The Government’s policy on the use of drones for targeted killing Contents



1.1On 21 August 2015 Reyaad Khan, a 21 year old British citizen from Cardiff, was killed by a Hellfire missile fired from an RAF Reaper drone whilst he was travelling in a vehicle in the area of Raqqa in Syria. The drone was flown, and the missile fired, from a ground control station, or “virtual cockpit”. Khan, who had appeared in a recruitment video for the terrorist organisation ISIL/Da’esh1 in June 2014 and was suspected of being involved in plotting and directing terrorist attacks in the UK and elsewhere, was the target of the strike. Two other people were also killed by the missile: Ruhul Amin, also a UK national, and Abu Ayman al-Belgiki, a Belgian national.

1.2 The power to deploy the UK’s Armed Forces is a prerogative executive power exercised on the Sovereign’s behalf by ministers.2 However, 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 action would not be appropriate.3 Pursuant to this convention, on 29 August 2013 the House of Commons debated the Government’s motion raising the possibility of airstrikes (subject to a further Commons vote and efforts to secure a UN Security Council Resolution) against President Assad’s forces in Syria after their use of chemical weapons. The motion was defeated as was an amendment from the Opposition which did not rule out airstrikes but imposed stronger preconditions.4 In September 2014, the House of Commons voted in favour of using military force, including airstrikes, against ISIL/Da’esh in neighbouring Iraq, but not in Syria: according to the terms of the resolution approved by the House of Commons, “this motion does not endorse UK air strikes in Syria as part of this campaign and any proposal to do so would be subject to a separate vote in Parliament”.5 At the time of the drone strike that killed Reyaad Khan, therefore, the Government 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.

1.3On 7 September 2015, the first sitting day after the summer recess, the Prime Minister made an oral statement to the House of Commons on Refugees and Counter-terrorism, in which he told Parliament about the lethal drone strike in Syria on 21 August and explained the Government’s justification for the action.6 The Prime Minister’s statement remains one of the clearest descriptions of the Government’s policy and we therefore consider it in some detail in this Report. In short, he said that Reyaad Khan had been killed in an act of self-defence, to protect the British people from a direct threat of terrorist attacks being plotted and directed by Khan. He had been “involved in actively recruiting ISIL sympathisers and seeking to orchestrate specific and barbaric attacks against the west, including directing a number of planned terrorist attacks right here in Britain, such as plots to attack high profile public commemorations, including those taking place this summer.” The Prime Minister said that the Government had acted because there was no alternative: in the absence of a Government in Syria that it could work with, and no military forces on the ground, direct action was the only way of preventing Khan’s planned attacks on Britain. The Attorney General had advised that there was a clear legal basis in international law, namely the UK’s inherent right to take necessary and proportionate action to defend itself against terrorist attack.

1.4The Prime Minister explained that 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. Although the Prime Minister said there was clear evidence that the planned armed attacks on the UK were part of a series of actual and foiled attempts to attack the UK “and our allies”, he was very clear that the justification for the strike was to defend the British people against the threat of terrorist attack in the UK, rather than part of the armed conflict in Syria:

“I want to be clear that the strike was not part of coalition military action against ISIL in Syria: it was a targeted strike to deal with a clear, credible and specific terrorist threat to our country at home.”

1.5 The Prime Minister acknowledged that this was the first time in modern times that a British military asset had been used in a country in which the UK was not involved in a war, and said that this was “a new departure”. He also restated the Government’s consistent position that “the Government will return to the House for a separate vote if we propose to join coalition strikes in Syria.” However, he said that the lethal drone strike on 21 August had been within the carefully preserved exception to the requirement that the House of Commons should normally have an opportunity to debate the matter before the Government uses military force abroad, whereby the Government reserves the right to act immediately and explain to the House of Commons afterwards “if there were a critical British national interest at stake” which makes it not appropriate for there to be prior parliamentary debate.7 That exception is a recognised part of the recently established constitutional convention.8

1.6On 2 December the House of Commons voted to extend its authorisation of the use of military force against ISIL/Da’esh from Iraq to Syria.9 Since that date any use of force by the UK against ISIL/Da’esh in Syria has therefore been part of an armed conflict in which the Government has been authorised by the House of Commons to participate.

Our inquiry

1.7When our Committee was constituted in late October, we considered that the “new departure” in Government policy, to use drones for targeted killing outside of armed conflict, was one of the most significant human rights issues that demanded detailed scrutiny by Parliament. The taking of life in order to protect other lives raises human rights issues of profound importance. The UK had previously used armed drones to deliver lethal strikes, but only in areas such as Iraq and Afghanistan where the UK was already clearly involved in an armed conflict. The policy apparently announced by the Prime Minister on 7 September, of using armed drones to kill suspected terrorists in areas outside of armed conflict, as part of the Government’s counter-terrorism strategy, required careful consideration. Many commentators were of the view that the UK had adopted the controversial policy of targeted killing as part of its counter-terrorism strategy. Nehal Bhuta, Professor of Public International Law at the European University Institute, for example, suggested that on one reading:10

“it amounts to a sea-change in the UK’s legal position, and indeed aligns it with several US legal positions in the ‘war on terror’ which, hitherto, no European state has formally embraced.”

