Legal Aspects
137. The New Chapter had nothing explicit to
say about the legal implications for defence matters and the roles
played by the UK's Armed Forces in the campaign against terrorism.
United States policy has caused some disquiet in articulating
a "doctrine of pre-emption" as part of what Washington
calls the 'War on Terrorism'.[247]
When questioned on this matter, the Secretary of State gave assurances
that the use of a UK expeditionary capacity to attack the source
of a terrorist threat, "clearly has to be consistent with
our obligations in international law…which is based on self-defence
in this area".[248]
The British Government,
behaves consistently with our understanding of
the relevant principles of international law, which are not…solely
dependent upon, for example, the underlying agreed common law
principles of international law, such as self defence, but of
course crucially depend on decisions of the United Nations."[249]
And this view was echoed clearly by officials responsible
for doctrine and concepts.[250]
138. The principle that UK operations would always
be in accordance with the Government's interpretation of international
law applies in the same way to the rules of engagement (RoE) for
the Armed Forces. "Rules of engagement will reflect the relevant
international law and will reflect the overall position of the
Government", said the Secretary of State, "It is certainly
not changed by the New Chapter".[251]
RoE are defined from the tactical level, where the right of any
Armed Service personnel to self-defence is fundamental, up to
the strategic level where they may be set, and adjusted, according
to circumstances.[252]
Such RoEs, the Chief of the Defence Staff told us, "are very
carefully articulated and passed down the command chain".[253]
As one official commented, "Everything we do, whether military
officers or civil servants, is governed wherever we do it by UK
law. Any action must therefore be legal in terms of statute".[254]
139. Other evidence presented to the Committee,
however, suggested a more equivocal legal picture in the context
of the scope of counter-terrorist operations contemplated in the
New Chapter. Professor Sir Adam Roberts suggested to the Committee
that the New Chapter did not deal in any detail with the problems
of addressing terrorist issues in the absence of truly applicable
"laws of war". Counter-terrorism, he thought, would
require far more detailed interpretation of existing international
law when specific problems arise. In later evidence, Sir Adam
told the Committee that the Secretary of State's evidence of 5
March 2003, "indicates some unease at, and possible confusion
regarding, doctrines of pre-emptive or preventative uses of armed
force, e.g. against terrorist threats."[255]
In particular, pre-emptive action may be generally regarded as
falling within the right of states to exercise self-defence "against
an absolutely imminent threat".[256]
The problem today, however, is that it may be very difficult to
demonstrate in a legally robust fashion the imminence of a particular
terrorist threat.[257]
Actions taken against threats which do not conform to the rubric
that they be 'absolutely imminent' are in the nature of 'preventative'
rather than pre-emptive actions, and are far harder to justify
under the right of national self-defence.
Today, a difficulty with the legal rationale
for many actual or envisaged preventative or pre-emptive military
actions taken partly or wholly on counter-terrorist grounds is
that it is hard to argue that there was no choice of means and
no moment for deliberation. If only that were the case![258]
140. In a debate in October 2002, the Secretary
of State quoted "a well-established 19th Century
doctrine of pre-emption based on the concept of self-defence".
"The US National Security Strategy" he claimed, "is
based firmly on that tradition".[259]
Sir Adam Roberts, however, argued that the US National Security
Strategy of September 2002 blurs the distinction it draws between
pre-emption and prevention, and then appears to assert a general
right to preventative intervention without giving equal weight
to the principle of the norm of non-intervention in international
affairs. He concluded that the document was therefore unlikely
to attract widespread international support on this basis, and
for this reason its legal status must remain doubtful. While the
US-led intervention in Afghanistan in 2001 could undoubtedly be
legally justified as self-defence following an actual terrorist
attack on the United States, Sir Adam counselled against relying
on this subsequent legal doctrine as a basis for the UK's military
actions.
the UK should be very cautious about appearing
to subscribe to a doctrine which is internationally contentious,
and which may actually hamper the process of coalition and consensus-building
that is an essential basis on effective international action against
terrorism.[260]
141. An MoD witness acknowledged that—
There is a gap that we can see…at one extreme
which is that of domestic law enforcement, which is underpinned
by a focus on the individual [and] the classic concept of warfare
where the focus is not on an individual but on a collective, the
enemy…There is a sense that at the moment, as a result of
11 September, there is an area of activity, a series of threats
that we are having to face that somehow fall in the middle. That
is the question that we are wrestling with and I am not sure we
have got the answer.[261]
Some of those more obvious questions concern the
ways in which network-enabled warfare could affect the interpretation
of rules of engagement and personal legal responsibility. The
MoD Policy Director, Simon Webb, told the Committee that greater
speed of decision-making in the 'sensor-to-shooter' loop might
make for more sensitively applied rules of engagement in ways
that could increase the legal standing of ongoing operations—though
this was speculative for the moment.[262]
The Chief of the Defence Staff, however, was concerned that such
networking technologies would make more acute demands on the RoE
system, "We will have to have a sharper understanding of
what our rules of engagement might be, which means that we have
to get the legal processes properly sorted out". [263]
This would often require compatibility with US work on RoE, an
area which remained challenging and something the UK was still
"working on…to try and make sure that we stay in touch
with them".[264]
142. We raised the
legal implications of the more extensive use of UAVs, widely foreshadowed
in the New Chapter, on a number of occasions. We were assured
that the same legal process applied to operators of UAVs, who
may be thousands of miles away from the battlespace, as to any
other personnel involved in close battle.[265]
We were also assured that the role of the individual in all high-technology
decision-making loops, such as that implied by the use of UAVs,
remained fundamental.[266]
We welcome the MoD's assurances that UK military operations
will always be conducted in accordance with international law.
It is of fundamental importance that our Armed Forces can be confident,
whenever we call upon them, that they are operating on the basis
of, and within, applicable international law.
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