While currently within the European Union (EU), the use of armed drones is not regulated, a number of member states in various stages have developed, acquired and/or used the technology for armed drones  themselves, or have plans to do so. This brings in a risk that the EU or its member states using armed drones, may follow the United States in its broader interpretations of law in, for example, conducting their own counterterrorism operations. In order to prevent fragmentation and safeguard the rule of law, a European Council Decision on the use of armed is desired, interpreting the international legal principles and assisting in clarifying and distilling the applicable legal frameworks for using armed drones

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This report, requested by the European Parliament’s Subcommittee on Human Rights (DROI) consists of two parts: Part 1 contains a briefing on, and a proposal for a model Council Decision on the use of armed drones. Part two summarises the proceedings of a workshop organised by the DROI in March 2017.

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The model Council Decision is elaborated on in part I and relies on a number of legal standards under domestic, EU and international law as well as on topical academic and policy publications and developments within the EU and the United Nations. The general principles and understandings laid down in the model’s operative part inter alia require member states to:

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• subject their targeting decisions and deployment of armed drones to an independent oversight body;
• ensure that the use armed drones or assistance therein takes place in full compliance with the UN Charter, international human rights law and international humanitarian law. Interestingly,  ‘assist’ includes -but is not limited to- providing intelligence, infrastructure or any other kind of logistic support, including through satellite communication facilitation to another State or non-state actor- and to withhold themselves from unlawful use of armed drones;
• endorse that an ‘imminent threat’ perceived by a state other than the state on whose territory the imminent threat is perceived, is insufficient to justify extraterritorial use of force;
• permit ex post facto judicial review of armed drone strikes, acknowledge their responsibility, hold perpetrators to account and ensure access to justice and reparations and redress, including payment of compensation, for survivors and families of those killed.
• develop rules on accountability and remedy in all cases harm caused by unlawful conduct. In situations where action is considered lawful, member states shall strive to redress grievous harm to civilians.

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Given that maximal transparency and accountability processes and mechanisms are key, the model continues providing more detailed proposals thereon. Transparency proposals reach from a member state’s obligation to elucidate the legal basis for each use of force, including a determination as to whether a strike conformed to applicable international law, national laws and policies and rules of engagement, to releasing detailed statistics including data such as number of strikes and numbers of those killed and injured by country.

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Accountability and investigative requirements range from a member state’s obligation to conduct prompt, effective, independent, impartial and transparent investigations into all incidents resulting in death or serious injury as a result of the use of force, including by armed drone strikes, to ensuring effective access to judicial remedies and reparation, including by establishing a comprehensive, accessible and effective compensation and condolence payments mechanism for those killed and injured in armed drone strikes and their families. In establishing such accountability processes and mechanisms, member states shall allow that the use of armed drones can be adjudicated by a court, unhindered by State secrets, national security concerns or other doctrines, particularly in cases where there are allegations of violations of international law, including international human rights law and international humanitarian law.

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Part two summarises highlights that during the workshop of March 2017, the above proposal was presented, commented and debated on by experts of the International Committee of the Red Cross (ICRC), the European External Action Service (EEAS), members of the EU Parliament and Ms Dorsey, the author of the model Council Decision and Associate Fellow of the Dutch International Centre for Counter-Terrorism. Views were exchanged on whether new international legislation on the use of armed drones is necessary. Some European Parliament members expressed their support for the development of common European principles governing the use of armed drones, others found that there already exists a ‘common position’ on the use of armed drones within the EU, namely the one in the 2014 EP resolution, and argued that instead, a regulation on export is urgently needed given the situation at the global level. In sum: the debate showed fragmentation: there is currently no consensus among EU members of Parliament to pursue the matter at EU level.