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

3Legal Basis

Introduction

3.1The second main objective of our inquiry has been to clarify the legal basis of the Government’s policy on the use of lethal force abroad outside of armed conflict for counter-terrorism purposes. The legal basis of the Government’s policy matters for a variety of reasons. The rule of law requires the Government to act lawfully when countering terrorism, including in accordance with the UK’s international legal obligations. Moreover, the legal basis of the policy determines the legal standards that apply. The circumstances in which the Government will be prepared to use lethal force abroad outside armed conflict, pursuant to its policy, will therefore depend on the Government’s view of its legal basis. If the Government proceeds on a misunderstanding about any aspect of the legal basis of its policy, it runs the risk of using lethal force in circumstances which cannot be legally justified, thereby exposing ministers and other personnel involved in such action to the risk of criminal prosecution.

3.2In this chapter we examine the Government’s apparent understanding of the legal position in light of the most relevant aspects of the various international legal frameworks that apply and the relationship between them.93 We consider first the international law on the use of force, which governs whether a State is entitled to resort to force at all on the territory of another State, and in particular the right of self-defence against threatened armed attacks by terrorist organisations. We then go on to consider the other relevant international legal frameworks which govern not whether but how force may be used: the Law of War and human rights law. We consider, first, when the Law of War applies and what it requires when it does apply; and, second, when human rights law applies and what it requires if it is applicable. Finally we consider the legal position where the UK provides support for the use of lethal force outside armed conflict by a third country such as the US.

3.3The apparent legal complexity of this area is a real obstacle to parliamentary debate and therefore effective democratic scrutiny of the Government’s position on this important question. We hope that our Report will help to demystify some of the legal questions by identifying the most important legal issues on which the Government’s position requires clarification. Annex 1 to this Report contains a more detailed account of the relevant international legal frameworks. Annex 2 contains three flowcharts which are intended to make the complex legal framework more accessible by parliamentarians and the public. The flowcharts do not purport to provide an exhaustive legal analysis of the issues, but are designed to help explain the relationship between the relevant international legal frameworks and identify the main questions that need to be asked under each of those frameworks when assessing the lawfulness of the use of lethal force abroad.94 Readers looking for more detailed analysis are referred to Annex 1, and also to the written evidence we received, much of which concerned what legal frameworks are applicable and what they require.95

The Government’s understanding of the legal position

3.4In our letter of 4 November to the Government at the start of our inquiry, we asked for 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. We also asked for the Government’s memorandum to address a number of much more detailed questions about their view of the relevant international law frameworks that govern the use of lethal force abroad, including the following four important questions:

3.5The answers to these legal questions are absolutely central to our inquiry because, having established that it is the Government’s policy to use lethal force abroad outside armed conflict for counter-terrorism purposes, how far that policy goes depends entirely on the legal basis on which it rests.

3.6While the Government’s Memorandum contains some helpful analysis of some of the legal issues, we regret to say that, despite repeated requests, we never received a detailed memorandum from the Government setting out its understanding of the relevant international legal frameworks (such as whether human rights law applies) or its answers to some of our more specific questions about important aspects of those frameworks. We note that in the Government’s response to the letter before claim from Caroline Lucas MP and Baroness Jones, it argued:96

“There is no requirement to publish the Government’s conception of the applicable legal framework in any particular context, still less in a context such as the present. Indeed, such information is privileged and the courts have consistently recognised the importance to be attached to the concept of legal professional privilege.”

3.7We are disappointed by the Government’s unhelpfulness in this respect. Invoking the Government’s acknowledged right to legal professional privilege seems quite inappropriate in this context. We have made very clear that we do not wish to see the Government’s confidential legal advice or any documents which attract such privilege. However, considerations of transparency and democratic accountability require the Government to explain publicly its understanding of the legal basis on which it takes action which so seriously affects fundamental rights. We routinely receive from Government departments, for example, detailed and very helpful human rights memoranda accompanying Bills which explain the Government’s reasons for its view that the provisions in a Bill are compatible with the European Convention on Human Rights and other relevant human rights instruments.97 Such human rights memoranda often contain detailed legal analysis, including the Government’s understanding of the requirements of human rights law in the context of specific provisions in Bills. Although strictly speaking some of this analysis no doubt attracts legal professional privilege, the Government chooses to make it available in the interests of transparency and democratic accountability, in order to facilitate effective parliamentary scrutiny of the human rights compatibility of its legislation. It has been invaluable to us and our predecessors in enabling this Committee to perform that function.

3.8We understand the sensitivity around the matters which we are investigating in this inquiry and respect the legitimate requirements of national security which make this different from our regular scrutiny work on legislation brought forward by the Government. However one of our roles as a select committee is to give careful and detailed scrutiny to Government policy which has significant implications for human rights, including those of our armed forces who are involved in such actions. In order to fulfil this important function, it is vital that the Government engage with the detailed questions which we ask about its understanding of the legal frameworks in which the policy is situated.

3.9In the absence of a detailed Government memorandum on the relevant legal frameworks, we have pieced together what we believe to be the Government’s understanding of those frameworks from a variety of sources. The Government’s understanding of the legal position is to be found primarily in the Prime Minister’s statement to the House of Commons on 7 September; the evidence of the Attorney General to the Justice Committee on 15 September;98 the Government’s brief Memorandum responding to our letter at the beginning of our inquiry;99 and the oral evidence of the Defence Secretary on 16 December.

3.10The Prime Minister first set out the legal basis for the drone strike on Reyaad Khan in Syria in his statement to the House of Commons on 7 September. He said:100

“I am clear that the action we took was entirely lawful. The Attorney General was consulted and was clear that there would be a clear legal basis for action in international law. We were exercising the UK’s inherent right to self-defence. There was clear evidence of these individuals planning and directing armed attacks against the UK. These were part of a series of actual and foiled attempts to attack the UK and our allies, and given the prevailing circumstances in Syria, the airstrike was the only feasible means of effectively disrupting the attacks that had been planned and directed. It was therefore necessary and proportionate for the individual self-defence of the United Kingdom. The United Nations charter requires members to inform the President of the Security Council of activity conducted in self-defence, and today the UK permanent representative will write to the President to do just that.”

3.11As we pointed out above, when the UK Permanent Representative wrote to the President of the Security Council later the same day, as well as the individual self-defence of the UK referred to by the Prime Minister, he invoked the right of collective self-defence of Iraq, notwithstanding that the Prime Minister had expressly disavowed that as the legal basis in his statement to the Commons. We asked the Defence Secretary, the Foreign Secretary and the Attorney General in our letter of 4 November why the right of collective self-defence of Iraq was relied on by the UK Permanent Representative but not mentioned by the Prime Minister in his statement to the House on 7 September, but we did not receive a reply to this question.