1.8“Targeted killing” is the phrase which has been used11 to describe the policy adopted by the US and Israel, involving the intentional, premeditated and deliberate use of lethal force by the State against specific, pre-identified terrorist suspects outside areas of armed conflict.12 We were aware of the controversy surrounding the use of “targeted killing” as part of a State’s counter-terrorism strategy, and of the common criticism of the US policy in particular that, particularly in its early days, there was insufficient transparency surrounding what was generally a covert programme of targeted killing by drones. We were conscious that the UK’s apparent change of policy had not been preceded by any parliamentary scrutiny or debate and that the Government had not published any formulated policy. We also noted that there was considerable uncertainty about exactly what the Government’s policy now was in the light of ambiguous and apparently contradictory Government statements about whether the action taken in Syria had been part of the armed conflict in which the UK was already involved in neighbouring Iraq.13

1.9As well as there being no clarity about precisely what the Government’s policy now is, there was also a lack of clarity about the legal basis of the policy. The Government had invoked the international law of self-defence, but said very little about whether the Law of War or human rights law were also relevant, and, if so, what they required. For reasons we explain in more detail below, we were particularly concerned about the importance of the Government complying, and being seen to comply, with the rule of law, including international law. We were also concerned that the ongoing uncertainty about the Government’s policy and its legal basis might leave front-line intelligence and armed service personnel in considerable doubt about whether what they are being asked to do would expose them to the risk of criminal prosecution for murder or complicity in murder.14 Ministers also run the same risk in giving those orders. We also thought that there were important questions to be asked about the decision-making process that precedes a lethal drone strike outside an area of armed conflict. What mechanisms exist to ensure that there is independent and effective scrutiny of such actions to ensure that there is accountability for the exercise of such an extraordinary power also required scrutiny.

1.10We therefore decided to hold an inquiry into “The UK Government’s Policy on the Use of Drones for Targeted Killing”. We announced our inquiry and issued a call for evidence on 29 October 2015.15 We invited submissions on the following themes in particular:

i)clarification of the Government’s policy and its legal basis;

ii)the decision-making process that precedes the Government’s use of drones for targeted killing, including the safeguards to ensure the sufficiency of evidence; and

iii)accountability for actions taken pursuant to the policy (what independent checks exist before and/or after a strike; should there be independent scrutiny and, if so, who should carry it out?).

1.11The focus of our inquiry was the Government’s policy on the use of drones for targeted killing, not the use of drones for targeted killing in any particular case.16 We have not sought to inquire into the drone strike in Syria on 21 August, other than to the extent that the events leading up to that particular use of lethal force shed light on the main themes of our inquiry. We have also focused on the policy through a human rights lens, not its efficacy or desirability as a matter of foreign or defence policy: that is a matter for other committees.

1.12There were two other lethal drone strikes in Syria targeting UK nationals before the House of Commons voted to extend authorisation for military force to Syria on 2 December: on Junaid Hussain on 24 August and on Mohammed Emwazi (dubbed ‘Jihadi John’ by the media) on 12 November.17 Both of these strikes were carried out by US drones. In relation to the second of these strikes, the Prime Minister made clear that the UK’s intelligence agencies worked “hand in glove” with the US to track down the target of the strike.18 We asked the Government about sharing intelligence with other governments and what steps it takes to satisfy itself that the policy of the recipient state is lawful. However, the Government did not respond to these questions. We consider in Chapter 3 below the important issues raised by UK help, for example by logistical support or the sharing of intelligence, for the use of lethal force by coalition partners such as the US, which may have different policies in relation to the use of lethal force, as a result of different understandings of the legal framework, and identify some of the questions on which clarification of the Government’s position would be desirable.19

1.13We received 20 written submissions in response to our call for evidence. A list of all those who contributed is at the back of this Report. All written submissions we received can be found on our website.20 We refer to some of the submissions in our Report where relevant, but every submission we received has been carefully considered and used to inform our investigation of the issues.

1.14The Acting Chair of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe, Michael McNamara T.D., wrote to us drawing our attention to its recent Report, Drones and targeted killings: the need to uphold human rights and international law, which we have found helpful in our inquiry.21 He also invited us to an exchange of views with his Committee in Strasbourg, which took place on 21 April.

1.15We held two oral evidence sessions. At the first evidence session, on 9 December, we took evidence from Professor Sir David Omand, Professor in the Department of War Studies at King’s College, London, and Chair of the Birmingham Policy Commission on Drones22; Jennifer Gibson, a lawyer from the NGO Reprieve, also a member of the Birmingham Policy Commission and author of Living Under Drones; and Professor Thomas Simpson, Associate Professor of Philosophy at the University of Oxford and a former officer with the Royal Marines. At the second evidence session, on 16 December, we heard from the Secretary of State for Defence, the Rt Hon Michael Fallon MP. Transcripts of both evidence sessions are available on our website.23

1.16We visited RAF Waddington in Lincolnshire on 3 December 2015. RAF Waddington is one of the bases from which RAF pilots fly the RAF’s armed Reaper drones. We found the visit useful and instructive and we refer to some of the useful things we learned from the visit in the course of our Report.

