2The Government’s policy
Introduction
2.1One of the main objectives of our inquiry was to clarify whether the drone strike in Syria on 21 August heralded the adoption of a new policy by the Government on the use of lethal force abroad and, if so, exactly what that new policy is. In particular, as the title of our inquiry indicates, we were concerned to establish whether the Government had now followed the US and Israel by adopting a policy of “targeted killing” of suspected terrorists abroad.60 In this chapter, we examine the various ministerial and other statements of the Government’s position, from what the Prime Minister called a “new departure” in UK policy in the House of Commons on 7 September, through a number of other formulations by various ministers, to the most recently stated position in the oral evidence of the Defence Secretary to us on 16 December and the Prime Minister’s evidence to the Liaison Committee on 12 January, with a view to establishing exactly what the Government’s policy now is.
2.2We have considered carefully the nuances and, in some cases, contradictions and inconsistencies in the Government’s account of its policy, which have given rise to confusion, in particular, in relation to whether or not the strike in Syria on 21 August was part of an armed conflict in which the UK was already involved at the time of the strike. This matters because the UK has never previously had an explicit policy of using lethal force abroad outside an area of armed conflict. The Government says that it has not adopted a policy of targeted killing. However, as we make clear in this Chapter, our inquiry has established that it is the Government’s policy to use lethal force abroad, even outside of armed conflict, against individuals suspected of planning an imminent terrorist attack against the UK, when there is no other way of preventing the attack.
A “new departure”
2.3When the Prime Minister reported to the House of Commons on 7 September, he made very clear that the strike in Syria had not been part of the wider conflict with ISIL/Da’esh in Syria, which the House had, at that point, not yet authorised:
“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. The position with regard to the wider conflict with ISIL in Syria has not changed.”61
2.4In response to a question from our Chair, as to whether this was the first time in modern times that a British asset has been used to conduct a strike in a country where we are not involved in a war, the Prime Minister said:
“The answer to that is yes. Of course, Britain has used remotely piloted aircraft in Iraq and Afghanistan, but this is a new departure, and that is why I thought it was important to come to the House and explain why I think it is necessary and justified.”62
2.5The Prime Minister was therefore unequivocal that the lethal drone strike on Reyaad Khan in Syria on 21 August was a “new departure”, and it seemed that his reason for characterising it as a new departure was because it was the first time that a military asset had been used to deliver lethal force outside an area of armed conflict.
2.6Earlier in his statement the Prime Minister had also made clear that this action was part of a wider counter-terrorism strategy, according to which such action would be taken wherever the threat comes from:
“As part of this counter-terrorism strategy, [ … ] if there is a direct threat to the British people and we are able to stop it by taking immediate action, then, as Prime Minister, I will always be prepared to take that action. That is the case whether the threat is emanating from Libya, from Syria or from anywhere else.”63
2.7Following the Prime Minister’s statement, other ministers made clear that the exceptional action taken on 21 August in Syria was not a one-off, but the Government would do the same again if similar circumstances arose. The Secretary of State for Defence, for example, said:
“There are other terrorists involved in other plots that may come to fruition over the next few weeks and months and we wouldn’t hesitate to take similar action again. [ … ] There is a group of people who have lists of targets in our country, who are planning armed attacks on our streets, who are planning to disrupt major public events in this country and our job to keep us safe, with the security agencies, is to find out who they are, to track them down and, if there is no other way of preventing these attacks, then yes we will authorise strikes like we did.”64
Conflicting messages about “armed conflict”
2.8At the time of the Prime Minister’s statement to the House of Commons on 7 September, it was widely thought that the “new departure” of which he spoke was that it was now part of the Government’s counter-terrorism strategy to use lethal force against suspected terrorists abroad who pose an imminent threat to the UK, even in countries where the UK is not involved in an armed conflict, and that the drone strike against Reyaad Khan was the first application of this new policy. Indeed, this was the assumption on which two parliamentarians, Caroline Lucas MP and Baroness Jones of Moulsecoomb, threatened to bring judicial review proceedings against the Government, challenging “the Government’s failure to formulate and publish a Targeted Killing Policy, or publish any such existing policies or procedures, governing the circumstances in which it will pre-authorise the deliberate killing of individuals overseas outside an armed conflict or war in which the UK is participating.”65
2.9However, whether the UK now had a policy of using lethal force abroad outside of armed conflict was immediately thrown into question by the Government’s apparently contradictory statement that the drone strike in Syria on 21 August was carried out in the context of an existing armed conflict: the armed conflict with ISIL/Da’esh in Iraq that is spilling over the border into Syria.
