, but not in the country where the attack was carried out. The suspected leader and other members of the cell claiming responsibility for the attack were also located in countries not covered by the UN mandate. Members of this cell included five foreign fighters with dual nationalities that involved four countries in the coalition. The foreign recruits were suspected to be part of the communications arm of the cell, specifically working in the online propaganda and recruitment magazine published by PTO.
Signals intelligence indicated that several members of the cell were hiding in an abandoned storage facility. Video footage captured through drone surveillance indicated a high level of activity between the storage facility and a nearby building, suspected to be in use to store weapons and weapon-making technologies, with armed men being observed carrying what appeared to be equipment such as PVC pipes, large quantities of rocks and stones, shipments of hundreds of concave copper discs, and barrels of ammonium nitrate. These activities took place most evenings between 20:00 and 23:30.
There was evidence that many of the men present during these evening activities travelled weekly to a neighbouring country. Video footage showed convoys of eight to 10 vehicles travelling each Wednesday from the airstrip to a nearby village, where approximately 20–25 suspects gathered for two to three hours of meetings within a safe house. A group of approximately 25 children were seen playing football in the adjacent building for the duration of the meetings. On disbanding, half the vehicles returned to the airstrip and the other half dispersed elsewhere in the village. The football game stopped once the meetings disbanded.
Intelligence suggested that the attack on the joint conference could be the first of many to be carried out against high-level military and political officials from coalition countries in various locations, with unverified evidence pointing to an attack in the near future but without any clear indication on where it might take place. A Joint Task Force (JTF) comprising representatives of European countries directly affected by the attack had immediately been convened to respond to the situation, with political pressure from the main global power within the international coalition (but not represented in the JTF) for decisive action, via drone strikes, against those responsible for the attack.
At this point, the JTF decided not to launch a drone strike, citing the following legal reservations:
- Lack of clear consent for military action from either of the countries where those responsible for the attack were found to be located;
- There was no clear evidence that an imminent attack was to be launched, nor any intelligence regarding where this might be, therefore precluding the resort to self-defence;
- There was a risk of significant civilian casualties if a drone strike was to be launched.
One week after this decision, simultaneous attacks took place in two European capitals, with the suspected leader and one associate in the same terrorist cell claiming responsibility and threatening more attacks. While there was intelligence on the exact location of the perpetrators for a short period of time, there had been no change to the context, except for increased political costs of not taking decisive action. At this point, the decision on whether to launch a drone strike was therefore mainly seen as a political decision. This also led to pressure for legal advisers to come up with a justification for action. There was, however, no agreement on whether to launch a drone strike in the required time, and the window of opportunity was missed.
Key determinant factors in the decision-making process
Legality
During the simulation exercise, much of the discussion revolved around what the law was or was not able to permit. Participants who had assumed roles as legal advisers were very careful to sketch the contours of the (in)abilities to launch strikes under the regime of self-defence, asking political and military advisers to clarify what kinds of self-defence they envisioned – turning largely on whether the first strike could be classified legally as an armed attack. The legal advisers outlined that the options were collective self-defence (where a territorial state could ask for assistance under the UN Charter) or self-defence for coalition states (though this option was legally insufficient). Other issues that were key in the decision-making process were the contours of consent (i.e. who are the legitimate actors who could give consent to a strike on a state’s territory), and the extent to which an extension of imminence was recognized and whether ‘ongoing imminence’ was legally valid as a defence. A discussion took place regarding states that were unwilling or unable to respond to the threat posed. Issues concerning who could legally be targeted came up in the discussion, and participants noted that their own citizens (dual nationals) could not be targeted. The majority of this discussion was enveloped in the reference to self-defence, since the legitimacy of a target in this situation fell outside the ambit of IHL, given that the simulation outlined an area not within a recognized armed conflict.
Participants were very concerned about, and had a heightened awareness of, civilian casualty issues and considerations. There was a desire, from some, to use the controversial ‘unwilling or unable’ standard regarding self-defence, but this was driven by political or military considerations rather than a purely legal rationale (in the quest to find legal cover for a strike action). Participants were very interested in taking the strike, and looked for ways to get the legal coverage (e.g. asking for more intelligence, finding more support for territorial state consent). The law played an important role, but in a way that reflected its inherent vagueness or flexible nature. This openness to interpretation led to situations in which political and military (and at times even legal) advisers looked hard to find a path to justify the strike and permit the use of force. Ultimately, however, the legal arguments and ‘attachment to international law’ were the reasons the decision not to strike was taken. One conclusion that can be drawn from this exercise is that having more clarity on legal interpretations could allow for a more legitimate understanding of the use of force potential in situations of counterterrorism operations. Initiatives such as an EU common position on the use of armed drones could provide one avenue for this.
Intelligence
The discussions highlighted that conducting pattern-of-life surveillance to obtain detailed and up-to-date information on potential targets is crucial in guiding decisions on drone strikes in counterterrorism operations. Required intelligence on individuals includes not only positive identification and physical location, but also their specific role within PTO – for example, whether someone is involved in combat as distinct from propaganda activities. In order to prevent or minimize the risk of civilian casualties, obtaining precise details on the local area is also key, including gathering information on nearby buildings and facilities, as well as on their occupants, visitors and their activities. Intelligence required on PTO includes details of its leadership as well as on its resources and capabilities. It was also highlighted that when access to information is limited or inadequate it becomes very difficult to take decisive action. However, it was pointed out that this can be the case in real-world settings in which a decision must be taken regardless.
Military options and strategy
With the simulation exercise designed to explore decision-making on drone strikes, no options were made available to employ means other than armed drones to target members of PTO. However, a set of different military options – including other targeting options, working with local forces, sending in special operations forces, or resorting to non-kinetic means such as a cyber response – would be considered in real-world settings, to determine how best to weaken or subdue an adversary. Participants with a military background were also keen to emphasize that decisions on the use of force are guided by a clear military strategy, to ensure that any desired goals are achieved successfully.
Political considerations
At the political level, the discussions highlighted how, when different countries are involved in military operations as part of a coalition, it is important to maintain cohesion across partners and therefore any course of action should be acceptable to all. Access to precise and up-to-date intelligence was also deemed essential to guide decisions over drone strikes, to ensure there would be no subsequent political fallout if information was later found to be erroneous. The risk of civilian casualties was a key element in guiding decisions; and, while bearing in mind that all necessary IHL requirements on proportionality and discrimination should be met, the question of whether civilian deaths should be acceptable or not was ultimately seen as a political rather than a military decision. It was also considered that states interested in promoting and defending a rules-based order must show leadership on this by abiding by international law and norms.
The press conference
During the press conference, questions were asked concerning the decision not to launch a drone strike in response to the attack on the joint military conference, with journalists suggesting that a strike at that time might have prevented the attacks in European capitals. In answer to these questions, the expert participants maintained that a legal threshold for launching drone strikes had not been met; and insisted that the rule of law is fundamental and therefore any obligations under international law must be followed. Related to this, the experts highlighted 1) the high risk of causing civilian casualties; 2) that there was no legal case for action to be taken on the basis of self-defence; and 3) that there was insufficient evidence of consent from the territorial state on which a drone strike would have been launched.