1.17During our recent visit to Edinburgh we raised the main issues in our inquiry with our interlocutors there.

1.18The Chair of the All Party Parliamentary Group on Drones, Rt Hon David Davis MP, and its secretariat have helpfully shared background information and material in their possession.

1.19We are grateful to those individuals and organisations who have engaged with our inquiry and provided us with helpful evidence and other material.

The threat posed by ISIL/Da’esh

1.20We preface our Report by making clear that it is the Government’s duty to ensure the safety and security of the people of this country and we endorse the Government’s seriousness in discharging that duty. ISIL/Da’esh poses a very serious threat of terrorist attack in the UK and on British citizens abroad. In light of the horrific attacks in Paris in November 2015, and many other murderous attacks throughout the world, including the attack on tourists on the beaches of Tunisia which killed 30 British citizens, the UN Security Council has rightly determined that the threat posed by this organisation represents a threat to international peace, which has been confirmed by the attacks in Brussels and Ankara in March 2016.24

1.21Indeed, as Parliament’s human rights committee we point out that, in the face of such a serious threat of terrorist attack, human rights law itself imposes a number of important duties on the State to take effective preventive action to ensure people’s safety and security. As the Committee of Ministers 2002 Guidelines on Human Rights and the Fight Against Terrorism make clear, “States are under an obligation to take the measures needed to protect the fundamental rights of everyone within their jurisdiction against terrorist acts.”25 The universally recognised and protected right to life, for example, requires the State to take action to protect life against clear risks such as terrorist attacks. As we explain in more detail in Chapter 3 below, where the State is in possession of clear evidence of a threat to life, human rights law requires the State to take preventive operational measures to protect people against that threat.26

1.22The Secretary of State for Defence was therefore quite right to emphasise in his evidence to us that when ministers make difficult counter-terrorism decisions, they are aiming to fulfil their duty to protect the right to life of those who would be victims of terrorist atrocities.27

1.23It is important that the debate about this difficult issue is not framed as a clash between national security on the one hand and human rights on the other. It is about how best to reconcile both duties to protect the human right to life.

The implications of drone technology

1.24We also wish to preface our Report by making clear that we have become well aware during our inquiry of the capability offered by drone technology in countering terrorism and other threats to national security. It is clear that, in addition to their contribution to surveillance capability, compared to conventional weapons platforms including fast jets, drones have the potential to enhance compliance with the Law of War in armed conflicts. The better quality surveillance and the greater precision in targeting, for example, make it easier to avoid civilian casualties. We also found persuasive the suggestion that the calmer conditions in the virtual cockpit of a drone, together with the superior access to intelligence and other information, and crews’ enhanced concentration because of the ability to rotate personnel on shorter shifts than is possible in flight, all have the potential at least to make for better quality operational decision-making at the critical moment of whether or not to use lethal force.28

The context: a new situation

1.25The context in which we have conducted our inquiry is important. In the course of our inquiry it has become clear to us that two developments have combined to bring about a new situation for which our long established legal frameworks were not designed.

1.26The first development is rapid technological advance which has transformed both the nature of the threat we face from terrorism and our capacity to counter it. Instantaneous global communication over the internet means that terrorist attacks can be launched remotely, from the other side of the world, and without warning. At the same time, rapidly developing drone technology means that some States have the capacity to defend themselves against terrorism by remotely gathering detailed visual intelligence and using lethal force with some precision against targets on the other side of the world. The increasing availability of drone technology means it is only a matter of time before this ability to deliver lethal force remotely is also at the disposal of terrorist organisations.29

1.27The second development which poses challenges for our legal frameworks is the changing nature of armed conflict, with the steady rise of non-state armed groups with the intent and capability to carry out terrorist attacks globally. The recent rapid rise of ISIL/Da’esh poses particular challenges: the UK is now threatened with attack by an armed terrorist organisation which claims to be a “State”, occupies territory and has demonstrated that it has not only the intention but the ability to attack in many places across the world, including UK nationals overseas. Moreover, unlike other terrorist organisations which have threatened in the past, ISIL/Da’esh has global aspirations which are without territorial limit. We agree with the UN Security Council that this makes the nature of the terrorist threat from ISIL/Da’esh “unprecedented”.

1.28These two developments have led to a blurring of the lines between war in the traditional sense on the one hand, and countering the crime of terrorism on the other. Countering a threat from transnational terrorists abroad is quite different from the domestic enforcement of criminal law which has been the traditional way of countering terrorism. This blurring of the lines raises a number of questions about how the relevant legal frameworks are to be interpreted in this new set of circumstances. Does the Law of War alone govern the lawfulness of action taken to counter terrorism in such circumstances, or does human rights law apply? Do they overlap, and, if so, which takes precedence? Are there circumstances in which only one or other applies? When they apply, what are their requirements? Do we need a new legal framework to deal with this new situation,30 or just guidance about how existing legal frameworks apply?31 How flexible do the existing legal frameworks need to be to cope with these new challenges, and are they flexible enough? These are the sorts of questions with which we have grappled in our inquiry.

