The Government's policy on the use of drones for targeted killing: Government Response to the Committee's Second Report of Session 2015-16 Contents

1The Government’s Response to our Report

Introduction

1.Our Report on The Government’s policy on the use of drones for targeted killing was published on 10 May 2016.1 The Government’s response was received on 7 September 2016 and is appended to this Report.

2.The Government says that it has carefully considered our report and the issues that it raises and its paper sets out the Government’s response to our recommendations.

3.A further letter from the Secretary of State for Defence, Rt Hon Michael Fallon MP, was received on 23 September, to update the Government’s response in light of the judgment of the Court of Appeal in the case of Al Saadoon, which was handed down on 9 September.2 A copy of the letter is also appended to this Report.

4.In this Report we comment briefly on some aspects of the Government’s response which we expect to continue to be live issues as we follow up on our earlier Report.

Legality of the drone strike on Reyaad Khan on 21 August 2015

5.We preface our comments on the Government’s response with an important clarification. The Government says in its response that it “welcomes the Committee’s acceptance of the fact that the air strike on 21 August 2015 was in principle justifiable in the context of the prevailing armed conflict (against Daesh in the collective self-defence of Iraq) and international humanitarian law.” This suggests that we went rather further in expressing a view about the legality of the 21 August strike than in fact we did in our Report. To be clear, what we said in our Report was:3

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.

6.In other words, we accepted that the Law of War applied to the drone strike in Syria on 21 August, because it was part of the wider armed conflict with ISIL/Da’esh already taking place in Iraq and spilling over into Syria. However, this acceptance was confined to the question of whether the Law of War is the relevant legal framework in which the justification for the strike is to be assessed. Our Report did not go further and express a view on whether the strike was “in principle justifiable” or compatible with the Law of War. Indeed, our Report made clear that “[w]e have not sought to inquire into the drone strike in Syria on 21 August, other than to the extent that the events leading up to that particular use of lethal force shed light on the main themes of our inquiry”4 and “we also made clear that … we were not in a position to inquire into the intelligence on which the decision was made to launch that particular strike as our members are not security-cleared. We regarded that as a matter for the Intelligence and Security Committee”.5 As the Government’s response itself indicates, the report of the Intelligence and Security Committee is still awaited.

7.While we accepted that the Law of War applies to the drone strike in Syria on 21 August 2015, we did not make any comment on whether that strike was justifiable or compatible with the Law of War: that judgment can only be made by those who have full access to the intelligence on which the decision to launch the strike was based.

Scope of the Government response

8.The scope of the Government’s response to our Report is circumscribed by an important qualification at the beginning of the response:

“It should be noted that, while high level answers have been given to the Committee’s questions, many of the questions are hypothetical (for example, seeking clarification of the Government’s position in relation to the use of force outside of armed conflicts) and the answers should not be taken as representing the Government’s detailed and developed thinking on these complex issues. The need to take any future action would be considered according to the circumstances of each operation.”

9.We are disappointed that the Government’s response does not contain a full explanation of the Government’s “detailed and developed thinking on these complex issues”. We had hoped that the work we did in our inquiry, and our reasoned Report, deserved such an explanation. Rather, the Government declines to state its understanding of the law that applies to lethal drone strikes outside of armed conflict on the basis that this is “hypothetical”. We do not find this a satisfactory response.

The meaning of “armed attack” in the international law of self-defence

10.In our Report we asked the Government to 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.6 We accepted in principle that terrorist attacks by non-State actors such as ISIL/Da’esh are capable of amounting to an “armed attack” on a State for the purposes of the right of self-defence. Our question was about the threshold of seriousness or intensity that must be reached in order for such terrorist violence to constitute an “armed attack.”

11.The Government’s response is that the threshold is reached “where terrorist violence reaches a level of gravity such that were it to be perpetrated by a State it would amount to an armed attack”. We welcome this clarification of the Government’s position, which we do not think was clear from the Government’s previous explanations for its use of lethal force in Syria on 21 August 2015. It makes clear that in order for the right of self-defence to be invoked against non-State actors, the same level of gravity must be reached as if the armed attack were by another State. This statement therefore provides a degree of greater certainty than was previously provided by the Government’s statement of its position.

