On 10 May 2016, the Joint Committee on Human Rights published their report The Government’s policy on the use of drones for targeted killing. The report followed an inquiry by the Committee, which sought evidence from the Secretary of State for Foreign and Commonwealth Affairs, the S07 September 2016
On 10 May 2016, the Joint Committee on Human Rights published their report The Government’s policy on the use of drones for targeted killing. The report followed an inquiry by the Committee, which sought evidence from the Secretary of State for Foreign and Commonwealth Affairs, the Secretary of State for Defence, and the Attorney General. In response, the Government provided a consolidated Memorandum to the Committee which outlined the Government’s right to use force in self defence; the legality of the air strike on 21 August 2015; and the processes of decision-making and accountability which surround this activity. The Secretary of State for Defence also gave evidence at a hearing of the Committee.
The Government has carefully considered the Committee’s report and the issues that it raises, and this paper sets out the Government’s response to the Committee’s recommendations. The Government 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.
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.
As the Secretary of State for Defence made clear during his evidence session, the Government does not have a ‘policy on targeted killing’. Rather it has a policy to defend the UK and its citizens against threats to their security. In implementing that policy the Government may draw on a wide range of tools, including in extremis the use of military force to remove such threats when there is no other effective option. If the Government does resort to the use of military force (which of course is not confined to the use of Remotely Piloted Air Systems (RPAS) or ‘drones’), then the Government will act in accordance with the requirements of international law.
Every situation would be considered on its merits and in many cases different options might be available. However, in the case of the air strike on 21 August 2015, this action was the only feasible means of effectively disrupting the attacks planned and directed by Reyaad Khan due to the prevailing circumstances in Syria. There was no realistic prospect that Khan would travel outside Syria so that other means of disruption could be attempted. Nor was there any prospect of the Syrian Government being willing or able to deal with the imminent threat he posed.
We therefore recommend that the Government provides clarification of its position on the following legal questions:
The Government’s policy is to defend the United Kingdom from terrorism using all lawful means necessary to do so. Where the threat of terrorism emanates from overseas, our response will be calibrated by the situation. At one end of the spectrum the threat may be dealt with through engagement between law enforcement agencies, followed by arrest, trial and incarceration. At the other end of the spectrum there may be situations where the use of military force is the only feasible response to avert a threat.
The legal basis for the use of force in the latter situation (in the absence of a UN Security Council Resolution authorising such force) is the international law right of self-defence. The law on self-defence is long-standing, but is recognised in Article 51 of the UN Charter. As is clear from the text of Article 51, the right of self-defence can be exercised by a State individually where it seeks to repel an armed attack against itself, or collectively where it seeks to assist an ally in repelling an armed attack. The Government’s position is that grave terrorist violence can constitute an “armed attack” so as to justify the recourse to force to repel the armed attack. In the words of one leading writer, 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, “it would be a strange formalism that regarded the right to take military action against those who caused or threatened such actions as dependent upon whether or not their acts could be imputed to a State”.
The legal framework underlying the Government’s position was set out to Parliament on 21 April 2004 by the then Attorney General in the following terms:
“[ … ] it has been the consistent position of successive United Kingdom Governments over many years that the right of self-defence under international law includes the right to use force where an armed attack is imminent. It is clear that the language of Article 51 was not intended to create a new right of self-defence. Article 51 recognises the inherent right of self-defence that states enjoy under international law. That can be traced back to the “Caroline” incident in 1837. … It is not a new invention. The Charter did not therefore affect the scope of the right of self-defence existing at that time in customary international law, which included the right to use force in anticipation of an imminent armed attack.
The Government’s position is supported by the records of the international conference at which the UN Charter was drawn up and by state practice since 1945. It is therefore 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 strike against a threat that is more remote. However, those rules must be applied in the context of the particular facts of each case. That is important.
The concept of what constitutes an “imminent” armed attack will develop to meet new circumstances and new threats. For example, the resolutions passed by the Security Council in the wake of 11 September 2001 recognised both that large-scale terrorist action could constitute an armed attack that will give rise to the right of self-defence and that force might, in certain circumstances, be used in self-defence against those who plan and perpetrate such acts and against those harbouring them, if that is necessary to avert further such terrorist acts. It was on that basis that United Kingdom forces participated in military action against Al’Qaeda and the Taliban in Afghanistan. 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.
Two further conditions apply where force is to be used in self-defence in anticipation of an imminent armed attack. First, military action should be used only as a last resort. It must be necessary to use force to deal with the particular threat that is faced. Secondly, the force used must be proportionate to the threat faced and must be limited to what is necessary to deal with the threat. … ”
The Committee has asked the Government to provide further clarification of its understanding of “imminence”. In line with the position set out by the Attorney General in 2004 and quoted above, the Government’s view continues to be that 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.
As indicated in the introduction, this is a hypothetical question and if this scenario arose as a live issue it would require detailed analysis of the law and all the facts. However, 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.