1.29As we explain in our Report, there are clear answers to some of these questions, but a real lack of clarity in relation to others. Where we think the answers are clear, we say so, but we also point out where there is room for disagreement about how the legal framework should be interpreted. In this Report we identify some specific legal questions on which there is room for interpretive argument and on which clarification of the Government’s view is necessary. Indeed, one of the important conclusions that we have reached is that the Government needs urgently to address some specific questions about how the existing legal frameworks should be interpreted and applied in this new situation, and to demonstrate that it has done so by publishing, in its response to our Report, a clear statement of its understanding of how those frameworks apply.

Why it matters

1.30We are very conscious that, at a time when the world faces such a serious threat of attack from ISIL/Da’esh, some may question why we consider it to be such a priority to inquire into a particular aspect of the Government’s response to that threat. We decided to inquire into this controversial subject for two main reasons: first, because of the importance we attach, as a human rights committee, to compliance with the rule of law, including international law; and second, because of the need to provide reassurance to all those involved in implementing the Government’s policy that they are not running the risk of criminal prosecution.

The importance of the rule of law

1.31The rule of law requires the Government to hold to certain minimum standards, including when it is countering terrorist attacks on democracy. The Government is subject to both domestic law and the international treaty obligations which the UK has voluntarily entered into. Compliance with the rule of law is vital to maintaining international peace and security and is a prerequisite of the effective protection of human rights both here in the UK and abroad. The UK’s domestic system for protecting human rights is augmented by and interwoven with the international treaty, the European Convention on Human Rights, which the UK was so instrumental in designing. The UK’s compliance with its international treaty obligations sends an important message to the rest of the world about the importance of abiding by international obligations: if the UK appears to be selective in its approach to its international obligations, that would be rapidly seized upon and invoked by other States as an excuse for their record of disrespect for international law. In the UK’s foreign policy it expects to be able to press other Governments to comply with the rule of law, including human rights. The Government is undermined in its efforts to do this unless it constantly demonstrates that its own commitment to the rule of law is more than merely rhetorical. 32 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.

1.32The international rule of law is one of Lord Bingham’s eight principles in his justly famous account of the rule of law.33 According to Lord Bingham, “the rule of law requires compliance by the state with its obligations in international law as in national law.” The importance internationally of the UK being seen to comply with its international obligations is a point which has been forcefully made by a number of significant visitors to the UK. The UN High Commissioner for Human Rights, for example, alluded to the importance of the UK complying with international law during his visit to the UK in October 2015 (in the context of speculation about the Government’s plans to repeal the Human Rights Act).34

1.33The Council of Europe Commissioner for Human Rights, Nils Muižnieks, with whom we met, impressed upon us (in the different context of responding to judgments of the European Court of Human Rights) the potential damage that is done to the ECHR’s system for the collective protection of human rights if one of its members is perceived to be openly breaching its international obligations, and all the more so when the State is as influential internationally as the UK.

1.34The availability of drone technology makes targeted killing much easier for States. It also makes it much easier to use lethal force in the territory of another State. Combined with the fact that the technology is ever more widely available, and is likely to be at the disposal of a growing number of States in the years to come, we are concerned about the threat posed to the right to life. The right to life is not absolute, but our long established legal frameworks make clear that the taking of life is only ever justified as a last resort and in order to protect other life. If the availability of drone technology is not to lead to a significant lowering of the level of protection for the right to life, it is important to ensure that there is absolute clarity about the legal frameworks that apply to the use of drones for targeted killing, and that all those involved understand exactly what those legal frameworks require of them.

1.35Compliance with international law in the fight against terrorism is of the utmost importance. As a number of witnesses reminded us in the course of our inquiry, international law applies to all States, and expansive interpretations of well established legal doctrines and principles may have unfortunate consequences if invoked by other States.35 As the former Deputy Director of Legal Services to the RAF and author of The Law of Targeting, Dr. William Boothby, said to us in written evidence:

“Of course interpretations that we make, and actions we take pursuant to them, will be noted by our adversaries and potential adversaries who may choose to take a similar position. We should therefore consider any policy on these matters most carefully and with that in mind.”36

1.36Drone technology is rapidly becoming more widely available and it is therefore very important that there is as much clarity as possible about how the use of such a powerful technology is regulated by international law. In the last few years this has been a subject of growing concern in intergovernmental contexts such as the UN and the Council of Europe. However, as we explain in Chapter 6, the UK has so far not played an active part in these international initiatives to seek greater international consensus about how the use of lethal force abroad by armed drones for counter-terrorism purposes fits within the relevant frameworks of international law. We summarise briefly here what those initiatives have been, as they provide the important international context in which our inquiry has taken place.