The meaning of “imminence”

12.In our Report we asked the Government for clarification of its understanding of the meaning of “imminence” in the international law of self-defence.7 In particular, we asked 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.”

13.The Government’s response does not directly answer our specific question. However, the response does usefully make clear that the Government’s understanding of the relevant legal framework remains as set out by the then Attorney General, Lord Goldsmith, in his statement to the House of Lords on 21 April 2004. The passage cited by the Government includes the part quoted and relied on by us in our Report,8 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.” This was said by the then Attorney General in order to distinguish 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. We welcome this clarification that the Government’s view of the underlying legal framework has not changed since it was set out by the Attorney General in 2004.

14.However, the Government’s response goes on to muddy the waters somewhat in its further explanation of the meaning of “imminence”:

imminence must be interpreted in the light of the circumstances and threats that are faced. As new forms of attack and new means of delivery of such attacks develop, so must our ability to take lawful action to defend ourselves. Combating an enemy which may have covertly infiltrated our country, and can control attacks from abroad with sophisticated communications technology means that it will be a rare case in which the Government will know in advance with precision exactly where, when and how an attack will take place. An effective concept of imminence cannot therefore be limited to be assessed solely on temporal factors. The Government must take a view on a broader range of indicators of the likelihood of an attack, whilst also applying the twin requirements of proportionality and necessity. (italics not in original)

15.The Government says that this interpretation of imminence is in line with the Attorney General’s 2004 statement. In our view, however, the italicised sentences require careful scrutiny. It is entirely correct that the Attorney General in 2004 said that the concept of what constitutes an ‘imminent’ armed attack will develop to meet new circumstances and new threats, and that States must be able to act in self-defence where there is evidence of further imminent attack by terrorist groups, even if there is no specific evidence of where such an attack will take place or the precise nature of the attack. We accepted as much in our Report.

16.But the Attorney-General’s continued reference to “imminence” shows that what the Government describes as “temporal factors” are still important. In other words, evidence of when an attack is likely to take place must still be relevant to any decision as to whether there is a right to use force in self-defence. On the Government’s formulation in its response, it is not clear what it considers to be the relevance of when a threatened attack might take place. We will be seeking further explanation from the Government of the relevance of the timing of any possible future attack when deciding whether the right to self-defence is triggered.

Applicability of the Law of War outside armed conflict

17.We asked the Government to clarify its position as to the law which applies when it uses lethal force outside of armed conflict.9 As we indicated above, the Government’s response does not address this important question in detail on the basis that it is a hypothetical question which would require “detailed analysis of the law and all the facts” if it were to arise as a live issue. It adds, however, that “the Government considers that in relation to military operations, the law of war would be likely to be regarded as an important source in considering the applicable principles.”

18.We do not find this to be a satisfactory answer, given the importance of the question of what law applies to the use of lethal force for counter-terrorism purposes outside armed conflict. In our view, the response comes close to asserting that the applicable law follows the choice of means by the State to deal with a particular threat to its security: that if the State chooses to deal with it by military means, the relevant principles and standards are the Law of War, even if the military operation is carried out in an area which is outside armed conflict. In this response the Government has failed to answer one of the most important questions identified in our Report.

Applicability of the ECHR right to life outside armed conflict

19.We asked the Government to clarify its view as to whether Article 2 ECHR (which protects the right to life) applies to a use of lethal force outside armed conflict.10

20.The Government’s response of 7 September said that this issue is awaiting judgment from the Court of Appeal in the case of Al Saadoon. It made clear that “the Government’s position in that litigation is that the European Convention on Human Rights (ECHR) is not automatically engaged extra-territorially by the use of military force abroad; and that the use of force of this kind is not sufficient of itself to bring a person within the jurisdiction of the United Kingdom.”

21.The Court of Appeal’s judgment in Al-Saadoon was handed down on 9 September, two days after we received the Government’s response.11 The Secretary of State for Defence wrote to us on 23 September to update the Government’s response to our Report in light of the judgment, arguing that as a result of the Court of Appeal’s judgment “the legal position has moved on since the Committee produced its Report - in particular as regards the jurisdiction of the UK for the purposes of the ECHR.”

