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Drones and targeted killing: defining a European position

Drones and targeted killing: defining a European position

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The drone strike that has just killed at least 17 people in Pakistan is a reminder that a new era of warfare has dawned. The EU’s response to this has been largely passive. But as the technology spreads (including to EU member states) this must change, and new rules for drone warfare drawn up.

A new ECFR policy brief – “Drones and targeted killing: defining a European position” by Anthony Dworkin – argues that the EU should now take a stronger stand on the issue of drone strikes. At the same time, it should undertake an effort to work with the United States to set a new standard for when drone attacks are permissible. The EU’s position should be based on the idea that outside conventional military theatres lethal force should only be used when there is a serious, imminent threat to innocent life.

- Although President Obama has embraced a similar position as a matter of policy, he interprets it more loosely. But changes in US policy mean there may be a greater chance for transatlantic dialogue on drones.

- The EU should press him to follow through on his rhetoric and restrict US drone strikes, and explore the idea of self-defence as their legal basis.

- The EU should encourage greater transparency and accountability over US drones, and work to end the notion of an unbounded war against terrorist groups. Otherwise there is a danger that China, Russia, and others could use the US drone campaign as a precedent to justify targeted strikes against groups they declare to be enemies.

“Attempting to ban drones is a false choice that would also deprive Europeans of a useful technology. But Europe needs to play an active role in clarifying rules and standards for the use of drone attacks. If not, the benchmark for killing alleged enemies of any state using drones will be too low.” Anthony Dworkin
The drone strike that has just killed at least 17 people in Pakistan is a reminder that a new era of warfare has dawned. The EU’s response to this has been largely passive. But as the technology spreads (including to EU member states) this must change, and new rules for drone warfare drawn up.

A new ECFR policy brief – “Drones and targeted killing: defining a European position” by Anthony Dworkin – argues that the EU should now take a stronger stand on the issue of drone strikes. At the same time, it should undertake an effort to work with the United States to set a new standard for when drone attacks are permissible. The EU’s position should be based on the idea that outside conventional military theatres lethal force should only be used when there is a serious, imminent threat to innocent life.

- Although President Obama has embraced a similar position as a matter of policy, he interprets it more loosely. But changes in US policy mean there may be a greater chance for transatlantic dialogue on drones.

- The EU should press him to follow through on his rhetoric and restrict US drone strikes, and explore the idea of self-defence as their legal basis.

- The EU should encourage greater transparency and accountability over US drones, and work to end the notion of an unbounded war against terrorist groups. Otherwise there is a danger that China, Russia, and others could use the US drone campaign as a precedent to justify targeted strikes against groups they declare to be enemies.

“Attempting to ban drones is a false choice that would also deprive Europeans of a useful technology. But Europe needs to play an active role in clarifying rules and standards for the use of drone attacks. If not, the benchmark for killing alleged enemies of any state using drones will be too low.” Anthony Dworkin

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Published by: ECFR, European Council on Foreign Relations on Jul 04, 2013
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DRONES AND TARGETED KILLING:DEFINING AEUROPEAN POSITION
 Anthony Dworkin
 P  OL   I    C  Y   R  I   E   F   S   U  M M A  R  Y  
Since the United States carried out the first lethal drone strike,in Afghanistan in October 2001, drones have emerged fromobscurity to become the most contentious aspect of modern warfare. Armed drones or unmanned aerial vehicles (UAVs)are now the United States’ weapons platform of choice in itsmilitary campaign against the dispersed terrorist network of al-Qaeda. They offer an unprecedented ability to track andkill individuals with great precision, without any risk to thelives of the forces that use them, and at a much lower costthan traditional manned aircraft. But although the military appeal of remotely piloted UAVs is self-evident, they havealso attracted enormous controversy and public concern. Inparticular, the regular use of drones to kill people who arelocated far from any zone of conventional hostilities strikesmany people as a disturbing development that threatens toundermine the international rule of law. Although the United Kingdom and Israel have also employedarmed UAVs, the US has carried out the vast majority of drone strikes, especially those outside battlefield conditions.These attacks have been directed at suspected terrorists ormembers of armed groups in a series of troubled or lawlessregions across a sweep of countries around the wider MiddleEast, encompassing Pakistan, Yemen, and Somalia, that arenot otherwise theatres of US military operations. The USrecently opened a new drone base in Niger, raising fears thatarmed drones might at some point be used in the Sahel orNorth Africa, though so far the base appears to be used only for surveillance flights. Since entering the White House in2008, President Barack Obama has dramatically increased
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The era of drone warfare is underway, butthe European Union has been largely passivein its response. It has not reacted publicly tothe US campaign of drone strikes or tried todevelop an alternative standard for the useof lethal force. As EU states seek to acquiredrones themselves, and with the technology spreading around the world, the EU shouldtake a more active stance. A Europeaninitiative would be timely because changes inUS policy mean there may be a greater chancefor a constructive dialogue on this subject within the transatlantic alliance.The EU should base its position on the ideathat lethal force should only be used outsidetheatres of conventional military operationsagainst individuals posing a serious andimminent threat to innocent life. PresidentBarack Obama has now embraced a similarstandard for US policy, though he interpretsit in a far more permissive way, and retainsthe underlying idea of a global armed conictagainst al-Qaeda. The EU should press Obamato follow through on his rhetoric by furtherrestricting US strikes and begin discussionsto explore the idea of self-defence as the basisfor lethal strikes outside the battlefield. Itshould also encourage greater transparency and accountability from the US and work toend the anomalous notion of an unbounded war with a loose network of terrorist groups.
 