3.12The Prime Minister’s summary of the Government’s legal position has been supplemented somewhat by subsequent statements by ministers. The Attorney General himself went a little bit further than the Prime Minister when giving evidence to the Justice Committee on 15 September.101 He declined an invitation to disclose the legal test he had applied when advising that there was a clear legal basis for the drone strike, on the grounds that this would disclose the detailed content of his advice in breach of the “Law Officers’ Convention” whereby the content of the Attorney’s advice is not disclosed. However, he went on to say:

“[ … ] in order for any state to act in lawful self-defence, it is necessary to demonstrate that there is an imminent threat that needs to be countered and that, in countering that threat, the action taken is both necessary and proportionate, and it is necessary to demonstrate that what you do complies with international and humanitarian law. In all of those respects I was satisfied that this was a lawful action.”

3.13This went further than the Prime Minister’s statement by indicating that, in addition to satisfying the tests for lawful self-defence, the action also had to be compatible with the Law of War.

3.14The Government’s Memorandum to our inquiry gives a little bit more detail in its explanation of the legal basis for the Government’s military action against ISIL/Da’esh in Syria. Invoking the inherent right of individual and collective self-defence, as recognised by Article 51 of the UN Charter, the Memorandum explains why, in the Government’s view, the requirement of an “armed attack” is satisfied:102

“Individual terrorist attacks, or an ongoing series of terrorist attacks, may rise to the level of an “armed attack” for these purposes if they are of sufficient gravity. This is demonstrated by UN Security Council resolutions 1368 (2001) and 1373(2001) following the attacks on New York and Washington of 11 September 2001. Whether the gravity of an attack is sufficient to give rise to the exercise of the inherent right of self-defence must be determined by reference to all of the facts in any given case. The scale and effects of ISIL’s campaign are judged to reach the level of an armed attack against the UK that justifies the use of force to counter it in accordance with Article 51.”

3.15The Memorandum also explains that, in keeping with the long-held position of successive UK Governments, force may be used in self-defence not only where an armed attack is underway, but also where such an attack is imminent, and where the UK determines that it faces an imminent armed attack from ISIL, it is therefore entitled to use necessary and proportionate force to repel or prevent the attack. It explains why the legal test of an imminent armed attack was satisfied in the particular case of Reyaad Khan:103

“There was clear evidence of Khan’s involvement in planning and directing a series of attacks against the UK and our allies, including a number which were foiled. That evidence showed that the threat was genuine, demonstrating both his intent and his capability of delivering the attacks. The threat of attack was current; and an attack could have become a reality at any moment and without warning. In the prevailing circumstances in Syria, this airstrike was the only feasible means of effectively disrupting the attacks planned and directed by this individual. There was no realistic prospect that Khan would travel outside Syria so that other means of disruption could be attempted. The legal test of an imminent armed attack was therefore satisfied.”

3.16Finally, the Memorandum, like the Attorney General, goes beyond invoking the right of self-defence, and states that in addition “[t]he UK always adheres to International Humanitarian Law [i.e., the Law of War] when applying military force, including upholding the principles of military necessity, distinction, humanity and proportionality.”104

3.17The Secretary of State for Defence, in his oral evidence to us, also elaborated a little on the law which the Government considers to apply to the action it takes in self-defence. He said “the military force we use is governed by humanitarian law [i.e., the Law of War].”105 He made no distinction in this respect between military force used in an area of armed conflict, and force used outside of armed conflict. In the Secretary of State’s view, all uses of military force are governed by the Law of War, and the applicable legal standards are therefore those of the Law of War. When we asked him directly about whether the human rights law standard applies, he said that if any human rights law obligations are thought to apply, they are discharged by the UK’s compliance with the Law of War:

The Chair: “The human rights law standard says that lethal force outside an armed conflict situation is justified only if it is absolutely necessary to protect life. Is that the standard?”

Michael Fallon MP: “I think that compliance with international humanitarian law discharges any obligation that we have under international human rights law, if I can put it that way. If any of those obligations might be thought to apply, they are discharged by our general conformity with international humanitarian law.”106

3.18When dealing with an issue of such grave importance, taking a life in order to protect lives, the Government should have been crystal clear about the legal basis for this action from the outset. They were not. Between the statements of the Prime Minister, the Permanent Representative to the UN and the Defence Secretary, they were confused and confusing.

3.19The legal basis of the Government’s policy appears to be 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.

3.20We now turn to consider whether this is a sound legal basis on which to rest the Government’s policy of using lethal force abroad outside of armed conflict for counter-terrorism purposes, or whether there are aspects of the Government’s legal understanding which require clarification.

The right of self-defence in international law

3.21As the Government rightly observes, any use of lethal force abroad outside of armed conflict must, first, be lawful under the international law on the use of force which governs whether a State is entitled to resort to force at all.107 The Government invokes the inherent right to self-defence against a threat of imminent armed attack.

3.22Whether the right of self-defence can be exercised where the threat of armed attack emanates from non-state actors such as ISIL/Da’esh who are not acting under the control or direction of another state is an issue which is not clearly settled in international law. Some international lawyers appear to take the view that the right of self-defence can only be invoked against another State.108 Others, including the Government, take the view that a State’s inherent right of self-defence extends to attacks originating from non-state actors such as ISIL/Da’esh. State practice since 9/11 certainly supports the view that a State’s right of self-defence includes the right to respond with force to an actual or imminent armed attack by a non-State actor, and the most recent UN Security Council Resolution 2249 (2015) lends support to this view. To be entitled to rely on self-defence against non-state actors, the State from whose territory the armed attack is being launched or prepared for must be unable or unwilling to prevent the attack.

3.23The Government’s position is that the right of self-defence can be invoked against non-state actors such as ISIL/Da’esh operating in another state which is unwilling or unable to prevent the attack by the non-state actors. The Prime Minister told the Commons in the run up to the debate on extending authorisation for use of military force to Syria that “there is a solid basis of evidence on which to conclude, first, that there is a direct link between the presence and activities of ISIL in Syria and its ongoing attack on Iraq, and secondly, that the Assad regime is unwilling and/or unable to take action necessary to prevent ISIL’s continuing attack on Iraq, or indeed attacks on us.”109

3.24We accept the Government’s argument that there is a right of self-defence against armed attack by non-State actors such as ISIL/Da’esh, and that anticipatory self-defence is also permitted. We have examined carefully two particular aspects of the Government’s individual self-defence argument: first, the assertion that the scale and effects of ISIL’s campaign reach the level of an “armed attack” and, second, the assertion that the armed attack the UK faces is “imminent” in the sense required by the right of self-defence.

The meaning of “armed attack”

3.25For a State to invoke the right of self-defence there must be an “armed attack” or the threat of an imminent armed attack. To constitute an “armed attack” for the purposes of the right of self-defence the attack must cross a certain threshold of seriousness or intensity. A series of minor attacks is not necessarily enough to constitute an armed attack. The scale and effect of the attack must reach a certain threshold of gravity.

