By a large majority, the European Parliament passed a resolution condemning “the use of armed drones outside the international legal framework” and calling on the European Union to “develop an appropriate policy response at both European and global level.” The Parliament’s call for the EU to adopt a defined position on targeted killing with drones is certainly welcome; it is striking that the EU has not yet made any real effort to develop a common stance on the use of armed drones outside battlefield conditions, despite the widespread concern in Europe over the United States’ use of drones in such circumstances and the likelihood that the proliferation of remotely piloted aircraft will accelerate in coming years. However despite the EP’s resolution there appears to be little momentum for the EU to come up with a more coherent and defined policy on drones and targeted killing in the near future. It is also likely that at least some EU member states would reject parts of the interpretation of the legal framework governing drone strikes that the resolution adopts.
As the resolution observes, the use of drones in extraterritorial lethal operations “has increased steeply over the past decade.” The resolution also points out that several EU countries are keen to launch a program that could lead to the development of a European drone that could be used both for surveillance and military strikes. Beyond this, a number of EU member states are seeking to acquire, or considering the acquisition of, armed drones, and the UK of course already employs them. The EU has condemned targeted killings conducted by Israel in the past, but it has not come up with any official response to US drone strikes conducted in the years since 2001, or to the policy announcements that the United States has made on the subject. By failing to develop a common position, the EU is forfeiting the chance to contribute to a global debate about the appropriate legal standards for extraterritorial drone strikes. If another country (such as China) were to conduct a drone attack against a proclaimed enemy fighter outside its borders in the near future, it is hard to see how the EU could respond with any credibility.
Nevertheless, despite the public concern reflected in the cross-party support for the Parliament’s resolution, there are several reasons why we are unlikely to see a common EU position on drones any time soon. The resolution was drafted to emphasize the common European dimension to the issue, but security policy remains an area of member state competence, so any policy statement would require the support of all EU members. European countries remain strongly divided about the desirability of adopting a common policy in this area. Attempts to promote a discussion of the European position on drones or to put the subject on the agenda of official EU-US international law dialogues have faltered in recent months because of the opposition of some member states.
Several countries (with the United Kingdom and France in the lead) are wary of endorsing any statement that could be seen as accusing the United States of violating international law. Moreover, for EU member states that cooperate closely on intelligence and security questions with the United States, drone strikes are an immensely sensitive topic, because of uncertainty about the standards that should guide the sharing of intelligence that could be used in drone strikes. The UK, Germany and Denmark have all faced lawsuits or public controversy in recent months because of allegations that their intelligence services were complicit in US targeted killings.
The EP’s resolution rightly highlights this issue, calling on member states to ensure that they do not “facilitate such killings by other states” and that “where there are reasonable grounds for believing that an individual or entity within their jurisdiction may be connected to an unlawful targeted killing abroad, measures are taken in accordance with their domestic and international legal obligations.” The need to make clear to their citizens that European countries are not complicit in actions overseas that are incompatible with their understanding of international law would seem to require governments to clarify their standards for intelligence sharing under such circumstances. But so far the sensitivity of the issue has apparently acted to discourage states from divulging any information about their approach to the subject or from getting involved in EU-level attempts to formulate a common position.
Finally, although EU member states are united in their rejection of the US argument that it is engaged in a global armed conflict with al-Qaeda, the Taliban and associated forces, there are some important questions on which European countries are divided or have not yet worked out their position. EU member states that are most involved in military operations tend to worry that other European countries might approach some of these questions without sufficient expertise or understanding about the realities of conflict. The European Parliament resolution glosses over some of the points on which European policy is unsettled, and could even be taken by member states as illustrating the kinds of dispute that attempts to forge a common EU position might embroil them in.
Among the potentially controversial points in the EP resolution are:
The use of lethal force across state borders in a conflict against a non-state group. The resolution asserts that “international humanitarian law does not permit the targeted killing of persons who are located in non-belligerent states.” If this means that conflicts against non-state groups must be confined within the geographical territory of a single state (so that, for instance, fighters in Pakistan could never be targeted as part of the conflict between NATO forces in Afghanistan and the Taliban) it is far from clear that all European governments would agree.
The jus ad bellum considerations governing strikes in the territory of a state without its consent. The resolution proposes that “drone strikes outside a declared war by a state on the territory of another state without the consent of the latter or of the UN Security Council constitute a violation of international law and of the territorial integrity and sovereignty of that country.” The EP’s language here is somewhat imprecise, but many EU member states would recognise a right to respond to an armed attack by a non-state group when the state in whose territory the group is based is unable or unwilling to stop the attack.
The obligation to conduct investigations after drone strikes. The resolution asserts that “in the event of allegations of civilian deaths as a result of drone strikes, states are under the obligation to conduct prompt, independent investigations and, if the allegations are proved correct, to proceed to public attribution of responsibility, punishment of those responsible and provision of access to redress.” Again, the resolution is somewhat unclear – for example, it is not specified whether this provision applies only to strikes outside battlefield conditions, or is even intended to address only strikes outside the context of armed conflict. Some EU member states may be uncomfortable with the suggestion that there is an obligation for an independent investigation whenever civilian deaths are caused by a military strike outside battlefield conditions (for instance if the strike is nevertheless directed against a member of enemy forces within the framework an armed conflict).
For these reasons the EP’s resolution is not likely as it stands to provide the foundation of a common EU position on drone strikes. However there is at least one aspect of the resolution with which all European states would almost certainly agree: the call for the EU “to promote greater transparency and accountability on the part of third countries in the use of armed drones with regard to the legal basis for their use and to operational responsibility…” EU member states should heed this call to maintain pressure on the United States to go much further in clarifying its rules for drone strikes and providing information about individual attacks.
In the meantime, the case for the EU countries individually and collectively to develop and articulate a clearer position on when the deliberate targeting of individuals is permissible, and what review procedures are required after such strikes, remains as strong as ever. It will take some work for EU member states to resolve their remaining areas of uncertainty and disagreement – but the potential role that Europe could play in setting a global standard in this area should encourage them to make the effort.
"The political support and divisions behind the European Parliament Resolution on drones” originally published on Just Security on 28 February 2014
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