HC 772 Defence CommitteeWritten evidence from The Baptist Union of Great Britain, The Methodist Church and The United Reformed Church

1. Introduction

1.1 Who we are

The Baptist Union of Great Britain, the Methodist Church and the United Reformed Church (URC) comprise three of the largest Free Church denominations in the UK. Our denominations represent around half a million Christians in the United Kingdom. Historically our churches and church members have been keenly engaged in research, reflection and debate on ethical issues associated with military intervention, defence posture and developments in armaments. In 2006 the Methodist Church and United Reformed Church published Peacemaking: A Christian Vocation updating our reflection on the ethics of military intervention.

In 2011 we undertook an ethical examination of armed Unmanned Aerial Systems (UAS). The resulting report Drones: Ethical Dilemmas in the Application of Military Force1 was published and debated in the central bodies of our churches and in numerous local and regional church meetings. Our denominations’ policy work in this area is facilitated by the Joint Public Issues Team. We welcome this inquiry and appreciate the opportunity to contribute.

1.2 A brief summary of our approach towards consideration of Unmanned Aerial Systems

“Our approach has been to engage with the reality that armed UAS are here to stay while remaining committed to biblical teaching that ‘Peacemaking is at the heart of the teaching of Jesus, not an optional extra’. The tension that this creates is not easily overcome.”
Drones: Ethical Dilemmas in the Application of Military Force

We acknowledge the expectation of the UK and other governments that UAS will occupy an increasingly important role in the defence capabilities. The approach of our Churches has been to offer an ethical critique within the context of this reality. Such acknowledgement does not seek to deny the overriding concern of some of our members that by removing from the battlefield those who are responsible for firing weapons at enemy combatants, we cross a line in the way in which wars are fought. They might argue that this development should be resisted altogether.

There are several areas of ethical concern explored in the Churches’ joint report. The following concerns feature in the report’s conclusion:

The relative political ease with which these systems can be deployed and concern that this could encourage the use of violence in response to crisis and conflict.

The capacity offered by the technology for targeted killings.

The covert nature of UAS and concerns over lack of public accountability for its use.

2. Lessons Learned from Afghanistan—The Need for Clarity Regarding the Roles of UAS

“Methodist Conference requests the UK Government to publish as much information as possible concerning current strategy and effect of UAS strikes alongside future plans for armed UAS development and use, and to provide greater clarity on the role that armed UAS play in current military strategy, with particular reference to counter-insurgency”.
2012 Methodist Conference Resolution 16/2

When considering the ethics of a new form of armament, crucial questions to ask are “what does it offer” and “how will it be used”? We understand in general terms the various roles that armed UAS might play in the context of NATO’s evolving counter-insurgency strategy. This strategy was developed substantially in Iraq and concentrates on gathering human intelligence to understand the nature of the complex network of groups that may be opposed to the aims of security and stabilisation.2 If groups can be reconciled to the cause of security this is preferable. Otherwise the strategy proposes that armed groups and their members will be removed from battlefield by whatever means is feasible. Clearly the Ministry of Defence perceives UAS to have an important role in improving ISTAR3 capability to complement human intelligence gathered on belligerent groups. Whether armed UAS might also be perceived to have a role in disrupting networks by removing members of armed groups from the battlefield is less clear.

The ethics of the use of UAS become more challenging once the systems are equipped with missiles and it is armed UAS that have been the focus of our attention. We recognise that UAS have performed a number of specific combat roles in Afghanistan. These include the provision of close air support for troops, convoy protection, monitoring and countering IED4 activities and the monitoring and elimination of key individuals within insurgent organisations (sometimes described as high value targets). Due to the secrecy surrounding the role of UAS in Afghanistan we have been unable to discern the relative importance of each of these combat roles and hope that this investigation might shed some light on this area. Afghanistan provides an opportunity to assess the relative importance of the roles that UAS might perform and to evaluate their benefits and drawbacks in a situation where it is important to win hearts and minds. The central bodies of our Churches urge greater clarity from the UK government on the role that armed UAS play in current military strategy.

