Select Committee on Defence Sixth Report

8  International Issues

New Warfare and the Allies

133.  The fact that the United States is moving ahead so rapidly in networking its armed forces raises some important issues for the UK. On the one hand the UK appears to have been modestly successful, so far, in exploiting those technical areas where it has been able to integrate with US forces in specific operations. However, as our report on the Kosovo campaign pointed out, there have been some problems of interoperability between UK and US air forces.[236] Some of these have been addressed. The MoD told us clearly that "currently our focus is on our interface with the US"; interoperability with other countries is something to be considered "in due course".[237] In his speech of 10 March 2003, the Secretary of State moved British defence policy on from the original SDR which spoke of future operations being multinational[238] to a clearer focus on integration with the US—

    It is highly unlikely that the United Kingdom would be engaged in high intensity large-scale operations without the United States, a judgement born of past experience, shared interest and our assessment of strategic trends.[239]

134.  Apart from the United States, it appears that the only allies the UK has so far considered in any detail in these respects are Australia and Sweden, since, they see the evolution in warfare in a similar way to the United Kingdom. The MoD assured us that allied countries were fully informed of progress on the New Chapter, but we have no evidence that the extent of this information went beyond the circulation of the discussion document of 14 February 2002 to "NATO and EU allies and aspirant states, to the NATO Secretary General and the EU's High Representative, and to the Foreign Defence Attaches resident in London".[240] New Chapter thinking was also aired in formal bilateral contacts with allies and partners and with "in-coming dignitaries".[241] This may be regarded as something less than close interaction with allies since the discussion document of 14 February was produced for general public, rather than for detailed private, discussion.

135.  In addressing the possibility of drawing European allies into the developing discussion of new warfare and the role that partners of the United States might seek to perform, the MoD adds an interesting rider: although the UK "would wish to be able to provide similar connectivity, possibly at lesser scale, with EU partners in due course… much will depend on their ability to invest appropriately".[242] Yet independent experts thought that the UK could play a "pivotal" role in keeping open technical and doctrinal links between the United States and European allies. Mr David Gompert felt that on present trends the European allies would find it increasingly difficult to achieve interoperability with the United States.[243] This was not merely a technical issue, but also one of training and operational doctrine, since network-centric capabilities were as much about process as hardware.[244] The Prague initiatives may be the last chance, "to avoid a de facto NATO division of labor—high-low as well as geographic".[245]

136.  In its report on the original SDR, our predecessors noted that the European allies had not been involved in the process at a formative stage, but rather kept abreast of the conclusions as they emerged.[246] The same appears to have happened in the case of the New Chapter. The Government should recognise the potential impact it can have both in providing a model of efficient US-UK technical and doctrinal co-operation, and in helping influence other European allies to embrace the implications of new trends in warfare. We are not so far convinced that the MoD appreciates the potential implications of this role, or is yet prepared for the efforts it would require.

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.

236   HC (1999-2000) 347-I. Back

237   Ev 2 Back

238   SDR Vol 1, p 6-4, para 13 Back

239   Speech by Secretary of State, Chatham House, 10 March 2003. Back

240   Ev 8 Back

241   Ev 8 Back

242   Ev 2 Back

243   Q 506 Back

244   Q 508 Back

245   Ev 86-87 Back

246   HC (1997-98) 138-I. Back

247   The National Security Strategy of the United States of America, September 2002. Back

248   Q 674 Back

249   Q 676 and Q 688 Back

250   Q 617 Back

251   Q 681 Back

252   Q 188 Back

253   Q 188 Back

254   Q 617 Back

255   Ev 187-88 Back

256   Ev 187 Back

257   Q 675 Back

258   Ev 187 Back

259   HC Deb, 17 October 2002, col 496. Back

260   Ev 188 Back

261   Q 616 Back

262   Q 53 and Q 619 Back

263   Q 153 Back

264   Q 157 Back

265   Q 189 Back

266   Q 54 Back

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