Conclusions and recommendations
Introduction
1.We thank the Ministry of Defence for facilitating our visit to RAF Waddington, and the serving officers there who made the visit so informative. We also thank the Secretary of State for Defence for giving oral evidence to us. We were disappointed, however, by the Government’s failure to answer a number of important questions that we asked of them, particularly about the Government’s understanding of the applicable legal frameworks that govern the use of lethal force abroad outside of armed conflict. We fully acknowledge the inevitable limits to transparency in relation to intelligence-based military and counter-terrorism operations, but the need to protect sensitive information cannot explain the Government’s reluctance to clarify its understanding of the relevant legal frameworks. (Paragraph 1.59)
2.Because the issue of taking a life in order to protect lives is so important, we hope the Government will respond positively and transparently to this Report.
(Paragraph 1.60)
The Government’s policy
3.We 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. (Paragraph 2.28)
4.We 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.
(Paragraph 2.29)
5.Our 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. (Paragraph 2.38)
6.Despite 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 individuals being killed by the State to prevent a terrorist attack. (Paragraph 2.39)
7.We 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. (Paragraph 2.40)
Legal Basis
8.We 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. (Paragraph 3.8)
9.The 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. (Paragraph 3.19)
10.We 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. (Paragraph 3.29)
11. 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. (Paragraph 3.40)
12.We 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. (Paragraph 3.41)
13.Subject 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. (Paragraph 3.42)
14.We 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. (Paragraph 3.53)
15.In 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. 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. (Paragraph 3.55)
16.We 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”. 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. (Paragraph 3.62)
17.In 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. (Paragraph 3.79)
18.We 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. (Paragraph 3.80)
19.We 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.
(Paragraph 3.89)
20.In 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. (Paragraph 3.90)
21.We therefore recommend that the Government provides clarification of its position on the following legal questions: (Paragraph 3.92)
- its understanding of the meaning of the requirements of “armed attack” and “imminence” in the international law of self-defence; (Paragraph 3.92)
- the grounds on which the Government considers the Law of War to apply to a use of lethal force outside armed conflict; (Paragraph 3.92)
- its view as to whether Article 2 ECHR applies to a use of lethal force outside armed conflict, and if not why not; (Paragraph 3.92)
- its understanding of the meaning of the requirements in Article 2 ECHR that the use of force be no more than absolutely necessary, and that there is a real and immediate threat of unlawful violence, in the context of the threat posed by ISIL/Da’esh; and (Paragraph 3.92)
- its understanding of the legal basis on which the UK takes part in or contributes to the use of lethal force outside armed conflict by the US or any other country adopting the same or a similar view with regard to the use of lethal force. (Paragraph 3.92)
The decision-making process
22.We recommend that the ISC should consider whether it should have a role in keeping under review any list which may exist of pre-identified targets against whom lethal force might be used outside of armed conflict, as happens in the US.
(Paragraph 4.17)
23.We recommend that the Government should make clear, in its response to our Report, precisely when legal advice is sought and from whom prior to use of lethal force outside armed conflict, and that legal advice should always be sought from senior Foreign Office lawyers on any question of international law. (Paragraph 4.21)
24.The applicability of the ECHR to uses of lethal force abroad outside of armed conflict has some important implications for the decision-making process. To be compatible with the right to life, operations which result in the use of lethal force outside armed conflict must have been planned and controlled in such a way as to minimise the risk of loss of life. The decision-making process for more conventional uses of lethal force in armed conflict is designed to secure compliance with the Law of War. (Paragraph 4.22)
25.In our view, the applicability of the ECHR to uses of lethal force outside of armed conflict means that the decision-making process for more conventional uses of lethal force in armed conflict may not be sufficient to ensure compliance with the relevant standards on the use of lethal force. The Government should consider whether any changes to the process are required for what the Government acknowledges to be a wholly exceptional situation which is likely to arise very infrequently.
(Paragraph 4.23)
26.For the Government’s policy to command public confidence, and to make it more likely that decisions pursuant to it do not lead to breaches of the right to life, the decision-making process must be robust, with sufficient challenge built into the process, rigorous testing of intelligence to minimise the risk of mistakes, and access to the requisite advice including legal advice at the appropriate stages in the process. (Paragraph 4.24)
27.It is also important that there is provision for constant review of whether or not the relevant conditions continue to be satisfied. As Mark Field MP said in the Westminster Hall debate on drones, “[t]he notion that an individual is on a list until such time as they are eliminated or assassinated seems to be at odds with article 51 [of the UN Charter]. There needs to be a process whereby the question of whether a person is still an imminent threat to the UK is regularly turned over in people’s minds.” The same applies to the other main condition which has to be satisfied: whether the use of force is no more than absolutely necessary to protect life. (Paragraph 4.25)
28.We also consider that there could be greater clarity about the level within Government at which exceptional decisions to use lethal force outside armed conflict are made. The Prime Minister told the Liaison Committee on 12 January that “these decisions are in no way made lightly. It is one of the most difficult decisions that any Prime Minister has to make”. Our understanding is that the Prime Minister is only involved at the “in principle” stage of authorising a target for a lethal strike. The level of decision-making at the later operational stage should also, in our view, reflect the extraordinary seriousness of such a use of lethal force outside areas of armed conflict. Uses of lethal force pursuant to the policy will, we presume, be extremely rare, and we do not think it is unreasonable to expect ministerial involvement in the operational decision. We look forward to the Government’s clarification of these matters in its response to our Report. (Paragraph 4.26)
Accountability
29.We welcome the Prime Minister’s acknowledgment of the importance of independent scrutiny of such extraordinary acts. Accountability is important for a number of reasons: it is a means of ensuring that decision-makers keep to standards; it is a safeguard against the danger of mission-creep when broad powers are exercised in ever wider circumstances; and it gives the public the confidence that is necessary to entrust such exceptional powers to ministers. It is also necessary in order to comply with the requirements of the ECHR. (Paragraph 5.3)
30.We recommend that the Government should establish clear independent accountability mechanisms in relation to the future use of lethal force abroad outside of armed conflict, capable of carrying out effective investigations into whether particular uses of lethal force were justified and lawful, including: (Paragraph 5.30)
- automatic referral to the ISC of any such use of lethal force;
- a revised Memorandum of Understanding between the Prime Minister and the ISC making clear that the Government accepts that the ISC has the power to consider intelligence-based military operations, and that the MoD must provide the ISC with all the relevant information about such an operation that the ISC needs to make its investigation effective;
- access to independent legal advice rather than legal advice from the Government’s lawyers.
31.We agree with the Government about the importance of political accountability, and ask the Government to reconsider its apparent position that there should be no accountability through the courts for any action taken pursuant to its policy of using lethal force outside areas of armed conflict. (Paragraph 5.38)
Developing international consensus
32.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 (Paragraph 6.6)
33.We 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. (Paragraph 6.17)
34.Specifically, we recommend that, in addition to bringing forward its own understanding of the legal framework within three months of this Report, the Government: (Paragraph 6.18)
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.
35.We 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. (Paragraph 6.19)
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9 May 2016