2.10In a letter dated 7 September to the UN Security Council the UK Permanent Representative to the UN said that the strike in Syria was not only in self-defence of the UK but was also in exercise of the right of collective self-defence of Iraq (which suggests that it was carried out as part of the armed conflict with ISIL/Da’esh in which the UK was already involved):
“I am writing to report to the Security Council that the UK has undertaken military action in Syria against the so-called Islamic State in Iraq and the Levant (ISIL) in exercise of the inherent right of individual and collective self-defence. [ … ] ISIL is engaged in an ongoing armed attack against Iraq, and therefore action against ISIL in Syria is lawful in the collective self-defence of Iraq.”66
2.11In a letter dated 23 October from the Government Legal Department to Leigh Day & Co., solicitors, in response to the letter before claim threatening judicial review proceedings referred to above, the Government’s lawyers similarly asserted that the strike in Syria was part of an armed conflict:
“[ … ] your letter proceeds from the premise that the action taken in Raqqa occurred outside the context of an armed conflict. That premise is fundamentally mistaken. An armed conflict is taking place in Iraq, and crossing over into Syria, at present. The United Kingdom is not currently participating in coalition air strikes within Syria (but is doing so in Iraq). The military action taken in Syria by the RAF on 21 August 2015 was aimed at a specific ISIL target that presented a clear, credible and specific threat of armed attack on the United Kingdom in the context of an active armed conflict in which the three ISIL fighters killed in the attack were participants. The fact that the United Kingdom had not up to that point conducted any air strikes on Syrian territory provides no basis for the assertion that this action took place outside the context of an armed conflict. The Raqqa strike was a military operation which was consistent with international humanitarian law [ie. the Law of War].”67
2.12There is nothing inherently contradictory in the Government relying on both individual and collective self-defence as justification for its action in Syria on 21 August. A single use of force can simultaneously serve both purposes. There is, however, a direct contradiction between what the Prime Minister told the House of Commons on 7 September (that the drone strike was not part of coalition action to protect Iraq) and what the UK Permanent Representative told the UN (that it was).
2.13On the basis of the statement of the UK Permanent Representative to the Security Council, Sir David Omand told us that in his view the Government had maintained what he and the Birmingham Policy Commission had concluded was the important distinction between the law that applies in times of peace and that which applies in times of war. He did not consider that the Government had a new policy of strikes by remotely piloted aircraft outside areas of armed conflict. He made clear that, if there were such a policy, he would “deplore” it. 68
2.14Jennifer Gibson, on the other hand, another member of the same Policy Commission, disagreed. She read the statements of the Prime Minister and other ministers to indicate that the Government now had a broader targeted killing policy that is not just about using drone strikes in traditional zones of armed conflict.69
2.15The disagreement between these two members of the same, unanimous Birmingham Policy Commission, about what the Government’s policy now is, demonstrates the Government’s lack of clarity about its position as a result of the inconsistent statements made in the wake of the drone strike in Syria.
Clarification
2.16In view of the confusion and uncertainty created by the Government about its policy, when the Secretary of State for Defence appeared before us we asked him directly what the UK’s policy is on targeted killing outside recognised areas of conflict.70 The Secretary of State’s answers provided two important clarifications of the Government’s position.
The significance of the constitutional convention to consult Parliament
2.17The first clarification provided by the Secretary of State for Defence concerns the significance of the constitutional convention to consult Parliament before exercising the prerogative power to deploy the Armed Forces.
2.18The Secretary of State for Defence confirmed what the Prime Minister had told the House of Commons on 7 September: “This was the first time that we had acted in an area in which we were not previously involved in an armed conflict.” The Prime Minister had reported it to Parliament as soon as he could because what was novel about the situation was that the use of lethal force had been in a country which:
“was not only a country in which we were not involved militarily but a country in which we said we would not be involved militarily when we first came to Parliament in August 2013 [sic] to get approval to act in Iraq.”71
2.19The Secretary of State’s answers have clarified the context in which the Prime Minister spoke of the drone strike on Reyaad Khan in Syria being a “new departure”.