United Nations initiatives to maintain consistency with international law

1.37In 2010 the UN Special Rapporteur on extrajudicial, summary or arbitrary execution, Philip Alston, reported to the UN Human Rights Council on “targeted killings”, in light of the adoption by a few states of targeted killing policies, whether openly or impliedly.37 He reported that a policy of targeted killing, or “the intentional, premeditated and deliberate use of lethal force [ … ] against a specific individual who is not in the physical custody of the perpetrator”, appeared to have been adopted by certain states as part of their counter-terrorism policy, including in the territory of other states. The availability of armed drone technology had made it easier to kill targets with fewer risks to the personnel of the targeting State, and therefore contributed to the rise of targeted killing. The Special Rapporteur warned that this had led to “a highly problematic blurring and expansion of the boundaries of the applicable legal frameworks–human rights law, the laws of war and the law applicable to the use of inter-state force.” States with such policies often failed to specify the legal justification for their policies, to disclose the safeguards in place to ensure that targeted killings are in fact legal and accurate, or to provide accountability mechanisms for violations. He recommended that States should publicly identify the rules of international law they consider to provide a basis for any targeted killings they undertake; and specify the procedural safeguards in place to ensure in advance of targeted killings that they comply with international law, and the measures taken after any such killing to ensure that its legal and factual analysis was accurate.

1.38The UN Special Rapporteur’s 2013 Report to the Human Rights Council, by Christof Heyns, focused on the use of lethal force by armed drones from the perspective of the protection of the right to life.38 He examined the way in which the law of war, human rights law and the law on the inter-State use of force regulate the use of lethal force by armed drones. He concluded that the established international legal framework which governs the use of lethal force is an adequate framework for regulating the use of such force by armed drones, and does not need to be abandoned to meet the new challenges posed by terrorism. On the contrary, he argued, the fact that drones makes targeted killing so much easier made it all the more important to ensure that the long established standards are diligently applied. He called on States and intergovernmental organisations to engage in processes to seek consensus about the correct interpretation and application of the established international standards that govern the use of armed drones.

1.39In 2014 the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ben Emmerson, also focused on the use of armed drones in extra-territorial lethal counter-terrorism operations and made recommendations to the Human Rights Council aimed at clarifying and promoting international consensus about the relevant principles of international law that apply.39 His report identified a number of legal issues on which there is currently no clear international consensus, or where established legal norms are coming under pressure from changing State practice. Arguing that such legal uncertainty about the interpretation and application of the core principles of international law governing the use of lethal force in counter-terrorism operations fails to provide adequate protection for the right to life and leaves dangerous latitude for differences in practice by States, the Special Rapporteur invited States to clarify their position on a number of legal issues, with the aim of reaching an international consensus on those principles.

1.40The UN Human Rights Council passed a Resolution in April 2014 urging States to ensure that any use of armed drones to counter terrorism complies with their international law obligations, including the UN Charter, international human rights law and the Law of War.40 It also called upon States to conduct prompt, independent and impartial investigations whenever there are indications of a violation of international law caused by the use of armed drones. In March 2015 the Human Rights Council decided to invite the UN High Commissioner for Human Rights, relevant Special Rapporteurs and the human rights treaty bodies “to pay attention, within the framework of their mandates, to violations of international law as a result of the use of [ … ] armed drones”, as well as to remain seised of the matter.41

Council of Europe initiatives

1.41The Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe did some important work on the subject of drones and targeted killing in 2014.42 Its Report, Drones and targeted killing: the need to uphold human rights and international law, concluded (as we do in this report) that the issue is not the use of armed drones as such but the fact of targeting individuals for intentional killing.

“The decision-making process leading to such strikes must not be allowed to deteriorate into a routine procedure leading to death sentences passed by members of the executive without ‘the accused’ even being informed of the grounds for suspicion against him or her, let alone given a chance to defend him or herself. [ … ]

The Assembly should therefore recall the basic principles governing the use of lethal force under international law, in particular international humanitarian and human rights law, and urge all Council of Europe member and observer states to respect these principles, and to provide sufficient transparency to ensure that adherence to these principles can be independently monitored. The Committee of Ministers should be invited to lay down relevant guidelines.”

1.42In 2015 the Parliamentary Assembly of the Council of Europe, referring to Resolution 2051 (2015) on drones and targeted killings: the need to uphold human rights and international law,

“invited the Committee of Ministers to undertake a thorough study of the lawfulness of the use of combat drones for targeted killings and, if need be, draft guidelines for member States on targeted killings, with special reference to those carried out by combat drones. These guidelines should reflect States’ obligations under international humanitarian and human rights law, in particular the standards laid down in the European Convention on Human Rights (ETS No. 5), as interpreted by the European Court of Human Rights.”43

1.43As we explain in more detail in Chapter 6,44 the Committee of Ministers has recently indicated that, while it agrees about the need to address many legal issues raised by the use of armed drones, and for greater consensus on the terms of their use, it is not persuaded of the need for guidelines such as those suggested by the Parliamentary Assembly.