The Report states:
“3.58 The applicability of the right to life in Article 2 ECHR depends on the victim being “within the jurisdiction” of the UK. 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. 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.” 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. [ … ] jurisdiction arose through the exercise of physical power and control over the individual who was shot and killed.”
3.59 The right to life in the ECHR therefore clearly applies to the use of lethal force abroad outside of armed conflict.”
As footnote 134 in the report recognises, the Secretary of State for Defence has appealed the High Court judgment in the Al Saadoon case to the Court of Appeal. The hearing of the appeal was in May and judgment is awaited. Accordingly, the matter is still being considered as a live and contentious issue by the courts. For the avoidance of doubt 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.
The requirements of Article 2 are fact and context specific. As is now well-established, the interpretation of ECHR rights can be informed and shaped by international law. 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.
In cooperating with other States the Government seeks to ensure that its actions remain lawful at all times. The circumstances in which a State can be found responsible in international law for aiding or assisting another State in committing an unlawful act are set out in Article 16 of the International Law Commission’s Articles on the Responsibility of States for Internationally Unlawful Acts. Although the Articles have not been adopted as a treaty, the Government considers Article 16 as reflecting customary international law. Article 16 provides:
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.
We ask that the Government sets out its understanding of what the right to life requires in this particular context e.g. what considerations are relevant to assessing whether resort to lethal force really is the only option to prevent the threatened violence. (para 3.79)
The Government 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. Moreover, when the use of lethal force is considered necessary for the prevention of an armed attack the requirement of proportionality is such that the level of force used should not be excessive.
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. (para 6.17)
Specifically, 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:
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. (para 6.18)
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 RPAS and, therefore, that there is no need to develop a special regime for the use of these weapons.
The Government set out its position on the UN Special Rapporteurs’ reports clearly in a panel discussion at the UN Human Rights Council on 22 September 2014, which included the following statement:
“The UK’s position on RPAS is clear. In our foreign relations, and particularly regarding the potential use of military force, the UK acts within the letter and spirit of applicable international law, and expects others to do so too. This applies to RPAS as to any other military asset or weapon.
The UK expects other States to act lawfully in accordance with the applicable legal framework including when using RPAS 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. Adherence to these values stands in stark contrast to the daily atrocities committed by terrorists, who as we have been reminded by the actions of ISIL and the Al-Nusrah Front in Syria and Iraq, kill, rape, maim and torture indiscriminately to spread fear amongst communities. Yet we cannot, and should not let our standards drop as we combat the scourge of international terrorism.
While RPAS are a relatively new military asset, the potential of which is still to be fully realised, the existing strict legal framework at the international level is fully capable of ensuring that they are used lawfully in appropriate circumstances. RPAS are not by their nature an indiscriminate weapon and nor are they more likely to cause civilian casualties than other military options. Indeed, as the Special Rapporteur Ben Emmerson cited in his interim report in October 2013, the opportunity to inspect a target before deciding to attack it creates the opportunity for RPAS fire to be more discriminate and reduce the risk.
In summary, we do not need to rewrite the laws of war in order to be confident that, when used in such lawful circumstances, RPAS operate in the same legal environment as other military means. On the contrary, their capabilities allow for a more considered approach to battlefield decision-making that can and will save lives.”
The Government seeks to uphold IHL in relation to its own actions in situations of armed conflict and believes strongly in the need to improve compliance by others with IHL. The Government works closely with other states and the Red Cross Movement to promote compliance with IHL. The Government calls on states and non-state actors engaged in armed conflict to respect IHL and act in accordance with their obligations under it. The International Committee of the Red Cross (ICRC) has a special role to play under the Geneva Conventions, and as one of the largest and oldest humanitarian organisations, is able to access areas and provide assistance where often states cannot reach. The Government is proud to be one of their greatest supporters.
The Government is actively involved in and will continue to support the Swiss/ICRC initiative to strengthen mechanisms of compliance with IHL This initiative is important to ensure IHL remains relevant and that issues of compliance are dealt with in appropriate international fora. The Government supports the establishment of a new forum of states to address such issues. The Government encourages all states to participate in the initiative and contribute to ongoing discussions on exactly how such a forum might work.
The United Kingdom participated in the 32nd quadrennial International Conference of the Red Cross and Red Crescent in December 2015 in Geneva. The focus was to further UK and international objectives on a range of pressing humanitarian challenges, including tackling sexual violence in conflict. In support of the Conference themes, the UK made a number of pledges on actions that the Government intends to take in coming years, including jointly with the British Red Cross, and our partners in the EU and Commonwealth.
The Government regularly discusses issues relating to international law on the use of force (ius ad bellum) and the law of armed conflict (ius in bello) with close allies. In such discussions the Government is able to explain and test its legal positions vis à vis those of allies and ensure that its own positions are understood and remain within the accepted framework of international law.