2.20In March 2011 the Government acknowledged that in recent years a convention had developed that the House of Commons should have the opportunity to debate a proposed use of military force. The then Leader of the House of Commons, Rt Hon Sir George Young MP, said:
“A convention has developed in the House that before troops are committed, the House should have an opportunity to debate the matter. We propose to observe that convention except when there is an emergency and such action would not be appropriate. As with the Iraq war and other events, we propose to give the House the opportunity to debate the matter before troops are committed.”72
2.21The Cabinet Manual confirms that this is the case. It states:
“In 2011, the Government acknowledged that a convention had developed in Parliament that before troops were committed the House of Commons should have an opportunity to debate the matter and said that it proposed to observe that convention except when there was an emergency and such action would not be appropriate.”73
2.22Examples of when it might not be appropriate to have a prior debate in the House of Commons include if there were “a critical British national interest at stake”74; “the need to act to prevent a humanitarian catastrophe”75; or “considerations of secrecy make it impossible”.76 In such exceptional cases the convention is that the Government can act immediately but will explain to the House of Commons afterwards, at the earliest opportunity. As the Prime Minister put it in September 2014:
“If there was the need to take urgent action to prevent, for instance, the massacre of a minority community or a Christian community, and Britain could act to prevent that humanitarian catastrophe [ … ] I would order that and come straight to the House and explain afterwards.”77
2.23The Prime Minister’s statements on 7 September 2015 about a new departure in UK policy, and the strike on Reyaad Khan not being part of an armed conflict in which the UK was involved, were made in the context of this constitutional convention and should be read in that light. The Government used military force to target and kill Reyaad Khan in Syria on 21 August. The nature of the operation was such that it was not appropriate for the House of Commons to debate the use of force in advance. The Prime Minister came to the House of Commons on 7 September, Parliament’s first day back after the summer recess, to explain the use of military force in Syria. While this was not the first time since the emergence of the recent constitutional convention that the Government had used military force abroad without a prior debate in the House of Commons,78 it was the first time that military force had been used in a country where the House of Commons had not only voted against the use of military force in 201379, but had specifically excluded the use of airstrikes in its resolution in September 2014 supporting air strikes against ISIL/Da’esh in Iraq:
“[ … ] this House [ … ] notes that 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.”80
2.24It was therefore a “new departure” in terms of the domestic constitutional convention governing the use of military force abroad: the first time since the establishment of that convention that the Government had invoked the exception recognised by the convention, by using military force against ISIL/Da’esh not only outside the geographical area (Iraq) already authorised by the House of Commons, but in the very area (Syria) where the use of such force had been expressly excluded by the terms of the authorising resolution, and against the background of the House of Commons having voted not to support airstrikes in Syria in 2013.
2.25In our view, these very particular circumstances also explain why the Prime Minister was so insistent in his statement on 7 September that the 21 August drone strike in Syria was not part of an armed conflict in which the UK was already involved. Indeed, it is testament to the remarkable normative strength already acquired by the recently established constitutional convention. Because of the importance attached to that convention, he was keen to establish that the Government had not ignored the will of the Commons, but rather had acted in accordance with the convention, by taking urgent military action and then coming to the Commons at the earliest opportunity to explain the justification for that action. His remarks about the strike not being part of armed conflict were part of his explanation as to why the Government had in fact acted in accordance with the domestic constitutional convention rather than ignored it.
2.26Whether the drone strike in Syria on 21 August was part of a wider armed conflict with ISIL/Da’esh, for the purposes of whether the Law of War applies, is a wholly separate question of international law. For reasons we explain in more detail in Chapter 3 below, we accept the Government’s argument that the drone strike in Syria on 21 August was part of the same armed conflict with ISIL/Da’esh in which the UK was already involved in neighbouring Iraq, at the request of the Iraqi Government. It was therefore a use of force to which the Law of War applies.
2.27 As Sir David Omand said in evidence:81
“I have read the authoritative statement as that of Matthew Rycroft, the Permanent Representative to the United Nations, to the Security Council on 7 September, where the strike in Syria was seen as action against ISIL in Syria in the collective self defence of Iraq. That is a formal letter that is on the record. That, I think is the formal position. I had to read the Prime Minister’s statement several times to try to square it with that. It was, I think, a political statement to explain to the House that, although this strike was in Syria, it was not going against the will of the House, which had failed to authorise strikes against President Assad’s forces.”
2.28We welcome the Government’s commitment to the recently established constitutional convention that, other than in exceptional emergencies, the Government will not use military force abroad without first giving the House of Commons an opportunity to debate it. We welcome too the fact that the Prime Minister came to the House of Commons at the earliest opportunity on 7 September to explain the exceptional use of force in Syria. In our view, his statements that the drone strike in Syria on 21 August was a “new departure” and was not part of an armed conflict must be read in the context of that domestic constitutional convention.
