6Developing international consensus
The international rule of law dimension
6.1In the preceding chapters we have recommended that the Government respond to the central problem we have identified in our inquiry by clarifying its understanding of the legal framework which governs its policy on the use of lethal force abroad for counter-terrorism purposes outside of armed conflict. If the Government responds constructively to that main recommendation, by explaining, amongst other things, its understanding of the meaning of “imminence” in the international law of self-defence and its interpretation of what the ECHR requires in this particular context, it will set a good example of how States can proactively address the new challenges posed by the rapid changes in technology and the nature of armed conflict.
6.2We conclude our Report by considering whether there is anything more the Government should do, in addition to publishing its own understanding of the relevant legal framework, to accelerate international progress towards greater clarity and consensus about how the relevant international law rules apply to the new and fast-moving challenges of counter-terrorism in today’s world, in order to ensure that States’ responses are consistent with the international rule of law. As the world faces the grey area between terrorism and war, there needs to be a new international consensus on when it is acceptable for a state to take a life outside of armed conflict. The U.K. Government should lead in the establishment of that consensus and thereby ensure that states are able to take the action which is necessary to protect their citizens without breaching the rule of law.
The UK’s lack of international engagement to date
6.3In Chapter 1 above we outlined recent international initiatives aimed at promoting understanding and building consensus about the international legal framework that applies to the use of armed drones for counter-terrorism purposes.200
UN initiatives
6.4The UK Government has so far not engaged at all with UN efforts to reach a clear international consensus on the applicable legal principles and what they require. It has not responded in detail to the invitation of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, in his February 2014 Report to the Human Rights Council, to clarify their position on a number of important legal issues on which there is no clear international consensus, including the meaning of imminence in the law of self-defence and whether a State can be in a global non-international armed conflict with a non-State armed group. It opposed Human Rights Council Resolution 25/22 (which urged States to ensure that any measures used to counter terrorism, including the use of armed drones, comply with their international law obligations including under human rights law) and was not in favour of an Expert Panel Discussion on the subject in the Human Rights Council. When the UN Human Rights Council considered the use of armed drones in counter-terrorism and military operations in accordance with international law, in September 2014,201 the UK Government argued that the Human Rights Council was not an appropriate forum for discussion of the use of armed drones202 and stated that it did not believe that the Council should take up particular weapons on a thematic basis.
6.5The UK’s failure to engage with these UN initiatives aimed at achieving international consensus about the legal frameworks prompted a letter from Sir Jeremy Greenstock, former UK ambassador to the UN, and a number of leading parliamentarians from all parties and none, welcoming the lead taken by the Human Rights Council and arguing that “the increased use of armed drones underscores the need for greater consensus between States on how to apply the international laws that regulate lethal force.”203
6.6Since the last consideration of this issue by the Human Rights Council, as we have demonstrated in this Report, the UK Government has made clear its preparedness to use armed drones to deliver lethal force in areas outside armed conflict, to which human rights law applies for the reasons we have explained. We therefore would not expect the Government to maintain its opposition to the UN Human Rights Council considering the subject of how the international legal frameworks apply to the use of armed drones for counter-terrorism purposes, and we make specific recommendations below about how the Government should now take the lead in these UN initiatives.
Council of Europe initiatives
6.7As we noted in Chapter 1 above,204 the Committee of Ministers of the Council of Europe (comprising representatives of the Governments of the Member States) has recently rejected205 the Parliamentary Assembly’s recommendation206 that the Committee of Ministers undertake a thorough study of the lawfulness of the use of combat drones for targeted killing and, if need be, draft guidelines for States on the subject, reflecting their obligations under both the Law of War and human rights law.
6.8In its Reply, the Committee of Ministers notes that the use of armed drones is relatively recent and has greatly increased in the last few years. It agrees with the Parliamentary Assembly that, “given the fact that the number of States with the capacity to use armed drones is likely to increase, a greater consensus on the terms of their use should be reached in order to ensure compliance with public international law” and “considers that many legal issues raised by the use of [armed drones] need to be addressed”. However, the Committee of Ministers “does not find that there is a need at the present stage to draft guidelines along the lines suggested by the Assembly.” Instead, it asked its Committee of Legal Advisers on Public International Law (an intergovernmental committee comprising Government Legal Advisers) to monitor developments and to signal any further developments which might give rise to a need for the Council of Europe to take further action.
