At the end of October, the New York Times reported two government officials as saying that the Trump administration had adopted its anticipated new approach to the deployment of armed drones. The Principles, Standards, and Procedures (PSP) document is said to replace the Obama Administration’s 2013 Presidential Policy Guidance (PPG). The Trump administration has neither denied or publically acknowledged the report. In response to the reported adoption of the PSP, the American Civil Liberties Union has filed a freedom of information request, seeking disclosure of the new rules governing the “United States’ use of force outside of conventional war zones in place of the PPG.”
The Obama 2013 playbook—the PPG—applied to “lethal and non-lethal uses of force, including capture operations against terrorist targets, outside the United States and areas of active hostilities” – with “areas of active hostilities” being a sui generis term never further defined. With respect to operations “outside … areas of active hostilities,” the Obama PPG imposed various restrictions on U.S. action, including that, in order for a person to qualify as a legitimate target, they must typically qualify as an identified “high-value terrorist” and must “pose a continuing, imminent threat to U.S. persons.” The Trump PSP reportedly removes the requirement in the PPG that a target constitute a “continuing, imminent threat.” The intent behind this change is seemingly to allow for the targeting of people who contribute to the operations of terrorist networks without themselves being on the verge of launching fatal attacks against Americans. As Luke Hartig, who served as Obama’s counterterrorism director at the National Security Council, observes “the new policy appears to give operators greater leeway to target according to what will be considerably more effective in disrupting and defeating terrorist networks,” including perhaps “couriers, bodyguards, or propagandists who … may not pose a continuing, imminent threat to U.S. persons.”
To date, analysis of Trump’s PSP has focused on the impact (if any) on the United States’ compliance with its international law obligations (see, for instance, the recent discussion between Ryan Goodman and Marko Milanovic).
But there is another perspective relevant to the changes governing the U.S. drone program – that of the significant number of States worldwide, which play a greater or lesser part in supporting and facilitating that program. The point is not just one of academic interest to the rest of the world, because many States observing the shifting U.S. policy themselves bear responsibility, as a matter of international law, for U.S. drone activity.
A number of States (particularly in Europe) provide logistical and intelligence assistance to the U.S. drone program. Taking the United Kingdom as an example, while the precise scope and degree of its involvement in the U.S. drone program is, as I have previously set out here, opaque, there has long been evidence that U.K. military and spy agencies share location intelligence to the U.S. drone program and provide access to U.K. air bases for certain aspects of operations. Other States provide further logistical support to the drone program, and in 2016 Italy reached an agreement allowing U.S. drone strikes to be launched from the Sigonella air base in Sicily.
States that assist U.S. drone strikes in these ways are themselves subject to international law standards, which may attribute responsibility to them for any wrongful acts committed by the U.S. The question of the attribution of State responsibility at international law is largely summarized and encapsulated in the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts (‘the ASR’), now generally agreed to reflect customary international law binding on all States. Article 16 of the ASR provides that a State which “aids or assists another State” in the commission of any wrongful act is responsible if the assisting State “does so with knowledge of the circumstances of the internationally wrongful act” and the act “would be internationally wrongful if committed” by the assisting State.
The International Court of Justice considered this type of liability in the Bosnia Genocide case, and concluded that a State would be liable for aiding and assisting another to violate international law where the assisting State was actually aware of plans of the recipient, which as a matter of fact would violate international law (a speculative opinion being insufficient). Articles 40 and 41 provide a narrower rule, applying only in circumstances where fundamental non-derogable principles of international law – what are known as ‘jus cogens norms’ – are concerned. Where one State is guilty of such a serious breach, other States are prohibited from rendering any assistance, whether before or after the event, to support or legitimize the unlawful situation.
