Cross-posted from EJIL:Talk!
In August this year, the United Kingdom carried out a drone strike in Syria for the purpose of targeting a member of ISIS (see previous discussion here and here). At the end of October, the Joint Committee on Human Rights of the UK’s Parliament launched an inquiry into the UK government’s policy on the use of drones for targeted killing. Unlike the US, which has published a white paper setting out the legal framework for the US of lethal force against US citizens who are senior members of Al Qaeda, the UK had not previously set out its policy for the use of lethal force in areas outside of active hostilities. The inquiry by the Joint Committee (joint because its membership is drawn both from the House of Commons and the House of Lords) is not particularly directed at the drone strikes that occurred this past summer but has a more general focus. It is intended to tease out the following issues:
- clarification of the Government’s policy and its legal basis
- the decision-making process that precedes the Government’s use of drones for targeted killing, including the safeguards to ensure the sufficiency of evidence
- accountability for actions taken pursuant to the policy (what independent checks exist before and/or after a strike; should there be independent scrutiny and, if so, who should carry it out?)
The Joint Committee invited the submission of written evidence as part of its inquiry and you can find the evidence submitted to the Committee here. That evidence came from a range of sources, including academics and civil society. Christof Heyns (the UN Special Rapporteur on Extrajudicial, Arbitrary and Summary Executions), Lawrence Hill-Cawthorne, Thompson Chengeta and I put in a written submission which is essentially an article that we are writing on “The Right to Life and the International Law Framework Regulating the Use of Armed Drones” – but which starts with a 7 page summary of the article. That article is a much expanded version of the Report that Christof presented to the UN General Assembly on 25 October 2013, (UN Doc, A/68/30532).
UK Memo to the Committee
The UK Government submitted a 4 page memo to the Joint Committee setting out its response to the issues raised by the Committee. That memo sets out very briefly the UK’s policy on the use of lethal force. Much of what is says is very familiar and simply restates the position of the UK government on a number of important issues regarding the use of force:
- anticipatory self-defence: “It has been the long-held position of successive Governments that force may be used in self-defence, not only where an armed attack is underway, but also where an armed attack is imminent. Where the UK determines that it faces an imminent armed attack from ISIL, it is entitled to use necessary and proportionate force to repel or forestall that attack in exercise of the inherent right of individual self defence.” (p. 2)
- necessity: “Lethal action will always be a last resort, when there is no other option to defend ourselves against an attack and no other means to detain, disrupt or otherwise prevent those plotting acts of terror. The principles of necessity and proportionality underpin all our decision- making.” (p. 1)
- armed attack: “Individual terrorist attacks, or on going series of terrorist attacks, may rise to the level of an ‘armed attack’ for [the] purposes [of Art. 51 of the UN Charter] if they are of sufficient gravity. . . . The scale and effects of ISIL’s campaign are judged to reach the level of an armed attack against the UK that justifies the use of force to counter it in accordance with Article 51.”
The brief reference to ISIL’s campaign rising to the level of an armed attack against the UK is perhaps one of the more interesting passages. No indication has been given of the particular acts in question, but the question of where the UK draws the line between acts of criminality and armed attacks is an interesting one. What level of individual terrorist attack would be considered an armed attack? What scale of violence is being contemplated? The memo makes reference to Security Council resolutions 1368 and 1373 (2001) adopted after 9/11 as endorsing the view that terrorist attacks can amount to an armed attack. But if the UK accepts the Nicaragua gap between “use of force” and “armed attack” – as the memo impliedly does, by referring to scale and effects – then it would be useful to know where that line is drawn. The International Court of Justice’s Nicaragua case was itself unclear when it said that the attacks by non-state groups would amount to an armed attack, justifying the right of self-defence, if the acts were such as would amount to an armed attack if carried out by state forces. Trying to achieve some clarity as to where this line is to be drawn – even if imprecisely – would be an extremely useful contribution in efforts to work out counter-terrorism policy.
The other area where this very brief memo has interesting things to say is what test is to used for determining whether a threatened attack is imminent. With regard to the targeting in Syria, in August, of Reyaad Khan, the government confirms that the legal basis was both the right of individual and also of collective self defence, (i.e. the defence of both of the UK and of Iraq). With regard to the UK, the reference was to attacks which had not occurred or which had been foiled. Although the government memo does not set out a general policy, it seems to suggest a test of what would be regarded as amounting to a threat of an imminent armed attack. The memo states that:
There was clear evidence of Khan’s involvement in planning and directing a series of attacks against the UK and our allies, including a number which were foiled. That evidence showed that the threat was genuine, demonstrating both his intent and his capability of delivering the attacks. The threat of attack was current; and an attack could have become a reality at any moment and without warning. In the prevailing circumstances in Syria, this airstrike was the only feasible means of effectively disrupting the attacks planned and directed by this individual. There was no realistic prospect that Khan would travel outside Syria so that other means of disruption could be attempted. The legal test of an imminent armed attack was therefore satisfied. The UK would not have acted had it not been necessary in the self-defence of the UK.
