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

Conclusions and recommendations

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

1.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. (Paragraph 7)

Scope of the Government response

2.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. (Paragraph 9)

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

3.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. (Paragraph 11)

The meaning of “imminence”

4.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. (Paragraph 13)

5.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. (Paragraph 16)

Applicability of the Law of War outside armed conflict

6.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. (Paragraph 18)

Applicability of the ECHR right to life outside armed conflict

7.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. (Paragraph 23)

8.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). (Paragraph 27)

9.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. (Paragraph 29)

The requirements of the right to life in Article 2 ECHR

10.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? (Paragraph 33)

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

11.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. (Paragraph 36)

Developing international consensus

12.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 (Paragraph 39)

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18 October 2016