On 21 August 2015 Reyaad Khan, a 21 year old British citizen from Cardiff, was killed by an RAF drone strike in Raqqa, Syria. He had appeared in a recruitment video for ISIL/Da’esh and was suspected of being involved in plotting and directing terrorist attacks in the UK and elsewhere.
Deploying the UK’s Armed Forces is a prerogative executive power, but the Government has chosen to observe a recently established constitutional convention that, before troops are committed abroad, the House of Commons should have an opportunity to debate the matter, except when there is an emergency and such a debate would not be appropriate. Pursuant to this convention, the House of Commons in August 2013 debated the possibility of airstrikes against President Assad’s forces in Syria after their use of chemical weapons but both the Government’s motion and the Opposition’s amendment (which did not rule out airstrikes) were defeated. When voting in favour of military action against ISIL/Da’esh in Iraq in September 2014, the House expressly did not endorse UK airstrikes in Syria and resolved that any proposal to do so would be subject to a separate vote in Parliament. At the time of the drone strike that killed Reyaad Khan, the Government therefore had the express authorisation of the House of Commons to use military force against ISIL/Da’esh in Iraq, but airstrikes in Syria were expressly not endorsed without a separate Commons vote.
The Prime Minister told the House of Commons on 7 September 2015 that the lethal drone strike in Syria was “a new departure”: the first time, in modern times, he said, that a British military asset had been used in a country in which the UK was not involved in a war. He said explicitly that the strike was not part of coalition military action against ISIL in Syria, before which, he acknowledged, the House of Commons would have to be consulted. Rather, the strike was part of the Government’s comprehensive counter-terrorism strategy that seeks to prevent and disrupt plots against the UK at every stage, as part of the stepped-up response to the acute threat from Islamist extremist violence.
The Prime Minister’s statement to the House of Commons, that the drone strike against Reyaad Khan was not part of military action against ISIL/Da’esh to protect Iraq, was contradicted by the statement of the UK Permanent Representative to the UN, also on 7 September 2015, that the action had been taken in the collective self-defence of Iraq. That statement suggested that there had been no “new departure” in UK policy, merely a conventional use of force abroad by the UK in an armed conflict in which the UK was already involved.
We decided to hold an inquiry into the matter in view of the extraordinary seriousness of the taking of life in order to protect the lives of others, which raises important human rights issues; the fact that the Government announced it as a “new departure” in its policy; and because of the importance we attach, as Parliament’s human rights committee, to the rule of law. It is obviously right in principle that the Government is subject to the rule of law and must comply not only with domestic law but with the international obligations it has voluntarily assumed. But the UK’s compliance with the rule of law is also vitally important to its ability to influence other countries in its foreign policy and to be a force for good in the world. When meeting the challenges of countering terrorism in the new situation, it is therefore imperative that the UK complies with international law, because it sends an important signal to the rest of the world about the importance of the international rule of law. The Government therefore urgently needs to demonstrate that it at all times complies with the international legal frameworks that regulate the use of lethal force abroad outside of armed conflict.
We were also concerned that the ongoing uncertainty about the Government’s policy might leave front-line intelligence and service personnel in considerable doubt about whether what they are being asked to do is lawful, and may therefore expose them, and Ministers, to the risk of criminal prosecution for murder or complicity in murder.
The main purpose of our inquiry was to achieve clarification in relation to a number of important questions, in particular: (1) what precisely is the Government’s policy? (2) what is its legal basis? (3) what is, and what should be, the decision-making process that precedes such a use of lethal force? and (4) what are, and what should be, the mechanisms for accountability?
The context in which our inquiry has taken place is important. Two developments have combined to blur the line between war in the traditional sense on the one hand and countering the crime of terrorism on the other. First, rapid technological advance has transformed both the nature of the threat the UK faces from terrorism and its capacity to counter it: both terrorist attacks and prevention of such attacks can be carried out remotely and instantaneously. Second, the nature of armed conflict has changed, with the steady rise of non-state armed groups such as ISIL/Da’esh with both the intent and capability to carry out terrorist attacks globally, and aspirations which are without territorial limit. This has created a new situation for which the legal frameworks which currently obtain were not designed. While the answer to some legal questions (such as the applicability of the European Convention on Human Rights) is clear, there is an urgent need for greater international consensus about precisely how the relevant international legal frameworks are to be interpreted and applied in this new situation.