3. Killing of Known Individuals by UAS in Afghanistan

“Methodist Conference and URC General Assembly have asked for an affirmation from the UK Government that known individuals are not targeted by air strikes unless such persons are directly engaged in hostilities at the time. We wonder if you might be able to offer a perspective on this question.”5
Letter from Revd Roberta Rominger, General Secretary, the URC, and Revd Dr Martyn Atkins, General Secretary, the Methodist Church in Britain, to the Rt Hon Mr P Hammond, Secretary of State for Defence, dated 25 July 2012.

3.1 The evidence for targeted killing in Afghanistan

It would appear that the UK Government’s UAS operating in Afghanistan are involved in the targeting and killing of known individuals, possibly when they are located in territory that is too dangerous for ground troops to venture. Such actions would appear to fit the commonly accepted definition of a targeted killing and are a cause of significant concern for us. We provide three accounts in Appendix A drawn from the published RAF Operational Updates from Afghanistan. These Operational Updates have since been discontinued and past issues from which these accounts are taken are no longer available through the Ministry of Defence website. However we have retained copies.

In each of the three accounts we can note common features:

The UAS crew were tasked to locate and follow a known individual.

The individual was assigned to the UAS crew because of who they are, and not because of any military activity in which they were engaged at the time.

The individual was tracked over an extended period of time (of up to seven hours in one case).

The individuals did not appear to be involved in any combat operations over the period during which they were tracked. (It is the practice of the RAF bulletins to include a report of such activity and indeed to report the presence of armaments). Whether the individuals were armed is not clear.

The timing of the strikes on these individuals was determined by their proximity to other persons or to infrastructure and not due to the imminence of any attack or immediate threat that they posed. In the case in which there were concerns about collateral damage to a compound, the Reaper crew “elected to wait for a more suitable time to attack”.

3.2 Rules of Engagement

These accounts illustrate the capacity for UAS to provide extended surveillance. While jets or helicopters also provide aerial reconnaissance, we suspect that an extended track and kill operation of a seven hour duration is only practical with UAS. We conclude that UAS offer a unique capability in this respect. The Ministry of Defence has stated that missions undertaken by UAS are subject to the same Rules of Engagement as other forms of air power. We wonder whether this statement underplays the ethical considerations around a step change in capabilities offered by UAS today; capabilities that in practice are not matched by other forms of air power.

We note too that in recent years UK ground troops operating in Afghanistan have been required to draw the fire of the enemy before engaging them and that this has on occasions entailed considerable risk on the part of our troops. These Rules of Engagement ensure beyond doubt that, at this point in time, those carrying weapons have lost their status as “civilians not participating in hostilities”.

The targeting of known individuals described in the RAF Operational Updates from Afghanistan suggests a quite different application of Rules of Engagement. It would appear that certainty concerning the status of the targeted individuals has been assured. Consequently, not only is it considered to be unnecessary to see the individual fire first, but it appears that it is not necessary for the individual to be directly engaged in hostilities at the time. We would like to understand better how a comparable level of confidence of hostile intent has been achieved and what level of evidence is required.

3.3 Legal considerations around targeted killing

There has been much academic and other comment on the vexed issue of combatant and non-combatant status in Afghanistan. In a non-international armed conflict, International Humanitarian Law (IHL) permits direct attacks against members of the armed forces but what constitutes “the armed forces” is in a civil conflict is not resolved by conventional humanitarian law, state practice or international jurisprudence.6 Civilians are afforded protection from attack under IHL. It is clear that civilians lose the protection afforded to them under IHL while they are “directly participating in hostilities”.

However there is an argument for a category for persons who may not be members of an armed force under the conventional definition but “whose continuous function it is to take a direct part in hostilities”.7 In February 2009, ICRC adopted Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law.7 The interpretive guidance proposes that those who are considered to be continually engaged in a combatant function cease to be civilians for as long as they remain members of the organized armed group. We acknowledge that this interpretive guidance is itself contested and debated by international law experts and others; some are concerned that it offers too much latitude while others argue that its strictures are too narrow.