1.44However, were the Committee of Ministers to attempt the task of drawing up such guidelines, it could, in principle, seek an advisory opinion from the European Court of Human Rights, under Article 47 ECHR, on any legal question concerning the interpretation of the Convention which is raised by such guidelines, such as the applicability of the right to life in Article 2 to any use of lethal force abroad.45

The risk of criminal prosecution

1.45Our other main reason for conducting our inquiry was the need to provide reassurance to all those involved in implementing the Government’s policy that they are not running the risk of criminal prosecution for murder or complicity in murder.

1.46The deliberate killing of another person “under the Queen’s peace” is murder unless there is a defence. Moreover, the courts of England and Wales have extra-territorial jurisdiction in relation to unlawful killing: a British national who kills someone abroad without lawful defence can be tried in England and Wales for the offence of murder or manslaughter.46 Where UK personnel kill another person abroad as part of a traditional armed conflict, the defence of combatant immunity applies and there is no risk of criminal liability provided the killing was in accordance with the Law of War. However, where lethal force is used abroad for counter-terrorism purposes outside armed conflict, the defence of combatant immunity is not available.

1.47An important question therefore arises: what defences to a charge of murder are available where lethal force is used abroad outside armed conflict? Professor Simon Gardner, an expert on criminal law, examined the available defences in his written submission to us and concluded that, where the use of lethal force is outside armed conflict, and is not a reasonable response to an attack that is honestly believed to be imminent, it is by no means clear that a defence to a murder charge is available.47

1.48The possibility of criminal prosecution for complicity in murder also arises for all those UK personnel who have a role in assisting or facilitating the use of lethal force by coalition allies, such as the US, which has a much wider approach to the use of lethal force outside of armed conflict.48 Such assistance might take the form of logistical support (for example, permitting US jets to use UK airbases), or the provision of intelligence about targets gathered by UK surveillance and reconnaissance.

1.49The legal uncertainty faced by such personnel was demonstrated recently by the judicial review case of Noor Khan, in which it was argued that by sharing locational intelligence with the US for use in drone strikes in Pakistan, UK intelligence personnel would be aiding and abetting murder. The claim sought to establish that the UK Government’s policy and practice of sharing intelligence with the US in the knowledge that it was used to locate targets who were then killed by drone strikes was unlawful, because it required GCHQ officers to encourage and/or assist the commission of murder,49 or required them to engage in conduct ancillary to crimes against humanity and/or war crimes.50 Although the Court of Appeal ruled that the issue was non-justiciable in those civil proceedings because it required the court to decide the lawfulness of the US policy on drone strikes, and the Court therefore declined to determine the question, it said that it is “certainly not clear that the defence of combatant immunity would be available to a UK national who was tried in England and Wales with the offence of murder by drone strike.”51

1.50While it may be highly unlikely that a prosecution would in practice be brought in the UK, front-line personnel (including those who order a strike from the virtual front line) should be entitled to more legal certainty than is offered by the mere expectation that the Director of Public Prosecutions would be unlikely to consider prosecution to be in the public interest. Nor can the risk be ruled out of a criminal prosecution being commenced in another State (for example in respect of a national of that State who was killed by a UK drone strike), and giving rise to a request for extradition (under a European Arrest Warrant for example).

1.51In our view, we owe it to all those involved in the chain of command for such uses of lethal force (intelligence personnel, armed services personnel, officials, Ministers and others) to provide them with absolute clarity about the circumstances in which they will have a defence against any possible future criminal prosecution, including those which might originate from outside the UK.

The Government’s engagement with our inquiry

1.52On 4 November we wrote to the Defence Secretary, the Foreign Secretary and the Attorney General to make clear the intended scope of our inquiry and to indicate some ways in which we hoped the Government would be able to help us with our inquiry.52 We made clear that the focus of our inquiry was the Government’s policy and not the use of drones for targeted killing in any particular case. We also made clear that, while the events leading up to the lethal drone strike in Raqqa on 21 August 2015 might be relevant to our inquiry insofar as they suggest what the Government’s policy is and reveal the decision-making process prior to such a use of force, we were not in a position to inquire into the intelligence on which the decision was made to launch that particular strike as our members are not security-cleared. We regarded that as a matter for the Intelligence and Security Committee (“the ISC”), which had announced on 29 October that one of its immediate work priorities would be looking into “the intelligence basis surrounding the recent drone strikes in which British nationals were killed.”53 The ISC’s members are security cleared, enabling the Government to give them access to highly classified material if it so chooses, and the Committee is therefore able to inquire into matters requiring access to the underlying intelligence.54

1.53We asked the Government to provide us with a detailed memorandum, covering a number of matters:

i)A clear statement of the Government’s policy on the use of drones for targeted killing.

ii)A comprehensive description of the legal framework which the Government considers to be relevant to its policy, including international law, and an explanation of the circumstances in which it is lawful to use drones for targeted killing.

iii)A description of all existing guidance which the Government considers to be relevant to any use of drones for targeted killing.

iv)A description of the decision-making process that precedes any ministerial authorisation in a particular case.

v)A summary of all the existing accountability mechanisms which apply to any use of drones for targeted killing.