22.The Government argues:

The Court of Appeal’s judgment has supported the position of the Government, by ruling that a person does not fall within the jurisdiction of the UK for the purposes of the ECHR on the basis simply that force, including lethal force, is used. There needs to be control of the individual prior to the use of lethal force for jurisdiction to apply.

It is clear, therefore, that the use of lethal force of the kind the report considered - outside the espace juridique of the Convention and absent any effective control of an area or assumption of public powers - would fall outside the reach of the ECHR. The result is that Article 2 does not apply to such use whether within or outside an existing armed conflict.

23.We accept that the judgment adopts a narrower reading of the scope of extra-territorial jurisdiction than that of the High Court Judge in the court below. However, the judgment does not go as far as the Government suggests in its letter of 23 September.

24.The High Court Judge in Al-Saadoon had ruled that the use of lethal force against a person outside a state’s territory was in and of itself sufficient to bring that person within the state’s jurisdiction and therefore within the scope of the Convention. The Court of Appeal disagreed with this view. It decided that the Strasbourg Court “did not intend to extend this category of extra-territorial jurisdiction to cases where the only jurisdictional link was the use of lethal or potentially lethal force and that this is, therefore, insufficient to bring the victim into the acting State’s jurisdiction for this purpose.”12 “[ … ] in laying down this basis of extra-territorial jurisdiction, the Grand Chamber required a greater degree of power and control than that represented by the use of lethal or potentially lethal force alone. [ … ] the intention of the Strasbourg Court was to require that there be an element of control of the individual prior to the use of lethal force.”13

25.The Court of Appeal accepted that, as a result of its decision, it will be necessary to distinguish between different types and degrees of physical power and control, and that difficulties will inevitably arise in defining the degree of physical power or control which must be exercised.14 Moreover, the Government itself conceded that an individual did not need to be formally detained in order to be within the State’s jurisdiction, and “accepts that there may be more difficult cases which do not strictly involve detention but where, nevertheless, the situation is so closely linked to the exercise of authority and control of the state as to bring it within its jurisdiction for this purpose.” The Court of Appeal observed that this concession was rightly made.

26.Whether the victim of a lethal drone strike abroad was within the UK’s jurisdiction will therefore depend on a careful analysis of the degree of physical power and control exerted over the individual prior to the use of lethal force. Reyaad Khan was a UK citizen who was likely to have been under close surveillance by the UK authorities. In addition to visual surveillance by drone, was his location discovered by the exercise by the authorities of extensive powers to intercept his communications, including possibly with family and associates in the UK, available to the authorities because of their powers over UK nationals and those in the UK? We do not know the answers to any of these questions, but, even after the Court of Appeal’s judgment in Al-Saadoon, it is necessary to consider such factual questions to determine whether, in the words of the Court of Appeal, his situation was so closely linked to the exercise of authority and control of the state as to bring him within its jurisdiction.

27.We therefore do not accept the Government’s assertion, in the final paragraph of the letter dated 23 September, that the judgment establishes that Article 2 ECHR does not apply to such uses of lethal force whether within or outside an existing armed conflict. Rather it is a matter of fact and degree, to be determined on all the relevant material by those with full access to it (in this case the ISC).

28.We also note that elsewhere in the Government’s response, the Government cites its statement to the UN Human Rights Council in a Panel Discussion on Drones in 2014 in which it said:

The UK expects other States to act lawfully in accordance with the applicable legal framework including when using RPAS [Remotely Piloted Aircraft Systems] against terrorist targets. If armed RPAS were to be used outside the scope of an armed conflict, their use must be in accordance with international human rights law.

29.We recommend that the Government clarify whether it maintains its 2014 position that the use of drones outside the scope of an armed conflict must be in accordance with international human rights law and, if not, what has changed to justify its change of position.

The requirements of the right to life in Article 2 ECHR

30.We asked the Government to spell out its interpretation of what the right to life in Article 2 ECHR requires in the particular context of the threat from ISIL/Da’esh and in particular how it understands the requirement that the use of force to protect life must be no more than is absolutely necessary, and that there is a real and immediate threat of unlawful violence, having regard to the nature of the threat posed by ISIL/Da’esh.15

31.The Government’s response is a brief assertion of its view that, because the requirements of Article 2 ECHR are “fact and context specific”, its requirements can be no higher than those of the Law of War when applied in the context of military activity:

“If, and to the extent that Article 2 may be in play in the sphere of military activity, the Government would expect that it would impose no greater constraints on the effective pursuit of military activity than are clearly imposed by international humanitarian law.”