Our inquiry has analysed the Government’s policy. The Prime Minister’s statement to the House of Commons on 7 September 2015 should be read in the context of the recently established constitutional convention whereby, before the Government uses military force abroad, the House of Commons has an opportunity to debate the proposed use of force, except when there is an emergency which means it would not be appropriate to consult the House of Commons in advance. Examples of such exceptions include if there were a critical British national interest at stake, or considerations of secrecy make it impossible. In such exceptional cases the constitutional convention is that the Government can act immediately and explain to the House of Commons afterwards, at the earliest opportunity.
The Government used military force to target and kill Reyaad Khan in Syria on 21 August 2015. The nature of the operation meant it was not appropriate for the House of Commons to debate it in advance. The Prime Minister came to the Commons on Parliament’s first day back after the summer recess, in accordance with the requirement of the constitutional convention that such exceptional use of military force be explained to Parliament at the earliest opportunity.
The killing of Reyaad Khan was therefore a “new departure” in the sense that it was the first time since the recent establishment of the domestic constitutional convention governing the use of military force abroad that the Government had invoked the exception recognised by that convention by using military force against ISIL/Da’esh outside the geographical area (Iraq) already authorised by the House of Commons, indeed in the very area (Syria) where the use of force had been expressly excluded by the House of Commons without a further resolution. The Government says that, for the different purposes of determining the relevant law that applies, the drone strike on Reyaad Khan was part of an armed conflict with ISIL/Da’esh taking place in Iraq and Syria. We accept that the drone strike in Syria was part of that wider armed conflict in which the UK was already engaged, to which the Law of War applies, and that the Government therefore did not use lethal force outside of armed conflict when it targeted and killed Reyaad Khan on 21 August.
However, our inquiry has also confirmed what the Prime Minister appeared to tell the House of Commons on 7 September: that it is the Government’s policy to be willing to use lethal force abroad, outside of armed conflict (in Libya, for example), against individuals suspected of planning an imminent terrorist attack against the UK, as a last resort, when there is no other way of preventing the attack. The Secretary of State for Defence was unequivocal in his confirmation to us that this is the Government’s policy and it has now been put beyond any doubt by the recent permission given to the US to use UK airbases for the US airstrikes against an ISIL/Da’esh training camp in Libya. Although the Government says that it does not have a “targeted killing” policy, it is clear that it does have a policy to use lethal force abroad outside armed conflict for counter-terrorism purposes.
The Government’s view of the legal basis of its policy will determine the exact circumstances in which it will be prepared, in practice, to use lethal force abroad outside armed conflict, pursuant to that policy.
The legal basis of the Government’s policy is that the use of lethal force abroad outside of armed conflict for counter-terrorism purposes is lawful if it complies with (1) the international law governing the use of force by States on the territory of another State, and (2) the Law of War. In the Government’s view, it is not necessary to consider whether human rights law applies, or what it requires, because compliance with the Law of War, it argues, is sufficient to discharge any obligations that apply under international human rights law. Certain aspects of the Government’s view of the legal basis for its policy require urgent clarification.
The Government’s interpretation of the concept of “imminence” in the international law of self-defence is crucial because it determines the scope of its policy of using lethal force outside areas of armed conflict. Too loose an interpretation of imminence could be used to justify any member of ISIL/Da’esh anywhere being considered a legitimate target. We therefore recommend that the Government provide, in its response to our Report, clarification of its understanding of the meaning of “imminence” in the international law of self-defence. In particular, we ask the Government to clarify whether it agrees with our understanding of the legal position, that while international law permits the use of force in self-defence against an imminent attack, it does not extend more widely to authorise the use of force pre-emptively against a threat which is more remote, such as plans which have been merely discussed but which lack the necessary intent or capability to make them imminent.
The Government’s position that the Law of War applies to the use of lethal force abroad outside of armed conflict, and that compliance with the Law of War satisfies any obligations which apply under human rights law, is based on a misconception about the legal frameworks that apply outside of armed conflict. In an armed conflict, it is correct to say that compliance with the Law of War is likely to meet the State’s human rights law obligations, because in situations of armed conflict those obligations are interpreted in the light of the lower standards of the Law of War. Outside of armed conflict, however, the Law of War, by definition, does not apply. What applies is human rights law, and in particular the right to life in Article 2 of the European Convention on Human Rights (ECHR). We recommend that the Government, in its response to our Report, makes clear its view about the law which would apply were it to use lethal force outside of armed conflict: does it accept that the Law of War, by definition, does not apply, and that the higher standards of human rights law apply?