1.54We also asked for the memorandum to address a number of specific questions set out in the Annex to our letter, which were intended to establish some basic factual and legal matters at the outset of our inquiry. These included important questions about the international law frameworks that govern the use of drones for targeted killing abroad, such as what tests must be satisfied for a targeted killing abroad to be lawful, and, importantly, whether the Government considers human rights law to apply to such uses of lethal force abroad.

1.55We regret that the Government failed to provide us with many of the answers to our questions. We initially received a request for an extension of time by two weeks for the submission of the Government’s memorandum. Our Chair declined that request on the basis that our inquiry was urgent in light of the Government’s stated intention to conduct similar lethal drone strikes in future in similar circumstances, and the Government should already have been clear about the legal basis for its policy before it implemented it by the lethal drone strike in Syria on 21 August.

1.56We received a brief, four page Memorandum from the Government on 3 December 2015. We consider the substance of the Memorandum in the chapters which follow, but we record here our disappointment that the Memorandum leaves unanswered a number of important questions that we had asked in our letter, including whether, in the Government’s view, international human rights law applies to UK drones strikes in Syria.

1.57We therefore wrote again on 7 December to the Ministry of Defence making clear our disappointment and asking for a further Memorandum, answering each of the questions we had asked in our letter or, if any could not be answered, an explanation of why not, in time for the Secretary of State’s appearance before us.55

1.58We also asked that the Secretary of State be accompanied by the MoD Legal Adviser when he came to give evidence, to give us the opportunity to ask some detailed questions about the availability of legal advice in the decision-making process that precedes a lethal drone strike. The Secretary of State declined to provide a further memorandum on the basis that the earlier Memorandum contained the Government’s response to all the questions we had raised in our letter.56 He also said that ministers had decided that Government lawyers would not appear, “in order to protect the principle of Legal Professional Privilege”.

1.59We thank the Ministry of Defence for facilitating our visit to RAF Waddington, and the serving officers there who made the visit so informative. We also thank the Secretary of State for Defence for giving oral evidence to us. We were disappointed, however, by the Government’s failure to answer a number of important questions that we asked of them, particularly about the Government’s understanding of the applicable legal frameworks that govern the use of lethal force abroad outside of armed conflict. We fully acknowledge the inevitable limits to transparency in relation to intelligence-based military and counter-terrorism operations, but the need to protect sensitive information cannot explain the Government’s reluctance to clarify its understanding of the relevant legal frameworks.

1.60Because the issue of taking a life in order to protect lives is so important, we hope the Government will respond positively and transparently to this Report.

The scope of our Report

1.61Our inquiry has ranged broadly across a wide range of significant legal, moral and policy issues raised by the availability of armed drone technology and its possible use by the Government to protect the public against the very real risk of terrorist attack on the streets of the UK.

1.62During the course of our inquiry, a number of witnesses persuasively argued that, while drone technology makes the use of lethal force abroad outside armed conflict easier, it is ultimately just one means of delivering lethal force.57 We agree. The significant shift in policy is to the use of lethal force abroad outside areas of armed conflict, rather than the use of drones per se. The availability of drone technology makes the use of such force much easier and therefore calls for renewed attention to how the legal framework applies in the light of new technologies and consideration of whether there is a need for internationally agreed guidance about what the relevant legal frameworks are and what they require.

1.63At the end of our inquiry, therefore, the issues have crystallised in a way which makes it possible for our report to focus on a relatively specific issue: the need for the Government to clarify its understanding and interpretation of the legal framework for the exceptional use of lethal force abroad, outside areas of armed conflict, for counter-terrorism purposes. In the light of the UK Government’s recent permission for the use of UK airbases for US air strikes against ISIL/Da’esh in Libya,58 which is outside the geographical area (Iraq and Syria) in which the UK is currently involved in armed conflict, and press reports that the UK may itself be preparing for such strikes, 59 the need for such clarification is now urgent.

1 On 2 December 2015 the Prime Minister announced that the Government would henceforth be using the terminology “Da’esh” to refer to the organisation which calls itself “Islamic State” or “Islamic State in Iraq and the Levant” (or “ISIL”): HC Deb, 2 Dec 2015 ,col 328. The UN Security Council in its most recent resolution 2249 (2015) referred to the organisation as “ISIL also known as Da’esh”. Except where quoting verbatim, we use the shorthand “ISIL/Da’esh” throughout this Report.