On imminence, the key points seem to be that: there was an intention to attack; a capability to do so; a prospect of the attacking happening at any moment (and without warning). Presumably the reference to the threat being genuine and current signifies that active steps were being taken to bring the plans to reality. Arguably, the development of plans on their own would not suffice unless there was evidence that the individuals or groups were taking active steps to bring those plans to fruition. The UK Government has previously rejected the US view of pre-emptive self-defence (see this previous post). If the UK is to continue to reject a broad view of pre-emptive self defence it would need to consider the steps being taken to put any plan into place.
What Law Governs Target Selection outside of Armed Conflict?
One point that UK memo does not touch on but where questions remain are the legal standards for selection of targets in circumstances where the UK is using lethal force against a non-state actor outside the context of armed conflict. When there is an armed conflict between the UK and the non-state group then clearly International Humanitarian Law will determine who is a lawful target. Indeed the UK memo states that: “The UK always adheres to International Humanitarian Law when applying military force including upholding the principles of military necessity, distinction, humanity and proportionality.” However, there will be cases where there is no prior armed conflict and the applicability of IHL will be in question.
In the Reyaad Khan case, it happened to be the case that the UK was already conducting armed strikes against ISIS in Iraq and was for that reason already involved in an armed conflict with ISIS, of which the targeting of Khan could be a part (if one accepts, as I do, thatas a matter of IHL, armed conflicts are not necessarily confined to the territory of a single state). However, there is no indication that the UK would not have conducted the drone strike in Syria if it had not been in involved in Iraq at the same time. But what law would have determined who in particular would be subject to the drone strikes – what level of involvement in the planning of the attack wold have sufficed?
As the ICJ, has stated (in the Advisory Opinion on the Israeli Wall in Palestine (2004), para. 106), the protections offered by international human rights law applies at all times (except in cases where derogations are permissible and have occurred). The Court has also stated in the Nuclear Weapons Advisory Opinion (1996, paras 24-25), that in the context of armed conflict, whether there is a violation of the right to life (under the International Covenant on Civil and Political Rights) would depend on whether there was compliance with IHL. However, questions have arisen as the extraterritorial application of human rights law, and of the right to life in particular. I think it is right to say that the UK still does not accept that the right to life under the European Convention on Human Rights applies to uses of lethal force in territories not controlled by the UK. The decision of the English High Court in Al-Saadoon and Others v. Secretary of State for Defence which took a contrary position, is under appeal (for a discussion of this case, see this post by David Goddard on Just Security and his article) However, if the UK government maintains its position on the extraterritorial application of the negative obligations arising under the right to life and if there is no prior armed conflict (such that IHL is also said not to apply) then what law does apply to target selection.
I have argued elsewhere that where a state uses force against a non-state actor on the territory of another state, without the consent of that latter state, the first state is involved in an international armed conflict with that latter state (in addition to any non-international armed conflict that may also exist with a non-state group that the state is targeting). On my view, IHL applicable in international armed conflicts (IAC) would still apply even if there were no non-international armed conflict (NIAC) with a non-state group (for example, because there is not sufficient intensity of violence at that point in time – eg the first few drone strikes). However, even on my view one can easily imagine cases where IHL does not apply at all. Where the threshold of intensity of violence has not been reached (so no NIAC) and there is consent by the government of the state where group is based (such that there is also clearly no IAC), there is no armed conflict for the purposes of applying IHL. In those cases, what law would apply to determining the legality of the use of force against the individual if human rights law does not apply? The jus ad bellum is not sufficiently precise to tell us whether the person who, for example, contributes money, or who houses a planner, or is involved in building a device or designing a website that encourages attacks or perhaps is even used as a communications tool by the those planning an attack, is a legitimate target. In such cases where IHL does not apply, to deny the applicability of human rights law is to say that the people being targeted are in a legal black hole.
Before I leave the human rights question, I should note that the Joint Committee has held two sessions in which it took oral evidence as part of its inquiry. In the second such session (which can be viewed here) the Committee took evidence from the Secretary of State for Defence, Michael Fallon MP. The very last question of that session was asked by Lord Woolf, former Law Lord and former Master of the Rolls (head of the Civil Division of the Court of Appeal), who asked whether the UK has plans, at the present time, to derogate from the right to life under Article 2 of the European Convention on Human Rights. The answer was that there are “no present plans” though the government has a manifesto commitment to review the applicability of the Convention to acts of the armed forces.