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. (para 4.17)
The Government strengthened the role of the Intelligence and Security Committee of Parliament (ISC) in the last Parliament, making it a committee of Parliament and strengthening its powers. It is for the ISC to determine their work programme and priorities within the powers they are afforded under the Justice and Security Act 2013. The Act and associated Memorandum of Understanding make clear that the ISC is able to look at the expenditure, administration, policy and operations of the intelligence agencies.
The then Prime Minister made clear to the House on 9 September 2015 that responsibility for current operations must lie with the Government and not with the ISC. The Government believes that this remains the appropriate framework for ISC oversight of the work of the intelligence agencies.
We recommend that the Government should make clear 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. (para 4.21)
It is standard practice for the Government to ensure that legal advice is sought from Government lawyers with the relevant departmental interest as well as consulting the Law Officers on critical decisions involving legal considerations. For example, the Ministry of Defence legal team would inevitably be heavily involved in advising on the use of lethal force by the military, liaising closely with FCO legal advisers on matters of international law, in particular the law on the use of force (ius ad bellum), and, as appropriate, with lawyers from the Security and Intelligence Agencies. The Armed Forces have access to legal officers trained in IHL when planning and conducting operations.
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. (para 4.23)
The Government does not consider that any change in process is required.
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. (para 4.25)
The Government has been consistently clear that in the case of Reyaad Khan it was satisfied through a careful process in which all relevant considerations (including considerations of fact, law and policy) were weighed, that he posed an imminent threat to the UK and that military action would have been necessary and proportionate. There was a process in place to ensure that this was reviewed on a regular basis.
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. (para 4.26)
It is the Secretary of State for Defence, not the Prime Minister or Attorney General, who can authorise military force, and that authorisation is then passed down the chain of command.
This was explained by the Secretary of State for Defence to the Committee during his evidence session: Ministers set the rules of engagement and policy directives which govern the use of force in a given situation. Ministers therefore set the rules as to how an operation, including an air strike, is to be conducted. If at any time during the operation, the military believe that the proposed action would breach these rules, then that action will not go ahead. As the Committee will no doubt have seen during their visit to RAF Waddington, our military operators are clear on what they can and cannot do. They can of course seek advice at any point from their commanders. Legal advisers and policy advisers, deployed both in headquarters in the UK and on operations across the globe, are on hand to advise at any time.
More broadly, the creation of the National Security Council (NSC) in 2010 allows frequent and thorough Ministerial scrutiny of decisions relating to national security, such as whether to use military force. Supported by the National Security Secretariat, which sits at the heart of Government in the Cabinet Office, the NSC integrates at the highest level the work of key departments including the Foreign Office, Ministry of Defence, Home Office and Department for International Development. It ensures that expert advice from across Government can be called upon when decisions are taken by senior Ministers. These advisers include the heads of the intelligence agencies and the military, and also the Attorney General who, as a full member of the NSC, provides expert legal advice in relation to decisions about the use of military force. In the case of the airstrike on 21 August 2015, it was at a meeting of the most senior members of the NSC that it was agreed that, should the right opportunity arise, military action should be taken. The Attorney General was present at the meeting and confirmed that there was a legal basis for action.
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:
The Government is accountable for its actions to Parliament. The then Prime Minister reported the airstrike of 21 August 2015 to Parliament at the first available opportunity, and subsequently asked the ISC to provide independent scrutiny of the intelligence that led to the action and the threat that was posed.
The Government is co-operating fully with the ISC in its examination of the 21 August 2015 airstrike, after agreeing the scope of their investigation under the terms of the existing Memorandum of Understanding. It is open to the ISC, should it wish to do so, to seek independent legal advice in any aspect of its work, subject to the usual national security safeguards being applied. The ISC will report on its findings in due course.
As previously stated, the Government strengthened the role of the ISC in the last Parliament, making it a committee of Parliament and strengthening its powers. It is for the ISC to determine their work programme and priorities within the powers they are afforded under the Justice and Security Act 2013. The Act and MoU make clear that the ISC is able to look at expenditure, administration, policy and operations of the intelligence agencies but not ongoing intelligence or security operations unless specifically requested to do so by the Prime Minister.
In terms of Parliamentary oversight, the House of Commons Defence Committee plays a vital role in scrutinising military operations and defence policy. However, the Government reserves the right to take lawful action in self-defence to address an identified, imminent threat to the United Kingdom and to report to Parliament after it has done so.
We 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. (para 5.38)
The Government will continue to deploy such arguments as it decides are appropriate, on advice, in individual cases. It is for the courts to rule on those arguments and to apply the law.
17 Sir Christopher Greenwood KCMG, QC “War, Terrorism and International Law” in Essays on War in International Law (2006), pp409–432 at p.419. Sir Christopher is now a Judge of the International Court of Justice.
18 October 2016