2.29We accept that the action taken against ISIL/Da’esh in Syria was part of the same armed conflict in which the UK was already involved in Iraq. Whether the Law of War applies depends on the proper characterisation of the situation from the point of view of international law, not domestic rules of constitutional law governing when the Government will use military force. We are satisfied that the strike on Reyaad Khan was a new departure in terms of the domestic constitutional convention governing the use of military force abroad. It was not, however, a new departure in the sense of being a use of lethal force outside of armed conflict, because we accept, as a matter of international law, that it was part of the wider armed conflict with ISIL/Da’esh already taking place in Iraq and spilling over into Syria.
Lethal force abroad outside of armed conflict
2.30The second clarification provided by the Secretary of State for Defence concerns whether it is the Government’s policy that it would be prepared in future to use lethal force against terrorist suspects abroad even outside of armed conflict.
2.31In the Government’s response to the letter before claim from Caroline Lucas MP and Baroness Jones, it argued that the Government does not have a “policy” as such at all: rather, in deciding whether to initiate a strike when faced with a threat such as that posed by ISIL/Da’esh in Iraq and Syria, it will consider the applicable law (including international law) and then consider whether, on the facts, a strike is justified in law.82 That involves a factual assessment as to whether or not military action should be taken and is justified, applying the relevant legal framework.
2.32In the Government’s Memorandum which it provided to us for the purposes of our inquiry, however, it set out its position under the heading “The policy”, and made clear its preparedness to use force in accordance with international law where it is necessary to do so and there is no alternative:
“It is the first duty of any Government to ensure the safety and security of the people they serve. This is a responsibility which this Government takes very seriously and which it will discharge by all lawful means it considers necessary. The Government has made very clear that when there is an identified direct and imminent threat to the UK and British interests abroad it will take action to counter that threat. [ … ] Lethal action will always be a last resort, when there is no other option to defend ourselves against an attack and no other means to detain, disrupt or otherwise prevent those plotting acts of terror. The principles of necessity and proportionality underpin all our decision-making.”83
2.33When we asked the Secretary of State directly what the UK’s policy is on targeted killing outside recognised areas of conflict, his response was unequivocal:
“There is no policy of targeted killing.”84
2.34We understand the Government’s reluctance to describe its policy as one of “targeted killing”. “Targeted killing”, outside of armed conflict, sounds uncomfortably close to assassination, which is illegal under international law, and has always, rightly, been rejected by the UK, which has criticised other countries such as the US and Israel when it has judged their policies to go too far.
2.35However, when we asked the Secretary of State whether the Government’s approach “would apply anywhere where there is no recognised Government, where there is a vacuum”,85 the Secretary of State confirmed that this was indeed the Government’s position:
“If there is a direct and imminent threat to the United Kingdom and there is no other way of dealing with it–it is not possible to interdict that threat or to arrest or detain the people involved in that threat–then of course as a last resort we have to use force.”86
2.36Later in his evidence, the Secretary of State gave a hypothetical example of such a use of lethal force outside an area of armed conflict in which the Government had been authorised to use military force:87
“If we had known that our 30 citizens were going to be murdered on the beach in Sousse [Tunisia], and we knew that that attack was being directly planned from, say, a training camp in Libya, would we have needed to seek authority if we were trying to forestall that attack by striking in Libya? I suspect that the answer would be fairly similar, that there was no political authority in Libya, there might have been no other way of preventing it and therefore we would have been justified in doing it–but, again, we would have had to explain it afterwards.”
2.37Libya is outside the geographical area (Iraq and Syria) in which the UK is involved in an armed conflict with ISIL/Da’esh. There are no extant UN Security Council Chapter VII Resolutions authorising the use of force against ISIL/Da’esh in Libya.88 The Secretary of State for Defence was therefore quite unequivocal in his oral evidence to us that the Government does claim the right to use lethal force against suspected terrorists outside of armed conflict, if there is a direct and immediate threat to the UK which cannot be averted in any other way. Even if, as we accept above, the particular strike in Syria on 21 August is correctly characterised as being part of an armed conflict, the Secretary of State’s Libyan example leaves no room for doubt that it is the Government’s policy to use lethal force abroad outside of armed conflict if the same circumstances arose. It confirms the Prime Minister’s statement to the House that he will always be prepared to take immediate action to stop a direct threat to the British people, “whether the threat is emanating from Libya, from Syria or from anywhere else.”89 That this is the Government’s policy has now been further confirmed by the permission given to the US Government by the Defence Secretary to use UK air-bases for the US air strikes against an ISIL/Da’esh training camp in Libya on 19 February.90
2.38Our inquiry has therefore secured a second important clarification of the Government’s position: it has established that it is the Government’s policy to use lethal force abroad against suspected terrorists, even outside of armed conflicts, as a last resort, if certain conditions are satisfied.