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the use of remotely piloted aircraft to kill alleged enemiesof the US. According to one estimate, his administration isresponsible for almost 90 percent of the drone attacks thatthe US has carried out.
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The US use of drones for targeted killing away from any  battlefield has become the focus of increasing attentionand concern in Europe. In a recent opinion poll, peoplein all European countries sampled were opposed to theuse of drones to kill extremists outside the battlefield anda large majority of European legal scholars reject the legal justification offered for these attacks.
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But European leadersand officials have responded to the US campaign of dronestrikes in a muted and largely passive way. Although someEuropean officials have made their disagreement withthe legal claims underlying US policies clear in closed-door dialogues and bilateral meetings, EU member staterepresentatives have said almost nothing in public aboutUS drone strikes.
3
The EU has so far failed to set outany vision of its own about when the use of lethal forceagainst designated individuals is legitimate. Nor is thereany indication that European states have made a seriouseffort to influence the development of US policy or to begindiscussions on formulating common standards for the kindsof military operations that UAVs facilitate.Torn between an evident reluctance to accuse Obama of  breaking international law and an unwillingness to endorsehis policies, divided in part among themselves and in somecases bound by close intelligence relationships to the US,European countries have remained essentially disengagedas the era of drone warfare has dawned. Yet, as dronesproliferate, such a stance seems increasingly untenable.Moreover, where in the past the difference between USand European conceptions of the fight against al-Qaedaseemed like an insurmountable obstacle to agreement on acommon framework on the use of lethal force, the evolutionof US policy means that there may now be a greater scopefor a productive dialogue with the Obama administration ondrones.This policy brief sketches the outline of a commonEuropean position, rooted in the idea that outside zonesof conventional hostilities, the deliberate taking of humanlife must be justified on an individual basis according to theimperative necessity of acting in order to prevent either theloss of other lives or serious harm to the life of the nation.It argues that such a position would now offer a basis forrenewed engagement with the Obama administration, whichhas endorsed a similar standard as a matter of policy, evenif its interpretation of many key terms remains unclear andits underlying legal arguments remain different. Finally, itsuggests that European states will need to clarify their ownunderstanding and reach agreement among themselves onsome parts of the relevant legal framework as they refinetheir position and pursue discussions with the UnitedStates. None of these efforts will necessarily be easy. Butunless the EU defines a position on remotely piloted aircraftand targeted killing, it risks neglecting its own interests andmissing an opportunity to help shape global standards in anarea that is vital to international peace and security.
 Arguments for a European stance
There are several ways in which the EU has an interest inthe elaboration of a clearer position on drone strikes andtargeted killing, and in a broader effort to promulgate morerestrictive international standards in this area. The EU iscommitted to put human rights and the rule of law at thecentre of its foreign policy, and many Europeans are likely to consider the widespread use of drones outside battlefieldconditions incompatible with these principles. The EU hasin the past condemned Israeli targeted killing of Palestinians.For instance, in March 2004, the European Council issued astatement describing the recent Israeli strike against Hamasleader Sheikh Ahmed Yassin as an “extra-judicial killing”.It added: “Not only are extra-judicial killings contrary tointernational law, they undermine the concept of the rule of law which is a key element in the fight against terrorism.”
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  Although there are, of course, differences in the contexts of US and Israeli actions, the EU should continue to use itsinfluence to work against the spread of a practice that it haspreviously opposed.In addition, there is a significant body of evidence that dronestrikes in these regions have a damaging impact on local lifeand political opinion that can fuel anti-US and anti-Westernsentiment. A detailed study of drone strikes in Pakistanfound that they deterred humanitarian assistance to victims(because of the alleged practice of “double-tap” targeting in which two missiles are launched successively at the sametarget), caused financial hardship to victims’ extendedfamilies, exerted a psychological toll on communities, andinhibited social gatherings and community meetings.
5
  A careful study by the International Crisis Group foundsome evidence that “there is less opposition within FATA [the Federally Administered Tribal Areas] to drone strikesthan among activists and commentators in the country’s
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1
“These gures cover Pakistan and Yemen, where the vast majority of US out-of-theatredrone strikes have taken place; they are taken from the database maintained by theNational Security Studies Program, New America Foundation, available at http://natsec.newamerica.net/ (hereafter, National Security Studies Program database).
2
“Global Opinion of Obama Slips, International Policies Faulted”, Pew Research Global Attitudes Project, 13 June 2012, available at http://www.pewglobal.org/2012/06/13/chapter-1-views-of-the-u-s-and-american-foreign-policy-4/#drones.
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The most critical comment that I have found by a European ofcial about a US dronestrike was made in 2002 by the then Swedish foreign minister, Anna Lindh, whodescribed the killing of suspected al-Qaeda member Ali Qaed Sinan al-Harithi in Yemen as “a summary execution that violates human rights”. See Brian Whitaker andOliver Burkeman, “Killing probes the frontiers of robotics and legality”,
Guardian
, 6November 2002, available at http://www.guardian.co.uk/world/2002/nov/06/usa.alqaida.
4
“Council Conclusions on Assassination of Sheikh Ahmed Yassin”, European Council,22 March 2004, available at http://europa.eu/rapid/press-release_PRES-04-80_en.htm.
5
“Living Under Drones: Death, Injury and Trauma to Civilians from US Drone Practicesin Pakistan”, International Human Rights and Conict Resolution Clinic at StanfordLaw School and Global Justice Clinic at NYU School of Law, 2012, pp. 73–101,available at http://www.livingunderdrones.org/download-report/.
 
