On 14 December 2016, the International Centre for Counter-Terrorism (ICCT) and the European Council on Foreign Relations (ECFR) convened an evening seminar entitled ‘Drone Strikes and Counter-Terror Wars Legal Perspectives and Recommendations for European States’.
Both ICCT and the ECFR are conducting research addressing the legal issues surrounding drone strikes and in particular compliance with European human rights obligations. As the involvement of European States in counter-terrorism wars is growing in complexity, these challenges will only become more pressing.
Moderated by Dr. Christophe Paulussen, research findings and policy recommendations were discussed by the following speakers:
Anthony Dworkin presented the new ECFR report ‘Europe’s New Counter-terror Wars’. During the seminar, it was examined how the transition of European states in terms of military operations post 9/11 led to European countries’ own involvement in counter-terror wars. The terrorist groups are hybrid in their current strategy, both aiming to gain ground to control territory plus a continuing focus on conducting terrorist attacks abroad.
Based on the ECFR report, Anthony Dworkin presented six findings. (1) Though Europe was first opposed to the US and its direct approach to targeted strikes, currently it is ‘remarkable how many states are now involved with airstrikes’ against non-state groups abroad. The countries are either participating through logistic support for the strikes or conducting direct airstrikes themselves. With the latest terrorist attacks in Europe, a strong feeling of solidarity among European countries is perceived. This could ease the required coordination process among governments and their legal departments to establish a legal framework for military action against terrorist groups abroad. (2) Europe is not in a War on Terror, rather a series of wars with specific responses to specific threats on a country-by-country basis. (3) These threats can be seen as hybrid organisations with different strategies aiming to either gain territory or conduct terrorist attacks. Europe is approaching this with direct interventions to decrease ground control, or targeted counter-terror air-strikes. (4) Europe’s military practice is converging with strategies of the US, with an approach that combines efforts to shrink the groups’ territorial control and direct counter-terrorism strikes. (5) The strategic value of drone strikes should be further examined, whereby Anthony Dworkin argues for a combination of military operations on the ground and a plausible framework for the re-captured territory which incorporates a long-term solution for the area. (6) The legal perspective on drone strikes by EU Member States should be clarified. When is it justified to use force without the consent of the host state? And what, if any, restrictions apply to attacks against enemy fighters once an armed conflict is underway?
Jessica Dorsey and Dr. Bérénice Boutin discussed the ICCT Report ‘Towards a European Position on the Use of Armed Drones? A Human Rights Approach’. The report is based on a previous ICCT Research Paper ‘Towards a European Position on Armed Drones and Targeted Killing: Surveying EU Counter-Terrorism Perspectives‘, and an expert meeting that focused on international human rights law within Europe.
First examined were the circumstances under which drone strikes might be permissible under international human rights law. It was concluded that only under extremely limited situations targeted killing could be deemed lawful in the human rights framework: ‘As long as there is another way than taking someone’s life, the other option should be chosen’.
The second topic discussed was ‘transparency, oversight and accountability’, whereby Jessica Dorsey stated that these concepts are ‘always called for, seldom defined’. Developing appropriate transparency measures is a challenge due to the secrecy from governments and relevant actors and the general lack of available information about drone strikes. Governments rarely provide any comprehensive answers to questions about drone strikes, often citing ‘national security’ concerns as justification. However, one question Dorsey posed was: Is national security too large of a blanket concept used too broadly in order to justify secrecy and to protect the military or other actors carrying out the strikes? One example of the concerns surrounding oversight is the built-in mechanisms of military actors: how can their actions be independently reviewed and how will they implement the lessons learned? The final concept discussed was accountability, which requires more access to information than currently provided by the actors involved as a first step so that victims and the public at large can ensure that a wider accountability mechanism is in place.
The final topic focused on the range of involvement of EU Member States in armed drone strikes. Though the majority of EU Member States do not employ armed drones for their own military operations, many do provide support for US drone strikes, for instance by sharing intelligence used to conduct targeted killings. In these scenarios of limited and indirect involvement, Dr. Bérénice Boutin explained that EU Member States can be responsible for their complicity in human rights violations. Indeed, human rights instruments impose not only a negative duty not to engage in violations, but also a positive duty to ensure respect for human rights. In particular, under the European Convention of Human Rights (ECHR) framework, states have the duty to prevent human rights violations ‘about which they knew or ought to have known’.
Jessica Dorsey and Dr. Bérénice Boutin concluded their presentation urging the need to clarify legal positions on targeted killings at the national and EU levels. The silence surrounding these concerns risks the acceptance of the current interpretation of the legal framework and and as a consequence, targeted killing using drones could start to become normalised as a counter-terrorism strategy.
The Q&A session focused on questions about measures against the fast technological development of drones, the strategic value of drone strikes aimed to weaken the so-called Islamic State (IS) and the current perceived inaction by national governments to establish a legal framework for drone strikes.