32.The Government also confirms that “it would only use lethal force in response to an imminent armed attack where it is necessary to prevent that attack; in that event other means of preventing the attack would have been considered. For example, whether there is a Government in the country where the threat originates that we could work with to prevent the attack is a potential consideration.”

33.We call on the Government to elaborate further on its understanding of what the right to life in Article 2 requires if it applies. For example, does the Government also apply an “impossibility of capture” test such as that set out in the US written policy?

Legal basis for UK support of other States using lethal force outside armed conflict

34.We asked the Government to clarify its understanding of the legal basis on which the UK provides any support which facilitates the use of lethal force outside armed conflict by other States, such as the US, which have a wider view about the circumstances in which such lethal force may lawfully be used.16

35.The Government accepts that the relevant law is that set out in Article 16 of the International Law Commission’s Articles on State Responsibility, as suggested in our Report, but asserts that “the Government seeks to ensure that its actions remain lawful at all times.”

36.We expect the Government to provide a more detailed response to an important question raised in our Report, which is highly relevant to whether the Government is complying with international law and whether there is sufficient legal certainty for UK personnel to reassure them that they are not at risk of criminal prosecution for complicity in unlawful acts.

Developing international consensus

37.We called on the Government to take the lead in international initiatives to build consensus about how the international legal frameworks apply to the use of lethal force abroad in counter-terrorism operations outside armed conflict, and made a number of specific suggestions as to how it could do so.

38.The Government’s response states that the Government “takes the view that the existing legal frameworks, including both applicable international humanitarian law (IHL) and international human rights law (IHRL) are adequate to govern the use of Remotely Piloted Aircraft Systems and, therefore, that there is no need to develop a special regime for the use of these weapons.”

39.Our Report did not advocate the development of a special legal regime for the use of drones as the Government suggests, so this part of the Government’s response addresses a recommendation which we did not make. We advocated the building of international consensus in how the existing legal frameworks should be interpreted and applied. We will point out and correct this misunderstanding in any forthcoming debates about our Report and the Government response, and will seek to ensure that our recommendation is not mischaracterised in the various international fora in which the issue will be considered.


1 Joint Committee on Human Rights, Second Report of Session 2015–16, The Government’s policy on the use of drones for targeted killing, HL Paper 141/HC 574

2 Al-Saadoon v Secretary of State for Defence and Rahmatullah v Secretary of State for Defence [2016] EWCA Civ 811 (9 September 2016).

3 Joint Committee on Human Rights, Second Report of Session 2015–16, The Government’s policy on the use of drones for targeted killing, HL Paper 141/HC 574, para 2.29

4 Joint Committee on Human Rights, Second Report of Session 2015–16, The Government’s policy on the use of drones for targeted killing, HL Paper 141/HC 574, para 1.11

5 Ibid., para 1.52

6 Ibid, para 3.29

7 Joint Committee on Human Rights, Second Report of Session 2015–16, The Government’s policy on the use of drones for targeted killing, HL Paper 141/HC 574, paras 3.41 and 3.92

8 Ibid, HL Paper 141/HC 574, para 3.32

9 Joint Committee on Human Rights, Second Report of Session 2015–16, The Government’s policy on the use of drones for targeted killing, HL Paper 141/HC 574, para 3.55

10 Joint Committee on Human Rights, Second Report of Session 2015–16, The Government’s policy on the use of drones for targeted killing, HL Paper 141/HC 574, para 3.92

11 Al-Saadoon v Secretary of State for Defence and Rahmatullah v Secretary of State for Defence [2016] EWCA Civ 811 (9 September 2016).

12 Al-Saadoon, para [67]

13 Al-Saadoon, para [69]

14 Ibid., para [71]

15 Al-Saadoon, paras 3.79 and 3.92

16 Ibid, paras 3.89 and 3.92




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18 October 2016