In correspondence with us on this question the Ministry of Defence has stated that in accordance with IHL and UK Rules of Engagement “only legitimate military objectives will be targeted”. It would be helpful to know whether this is a reference to the application of “continued combatant status” (rather than civilian status) in the case of UAS strikes against known individuals who are not directly engaged in hostilities at the time. If individuals are not directly engaged in hostilities at the time what determines “hostile intent” of these individuals. What level of risk do they have to present for the Ministry of Defence to justify the exceptional measure of targeting with missiles?

Clarification on this question would be valuable as there is an urgent requirement for universal agreement on the application of international law to counter-terrorism and counter-insurgency operations.8 An understanding of the UK practice in application of IHL could offer a helpful contribution to discussion and debate around these important principles. Even though these actions are taking place in the context of an armed insurgency our Churches nevertheless remain unsettled by the killing of known individuals who are not at the time directly participating in hostilities at the time. The situation is made even more difficult by the lack of accountability for these actions.

4. Constraints on the use of UAS

4.1 The use of armed UAS and targeted killing in Counter-Terrorism

“Terrorists function outside the law. It is vitally important that the UK and its allies do not do so too”.
Drones: Ethical Dilemmas in the Application of Military Force

The US Administration’s use of drones and explosive weapons in Northern Pakistan is disturbing both in its extent and in its disregard for established international norms. In correspondence with our Churches, the Ministry of Defence has affirmed the UK’s declaration that “Armed Conflict” does not include situations which are constituted by the commission of ordinary crimes including acts of terrorism whether concerted or in isolation. This declaration, attached to the UK ratification of Addition Protocol I to the Geneva Conventions 28 Jan 1998, remains in force.9

The US administration takes a very different legal view while admitting that the laws of war require “translation” in order to be applied in the context of counter-terrorism.10 However, no government possesses the freedom to unilaterally re-interpret customary international law. It is particularly problematic to attempt to unilaterally re-define the principle around the grounds for recourse to military intervention which is so fundamental to international peace and stability. To do so in this manner risks undermining international order, potentially allowing any regime that might be inclined to act militarily beyond their jurisdiction to claim to be doing so under the guise of international humanitarian law.

In our report our Churches have stressed that international law has normative content that remains important in safeguarding the international community from descent into arbitrariness and the uncontrolled use of brute force. The targeted killing of named individuals in response to terrorism is a form of lawlessness that imperils us all. It is in our national security interests to uphold the basic accepted norms in international law. As the UN General Assembly considers the report of Ben Emmerson, Special Rapporteur on Counter-Terrorism and Human Rights, we urge the UK government to work to ensure cohesion in approach among our international partners and establish policy on counter-terrorism based on the accepted norms in international law.

4.2 Trauma caused by the use of explosive weapons in populated areas

“Anyone who has witnessed an act of terrorism or met those injured and the families of those killed will appreciate that the mental trauma can remain long after physical scars have healed. Of course trauma is not exclusive to terrorist attacks but may be experienced anywhere where explosive weapons are used in civilian areas.”
Correspondence from the Baptist Union, Methodist Church and United Reformed Church to the Foreign and Commonwealth Office, 5 October 2012

In Afghanistan the vast majority of civilian deaths and injuries (74% of the total civilian deaths recorded by UNAMA11 between January and June 2013) are caused by anti-government agents rather than pro-government forces. These deaths primarily involve the indiscriminate use of IEDs, and suicide and/or complex attacks in areas populated or frequented by civilians, including civilian Government offices. The deliberate targeting of civilians by the Taliban and other armed groups opposed to the Government, is designed to intimidate and create fear among the civilian population and those working on behalf of the government.

In the very different context of Northern Pakistan communities suffer stress and trauma arising from regular surveillance operations carried out by armed UAS especially when combined with occasional or regular lethal strikes. According to the study undertaken by Stanford/NYU and the resulting report Living Under Drones,12 US drone strike policies cause considerable and under-accounted for harm to the daily lives of ordinary civilians, beyond death and physical injury. Residents have to face the constant worry that a deadly strike may be fired at any moment yet they are powerless to protect themselves. The presence of drones has terrorized men, women, and children, giving rise to anxiety and psychological trauma among civilian communities.

