By Delina Goxho
The most recent Trump administration changes to the policies regulating drone strikes are still secret, but what we do know sets a dangerous precedent on the use of armed drones and the use of force broadly, with strong implications to the USA as well as Europe. . The current U.S. policy reportedly removes the condition of immediacy of the targeted threat, among other things, challenging the limits of international standards regulating the use of force. Most European states are not willing to regulate their acquisition and the use of armed drones in ways that would preserve compliance with both international humanitarian law (IHL) and international human rights law (IHRL), blaming lack of consensus internationally and at home. Indeed, the UK has so far admitted one civilian casualty in an air campaign (through both conventional and drones strikes) in Syria that started four years ago and has no end in sight. France is currently acquiring armed drones to be deployed in the G5 Sahel countries, but has no safeguards in place to prevent the use of such weapons contravening international law. In addition, Italy, Germany, the UK and the Netherlands are all aiding the US drone war in the Middle East and Africa both with intelligence and infrastructure.
European states should challenge the US precedent of drone use and establish norms that are accountable, transparent and legal. This article will first clarify why armed drones can be considered to be a controversial weapon, it will then outline what is currently unfolding at the EU level in terms of defence budget and it will delve into the buck passing game that is occurring at the UN, EU and Member state levels and finally recommend that the EU finds a Common Position on the use of armed drones that is respectful of international norms.
A controversial tool
Despite allowing for potentially more precise strikes, presenting a strategic advantage and minimising risk to troops’ lives, armed drones are particularly controversial because they facilitate escalation of a conflict: by making war a less costly resort, armed drones are a powerful means for states to intervene where they would not have the political support, resources on the ground or a legal mandate to do so. The proliferation of armed drones within and outside Europe, including their use to execute targeted killings and complicity in US strikes, as recently pointed out in Amnesty International report, presents a challenge to the international legal order. Drones are not only used in battlefield theatres, where IHL applies, but also outside of areas of armed conflict, where IHRL applies, which implies that strikes are paramount to extrajudicial executions. In addition, from a more counterterrorism perspective, there has not been enough debate on whether drones may be “creating more terrorists than we’re killing”, as former Defence Secretary Rumsfeld famously put it. Discussions around a Common European Position regarding the acquisition and use of armed drones are of vital importance, especially after reports of targeted killings as a counter-terrorism technique have become the norm. New European Union spending in the field of defence risks exacerbating these worrisome developments.
New European defence budget and Multilateral buck-passing
On 13 June 2018, the European Commission released its proposals for the Security and Defence heading under the next EU long-term budget. The new “militarised” EU Multi Annual Financial Framework foresees an increase of the Defence Fund by 2200%. Additionally, the EU will allow companies developing the so-called ‘lethal autonomous weapons’ to apply for EU funding. The European Parliament had originally wanted to bar controversial new weapons, such as weapons of mass destruction (WMD), unmanned aerial vehicles (UAVs or drones), cluster munitions, anti-personnel landmines and fully autonomous weapons from receiving EU subsidies, but without success. The proposed regulation simply stated that projects would not be eligible for funding if their end product was “prohibited by international law”. This is a matter of controversy becuase the UAV platform itself would not be prohibited, but its uses outside international law would be. In exchange, the Council of Ministers of the EU offered the European Parliament a formal rationale for the norm, in which “the eligibility of actions … should also be subject to developments in international law”. In other words, controversial weapons could be banned from the European Defence Industrial Development Programme once agreement is found at the international level.
This presents two issues: first, that armed drones, despite their negative impacts on the battlefield, are not even mentioned in the document and secondly that State representatives at various UN fora are only willing to reach an agreement if there is the political desire to do so within their respective governments. The same happens within the EU, where state representatives are not willing to make decisions if there is no lead from their political leaders. European member states on the other hand play rebound, and suggest that consensus should be reached multilaterally before they can come to an agreement internally. This buck passing game is slowing down the decision making process, while drone technology rapidly improves and drones are used by more and more states and non-state armed groups globally, in ways that are often unlawful, as recently explained in a PAX report on new drone producers and users.
