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2017 | European Center for Constitutional and Human Rights Report Litigating Drone Strikes - Challenging the Global Network of Remote Killing

This report published by the European Center for Constitutional and Human Rights (ECCHR) addresses the problematic use of armed drones from multiple perspectives, varying form the applicable legal framework, the European policy on armed drones and its involvement in the US drone bombings, the victims’ perspective and their legal efforts to obtain transparency, accountability and justice.

The chapter on armed drones policy in the European Union,provides an illustration of different developments, positions and debates on armed drones in relevant European countries. While many European states are increasingly using, developing and acquiring armed drones, some of them are also – directly or indirectly – involved in or facilitating US drone operations, through data sharing, the hosting of airbases or joint targeting. The work stipulates that European governments should make sure to be as transparent as possible about their involvement and provide adequate safeguards to prevent unlawful action.

The next chapter highlightsdifferent problematic issues from an international humanitarian law (IHL) perspective which usually arise when prosecuting drone attacks as possible war crimes. For IHL to be triggered, an international or non-international armed conflict is a prerequisite that is met when tresholds are met. For non-international armed conflicts the level intensity of the violence and the level of organization of the non-state armed groups are decisive and at the same time in current internal conflicts hard to establish. It is argued that a one-sided drone strike probably will not meet the threshold of intensity for an armed conflict under IHL. But assuming that IHL applies, the next step would be to examine which IHL rules could be violated by a drone strike. Litigating drone attacks as war crimes requires in particular taking into account the basic principles of the conduct of hostilities, especially the principle of distinction, the prohibition of indiscriminate attacks, the principle of proportionality, and the principle of precautions in attack. It is not per se given that a drone attack would necessarily violate said principles as everything will depend on the context of the drone strike, and how the operators ensured that they took these IHL principles into account. Furthermore, whereas the status of both the person operating the drone as well as the targeted person can be decisive for the criminal liability of the operator, in today’s conflicts the distinctive lines between combatants and civilians are increasingly blurring.

The vast number of victims of drone bombings shows that these attacks are not as accurate as often is claimed by the US government. However, when seeking redress, accountability and justice before US courts, drone victims are confronted with hurdles varying form their non-American citizenship, the covert nature of drone bombings resulting in a lack of transparency and courts unwilling to rule on issues of national security. So far, three lawsuits have been initiated before US Courts and in addition various non-profit groups and news organizations have filed lawsuits under the Freedom of Information Act seeking legal and policy memoranda, intelligence records, and other information concerning the US government’s targeted killing program. While these litigations have spurred the executive branch to make certain documents and information public and to engage in transparency initiatives outside of litigation, they have not resulted in a winning judgment, at least in two cases which are concluded. The third case, Ali Jaber v. Obama has beendismissed in appeal and is now being brought before the Supreme Court. Determined to find justice done, victims increasingly turn to European courts arguing that specific European States have a share in the unlawful drone killings. Against this background, two cases are highlighted: the case filed by the Pakistani national Noor Khan against the United Kingdom before the UK High Court of Justice, seeking a review of the UK’s intelligence sharing policy for drone strikes on the grounds that such sharing could make UK intelligence officers complicit in war crimes. In the second case, Yemenite nationals initiated litigations against the German government for failing to take appropriate measures to stop the US from using its bases on German soil for drone strikes in Yemen. The chapter concludes that, although neither of these cases have (yet) led to accountability and/or a court order to stop a state’s involvement, the victims have been given the right to be heard.