6.9The Committee of Ministers’ Reply to the Parliamentary Assembly is premised on the assertion that “there is a broad agreement that [ … ] relevant rules of international law regulating the use of force and the conduct of hostilities as well as of international human rights law apply to their use.” The Reply also only contemplates the use of armed drones in the context of armed conflict: it does not consider the possibility that armed drones might be used by States outside of armed conflict. As our Report has shown, however, the UK Government’s policy includes the possible use of armed drones to deliver lethal force abroad outside of armed conflict, and does not appear to accept that the relevant rules of international human rights law apply to such uses of armed drones. In our view, the basis on which the Committee of Ministers has rejected the Parliamentary Assembly’s recommendation is therefore questionable. We consider it to be the Government’s responsibility to ensure that our Report, which questions the basis of the Committee of Minsters’ reply to the Parliamentary Assembly, is drawn to the attention of the Committee of Ministers and to the Committee of Legal Advisers on Public International Law which has been charged with the task of drawing significant developments to the Committee of Ministers’ attention.
6.10We will draw our Report to the attention of the Parliamentary Assembly. We note that the Parliamentary Assembly has recently requested Opinions from the European Commission for Democracy through Law (“the Venice Commission”) on a number of significant issues raised by the laws or practices of a particular State which have wider implications for the Council of Europe. The Venice Commission is the Council of Europe’s advisory body on constitutional matters.207 It provides expert opinions on the compatibility of laws, policies and institutional structures with established European standards, including the ECHR. The Venice Commission’s opinions are often referred to in judgments of the European Court of Human Rights.208
6.11The Parliamentary Assembly of the Council of Europe can request an opinion from the Venice Commission and it has done so in relation to issues which concern not only the country in question but are of wider interest to other Council of Europe Member States. For example, the Assembly recently asked the Venice Commission for an opinion on the compatibility of the proposed draft revision of the French Constitution, concerning states of emergency and deprivation of nationality, with the ECHR and with Council of Europe standards. 209 The Venice Commission’s opinion has also been sought on the compatibility with the ECHR of Russia’s law on the implementation of European Court of Human Rights judgments, and the Polish law concerning the Constitutional Tribunal.
6.12In light of the Committee of Ministers’ rejection of the Parliamentary Assembly’s recommendation that the Committee of Ministers draw up guidelines for Council of Europe Member States on targeted killing using armed drones, the Parliamentary Assembly may now consider requesting an Opinion from the Venice Commission about the requirements of the ECHR and other relevant Council of Europe standards when a Council of Europe Member State uses lethal force abroad outside armed conflict for counter-terrorism purposes or facilitates such use of lethal force by a third country.210
Time for leadership
6.13In the FCO’s Human Rights and Democracy Report 2014, the Government stated its commitment to working through a rules-based international system and to “supporting efforts to strengthen the UN system further, including working to mainstream human rights within the UN’s [ … ] peace and security agendas.”211
6.14In the Government’s more recent National Security Strategy, it goes further and states as one of the Government’s main priorities to:212
“Help strengthen the rules-based international order and its institutions
[ … ] We will work with our partners to reduce conflict and to promote stability, good governance and human rights.”
6.15The UK is hoping to be re-elected to the UN Human Rights Council when its current term expires in 2017. Membership of the Council is of considerable importance to the UK’s influence on the human rights situation in other countries. As the FCO’s 2014 Human Rights Report puts it:213
“The UN is a key vehicle for advancing the UK’s priorities on human rights: it enables scrutiny of human rights violations worldwide; provides a forum for dialogue between states; and provides technical assistance to states on human rights in country. In 2014, the UK resumed its seat on the Human Rights Council (HRC), the UN’s main intergovernmental human rights forum, which meets in Geneva three times a year. Throughout 2014, there was significant ministerial engagement with the HRC, which helped deliver UK priorities.”
6.16It is important, therefore, that the UK is seen to deliver on the aspirations in the FCO’s Human Rights Report and the National Security Strategy to strengthen the rules-based international order. In our view, the urgent need for greater international consensus about how international law applies to the use of lethal force abroad for counter-terrorism purposes provides an ideal opportunity for the UK Government to show the international leadership it professes. We have therefore considered what concrete, practical steps the Government could take (in addition to publishing its own clarifications of its understanding of the legal framework within three months in response to this Report as we have recommended earlier) in order to bring some urgent international consensus to the many legal uncertainties to which we have drawn attention in this Report.214
6.17We welcome the Government’s recent restatement of its commitment to “strengthen the rules-based international order and its institutions.” In light of that commitment, we recommend that the Government not only engages fully but now takes the lead in international initiatives to advance understanding and build international consensus about the international legal framework governing the use of lethal force abroad in counter-terrorism operations outside of armed conflicts, including by the use of armed drones.
