Jessica Dorsey, Nilza Amaral
Transparency, Accountability and the Rule of Law
The controversies resulting from the use of military drones remain unresolved and pose a risk to European democracies by bringing into question some of the political values on which such democratic regimes have been built. For example, criticisms abound over lack of transparency and how this hinders democratic accountability. Such a lack of transparency raises questions about whether European countries do enough to safeguard the rule of law. The use of armed drones, in this sense, can be seen to weaken important democratic values. This in turn raises problems for governments with respect to ensuring democratic legitimacy and continues to cause deep mistrust over the use of armed drones. As more countries within Europe and around the world acquire and begin to use armed drones in military operations, these controversies and challenges will likely multiply. This underscores the need to address long-standing calls for increasing transparency and accountability for the use of armed drones.Transparency is valuable to all actors involved in using armed drones, as well as to other stakeholders, such as civil society and communities that are affected by uses of force from armed drones. As Dorsey noted (p. 27),
‘[t]ransparency requires providing relevant, accessible, timely and accurate information. Accountability is the act of ensuring that relevant officials or institutions are answerable for actions and that there is recourse in situations where obligations are not met. It is imperative to note that transparency is often pre-requisite to, but does not always culminate in accountability’.
The rationale for transparency in military operations is intimately connected with the notion of accountability, both in a legal sense and with respect to the legitimacy of operations. Under a human rights framework, transparency is crucial in understanding when violations of fundamental rights (e.g. the right to life) occur, and it is key to the notion of accountability for those violations. Under the framework of IHL, the issue is brought more sharply into focus through the lens of legitimacy. As Laurie Blank remarks: ‘In recent years, legitimacy’s central issue has morphed from the justification for the use of force to the measure of international law compliance in the conduct of war.’ The Chatham House research paper outlines the many benefits of transparency to multiple stakeholders including, but not limited to, the international community and the general public, states, militaries and military operators.
On the other hand, as Dorsey noted (p. 27), ‘Accountability is the act of ensuring that relevant officials or institutions are answerable for actions, and that there is recourse in situations where obligations are not met.’ This notion ‘implies consequences for wrongdoing and efforts to prevent it from reoccurring’ and a relationship of power.
The international law of state responsibility sets a general principle of reparations for any violation of international law, and this is augmented by more specific rules in other areas of law. Within human rights, an integral element, cited in the 2013 report by former UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns: ‘[…] those responsible for violations must be held to account. A failure to investigate and, where applicable, punish those responsible for violations of the right to life in itself constitutes a violation of that right’ (para. 95). Only in situations where the public has access to relevant information can there be a meaningful and effective path to enforcing international obligations and overseeing adherence to the same. Heyns also notes that whenever violations of IHL or IHRL occur, states have a duty to provide accountability (paras. 96-97).
International humanitarian law (IHL) also outlines states’ obligations for accountability. For example, Common Article 1 provisions related to grave breaches of the Conventions, and Additional Protocol I (API) on the protection of victims of international conflicts, specify when investigations into alleged crimes must occur. This includes instances in which there are allegations of the civilians being the object of attack. Article 91, API states:
A Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.
Some commentators view this as containing an individual right to compensation for victims of IHL violations (see, e.g., Jurisdictional Immunities of the State (Germany v. Italy), paras. 27–29). Additionally, the EU’s Guidelines on the Promotion of Compliance with International Humanitarian Law, ‘set out operational tools for the EU to promote compliance with international humanitarian law through its relations with the rest of the world’ based on the obligations set forth in Article 3(5) of the Treaty on the European Union, which stipulates the values upon which the EU is founded (principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law). ’ The Chatham House paper outlines the many benefits of accountability to multiple stakeholders.
The Sweet Spot: Legitimacy at the Intersection of Transparency, Accountability and the Rule of Law
Many of the values and functions of transparency and accountability rely on the adherence to the rule of law or are adjacent to its being respected and enforced. When the three elements are balanced for stakeholders, they overlap and result in a functional level of legitimacy of operations, benefiting military operators, militaries, coalitions, states and ultimately the international community. If one of the three elements is lacking or less in focus than the others, this imbalance will also affect the perception and democratic legitimacy of the operation, an issue at the heart of the success of military operations.
As Lewis and Vavrichek point out:
‘[…] actions abroad are considered legitimate to a given audience to the extent that they are in line with that group’s values and perceived norms. For instance, the government will garner legitimacy in the eyes of the West if […] actions are consistent with Western values (e.g., transparency and advancing personal and economic freedoms) and international law, which perhaps forms the perceived set of norms in the West’ (p. 65).
The value of democratic legitimacy is also important politically, with respect to the continuation of missions or the joining together of allied forces in particular operations. Three main factors are at play here: legality of operations, transparency and accountability (oversight). When these factors are in balance, legitimacy of operations is at its highest. This also serves to further reinforce respect for the rule of law, keeping the rule of law viable and keeping intact a strong system of international security.
Conclusions and Recommendations
With more and more countries acquiring armed drones, there is a risk that the controversies surrounding how drones are used and the challenges they pose could also increase. Although it isn’t certain that all European countries will use drones to conduct targeted killings outside armed conflict or in the same permissive ways as the US has done so far, given the interest that the EU has in supporting a rules-based international order and its foundation on principles that include democratic values and respect for human rights, the EU has an opportunity to play an important role in shaping the norms on how drones are used in future.
The EU, along with the UK (in its efforts to adopt an active role in promoting democracy and the rule of law, and being one of the few ‘drone powers’ in the region) should spearhead the development of a guidance document on best practices for improving transparency and accountability mechanisms for the use of armed drones. Though a legally binding document would make for a stronger legal framework, this would require a level of unity and commitment difficult to achieve and which might stall efforts in reaching a common understanding on armed drone use.
A best practices document should include the following measures:
Improving transparency
The provision by states of their legal and policy guidelines, both on the use of armed drones, and on the sharing of information which may feed into targeted killings;
The publication of national government policies on security assistance;
The publication of the relevant rules of engagement by countries using armed drones outside armed conflict zones;
The publication of risk assessments regarding IHL, IHRL and civilian casualties;
Details of a national process on decision-making regarding drone strikes;
Reporting requirements for civilian casualties that detail the age, identity, and affiliation of intended targets – while recognizing such a level of accuracy may not always be possible.
Improving accountability
National parliaments should develop their own oversight mechanisms to ensure that operations involving drone strikes or targeted killing practices are scrutinized at the appropriate level;
States should work to promote a wider understanding amongst national parliaments around legal matters with regard to security partnerships, including within NATO;
Due diligence mechanisms should be established to assess the legal implications of providing assistance to another country;
States should consider how to balance the need for achieving strategic aims with the need for accountability;
National parliaments could organize inter-parliamentary learning exchanges, where parliamentary deputies from different countries would meet informally to discuss their own national mechanisms on improving transparency and accountability.
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