The fact that the ECHR, not the Law of War, applies to the use of lethal force outside of armed conflict does not, however, unduly restrict the Government’s ability to protect the UK from terrorism. In the Government’s example of the circumstances in which it might use lethal force abroad outside armed conflict (as a last resort, where the Government has intelligence that there is a direct and imminent threat to the UK and there is no other way of preventing that threat), the ECHR would not only permit but positively require the use of lethal force by the Government. The ECHR imposes a positive obligation on the State to protect life, including by taking effective preventive measures against a real and immediate risk to life from a terrorist attack. There is also inherent flexibility in the concepts of necessity and proportionality, which have to be applied realistically having regard to the nature of the threat from terrorism which is being countered. It would be helpful if the Government spelt out its interpretation of what the right to life in Article 2 ECHR requires in this particular context, in accordance with the principle of subsidiarity. We ask the Government to clarify in particular its recognition that the use of force to protect life must be no more than is absolutely necessary, and its understanding of that requirement in the new context, having regard to the nature of the threat posed by ISIL/Da’esh.
We also ask the Government to clarify, in its response to this Report, its understanding of the legal basis on which it provides any help which facilitates the use of lethal force outside of armed conflict by the US, or any other country which takes the same or a similar view to the US (as explained below), with regard to the use of lethal force against ISIL/Da’esh, whether by providing logistical support (such as allowing the US to use UK airbases) or providing intelligence (such as that gathered through drone surveillance and reconnaissance). The US takes the view that it is in a global armed conflict with ISIL/Da’esh, so that the Law of War applies and lethal force can be used against ISIL/Da’esh wherever in the world they appear. The Secretary of State for Defence, however, said that the UK Government does not take that view, but regards itself to be in armed conflict with ISIL/Da’esh only in Iraq and neighbouring Syria. However, the nature of this conflict is both unprecedented and fast-moving. The UK’s recent assistance to the US to enable airstrikes against ISIL/Da’esh in Libya, and the increase in UK military activity in Libya, make it urgent that the Government clarifies its understanding of the legal position on this issue.
We therefore recommend that the Government provide clarification of its position on the following specific legal questions:
The decision-making process requires safeguards to be built into it to ensure that any particular operation is planned and conducted in a way which ensures compliance with the higher standards of the ECHR and which minimises the risk of loss of life, including to civilians. We recommend that the Government makes clear, in its response to this Report, when ministerial involvement is required, when legal advice is sought and from whom, and what opportunities are provided for review of the continuing justification for the authorisation to kill identified individuals.
There must also be a mechanism for effective independent investigation capable of leading to accountability for actions taken under the Government’s policy. Independent scrutiny is a means of ensuring that decision-makers keep to the relevant standards; is a safeguard against the danger of mission creep, when broad powers are exercised in ever wider circumstances; and gives the public the confidence that it is necessary to entrust such exceptional powers to ministers. It is also a legal requirement, being part of the obligation to protect life in Article 2 ECHR.
Where there is a coroner’s inquest that would provide some investigation. However, there is unlikely to be an inquest in most cases in which lethal force might be used under the Government’s policy, even if the target is a UK national. Even were such an inquest to take place, it is unlikely to be an adequate and effective investigation because coroners are not security-cleared and closed material procedures are not available in inquests under the Justice and Security Act. If there is no inquest, there must be a sufficiently broad investigation by some other independent body with access to the necessary intelligence. We recommend an enhanced role for the Intelligence and Security Committee, in the wider context of accountability through the courts, for example by the possible criminal liability of individuals who act unlawfully.
To date the UK Government has not directly engaged in international efforts, for example in the United Nations and the Council of Europe, to build international consensus about how the international legal frameworks apply to the use of lethal force abroad in counter-terrorism operations outside of armed conflict.
In light of the Government’s welcome commitment to “strengthen the rules-based international order and its institutions” we recommend that, in addition to clarifying its own understanding of the specific legal issues identified above, the Government now takes the lead in such international initiatives and act multi-laterally to build consensus. We identify a number of specific avenues which the Government could explore internationally in order to bring about such a consensus, for example by:
We will follow up these recommendations with the relevant international bodies.
9 May 2016