3.26The Prime Minister told the House of Commons that “It is [ … ] clear that ISIL’s campaign against the UK and our allies has reached the level of an ‘armed attack’, such that force may lawfully be used in self-defence to prevent further atrocities being committed by ISIL.”110 The Government’s Memorandum similarly states that the scale and effects of ISIL’s campaign reach the level of an armed attack against the UK which justifies the use of force to counter it.

3.27It is clear that terrorist attacks by non-State actors such as ISIL/Da’esh can amount to an armed attack on a State. It is not clear, however, what level the Government considers they have to reach in order to constitute an armed attack. The Prime Minister, in his statement on 7 September, referred to six terrorist plots having been foiled in the UK in the preceding 12 months. A number of written submissions that we received pointed out that this raises a question as to the level and scale of violence that the UK considers to be sufficient to cross the threshold between criminal offences and armed attack such that the State is entitled to go beyond counterterrorism law enforcement and use military force on the territory of another state to defend itself.111

3.28We note that the UN Security Council, in its Resolution 2249 (2015), refers to “the horrifying terrorist attacks perpetrated by ISIL also known as Da’esh which took place on 26 June 2015 in Sousse, on 10 October 2015 in Ankara, on 31 October 2015 over Sinaï, on 12 November 2015 in Beirut and on 13 November 2015 in Paris, and all other attacks perpetrated by ISIL also known as Da’esh, including hostage-taking and killing”, and determines that the threat from ISIL/Da’esh “affects all regions and Member States, even those far from conflict zones.”

3.29We accept, as does the UN Security Council, that the attacks on the UK already mounted by ISIL/Da’esh satisfy the requirement that there must be an armed attack on the UK which entitles it to invoke the right to self-defence. However, to provides certainty for the future, we recommend that in its response to our Report the Government provide clarification of its view about the threshold that needs to be met in order for a terrorist attack or threatened attack to constitute an “armed attack” which entitles the Government to invoke its right of self-defence in international law.

The meaning of “imminence”

3.30 Although it is not expressly provided for in the UN charter, it is well-established that a State’s right of self-defence can be invoked preventively, in anticipation of an armed attack. The UK Government’s view has always been that such preventive action in self-defence may only be taken to avert an imminent armed attack.112

3.31However the precise meaning of imminence is disputed in international law. Under the long established “Caroline test” for imminence (so called after a 19th century case on the use of force), the need to use force in self-defence must be “instant, overwhelming, leaving not choice of means and no moment for deliberation.” However, others argue that the Caroline test is too narrow in the light of modern conditions. In 2004, the then Attorney-General Lord Goldsmith said in the House of Lords:113

“The concept of what constitutes an ‘imminent’ armed attack will develop to meet new circumstances and new threats [ … ] It must be right that States are able to act in self-defence in circumstances where there is evidence of further imminent attacks by terrorist groups, even if there is no specific evidence of where such an attack will take place or of the precise nature of the attack.”

3.32However, the then Attorney-General distinguished the UK Government’s position from the much more expansive US doctrine of pre-emptive self-defence set out in the US’s 2002 National Security Strategy:114

“It is [ … ] the Government’s view that international law permits the use of force in self-defence against an imminent attack but does not authorise the use of force to mount a pre-emptive attack against a threat that is more remote.”

3.33The Government has made clear, in the course of our inquiry, that it favours a more flexible approach to the meaning of “imminence”, to include an ongoing threat of a terrorist attack from an identified individual who has both the intent and the capability to carry out such an attack without notice.

3.34The Attorney General, for example, indicated that he considers that the traditional “Caroline” test for imminence (that the threat must be “instant, overwhelming, leaving no choice of means and no moment for deliberation”) needs to be reassessed in the light of modern conditions:115

“The Caroline case, as you will appreciate, goes back to the 19th century, and we are talking about very different circumstances now. [ … ] One of the things we probably need to think about as a society in any event is what imminence means in the context of a terrorist threat, compared with back in the 1890s when you were probably able to judge imminence by a measure of how many troops you could see on the horizon. That is something that everyone—including the academic world, no doubt—will want to consider, but the basic tenets of acting in self-defence have not changed.”

3.35The Secretary of State for Defence also preferred a much more flexible approach to the meaning of imminence:116

“Jeremy Lefroy: Secretary of State, to return to the understanding of the word “imminence”, because it is clearly very important, in the past an armed attack was considered imminent only if it was so proximate in time that it left no moment for deliberation. Clearly, we live in an era of instant communication and the fact that we are dealing with people who have made it quite clear that they want to kill us at any time and in any way possible means that that definition of “imminent” may have changed a bit. Is your understanding that “imminence” means what it used to mean—that is, so proximate that it leaves no time for deliberation—or have circumstances changed so that an ongoing threat from a specific terrorist is considered imminent all the time?

Michael Fallon MP: Circumstances have certainly changed from the definition that you have quoted. I would not want to rest on that. You look at these things on a case-by-case basis in the light of the assessment that you make in each particular case. I do not think it is possible to have a hard and fast rule about how you would define “imminent”.

[ … ]

The Chair: Basically, to summarise your response to Jeremy’s question, an imminent threat can be ongoing: somebody by their very nature, by their ongoing commitment to a particular course of action, can be an ongoing imminent threat by virtue of what they have done in the past and their general way of going about things?

Michael Fallon MP: I am not, as you have probably realised, a lawyer. But yes, an imminent threat can presumably grow in immediacy. It may grow in seriousness. It may grow in likelihood. It may exist for some period of time, absolutely.”

3.36We accept that the meaning of “imminence” in the international law of self-defence must be interpreted with a degree of flexibility, in light of modern conditions and in particular the fact that we live in an era of instantaneous communication. A terrorist on the other side of the world may well have the capability to launch a terrorist attack in the UK literally at the touch of a button. While opinion is divided amongst international law experts as to the legally correct interpretation of “imminence” in the international law of self-defence,117 we note that the broader interpretation of “imminence” preferred by the Government appears to have the implicit support of the UN Security Council in its most recent resolution concerning ISIL/Da’esh in Syria and Iraq (UNSCR 2249 (2015)).

3.37We welcome the implicit indication in the Government’s Memorandum that for the test of imminence to be satisfied the threat must be “genuine” in the sense that there was both an intention to attack and the capability to do so; and that the attack could happen at any moment and without warning. We also note the Government’s recent answer to a written question asking the Secretary of State for Defence “what working definition of imminence his Department uses in the application of Article 51 of the UN Charter?”118

“It has long been the position of successive UK Governments that “the inherent right of self-defence”, as recognised in Article 51 of the UN Charter, does not require a State to wait until an armed attack is actually under way before it can lawfully use force to alleviate the threat. A State may use force in anticipation of an armed attack where such an attack is imminent, provided that such force is both necessary and proportionate to averting the threat. The assessments would depend on the facts of each case, with consideration likely to include issues such as the nature and immediacy of the threat, the probability of an attack, its scale and effects and whether it can be prevented without force.”