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“Drones: Myths and Reality in Pakistan”, International Crisis Group, Asia Report No.247, 21 May 2013, pp. 25, 34, available at http://www.crisisgroup.org/~/media/Files/asia/south-asia/pakistan/247-drones-myths-and-reality-in-pakistan.pdf.
Author interview with senior Western diplomat, 8 November 2012; “Gregory Johnsenon Yemen, the US, and Drones”, OpenCanada.Org, 14 December 2012, available athttp://opencanada.org/features/the-think-tank/interviews/gregory-johnsen-on- yemen-the-u-s-and-drones/.
8
“Statement of Farea Al-Muslimi”, United States Senate Judiciary Committee,23 April 2013, available at http://www.judiciary.senate.gov/pdf/04-23-13Al-MuslimiTestimony.pdf.
9
“Drone victim to appeal ruling over UK support for CIA strikes in Pakistan”, pressrelease, Leigh Day, 21 December 2012, available at http://www.leighday.co.uk/News/2012/December-2012/Drone-victim-to-appeal-ruling-over-UK-support-for-;Ravi Somaiya, “Drone Strike Prompts Suit, Raising Fears for US Allies”, the
 New YorkTimes
, 30 January 2013, available at http://www.nytimes.com/2013/01/31/world/drone-strike-lawsuit-raises-concerns-on-intelligence-sharing.html?_r=0.
10
Herbert Gude, “Raining Death: German Jihadist Killed in US Drone Attack”,
 Spiegel Online
, 30 April 2012, available at http://www.spiegel.de/international/world/german-citizen-killed-in-us-air-strike-after-joining-the-jihad-a-830585.html.
11
Author interview with ofcial in the German Federal Foreign Ofce, 30 May 2012;author interview with Andreas Schüller, 17 May 2013.
12
Christopher Bodeen, “China Emerging as New Force in Drone Warfare”,
 Associated  Press
, 3 May 2013, available at http://bigstory.ap.org/article/china-emerging-new-force-drone-warfare.
13
See, for instance, “Appeal: No Combat Drones!”, Drohnen-Kampagne, available athttp://drohnen-kampagne.de/appell-keine-kampfdrohnen/international/appeal-no-combat-drones-english-version/.
urban centres”, but concluded that the drone programme was exploited by hardliners in Pakistan to ignite anti-USsentiment and encouraged a harmful dependence of the USon the Pakistani military as its primary counterterrorismpartner.
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Some Western diplomats in Yemen argue thatdrone strikes are not broadly unpopular, but scholars whohave studied the issue contend that a more focused andrestrained use of strikes against high-level members of armed groups would limit civilian casualties and be moreeffective in reinforcing US national security.
7
A young Yemeni activist who testified before the US Senate Judiciary Committee in April 2013 said that drones had become “theface of America to many Yemenis” and complicated theinternal political dynamics in his country.
8
US drone strike practices also complicate intelligence co-operation between EU member states and the US, becauseof the risk that information handed over by Europeans will be used as the basis for lethal strikes that might beconsidered illegal in the source countries. In December2012, the British High Court dismissed a case brought by a young Pakistani man whose father was killed by a dronestrike, seeking to establish whether information provided by British intelligence services was used by the CIA’sdrone programme; the case is currently under appeal.
9
TheGerman government came under strong domestic criticismafter a US drone strike killed a German citizen of Turkishdescent in Pakistan in October 2010 amid claims that theGerman police had provided US intelligence agencies withinformation about his movements.
10