Too frequently the discussion around impact on civilians focuses primarily on civilian deaths. We would appreciate recognition by the Ministry of Defence that the use of explosive weapons in populated areas is generally unacceptable due to the trauma caused by such weapons. The use of Hellfire missiles in civilian areas is sometimes defended on the basis that the missiles are usually accurate and the blast area relatively well-defined and that therefore the injury to civilians can be predicted.13 This defence fails to recognise the wider trauma caused by explosive weapons on men, women and children in a community.

Monitoring Explosive Violence (2011)14 produced by Action on Armed Violence (formerly Landmine Action) draws attention to the impact of the use of all types of explosive weapons in populated areas. The intention of this work is to help to bring to the forefront of public consciousness the human impact of explosive weapons and their high cost when used in civilian areas. The UN Secretary General has urged more systematic data collection on the human cost of the use of such weapons in civilian areas and welcomed this project. Our Churches have invited the Foreign Secretary to endorse and support this work.

5. Tomorrow’s Potential

5.1 Increasing automation

The further development of UAS technology is likely to see increasing automation. The area that has concerned us most is the potential for further automation in target identification and weapons firing. The UK Government has stated that it would retain a human in the loop. However as systems become more automated the crucial question is how the human in the loop perceives and executes their role. With an increasing amount of data available might the operators become swamped? If data gathering becomes more systematised with more people involved in the “kill-chain” does the scope for individual questioning, for example concerning the evidence that a person or object is a legitimate military target, reduce? These are questions that at this stage we raise as matters for further study, aware that they are also being asked elsewhere.

5.2 Autonomous weapons systems

“General Assembly urges the UK government to begin to explore ways in which the international community might implement an arms control regime to reduce the threat posed by the development of systems capable of autonomous targeting and weapons delivery.”
The United Reformed Church General Assembly 2012—Resolution 29

Our churches argue that the autonomous firing of weapons represent an ethical red line that should not be crossed. While successive UK Government defence ministers have stated that the UK has no plans to remove the human from the loop it is not entirely clear whether this is based on an ethical objection or on a lack of trust in the technology currently available to carry out target identification with reliability.

The Rt Hon Alistair Burt MP, Foreign Office Minister, has reiterated the UK Government’s position15 that it has no intention to engage in the development of fully autonomous weapons. This is welcome. We believe that the Government should follow up this position with support for an international moratorium on the development and use of such weapons. Mr Burt has explained the Government’s reluctance to support such a moratorium is based on its belief that the Geneva conventions and additional protocols provide a sufficiently robust framework to regulate the development and use of these weapon systems. He states that the government believes that the existing rules of international law should prevent the development of these systems.16

Yet existing rules do not prohibit the development of such weapons. This is acknowledged by the Ministry of Defence Joint Doctrine Note 2/11 that states that as long as certain criteria are satisfied these autonomous weapons would be “entirely legal”.17 If the UK Government considers the development of autonomous weapons systems to be incompatible with international humanitarian law it should support the negotiation of an international instrument that makes this explicit.

6. Transparency and Accountability

Greater openness and accountability on the part of military forces would help to clear some of the fog that surrounds the systems and their use. We have noted the recommendation that prompt and public release of ISAF investigations into incidents involving civilian casualties from all air strikes (by manned or unmanned aircraft) would improve relations with affected Afghan civilians and communities.18
Drones: Ethical Dilemmas in the Application of Military Force

6.1 Transparency and accountability in Afghanistan

The use of remote weaponry further distances fighting forces from communities impacted by conflict. In the context of an insurgency such as Afghanistan where winning hearts and minds is vital, this perception of remoteness through the use of drones can be mitigated through accountability and transparency concerning drone operations. In Afghanistan air strikes represent the largest single cause of civilian death from pro-Government forces representing 38% of all such civilian deaths. UNAMA monitor and investigate deaths from the conflict in Afghanistan and in the case of some airstrikes are unable to ascertain what type of aircraft (fast jet, helicopter or UAS) has released missiles. ISAF forces claim to investigate all allegations of civilian deaths resulting from their actions but decline to release reports of their investigations. UNAMA argue that prompt and public release of investigation findings would promote transparency, accountability and better relations with affected Afghan civilians and communities.

