Drones in advance on military legal estates (part 2)

Sigmar Stadlmeier/Andreas Troll/Karl Platzer


After the kinds and mission profiles of unmanned air vehicles have been outlined in part 1, we have now to discuss - in the light of central items of the Military Authority Act (MBG) - which military legal estates can be endangered when such air vehicles are in use, and which powers can be considered for repelling them.

In § 1 Abs 7 MBG military legal estates are marked out and defined. According to this, military legal estates are

“1. The lives and health of persons who are entrusted with the fulfilment of military matters, during the exercise of their duties, or

2. beyond that, the lives and health of agencies of constitutional institutions as well as of representatives of foreign states or international organisations or other cross-national institutions, provided that their protection is to be guaranteed in the framework of military defence, or

3. Military areas or military essentials or military secrets.”

As a matter of course, life and health of every person are natural legal estates out of duty hours as well; they are, however, specific military legal estates only in the course of the exercise of military duties. According to § 1 sub 8 MBG, an attack against military legal estates represents the real threat of a protected legal estate by an illegal realisation of a judicially indictable action. This includes both preparatory actions in a close temporal context and the mere attempt and the attendance of deed as well as attempt. Not only intentional offences, but negligence offences constitute attacks as well. One must also observe that already an illegal realisation of a judicially indictable action suffices for representing an attack against military legal estates; subjective fault is not necessary here. Against this particular background military agencies on sentry duty as well as on airspace surveillance duty have a number of judicial competences at their disposal in order to deal with the new phenomenon of unmanned air vehicles (“drones”). The consideration of these observations in the course of the training of military agencies can substantially contribute to legally compliant behaviour, and thus also to the protection, of such agencies from judicial consequences of misdemeanour. As is often the case, however, the accoutrement with equipment and gadgetry does not unmitigatedly keep step with the legal possibilities. For this reason, the Austrian Armed Forces had better accept the challenges of UAV-scenarios as far as future procurements are concerned, so that the risky shot from the pistol of a duty officer does not remain the last - and at the same time only - means of parrying dangers for military legal estates.