3.38We welcome the Government’s indication in this written answer that, while the assessment of imminence will be fact-dependent, it will include consideration of relevant issues which clearly go to the question of imminence, such as the nature and immediacy of the threat and the probability of an attack.

3.39We nevertheless have some concerns about the implications of too expansive a definition of “imminence” for the width of the right of self-defence in international law. Introducing flexibility into the meaning of imminence raises important questions about the degree of proximity that is required between preparatory acts and threatened attacks.119 Is it enough to trigger the right of self-defence, for example, if there is evidence that an individual is planning terrorist attacks in the UK, or does the preparation need to have gone beyond mere planning? Once a specific individual has been identified as being involved in planning or directing attacks in the UK, does the wider meaning of imminence mean that an ongoing threat from that individual is, in effect, permanently imminent?120 These questions arise directly in relation to the UK drone strike in Syria on 21 August, as it appears that the authorisation of the use of force may have been given by the National Security Council in May 2015, up to three months before the actual use of lethal force. Whether the test of imminence was in fact satisfied on that occasion will, of course, turn on the intelligence and should therefore be a question for the ISC to consider, not us.

3.40We do not feel that all of these questions about the Government’s understanding of the meaning of “imminence” in the international law of self-defence have been fully answered by the end of our inquiry. The Government’s interpretation of the concept of “imminence” is crucial because it determines the scope of its policy of using lethal force outside areas of armed conflict. Too flexible an interpretation of imminence risks leading to an overbroad policy, which could be used to justify any member of ISIL/Da’esh anywhere being considered a legitimate target, which in our view would begin to resemble a targeted killing policy.

3.41We therefore recommend that the Government provides, 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 authorise the use of force pre-emptively against a threat which is too remote, such as attacks which have been discussed or planned but which remain at a very preparatory stage.

3.42Subject to the two questions we have raised above about the Government’s understanding of the meaning of “armed attack” and “imminence”, we accept the Government’s understanding of the international law of self-defence which forms the first part of the legal basis for its policy of using lethal force abroad outside of armed conflict.

Other relevant international law frameworks

3.43However, compliance with international law on the use of force does not exhaust all the questions which must be asked about the legal basis of a use of lethal force abroad.121 The fact that a use of lethal force is lawful under the international law on the use of force, for example because it was taken in self-defence, does not mean that the use of force is necessarily lawful under the other relevant international legal frameworks: the Law of War (otherwise known as the law of armed conflict or international humanitarian law) and international human rights law, which govern not whether but how force may be used.122 Any use of force in lawful exercise of the right of self-defence must also comply with those other legal frameworks where they apply. Human rights law requires standards to be met which are more protective of the right to life than those required by the Law of War. Which legal framework applies to a particular use of lethal force, and precisely what they require, are therefore of crucial importance. The applicability and requirements of those legal frameworks must also therefore be addressed, separately and in turn.

The Law of War

3.44In the case of force used in armed conflict, the most relevant legal framework is the Law of War.123 The Law of War is the set of international law rules that governs the way in which armed conflict is conducted, premised on the idea that even in war some things are not permitted because military necessity must be tempered by basic principles of humanity.124

When does the Law of War apply?

3.45The Law of War applies where there is an armed conflict. Whether an armed conflict exists, for the purposes of deciding whether the Law of War applies, is not a matter for a State to decide for itself, by mere assertion; it is a legal question, governed by the international Law of War. Armed conflicts are of two types. An international armed conflict is the traditional type of armed conflict, between two or more States. A non-international armed conflict is an armed conflict between a State and an “organised non-State armed group” or several such groups. A non-international armed conflict can take place across State boundaries: the conflict is “non-international” because one of the parties is a non-State actor, even though the territorial scope of the conflict may cross State boundaries.

3.46A non-international armed conflict exists if armed violence reaches a certain level of intensity and is with an armed group that is sufficiently organised to meet the international law criteria. Although ISIL/Da’esh claims to be a State, it is not recognised as such in international law. It is an organised non-State armed group, involved in protracted armed violence with governmental authorities in Iraq and Syria. It seems clear to us that, as a matter of international law, the UK is therefore involved in a non-international armed conflict with ISIL/Da’esh in Iraq and Syria, and that the Law of War applies to that armed conflict.

What does the Law of War require?

3.47Where the Law of War applies, it permits targeted killing in an armed conflict, provided certain principles are complied with. The principle of distinction requires targeting to distinguish between lawful military targets and civilians. A person is a lawful target in a non-international armed conflict if he or she is a member of an armed group or a civilian directly participating in hostilities. The principle of proportionality requires civilian casualties to be proportionate to the military advantage to be gained from the use of force. The principle of precaution requires care to be taken to minimise the danger to civilians in any use of force.

3.48International human rights law also applies in armed conflict.125 However, the substantive protections of human rights law, including for the right to life, are to be read in light of the more specific requirements of the Law of War.126 Compliance with the lower standards of the Law of War will therefore usually be sufficient to satisfy the requirements of human rights law in armed conflict.127

3.49As will be seen when we consider the requirements of human rights law below, the relevant legal standards on the use of lethal force are therefore more permissive where the Law of War applies than where only international human rights law applies: the Law of War does not prohibit deliberate “targeted killing” in armed conflict provided certain principles are observed.

The US and UK positions on the applicability of the Law of War

3.50The United States has caused controversy in the years since 9/11 by arguing that it is involved in a single, global non-international armed conflict with Al Qaida, so that the permissive rules of the Law of War, rather than the stricter rules of human rights law, apply to the use of lethal force against members of Al Qaida wherever in the world they may be found. The International Committee of the Red Cross has criticised this view that the international fight against terrorism is a single, global non-international armed conflict, but the US has continued to take this position and to use it to justify lethal drone strikes against suspected terrorists in a variety of countries which are not in an area of armed conflict, such as Yemen, Somalia and Pakistan.

3.51The US position has been widely criticised on the ground that it risks turning the world into a global battlefield in which the lower protection of the Law of War is the norm rather than the exception.128 Some of the broader statements by ministers since the drone strike in Syria on 21 August suggested that the UK Government may have adopted the same position, and considers itself to be involved in a global armed conflict with ISIL/Da’esh wherever it may be found.

3.52Our inquiry has importantly established, however, that the UK Government does not take the US position that it is in a global war against ISIL/Da’esh such that it can use lethal force against them anywhere in the world. We asked the Secretary of State for Defence about this directly and he made absolutely clear in his evidence to us that the Government does not consider the UK to be in a non-international armed conflict with ISIL/Da’esh wherever it may be found: rather than such a generalised state of conflict, with no geographical limits, the Government considers itself to be involved in a geographically defined non-international armed conflict with ISIL/Da’esh in Iraq and Syria:129

“The Chair: Can you clarify whether the Government consider the UK to be in a non-international armed conflict with ISIL wherever it may be found?

Michael Fallon MP: We consider that to be true in Iraq and Syria.

