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2015 | Toward a Drone Accountability Regime, by A. Buchanan & R.O. Keohane, Symposium: Toward a Drone Accountability Regime 2015

The authors of this article identify two key problems in today’s lethal drone attacks. First, the lack of transparency in the processes in which the criteria for the lethal use of drones are applied and thus drones may be deployed against people who are not legitimate targets. Second, actors executing lethal drone strikes in violation of the applicable norms of international humanitarian law, human rights law and UN Charter based security law are currently not held accountable by any existing international body. To alter this situation, and without prejudice to the existing legal framework, the authors propose a regulatory regime for the use of lethal drones by states: a Drone Accountability Regime.

Ideally, the organizational form the accountability regime would take would be treaty-based and include enforcement provisions. But given the improbability that states will accord such a regime and put it into effect on short term, the authors suggest the formation of an informal, non-binding, interstate Drone Accountability Regime (DAR), analogue to the Missile Technology Control Regime (MTCR - that succeeded in establishing norms of constraints on missile proliferation). The DAR would consist of three entities: Assembly of States, a Transnational Council of non-state organizations, and–most importantly- an Ombudsperson to investigate complaints and serve as a key actor to ensure accountability with the right to initiate a process by which compensation could be awarded in cases where there is clear evidence that individuals had been wrongfully targeted.

At a national level each member state must adopt a template entailing provisions for the use of drones, regulatory supervision and (review) procedures, by which it would be held accountable for adherence to it. In view of the large differences in interests among states, the proposal accepts to some extend the existence of a variety of templates. For transparency reasons, the templates chosen by states are public. Furthermore, in order to structure the process by which lethal drone strikes are actually authorized and executed, each template would include two types of transparency and accountability provisions: ex ante and ex post. Whereas ex ante authorization of drone strikes is preferred, in cases where such authorization is infeasible, states that may resort to ex post authorization. To ensure transparency and accountability in situations of ex post authorization, the drone-using state must take a number of general public measures such as publicize its targeting criteria, along with an explanation of how these comport with current international humanitarian law criteria for distinguishing legitimate from illegitimate human target. In addition, drone-using states are required to keep written records of each lethal drone strike, including estimates of the number of casualties, legitimate targets killed or wounded versus “collateral damage” and after each strike, the drone-using state must explain its targeting decisions.

The proposal entails a two level accountability for states breaching their regulatory norms. At the global level, individual states will be held accountable to interstate and transnational institutions in the DAR. At the national level, states will themselves hold their own lethal drone operators accountable.

The authors acknowledge that their proposal is ambitious but at the same time they have good hope that incentives to form or join an informal regime -such as reputational benefits and first movers having room to set the standards- may lead to the creation of DAR after all.