3 Ibid., para. 5.38. See from para 2.17 below for a more detailed consideration of the constitutional convention.

4 HC Deb, 29 Aug 2013, col 1556

5 HC Deb, 26 September 2014, col 1255

6 HC Deb, 7 September 2015, cols 23-27

7 See, for example, HC Deb, 26 September 2014, col 1265

9 HC Deb, 2 Dec 2015, cols 495-499

10 N Bhuta, “On Preventive Killing”, EJIL:Talk! 17 September 2015

11 For example by UN Special Rapporteurs on Extra-Judicial Killing: see paras 1.37-1.39 below

12 According to Chris Woods, Sudden Justice: America’s Secret Drone Wars (2015), p. 69, “Uniquely among nations, only Israel and the United States had claimed the right to carry out targeted or extrajudicial killings by drone away from the hot battlefield.” Another commentator, however, suggests that Pakistan has also used drones to kill its own citizens: Humeira Iqtidar, The killing of British citizens without democratic oversight raises questions over the government’s use of drones, Democratic Audit UK, October 2015

13 See paras 2.8-2.15 below

14 See paras 1.45-1.51 and chapter 3 below, para 3.88

15 UK policy on use of drones for targeted killing inquiry launched

16 Our inquiry did not consider the increasingly urgent but separate question of whether there needs to be new regulation of the civilian use of drones.

17 According to press reports, another UK national, Abu Rahin Aziz, was also killed by a US drone strike near Raqqa in Syria in July 2015, before the UK strike on Reyaad Khan. Death of British jihadi in July drone strike raises ‘kill list’ questions, The Guardian, 8 September 2015

18 Statement made by the Prime Minister, Rt Hon David Cameron, on the US air strike targeting British militant Mohammed Emwazi, 12 November 2015

19 See paras 3.81-3.89 below

22 University of Birmingham, ‘The Security Impact of Drones: Challenges and Opportunities for the UK’, Birmingham Policy Commission, October 2014

24 UN Security Council Resolution 2249 (2015) (20 November 2015)

26 See paras 3.70-3.72

27 Q26 [Rt Hon Michael Fallon MP]

28 The point was made both in written evidence, see for example, evidence of Professor Tom Simpson, and by RAF crew during our visit to RAF Waddington.

29 For recent parliamentary consideration of the risk of armed drones being used by terrorists see HL Deb, 19 Jun 2016, col 635

30 As contended by Tom Simpson for example, who argues that only the Law of War should apply, not human rights law or criminal law.

31 As argued, for example, by Christof Heyns, Dapo Akande, et al, (DRO0024), who argue that the existing legal frameworks are adequate, subject to clarification about how exactly they apply.

32 This point was made in a number of the written submissions we received: see in particular the evidence of Dr William Boothby (DRO0004), Reverend Nicholas Mercer (DRO0005), Mr Alex Batesmith (DRO0006), Professor Robert McCorquodale (DRO0008), Drone Wars UK (DRO0007), Christof Heyns, Dapo Akande et al (DRO0024)

33 Tom Bingham (former Senior Law Lord, Lord Bingham), The Rule of Law, (2011), chapter 10

34 UN rights chief speaks out on refugee crisis and UK plans to “scrap” Human Rights Act, October 2015

35 Oral evidence [Jennifer Gibson] taken on 9 December 2015

36 Dr William Boothby (DRO0004)

37 United Nations General Assembly, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions – Study on targeted killings, Philip Alston, 28 May 2010

38 United Nations General Assembly, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Professor Christof Heyns, 13 September 2013. See also, to similar effect, Christof Heyns, Dapo Akande et al (DRO0024), The Right to Life and the International Law Framework Regulating the Use of Armed Drones in Armed Conflict or Counter-Terrorism Operations.

39 Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ben Emerson, 28 February 2014

40 Human Rights Council Resolution 25/22, Ensuring use of remotely piloted aircraft or armed drones in counter-terrorism and military operations in accordance with international law, including international human rights and humanitarian law, 15 April 2014

41 Human Rights Council Resolution 28/3, Ensuring use of remotely piloted aircraft or armed drones in counter-terrorism and military operations in accordance with international law, including international human rights and humanitarian law, 19 March 2015

42 Council of Europe, Parliamentary Assembly, Committee on Legal Affairs and Human Rights, Drones and targeted killing: the need to uphold human rights and international law, June 2015

43 Council of Europe, Parliamentary Assembly, Recommendation 2069 , 2015

44 See paras 6.7—6.12

45 Under Article 47(1) ECHR: “The Court may, at the request of the Committee of Ministers, give advisory opinions on legal questions concerning the interpretation of the Convention and the Protocols thereto.”

46 Offences Against the Person Act 1861, section 9

47 Evidence of Professor Simon Gardner (DRO0002). See also evidence of Dr William Boothby (DRO0004), Reverend Nicholas Mercer (DRO0005), Professor Robert McCorquodale (DRO0008), Mr Joseph Savirimuthu (DRO0013)

48 See paras 3.50-3.51 below

49 Contrary to the Serious Crimes Act 2007, sections 44-46

50 Contrary to the International Criminal Court Act 2001, section 52

51 Para 19

53 Intelligence and Security Committee, Work Priorities Statement, 29 October 2015

54 See Chapter 5 below for consideration of the role of the ISC

57 See, for example, evidence of Professor Sir David Omand GCB (DRO0025)

58 See para 3.81-3.84 below

© Parliamentary copyright 2015

9 May 2016