The significance of the change between the Obama PPG and the Trump PSP for assisting States is as follows. While there has been some recent wavering (in particular in U.K. Government statements following the Royal Air Force drone strike on British citizen Reyaad Khan in Syria in August 2015), no European State that renders assistance to the U.S. drone program accepts the doctrine of a worldwide armed conflict justifying drone strikes against any target affiliated with al-Qaeda or ISIS. As a result, for European States to square their assistance to the U.S. drone program with their own obligations not to facilitate or maintain strikes that violate international law, those States have needed to be able to point to restrictions in U.S. practice that give them comfort that the U.S. is in compliance with the legal standards they recognize. The Obama PPG criterion that targets outside established areas of armed hostilities should only be targeted when posing a “continuing, imminent threat” afforded assisting States that cover: They could rely on that restriction as indicating that strikes would be carried out only where they would have been justified by one of the international law principles, which allows responses to imminent threats – perhaps anticipatory self-defense as a matter of the jus ad bellum, or the sort of necessary action in response to a threat, which is an allowable exception to international human right law’s protection of the right to life. Confident that, whatever the disagreements over legal theory, the facts of the U.S. drone program would conform with the restrictions they themselves observed, assisting States were able to continue support, while avoiding being fixed with knowledge of intentional legal violations.
But the deletion of the “continuing and imminent threat” standard in the Trump PSP appears to signal that the U.S. posture unequivocally entails the use of lethal force against persons who do not pose a threat and who lie outside the scope of any armed conflict recognized by States other than the U.S. Even if that has always been the U.S. approach in theory, the Trump PSP removes the Obama PPG fig leaf, which suggested that its excesses might be mitigated in practice. (Although, as Letta Taylor astutely pointed out recently, the extent of compliance under the Obama administration is questionable). States assisting the U.S. must now, in light of the Trump PSP, investigate and clarify both U.S. intentions and their own policy regarding continued cooperation. States can hardly maintain their previous favorable reading of the U.S. drone program, based on the studied ambiguity of the Obama PPG. Fixed with the knowledge that a program allows for the overseas assassination of non-threatening individuals outside the context of armed conflict, States rendering logistical and intelligence assistance to the U.S. drone program will be forced to interrogate each and every drone strike if they are to ensure that they avoid liability for complicity under Article 16 or Articles 40 and 41 of the ASR. States can no longer have a blanket policy of providing assistance.
Up until now, assisting States have avoided either devising or disclosing any of the grounds upon which they assess the legality of the U.S. drone strikes to which they render assistance. In the coming Trump environment, where compliance with U.S. executive branch policy may well not be sufficient, even on a charitable reading, to give comfort that strikes are deployed in a manner compliant with international law, the burden on States to develop mechanisms to satisfy themselves, and their citizens, that what they are involved in is lawful, will be accordingly even heavier.
In 2012, an attempt in the case of R (Noor Khan) v Secretary of State for Foreign and Commonwealth Affairs to seek a declaration from the Court that the U.K. ‘must formulate, publish, and apply a policy’ governing transfer of intelligence by the U.K. spy agencies in support of U.S. drone strikes in Pakistan was resisted. That claim argued that, without the policy, U.K. agents were exposed to criminal liability: The U.K. government successfully argued in response that such reasoning necessarily asked the court to make “serious criticisms of the acts of a foreign state,” which the U.K. courts would not do. But subsequent developments in Europe suggest other routes may be available to require disclosure of public interest information regarding the basis for cooperation with the U.S. drone program.
In September last year, the Grand Chamber at Strasbourg determined in Magyar Helsinki Bizottság v Hungary that, where the disclosure of information regarding matters of genuine public interest would be instrumental for a social watchdog’s ability to contribute to public debate, the right of free expression under Article 10 of the European Convention will typically require that States disclose such information when requested to do so. The Grand Chamber laid down a series of “threshold criteria” for when public authorities will be in breach of the “right of access to State-held information” which Article 10 grants to public-interest organisations seeking to access government information to facilitate their investigation and reporting on matters of public interest. It is by no means unrealistic to conceive that U.K. or Italian policies governing cooperation with the U.S. drone program could qualify as information disclosable pursuant to that right.
The U.K. Supreme Court has similarly recognized, in the case of Kennedy v The Charity Commission, a broad common law right of access to information underpinning government decision-making on matters of general public interest. While the Kennedy case itself arose in another context – that of information used in inquiries regarding charities – the boundaries of that right remain relatively unexplored, and the High Court has subsequently (in R (Privacy International) v Revenue and Customs Commissioners) noted that it may well apply more broadly.
These potential disclosure obligations for Council of Europe partners of the U.S. could be relied upon in litigation, and faced with domestic legal action for disclosure, partners like the U.K. and Italy may well be led to show their hand. The intriguing possibility exists that overreach by the Trump administration leads to a long-overdue clarification of the positions of U.S. allies.
Image: John Moore/Getty