The Chair: Wherever it is?

Michael Fallon MP: No, in Iraq and Syria.

The Chair: So we are not in a generalised state of conflict with ISIL, except in Iraq and Syria? What about in Yemen, Somalia or Libya, as Mr Lefroy asked?

Michael Fallon MP: No, we consider we are involved in a non-international armed conflict in Iraq and Syria, primarily because we have been invited to assist by the legitimate Government of Iraq.

The Chair: That is different from the Americans’ policy, is it not?

Michael Fallon MP: There may well be differences, yes, as I said.”

3.53We welcome the unequivocal statement by the Secretary of State for Defence in his evidence to us that the Government does not consider the UK to be in a non-international armed conflict with ISIL/Da’esh wherever it may be found. This disavowal of the controversial US position according to which it considers itself to be in a single, global non-international armed conflict with Al Qaida and its associates goes some way towards meeting concerns that the Government’s policy is now so wide as to seek to justify using lethal force against any person it considers to be a member of ISIL/Da’esh wherever they are.

3.54However, the Secretary of State went on to assert that where the UK uses lethal force abroad outside of armed conflict, pursuant to the policy we described in Chapter 2 above, it will comply with the Law of War and that compliance will be sufficient to meet any obligations that the UK may have under human rights law. The effect of that assertion is that the UK Government’s policy ends up in the same place as the US policy, despite disavowing the wide American view of the existence of a non-international armed conflict.

3.55In our view, the Secretary of State’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 misunderstanding of 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 humanitarian law. Outside of armed conflict, however, the conventional view, up to now, has been that the Law of War, by definition, does not apply.130 We recommend that the Government, in its response to our Report, clarifies its position as to the law which applies when it uses lethal force outside of armed conflict.

The European Convention on Human Rights (“ECHR”)

3.56International human rights law recognises and protects the right to life. This includes customary international law’s rule against the arbitrary deprivation of life; the right to life under Article 6 of the International Covenant on Civil and Political Rights; and the right to life under Article 2 ECHR.131 The right to life is often referred to as the most fundamental human right, or the supreme right. The common law has also long recognised and protected the right to life, as demonstrated, for example, in the common law criminal offences of murder and manslaughter. Of the international human rights standards, we focus in this Report on the right to life in Article 2 ECHR, which is part of UK law by virtue of the Human Rights Act, and from this point on we therefore refer to “the ECHR” rather than “human rights law” more generally.

3.57Article 2 ECHR provides, so far as relevant:

“2(1) Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

(2) Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than is absolutely necessary:

(a) in defence of any person from unlawful violence”.

When does the ECHR apply?

3.58The applicability of the right to life in Article 2 ECHR depends on the victim being “within the jurisdiction” of the UK.132 Jurisdiction under the ECHR is primarily territorial, but the ECHR also has extraterritorial application in certain circumstances, including the exercise of power and control over the person in question.133 On the current state of the case-law, the use of lethal force abroad by a drone strike is sufficient to bring the victim within the jurisdiction of the UK: in the recent case of Al Saadoon v Secretary of State for Defence, the High Court held that “whenever and wherever a state which is a contracting party to the [ECHR] purports to exercise legal authority or uses physical force, it must do so in a way that does not violate Convention rights.”134 The judge found it difficult to imagine a clearer example of physical control over an individual than when the State uses lethal force against them:

“I find it impossible to say that shooting someone dead does not involve the exercise of physical power and control over that person. Using force to kill is indeed the ultimate exercise of physical control over another human being.135
[ … ] jurisdiction arose through the exercise of physical power and control over the individual who was shot and killed.”136

3.59The right to life in the ECHR therefore clearly applies to the use of lethal force abroad outside of armed conflict. The same applies to the right to life in the ICCPR.137

3.60The ECHR permits States to take measures “derogating” from their obligations under the Convention “in time of war or public emergency threatening the life of the nation.”138 The effect of such a derogation is to make the relevant right not apply. One of the concerns often articulated about the Human Rights Act and the ECHR is that the European Court of Human Rights has, by interpretation, extended the scope of the Convention to the battlefield, which hinders the armed forces in the performance of their task.139 The Conservative Party manifesto at the 2015 General Election included a commitment to look at the application of the ECHR to the operation of the armed forces.

3.61We therefore asked the Defence Secretary if the Government has any plans to derogate from the right to life in Article 2 ECHR. Although the Defence Secretary told us that the Government had no present plans that he was aware of,140 he was subsequently reported in the press as considering a derogation from the ECHR in relation to the actions of the UK’s armed forces on the battlefield.141 According to the press report, the Secretary of State considers that the ECHR is not needed in the field of military conflict overseas, because it merely duplicates the Law of War which already protects the human rights of combatants. Any future derogation is likely to be brought forward as part of the package of proposals in relation the Human Rights Act and a British Bill of Rights, which is now not likely to be before the EU referendum in June.

3.62We note that any future derogation from the ECHR will not affect the Government’s policy in relation to the use of lethal force abroad outside of armed conflict. Derogation from the right to life in Article 2 ECHR is only possible in relation to “deaths resulting from lawful acts of war”.142 States can therefore choose to be bound by the more permissive rules of the Law of War, rather than the more restrictive rules of human rights law, in times of war or public emergency. However, the Government will not be able to derogate from the right to life in Article 2 where it uses lethal force abroad outside of armed conflict: such deaths will not be the result of “acts of war” because by definition they will have taken place outside armed conflict. The right to life in Article 2 ECHR therefore inescapably applies to uses of lethal force abroad outside of armed conflict.

What does the ECHR require?

3.63What are the implications of the right to life in the ECHR applying to uses of lethal force abroad outside of armed conflict? Article 2 of the ECHR prohibits the taking of life by the use of force where this is not justified by any of the exceptions expressly permitted by its text. One of the exceptions is where the deprivation of life results from the use of force which is “no more than is absolutely necessary in defence of any person from unlawful violence”.143

3.64According to the case-law of the European Court, where the right to life in the ECHR applies, it requires (1) the use of lethal force must be “no more than absolutely necessary” to avert an immediate threat of unlawful violence to other people and be strictly proportionate to that aim; (2) the use of lethal force by the state must be effectively regulated by a clear legal framework and the planning and control of any particular operation must be such as to minimise the risk of loss of life; and (3) there must be an effective independent investigation capable of leading to accountability for any unlawful deprivation of life. The effect of the right to life in Article 2 ECHR applying, therefore, is that the applicable standards which govern the use of lethal force are in certain respects higher than those imposed by the Law of War.144

3.65The main difference as far as the relevant standards for the use of lethal force are concerned is that under the Law of War there is no “imminence” requirement, provided the use of force is necessary to advance the military objective. As Professors Simpson and Ekins explained in their evidence:

“In war [ … ] it is not the case that [soldiers] are permitted to use force only when they are imminently threatened. [ … ] The imminence condition is redundant because, in war, the enemy’s future intentions are plain. Someone is killed justifiably if there is sufficient evidence that they are a combatant, and without proof of personal, imminent intention to attack.”145

3.66In Syria, for example, where we accept that the UK is involved in an armed conflict with ISIL/Da’esh, the question of the imminence of an armed attack by ISIL/Da’esh fighters does not arise so long as that armed conflict subsists, so they can be targeted without having to demonstrate that they pose a direct and imminent threat to the UK.