Trump’s Shadow War
All this buck-passing is operated against the backdrop of the new US Principles, Standards and Procedures (PSP), which further loosens policies around the use of armed drones in the US. Fears that Trump would tear up Obama-era regulations governing the use of direct military action were justified: Trump removed the condition that a terrorist target has to pose an imminent threat to U.S. persons to be individually targeted, which lowered the ‘threat standard’ applied to people the United States can kill. The Trump administration is yet to provide information on the new threshold for action and whether this threshold is uniform. Additionally, proposed drone strikes and counterterrorism raids no longer undergo the same vetting they did under Obama. Instead, Trump will permit the delegation of decision-making to lower levels of seniority before conducting a strike.
Towards a European Common position?
Against this backdrop in the US, more UAV investment at the EU level is especially problematic: if the US modus operandi has been the most common policy for the use of armed drones in the West, why should the EU behave differently? It is thoroughly understandable that the EU would want to prioritise European industries and move away from US dependency as far as its own defence is concerned, given the security challenges within the Union and US disengagement. ‘With this agreement, we are building the EU’s strategic autonomy and boosting the competitiveness of the EU defence industry’ said industry Commissioner Bienkowska. This however must be done without sacrificing what the Union is founded upon, i.e. a shared understanding of human rights principles. According to Catalan Research Institute Centre Delas, by 2027, the EU will have spent more on military research than on humanitarian aid. If we look at US policy regarding the use of military drones, it is of vital importance to ask EU member states not to follow that path blindly but instead to distance themselves from a policy which is unlawful – as far as IHRL and IHL principles are concerned – and which sets a dangerous precedent.
A similar issue can be identified with regard to European arms exports: different Member states apply different principles when exporting weapons to third countries who violate international law, making the European Common Position on arms exports disharmonic. As stated in the Call to Action of the European Forum on Armed Drones (EFAD) European states should articulate clear policies, prevent complicity, ensure transparency, establish accountability and finally control proliferation.
On armed drones Europe has only achieved a Parliamentary Resolution and does not have a Common Position yet. The EU was built on a set of values that would end up becoming empty words if Europe does not put in place safeguards and choose rules of engagement on the battlefield different from those of its transatlantic ally.
Delina is the consultant on armed drones and targeted killing at the Open Society Foundations office in Brussels. Prior to this, Delina worked for the European External Action Service in the Task Force Iran, focusing on Security and Humanitarian issues, the Defence and Security and the Economic and Social Committees at the NATO Parliamentary Assembly, focusing on the Syrian civil conflict and CT operations against Daesh and the Peace Research Institute Frankfurt, doing research on the humanitarian intervention in Libya.
Delina holds a B.A. in French and English literature from the University of Verona and the University of Cambridge and an M.A. in International Security from the University of Bologna and the University of California, Berkeley. She speaks English, French, Italian, Albanian and is currently learning Arabic.
 The French government refuse to confirm or put policies in place to clarify that they will not be adopting practices/legal interpretations deployed in the use of drones that have been legally controversial and caused considerable civilian harm.
 Grégoire Chamayou, A Theory of the Drone, The New Press, New York, 2015 [“drones project power without projecting vulnerability”]
 Document can be found here: http://www.europarl.europa.eu/RegData/etudes/STUD/2017/578032/EXPO_STU(2017)578032_EN.pdf
Bruno Oliveira Martins, Global Affairs: The European Union and armed drones: framing the debate, https://www.tandfonline.com/doi/full/10.1080/23340460.2015.1080930?scroll=top&needAccess=true
 The fund has two strands: Research (€90 million until the end of 2019 and €500 million per year after 2020) and Development & Acquisition (€500 million in total for 2019-20 then €1 billion per year after 2020); EU Observer https://euobserver.com/science/141885
 A group of NGOs (Center for Civilians in Conflict, Airwars, Bureau of Investigative Journalism, Amnesty International, American Civil Liberties Union, Human Rights Watch, Center for Constitutional Rights, Reprieve amongst others) have warned against the increased use of strikes and the loosening up of norms: https://www.aljazeera.com/news/2018/03/trump-deadly-drone-policy-ngos-180307204617166.html
Image Source: https://euobserver.com/news/115283