A federal prosecutor isinvestigating the legality of the killing, and in the meantimethe German government has instituted a policy of notpassing information to the US that could be used for targetedkilling outside battlefield conditions, but activists argue thatit is impossible to know whether any piece of informationmight form part of a mosaic used in targeting decisions.
11
InDenmark, a public controversy has blown up over claims by a Danish citizen, Morten Storm, that he acted as a Westernagent inside Yemeni jihadist circles and helped the CIA track the radical cleric Anwar al-Awlaki, who was killed by a drone strike in September 2011, with the knowledge of Danish intelligence services.Meanwhile, European governments are increasingly acquiring armed drones for their own military forces and,in some cases, encountering strong public or politicalopposition. German Defence Minister Thomas de Maizière’sannouncement of his wish to purchase armed UAVs for theBundeswehr prompted campaigning groups to launch anappeal entitled “No Combat Drones” and provoked criticismfrom opposition parties. In the UK, the shift of control of British drones from Nevada to a Royal Air Force base inLincolnshire led to a demonstration of several hundredpeople. Italy, the Netherlands, and Poland are among otherEU member states that are seeking or considering thepurchase of armed drones, and European defence consortiaare exploring the possibility of manufacturing bothsurveillance and armed UAVs in Europe. To defuse publicsuspicion of drones in Europe, EU governments have aninterest in reducing the controversy provoked by US actionsand developing a clearer European line about when lethalstrikes against individuals are permissible. Armed drones are proliferating (and developing insophistication) rapidly beyond Europe. Perhaps thestrongest reason for the EU to define a clearer position ondrones and targeted killing is to prevent the expansive andopaque policies followed by the US until now from settingan unchallenged global precedent. Already Chinese statemedia have reported that the country’s Public Security Ministry developed a plan to carry out a drone strike againsta Burmese drug trafficker implicated in the killing of severalChinese sailors, though the suggestion was apparently overruled.
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As well as China, which has an active droneprogramme, Russia, Saudi Arabia, and Turkey are eitherdeveloping or have announced an intention to purchasearmed UAVs. The US assertion that it can lawfully targetmembers of a group with whom it declares itself to be at war, even outside battlefield conditions, could becomea reference point for these and other countries. It will bedifficult for the EU to condemn such use of drones if it failsto define its own position more clearly at this point.In considering the development of EU policy on armed UAVsand targeted killing, it is important to distinguish betweenthe different issues involved. Some critics of drones areopposed to any use of armed UAVs and would like Europeancountries to forswear their acquisition and work againsttheir proliferation. Campaigners argue that the developmentof drones “lowers the threshold to armed aggression” and isassociated with an unacceptable level of civilian deaths.
13
 One study of combat operations in Afghanistan found thatstrikes involving UAVs were “an order of magnitude morelikely to result in civilian casualties per engagement” andattributed this in part to a lower level of training for UAV 

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