6.2 Transparency and debate in the UK

“Greater transparency would also help to resource public understanding and debate. Without public trust and accountability fears may increase that rather than being masters of technology, the technology may come to master us”.
Drones: Ethical Dilemmas in the Application of Military Force (Section 9)

We are grateful to a few individuals within the Ministry of Defence who have helped us understand better the issues surround the development and use of UAS. They have acknowledged that the ethical challenges are real and that public awareness and informed debate is necessary. However our sense is that this commitment to public discussion is not shared more widely within the Ministry and inevitably discussion around the use of UAS is too quickly constrained by the perceived need to maintain confidentiality.

We fully appreciate that the Ministry of Defence must ensure that they do not place in the public domain information that could be of advantage to belligerent groups intent on attacking our forces. However we invite the Ministry of Defence to consider whether there is a means for discussing general principles and policies around targeting and other issues in such a way that would not compromise operational security.

Some of the fears that have arisen over the UK’s use of UAS could be allayed by an improved communication strategy on the part of the Ministry of Defence. The care taken by the UK in the force’s use of UAS is quite distinct from that of the CIA’s operations in north-western Pakistan, yet this is not always obvious given the lack of information on current UAS operations in Afghanistan.

7. Recommendations

In summary our recommendations for the Ministry of Defence and/or Foreign and Commonwealth Office are as follows:

(i)Ensure that Rules of Engagement no longer permit UAS to track and kill known individuals who are not directly involved in hostile action at the time. (3.)

(ii)Publish the findings of investigations into allegations of civilian deaths from airstrikes in Afghanistan to enhance relations with affected Afghan communities. (6.1)

(iii)Seek to improve the public consciousness in the UK and elsewhere of the human impact of explosive weapons and their high cost when used in civilian areas and consider endorsing the Monitoring Explosive Violence project. (4.2)

(iv)Work with the US Government and other international allies to ensure consistent approaches to counter-terrorism based on established norms in International Humanitarian Law. Reiterate the long-established UK position that the Laws of Armed Conflict cannot be used to justify military intervention to counter terrorism. (4.1)

(v)Promote dialogue on the parameters used to determine the legal status of combatants and the implications for Rules of Engagement in counter-insurgency situations. (3.3)

(vi)Provide greater clarity on the role that armed unmanned aerial systems play in current military strategy. (2.)

(vii)Support the call by a number of Governments for a moratorium on the development of autonomous robotic weaponry and assess the feasibility of a new international instrument to prohibit the use of such weapons. (5.2)

Steve Hucklesby
Policy Officer

27 September 2013

APPENDIX A

RAF OPERATIONAL UPDATES

Afghanistan

4 August 2012—During one of these missions, the Reaper was tasked with searching for a known insurgent riding a motorcycle. Having identified the insurgent, the crew were given authority to attack but elected not to do so as they had observed him entering a Bazaar. The Reaper crew followed this individual for a further 7 hours before carrying out a successful attack.

28 July 2012—This week they delivered over 280 hours of full motion video (FMV) which is used extensively by ground troops of the UK Task Force Helmand and the US Marine Corps of Task Force Leatherneck. During one of these missions, the Reaper was tasked with tracking an insurgent on a motorcycle. The Reaper crew followed this individual for some time until he parked his motorcycle by a compound and walked into an adjacent field. Although legally authorised to attack, the crew decided that he was still too close to the compound for them to be absolutely sure that there was no risk of damage to the compound and elected to wait for a more suitable time to attack.

3 April 2012—On one mission this week, the Reaper was tasked with tracking a known insurgent travelling on a motorbike in the region of Lashkar Gah. Over the course of 5 hours the Reaper tracked the insurgent and it was only once there was no risk to civilians that the aircraft was authorised to carry out a successful strike.

Source:

These are extracts from Operational Updates that were published on a weekly basis and made available online. The Updates have since been discontinued and past issues from which these accounts are taken are no longer on the RAF website. Copies of the above three issues are available from the Joint Public Issues Team.