3.67In Libya, however, which is outside armed conflict, the higher standards of the ECHR alone would apply and require there to be an immediate threat of unlawful violence to other people which makes it “absolutely necessary” to act to prevent it. In other words, outside of war the right of self-defence can only be exercised if there is an imminent threat of unlawful violence. Even if an individual has been previously identified as somebody suspected of planning terrorist attacks, the critical time for consideration of the imminence question is before the decision is taken to use lethal force against that individual. That assessment will depend very much on the facts, but it is important that the mind of the relevant decision-maker is directed to the question of imminence at the relevant point in time.

3.68The Government must acknowledge that where the Government takes a life where we are not in armed conflict, the higher standards laid down in the Human Rights Act and the ECHR have to be met. It is only where the taking of life is in an armed conflict, that the lower standards of the Law of War apply.

3.69The fact that the ECHR, and not the Law of War, applies to the use of lethal force outside of armed conflict does not, however, make it impossible to use force in such circumstances, and therefore shackle the Government’s ability to protect the UK from terrorism, as is commonly supposed, for two main reasons.

ECHR may require the use of lethal force to protect life

3.70First, in the Government’s hypothetical example of the circumstances in which it might use lethal force abroad outside armed conflict (that is, 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 if it were in a position to do so. This is because Article 2 of 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.

3.71The European Court of Human Rights made this clear in the case of Osman v UK, in which it held that the obligation in Article 2(1) ECHR to protect life requires the State to take preventive action where “the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and [ … ] failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.” In subsequent cases, this positive obligation to take preventive action to protect life has been extended beyond the protection of particular individuals to the protection of the public at large.

3.72It follows that if the UK had clear and reliable intelligence that a terrorist attack was about to be launched on the UK or UK citizens from an ISIL/Da’esh training camp in Libya, so that there was a real and immediate risk to life, and the only way of preventing that attack and therefore saving those lives was to use lethal force against the would-be attackers in Libya, the Government would be under a positive obligation to use lethal force to protect life if it was in a position to do so.

Flexibility inherent in concepts of necessity and proportionality

3.73The second reason why the applicability of the ECHR does not mean that the Government’s ability to protect the UK from terrorism is undermined is that, even in less extreme circumstances than the hypothetical case just described, it is clear from the European Court’s case-law that it will take a realistic approach to applying the concepts of necessity and proportionality in difficult counter-terrorism situations in which States have to make heat of the moment decisions about how to prevent a terrorist threat to life. The Strasbourg Court has, in its application of the high standards in Article 2, demonstrated that it is “acutely conscious of the difficulties faced by States in protecting their populations from terrorist violence and recognises the complexity of this problem.”146 As the President of the Court recently said, at the opening of the judicial year in Strasbourg:

“[ … ] my overview of 2015 would not be complete without mentioning the crises that we have witnessed: [ … ] above all the terrorist attacks which have struck us in Europe–again recently–and which have left our democracies in a state of shock. [ … ] I felt that it was important to emphasise, on this occasion, that the Court is [, to use the words of its case-law,] “acutely conscious of the difficulties faced by States in protecting their populations against terrorist violence, which constitutes, in itself, a grave threat to human rights”. The Court thus finds it legitimate for “the Contracting States to take a firm stand against those who contribute to terrorist acts”, but without destroying our fundamental freedoms, for not everything can be justified by an emergency.”147

3.74 In the case-law referred to by the President of the Court, the Court has recognised that the rigorous standard of “absolute necessity” in Article 2 ECHR may sometimes be departed from in circumstances in which its application may simply be impossible, where certain aspects of the situation lie far beyond the Court’s expertise and where the authorities had to act under enormous time pressure and where their control of the situation was minimal. The Russian authorities were therefore allowed a certain amount of discretion in deciding how best to try to save the lives of 950 hostages taken by Chechen terrorists in a theatre in Russia, where the hostages’ lives were at real and immediate risk.

3.75In other cases the Court has accepted that States are entitled under Article 2 to use force to protect lives in counter-terrorism operations which go beyond the use of lethal force by the police on a city street. In a Turkish case, for example, intense firing by security forces at a village, using missiles and grenades in reaction to shots fired from the village in an area of known PKK terrorist activity, was found to be justified under Article 2 ECHR as a use of force that was no more than was absolutely necessary to protect life.148 The massive use of indiscriminate force, however, would be unlikely to be proportionate to the threat to life that has to be averted.

3.76Most recently, the Grand Chamber of the Court has held, in the case arising out of the mistaken shooting of Jean Charles de Menezes by counter-terrorism police in Stockwell tube station, that the test for self-defence in England and Wales is compatible with the right to life in Article 2 ECHR.149 The Court held that the existence of “good reasons” for an honest belief in the necessity to use lethal force should be determined subjectively:

“In a number of cases the Court has expressly stated that as it is detached from the events at issue, it cannot substitute its own assessment of the situation for that of an officer who was required to react in the heat of the moment to avert an honestly perceived danger to his life or the lives of others; rather, it must consider the events from the viewpoint of the person(s) acting in self-defence at the time of those events [ … ] Consequently, in those Article 2 cases in which the Court specifically addressed the question of whether a belief was perceived, for good reasons, to be valid at the time, it did not adopt the standpoint of a detached observer; instead, it attempted to put itself into the position of the person who used lethal force, both in determining whether that person had the requisite belief and in assessing the necessity of the degree of force used. [ … ] It can therefore be elicited from the Court’s case-law that in applying the McCann and Others test the principal question to be addressed is whether the person had an honest and genuine belief that the use of force was necessary. In addressing this question, the Court will have to consider whether the belief was subjectively reasonable, having full regard to the circumstances that pertained at the relevant time.”150

3.77In the light of this case-law, we do not consider that the applicability of the ECHR, rather than the Law of War, to any use of lethal force against ISIL/Da’esh outside armed conflict would necessarily hamper the Government’s ability to protect lives from the threat of terrorism, provided there was a real and immediate threat to life by ISIL/Da’esh fighters and the use of force was proportionate to the threat to life posed by those fighters. Any assessment of the necessity and proportionality of the use of force will have to take account of the unprecedented nature and seriousness of the threat posed by ISIL/Da’esh.

3.78While it is clear that the ECHR applies to any use of lethal force abroad for counter-terrorism purposes outside of armed conflict, and that the Article 2 thresholds of necessity and proportionality would have to be met, exactly how the right to life in Article 2 ECHR will be interpreted, and precisely what it will be held to require in light of the unprecedented nature of the threat from ISIL/Da’esh is therefore open to interpretation.