6.18Specifically, we recommend that, in addition to bringing forward its own understanding of the legal framework within three months of this Report, the Government:
i)Includes a detailed response to the questions posed to states by the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism in his 2014 Report to the UN Human Rights Council and in particular the following questions:
- How is the requirement of imminence to be applied in the international law of self-defence in the new context?
- If it is possible for a State to be engaged in a non-international armed conflict with a non-State armed group operating transnationally, does this imply that a non-international armed conflict can exist which has no finite territorial boundaries?
ii)Initiates an urgent discussion in the UN Human Rights Council on the need for greater international consensus about the applicability and requirements of the legal frameworks that govern the use of lethal force abroad for counter-terrorism purposes, outside of armed conflict;
iii)Takes active steps to build international support for a further Human Rights Council resolution mandating the relevant UN Special Rapporteurs to draw up UN Guidance for States on the use of lethal force abroad for counter-terrorism purposes outside of armed conflict and setting out the core principles which apply to such use of lethal force;
iv)Takes the lead on this issue in the Committee of Ministers of the Council of Europe by inviting it to reconsider its Reply to the Parliamentary Assembly in the light of our Report, with a view to taking forward the recommendation of the Parliamentary Assembly that the Committee of Ministers draft guidelines for members States on targeted killings, with special reference to armed drones, reflecting States’ obligations under international humanitarian and human rights law, in particular the standards laid down in the ECHR, as interpreted by the European Court of Human Rights;
v)Invites the Committee of Ministers to consider what scope there is for requesting an advisory opinion from the European Court of Human Rights under Article 47 ECHR, seeking guidance on the application and interpretation of the right to life in Article 2 ECHR where lethal force is used abroad for counter-terrorism purposes outside armed conflict, or support is given to a third country facilitating such use of force;
vi)Supports any request the Parliamentary Assembly of the Council of Europe may make for an Opinion from the Venice Commission for Democracy Through Law about the requirements of the ECHR when a Council of Europe Member State uses lethal force abroad outside armed conflict for counter-terrorism purposes or facilitates such use of lethal force by a third country.
6.19We have explained in our Report why clarification of the legal position is so urgently needed, and why this will require strong leadership internationally. We will follow up on these recommendations by every means that is open to us, including at the international level. We recently visited the Council of Europe institutions in Strasbourg and we will discuss how best to take forward our recommendations with our sister committee, the Committee on Legal Affairs and Human Rights, in the Parliamentary Assembly and other relevant Council of Europe bodies such as the Commissioner for Human Rights. We also intend to raise our recommendations with the UN High Commissioner for Human Rights and the relevant UN Special Rapporteurs.
200 Paras 1.37-1.44
201 United Nations Human Rights Council, Human Rights Council holds panel on remotely piloted aircraft or armed drones in counterterrorism and military operations, September 2014
202 See Professor Dapo Akande, “UN Human Rights Council Panel Discussion on Drones” EJIL: Talk!, October 2014
203 “UK fails to engage with Human Rights Council on drones”, United Nations Association, September 2014
204 Chapter 1, para 1.43
205 CM Reply to Rec 2069 (2015) http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=22301&lang=en (1-2 December 2015)
206 Recommendation 2069 (2015) http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=21747&lang=en (23 April 2015)
207 The Council of Europe, European Commission for Democracy through Law
208 For example, in the case of Shindler v UK, which concerned the Convention compatibility of the UK law under which British citizens lose the right to vote after they have been resident overseas for more than fifteen years, the Court referred to the Venice Commission’s 2011 Report on Out of Country Voting CDL-AD (2011) 022.
209 PACE Resolution 2090 (2016), Combating international terrorism while protecting Council of Europe standards and values (27 January 2016), para. 21, The Venice Commission considered its opinion in response to the Assembly’s request at its meeting on 11 and 12 March 2016.
210 The Parliamentary Assembly, or one of its Committees, has recently requested Opinions from the Venice Commission concerning, for example, the compatibility with the ECHR of Russia’s law on the implementation of European Court of Human Rights judgments, and France’s laws on the state of emergency and deprivation of nationality.
211 FCO Human Rights Report 2014, p. 91 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/415912/21064_WL_Human_Rights_Annual_Report_High_Res.pdf
212 National Security Strategy and Strategic Defence and Security Review 2015, Cm 9161 (November 2015), p 10
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9 May 2016