Conclusion
2.39Despite the sometimes confusing explanations offered by the Government, we are now clear about what the Government’s policy is. Although the Government says that it does not have a “targeted killing policy”, it is clear that the Government does have a policy to use lethal force abroad outside armed conflict for counter-terrorism purposes. We understand why the Government does not want to call its policy a “targeted killing policy”. In our view, however, it is important to recognise that the Government’s policy on the use of lethal force outside of areas of armed conflict does contemplate the possibility of pre-identified individuals91 being killed by the State to prevent a terrorist attack.
2.40We welcome the Government’s recognition that such use of lethal force abroad outside of armed conflict should only ever be “exceptional”. As we make clear later in this Report, we accept that in extreme circumstances such uses of lethal force abroad may be lawful, even outside of armed conflict. Indeed, in certain extreme circumstances, human rights law may even impose a duty to use such lethal force in order to protect life. How wide the Government’s policy is, however, depends on the Government’s understanding of its legal basis. Too wide a view of the circumstances in which it is lawful to use lethal force outside areas of armed conflict risks excessively blurring the lines between counter-terrorism law enforcement and the waging of war by military means, and may lead to the use of lethal force in circumstances which are not within the confines of the narrow exception permitted by law. As David Davis MP, Chair of the All Party Parliamentary Group on Drones, said in the Westminster Hall debate on Armed Drones on 1 December 2015:92
“[t]he most important aspect of this debate is the blurring of the area between war and peace. Drone operations in war zones worry me much less than drone operations outside war zones. That is where Governments will be tempted to do things that are beyond what we normally expect of a civilized Western Government.”
2.41We therefore turn to consider the legal basis for the Government’s policy of the use of lethal force abroad outside of armed conflict for counter-terrorism purposes.
60 See para 1.8 above for an explanation of what is meant by “targeted killing”
64 “UK prepared to carry out more drone strikes against British jihadis, says Fallon”, The Guardian, 8 September 2014
65 See written evidence of Caroline Lucas MP and Baroness Jones (DRO0020), and their letter before claim dated 23 September 2015 from Leigh Day & Co. solicitors www.parliament.uk/documents/joint-committees/human-rights/Leigh_Day_letter_to_Defence_Secretary_230915.pdf. In the event, the threatened judicial review proceedings were not commenced.
66 Q1 [Professor Sir David Omand]
67 http://www.parliament.uk/documents/joint-committees/human rights/Letter_from_Govt_Legal_Dept_Leigh_Day_231015.pdf
68 Q1 [Professor Sir David Omand]
69 Q1 [Jennifer Gibson]
70 Q20 [Jeremy Lefroy MP]
71 Q20 and, to the same effect, Q34. The House of Commons vote approving military operations in Iraq was in fact in September 2014, not August 2013.
73 The Cabinet Office, The Cabinet Manual: a guide to laws, conventions and rules on the operation of government (October 2011), para 5.38
78 See, for example, Libya in 2011 and Mali in 2013, both referred to in, Parliamentary approval for military action, House of Commons Library, Briefing Paper, 7166, May 2015.
81 Q1 [Professor Sir David Omand]
82 Letter dated 23 October 2015 from the Government Legal Department to Leigh Day, Solicitors, in response to the letter before Claim dated 23 September 2015 on behalf of Caroline Lucas MP and Baroness Jones of Moulsecoomb, www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/inquiries/parliament-2015/uk-drone-policy-15-16/publications/
83 http://www.parliament.uk/documents/joint-committees/human-rights/Government_Memorandum_on_Drones.pdf
84 Q20 [Rt Hon Michael Fallon]
85 Q20 [Jeremy Lefroy MP]
86 Q20 [Rt Hon Michael Fallon]
87 Q34
88 UNSC Resolution 1973 (2011) is the latest Chapter VII resolution in relation to Libya and cannot be interpreted as authorising the use of force against ISIL/Da’esh in Libya
90 See paras 3.81-3.89 below
91 See chapter 4 below for consideration of the decision-making process, including the identification of individuals who pose a threat of imminent attack on the UK.
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9 May 2016