3.79In our view, there is scope to spell out the Government’s interpretation of what the right to life in Article 2 ECHR requires in this particular context and we ask the Government to set out its understanding in its response to our Report. The issue which would particularly benefit from clarification by the Government is how it understands the requirement that the use of force to protect life must be no more than is absolutely necessary, having regard to the nature of the threat posed by ISIL/Da’esh. It would be useful if the Government’s response could spell out the sorts of considerations which will be relevant to assessing whether resort to lethal force really is the only option to prevent the threatened violence, and no other means such as capture or some other means of incapacitation is practical.

3.80We also consider there to be scope for internationally agreed guidance as to how the right to life in Article 2 ECHR should be interpreted and applied in this context, and in Chapter 6 we consider what role the Government could play in seeking to achieve such international consensus.

The legal basis for UK support of US lethal force outside armed conflict

3.81On 19 February the US carried out airstrikes on an ISIL/Da’esh training camp near Sabratha in western Libya. The target of the attack was said by the Pentagon to be Noureddine Chouchane, a Tunisian national suspected of being involved in two recent terrorist attacks in Tunisia, including the attack on the beaches in Sousse in which 30 British nationals were killed. According to press reports, 41 people were killed in the airstrikes.151

3.82The Secretary of State for Defence confirmed that the US operation had made use of UK bases and was quoted as saying:

“I welcome this strike that has taken out a Da’esh training camp being used to train terrorists to carry out attacks. I was satisfied that its destruction makes us all safer, and I personally authorised the US use of our bases.”152

3.83Asked at Defence Questions in the Commons to explain his assessment of whether the action in Libya was lawful according to the law relating to the use of force, international humanitarian law and human rights law,153 the Defence Secretary said:

“The United States followed standard procedures, and made a formal request to use our bases. Once we had verified the legality of the operation, I granted permission for the United States to use our bases to support it, because they are trying to prevent Da’esh from using Libya as a base from which to plan and carry out attacks that threaten the stability of Libya and the region, and indeed, potentially, the United Kingdom and our people as well. I was fully satisfied that the operation, which was a United States operation, would be conducted in accordance with international law.”

3.84The US spokesman explained the US view of the legal basis for the air strikes in Libya. The strikes were said to demonstrate that the US will go after ISIL/Da’esh whenever it is necessary, confirming President Obama’s statement that the US “will go after ISIS wherever it appears, the same way that we went after al-Qaida wherever they appeared.”154 Surveillance of the training camp had led the US to believe that an ISIS attack emanating from the camp on US interests in the region was at some stage of preparation, and the camp had been struck before they could pose a more specific threat: “they had ill intent in their mind” said the Pentagon spokesman.

3.85The UK’s support for this use of lethal force abroad by the US demonstrates the urgent need for the Government to clarify its understanding of the legal basis for the UK’s policy. The US policy, in short, is that it is in a global armed conflict with ISIL/Da’esh, as it has been since 9/11 with al-Qaida, which entitles it to use lethal force against it “wherever they appear.” On this view, the Law of War applies to any such use of force against ISIL/Da’esh, wherever they may be.155 This is not, however, the position of the UK Government. As the Defence Secretary made clear in his evidence to us,156 the Government considers itself to be in armed conflict with ISIL/Da’esh only in Iraq and Syria. This means that the Law of War may not apply to strikes such as the US airstrikes in Libya. Rather, as our Report demonstrates, the ECHR applies to such airstrikes outside of armed conflict.

3.86As explained above, the ECHR may well provide a legal basis for such use of lethal force, where there is a real and immediate risk to life which cannot be prevented in any other way, or when the force used is no more than absolutely necessary to defend any person against unlawful violence. Whether the ECHR requirement that the use of force must be no more than absolutely necessary is satisfied where air strikes on training camps against ISIL/Da’esh fighters with “ill intent in their minds” kill 41 people, however, requires careful scrutiny.

3.87Parliament and the public are entitled to expect absolute clarity about the legal basis on which the Government provides support to other countries which facilitates such uses of lethal force outside of armed conflict. Complicity by a State in the internationally unlawful act of another State is itself unlawful under general international law principles of State responsibility for internationally wrongful acts.157 The general principles of state responsibility in international law, now conveniently set out in the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts,158 expressly deal with the situation where one State provides aid or assistance to another with a view to facilitating the commission of an internationally wrongful act by the latter:

ARTICLE 16

“Aid or assistance in the commission of an internationally wrongful act

A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:

(a) that State does so with knowledge of the circumstances of the internationally wrongful act; and

(b) the act would be internationally wrongful if committed by that State.”

3.88UK personnel who facilitate such uses of lethal force outside of armed conflict by providing logistical support to the US, or who provide intelligence gathered through UK surveillance and reconnaissance,159 also deserve absolute clarity from the Government about the legal basis on which such support is being provided to the US, to provide the necessary reassurance that they are not at any risk of criminal prosecution for complicity in killings which may lack international legal justification.

3.89We therefore also ask the Government to clarify, in its response to this Report, its understanding of the legal basis on which it provides any support which facilitates the use of lethal force outside of armed conflict by the US or any other country adopting the same or a similar view with regard to the use of lethal force.

Conclusion

3.90In our view, the Government’s assertion that the Law of War applies to a use of lethal force outside of armed conflict demonstrates the necessity of the Government clarifying, in its response to our Report, its understanding of the legal position. The tests which are to be satisfied before such force is used, the safeguards required in the decision-making process and the necessary independent and effective mechanisms for accountability all flow from the legal framework which governs such uses of lethal force. We call on ministers to avoid conflating the Law of War and the ECHR and to remove the scope for such legal confusion by setting out the Government’s understanding of how the legal frameworks are to be interpreted and applied in the new situation in which we find ourselves.

3.91The clarification of the Government’s understanding of the legal frameworks, and any subsequent consideration of it in Parliament, is in our view an opportunity for a very practical application of the important principle of “subsidiarity”: the principle that the national authorities (including the Government and Parliament) have primary responsibility for securing the rights and freedoms in the Convention to everyone within their jurisdiction. Just as in the Immigration Act 2014 the Government asked Parliament to approve its detailed interpretation of the requirements of the right to respect for private and family life in Article 8 ECHR in the context of deportations, as an exercise in subsidiarity, so the Government would be doing the same by setting out its detailed interpretation of the requirements of the right to life in Article 2 ECHR in the particular context of using lethal force outside of armed conflict

3.92We therefore recommend that the Government provides clarification of its position on the following legal questions:

93 See Annex 1 for a more detailed account of the relevant international legal frameworks.

94 We are grateful to Arabella Lang, Senior Research Analyst in the International Affairs and Defence section of the House of Commons Library, and Iana Messetchkova, Web and Publications Assistant in the House of Commons Web and Publications Unit, for their invaluable assistance in drawing up these flowcharts

95 See especially the evidence of Professor Simon Gardner (DRO0002), Dr William Boothby (DRO0004), Reverend Nicholas Mercer (DRO0005), Mr Alex Batesmith (DRO0006), Professor Robert McCorquodale (DRO0008), Professor Nicholas J. Wheeler (DRO0009), Dr Noelle Quenivet (DRO0010), Mr Joseph Savirimuthu (DRO0013), Ms Konstantina Tzouvala (DRO0014), Verity Adams (DRO0015)

96 Letter from the Government Legal Department in response to the letter before claim from Caroline Lucas MP and Baroness Jones, dated 23 October 2015

97 See, for example, the ECHR Memoranda accompanying the Trade Union Bill, the Immigration Bill, the Police and Crime Bill, and the Investigatory Powers Bill

98 Oral evidence taken before the Justice Select Committee on 15 September, HC (2015–16) 409

99 In a written answer to a PQ by Dave Anderson MP the Prime Minister said that “the legal basis for the airstrike against Reyaad Khan is set out in the Government’s Memorandum to the Joint Committee on Human Rights” (25 January 2016).

100 HC Deb, 7 September 2015, col 26

101 Oral evidence taken before the Justice Select Committee on 15 September, HC (2015–16) 409

102 Memorandum from the Government on Drones

103 Memorandum from the Government on Drones

104 Ibid.

105 Q23 [Rt Hon Michael Fallon]

106 Q23 [Rt Hon Michael Fallon]

107 See Annex 1; Annex 2 flowchart 1; and evidence of Dr William Boothby (DRO0004), Ms Konstantina Tzouvala and Tom Sparks (DRO0014)

108 Relying on the Advisory Opinion of the International Court of Justice (“ICJ”) in the Israeli Wall case (Legal Consequences of the construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004 136.

109 HC Deb, 26 Nov 2015, col 1491

110 HC Deb, 26 November 2015, col 1491

111 See, for example, evidence of Reverend Nicholas Mercer (DRO0005), Christof Heyns, Dapo Akande et al (DRO0024), Professor David Hastings Dunn and Professor Nicholas J. Wheeler (DRO0009)

112 See Sir Michael Wood (former Foreign Office Legal Adviser), The Use of Force in 2015 With Particular Reference to Syria, Hebrew University of Jerusalem Legal Studies research paper Series No. 16-05, p 14

113 HL Deb, 21 Apr 2004, cols 370-371

114 Ibid.

115 Oral evidence taken before the Justice Select Committee on 15 September, HC (2015–16) 409, Q34

116 Q28 [Rt Hon Michael Fallon MP]

117 See, for example, Dr Noelle Quenivet and Dr Aurel Sari (DRO0010)

118 PQ 23242 [on defence], 28 January 2016

119 See, for example, evidence of Dr William Boothby (DRO0004), Reverend Nicholas Mercer (DRO0005), Professor David Hastings Dunn and Professor Nicholas J. Wheeler (DRO0009), Christof Heyns, Dapo Akande et al (DRO0024), Ms Konstantina Tzouvala and Tom Sparks (DRO0014)

120 We return to this important question of what “imminence” requires below at para. 3.65, where we consider the standards which have to be satisfied where the ECHR applies to a use of lethal force.

121 The flowcharts in Annex 2 explain the relationship between the different international legal frameworks that are relevant to the use of lethal force abroad

122 International Law Commission Commentary to Article 21 of the Articles on the Responsibility of States for Wrongful Acts.

123 See Annex 1 for a more detailed explanation of the Law of War

124 See Annex 2, flowchart 2

125 Al Skeini v UK, applied by the UK Supreme Court in Smith v MOD.

126 See, for example, Hassan v United Kingdom [2014] (Grand Chamber, ECtHR)

127 See Annex 1, para 58

128 See, for example, evidence of Reprieve (DRO0026), Drone Wars UK (DRO0007), Dr Alan Greene, Verity Adams and Jane Rooney (DRO0015)

129 Q22

130 See, for example, evidence of Dr William Boothby (DRO0004), Reverend Nicholas Mercer (DRO0005), Professor Robert McCorquodale (DRO0008)

131 See Annex 1, paras 45-49

132 Article 1 ECHR provides that “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”

133 Al Skeini v UK, applied by the UK Supreme Court in Smith v MOD. See also Al Jedda v UK and Jaloud v The Netherlands (2014)

134 [2015] EWHC 715 (Admin) (17 March 2015), para 106. The Government is appealing against the judgment to the Court of Appeal.

135 [2015] EWHC 715 (Admin) (17 March 2015), para 95

136 Ibid., para 117

137 Article 6 ICCPR

138 Article 15(1) ECHR

139 See, for example, Policy Exchange, Clearing the Fog of Law: Saving our armed forces from defeat by judicial diktat, 2015

140 Q36

141 “Defence Secretary Michael Fallon: suspend Human Rights Act to protect our troops”, The Telegraph, 26 December 2015

142 Article 15(2) ECHR

143 Article 2(2)(a) ECHR

144 See Annex 3 for a table comparing the Law of War with Human Rights Law.

145 Q2 [Professor Thomas Simpson]

146 Finogenov v Russia (2011)

147 President Guido Raimondi, President of the European Court of Human Rights, Speech at the opening of the judicial year, 29 January 2016

148 Ahmet Ozkan v Turkey (2004)

149 Armani da Silva v UK (application no. 5878/08), 30 March 2016

150 Armani da Silva v UK (application no. 5878/08), 30 March 2016

151 “US airstrikes target Islamic State militants in Libya”, The Guardian, 19 February 2016

152 Para 3.52

153 HC Deb, 29 Feb 2016, col 671 [Kirsten Oswald MP]

154 ‘We will go after ISIS wherever it appears’ President Obama talked about the situation in Libya on Feb. 17 at the U.S.-Asean Leaders Summit in California

155 “Is the U.S. Now at War With the Shabab? Not Exactly” ,The New York Times, March 2016

156 See above, para 3.17

157 See Joint Committee on Human Rights, Twenty-third Report of Session 2008–09, Allegations of Complicity in Torture, HL Paper 152 /HC 230, paras 24-35

158 The Articles on State Responsibility are annexed to United Nations Resolution 56/83 adopted by the General Assembly on 12 December 2001. The Articles are recognised as an authoritative statement of the principles of State responsibility in international law: see, for example, the reference to them by the House of Lords in R v Lyons [2002] UKHL 44, [2003] 1 AC 976 at para. 36.

159 The fact that two former UK nationals, Mohamed Sakr and Bilal al-Berjawi, were killed by US drone strikes in Somalia (outside armed conflict) after having been deprived of their UK citizenship in 2010, has raised questions about whether the use of lethal force against them was in any way facilitated by the provision of UK intelligence: see, for example, Chris Woods, Sudden Justice: America’s Secret Drone Wars (2015), pp 122-127



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9 May 2016