after a few months, the Joint Committee on Human Rights has released its report on drones and targeted killing. Created following the killings by UK RAF Reaper drone of Reyaad Khan and Ruhul Amin, the committee wished to achieve clarity on (p.6):
(1) what precisely is the Government’s policy? (2) what is its legal basis? (3) what is, and what should be, the decision-making process that precedes such a use of lethal force? and (4) what are, and what should be, the mechanisms for accountability?
It seems to have done a pretty decent job of answering these questions, although some commentators aren’t that impressed. It being a report produced in parliament, it is of course bothered quite a bit by the ‘new departure’, as Cameron called it, of the government using lethal force in a country the UK is not at war with, without getting parliamentary authorisation. Which, isn’t really the substantial bit that I’m bothered about.
The report is very clear on the fact that the government is under a duty to protect the lives of UK citizens, and that ISIL pose a significant threat. This is not only to UK nationals, as seen in the Tunisia attacks, but to other European citizens, as evident in the Paris and Brussels attacks, and to the public in Turkey and other countries nearer to the main battlespace of the fights against ISIL of Iraq and Syria, the public there, of course under great threat from ISIL. I think this is a very important point to make, that a lot of anti-drone campaigners often forget, we are living under a significant threat from ISIL, and ISIL-related, and inspired terror. I think the fact that UK intelligence has foiled many plots gives us a false sense of security.
Perhaps this is why the killings of Reyaad Khan and Ruhul Amin were so shocking, we find it difficult to comprehend that not only would UK nationals wish to kill and maim others, but that in order to prevent such an attack, it may be necessary to kill the plotters. Indeed, government lawyers (para. 26) have made it clear that there was no other way of preventing the attack plotted by Khan and Amin.
Despite the government saying there is no policy on targeted killing, I think it is made clear in the report that there is a ‘counter-terrorism policy’. Although the government does not like the term ‘targeted killing’, perhaps as the report suggests because it is “uncomfortably close to assassination“, they have made statements indicating a quite clear policy. It seems that if there is a direct, identifiable, and imminent threat to British nationals and interests, and there is no method of averting that threat, other than lethal action, the government would be prepared to neutralise the threat. Indeed, Defence Secretary Michael Fallon, implied in his oral evidence (Q.34) that the government would have been prepared to have initiated a strike in Libya, had there been such circumstances prior to the attack in Sousse. The report seems to agree with this (p.35-37).
Legally, this sounds very much like International Human Rights Law (IHRL), rather than the Law of Armed Conflict (LoAC) that the government claims its strikes take place under. Under IHRL, any lethal action must be the last resort in order to protect life, but under LoAC, lethal action can be carried out against an enemy combatant at any time within a defined armed conflict. However, this is where it gets tricky. As ISIL and other terrorist groups are not members of a States armed forces, technically they cannot be combatants (Art 43. GC AP1). Thus, they become civilians directly participating in hostilities, where the ability to target them is different. The Red Cross generally believes that such people should be targetable only when they are actually ‘directly participating’, whilst others take a broader approach. However, this still doesn’t mean you would have to apply an IHRL standard to a situation where LoAC is the primary legal framework. Thus raising the question of whether the government is confusing the two.
However, this talk of threat is likely to be used for bolstering the government claim (p.2) that the UK is subject to an ‘Armed Attack’ by ISIL, in order to justify actions under the Jus ad Bellum (Use of Force) body of law, as an action of self-defence. I am of the opinion that ISIL’s (potential) terror attacks against British interests might not equate to an armed attack in international law, as they aren’t at the same level harm as an invasion by another State, thus why a reliance on the collective self-defence of Iraq is legally more concrete (I’ve written on this in more detail here). It seems the report is also questioning this government claim (p.44).
Related to the issue of armed attack, is that of ‘imminence’. To act in self-defence, a State does not need to wait for an attack to begin, but can act to prevent the attack, if it is about to happen imminently. It appears that the government has a definition of imminence that is more flexible than ideal (p.45-48), and certainly a change from the original definition where there should be ‘no moment for deliberation‘. Fallon states (Q28) that:
…an imminent threat can presumably grow in immediacy. It may grow in seriousness. It may grow in likelihood. It may exist for some period of time, absolutely.
Although I appreciate that things have changed since the original definition in the 19th century Caroline Case, this does seem to be a very broad approach to something that by its nature should be rather narrow.
The report notes other statements by Michael Fallon (Q23):
I think that compliance with international humanitarian law discharges any obligation that we have under international human rights law, if I can put it that way. If any of those obligations might be thought to apply, they are discharged by our general conformity with international humanitarian law.
This is only true on relation to aspects where LoAC is more specialised than IHRL, this is known as being Lex Specialis. Because IHRL still applies during war time, it affects every State action within war, but because LoAC is more specialised for killings in war, any killing lawful under LoAC would be lawful under IHRL.
However, this would only relate to aspects where LoAC is lex specialis over IHRL. In terms of imprisonment, IHRL is more specialised, and so would be used to resolve any legal disagreements with LoAC imprisonments, for example. So the Defence Secretary is correct that LoAC compliance would also ensure IHRL compliance, but only in cases of killing in war, and where LoAC is lex specialis over IHRL.
In relation to lethal actions outside of armed conflicts, where only IHRL applies, the report also makes the great point that, as the Right to Life is a positive obligation under IHRL, the government has a duty to take preventative actions to protect the lives of those under its jurisdiction. The report gives the example (p.55) that if an attack were to be launched against the UK, or UK citizens from an ISIL camp in Libya, and only lethal force could prevent the attack, the government would be under positive obligation, and would have to use lethal force, if possible. I think a lot of people, particularly conservatives who get caught up in the ECtHR being quite liberal, forget that human rights is about trying to protect as many people as possible, and that may require lethality.
It seems, also, that the government do not take the US position of ‘global armed conflict’, whilst the UK may be in an armed conflict with ISIL, the government maitains it is geographically restricted to the main battlespace of Iraq and Syria, and is not a global conflict, as the US claims (p.49-51). I written on this here. I think the global battlefield logic is interesting, but not wholly convincing. I think it is much clearer in international law to think of separate, but linked, conflicts in different States.
However, the report does seem to codify another US concept, that of ‘Unwilling/Unable doctrine’. This is the concept that, should a victim State have a legitimate claim of self-defence against a terrorist organisation, and the place where they threat is eminating from is in another country, but the government of that country is unwilling, or unable to deal with the terrorist threat emanating from their territory on the behalf of the victim State, then the victim State should be able neutralise the terrorist threat themselves. This is an emerging, and not fully accepted concept, but the report (p.43-44) accepts it without question, despite it being discussed, and questioned, in written submisions (Section 3.2) to the committee. I think the committee has really messed up here by not at least acknowledging the dispute over the concept.
The committee also produced some decision-making flowcharts, which although basic, and including unwilling/unable doctrine as a fully-formed part of international law decision-making, are quite good for visualising the decisions, and how the different bodies of law interact with each other.
Overall, the report seems to do a good job of a really difficult and complex area of law and policy, but misses a few key issues and misunderstands a few technical bits. Still worth a read, I’ve not covered everything here, because I didn’t think I could add much more comment to some bits, and I’ve not got all the time in the world to cover others, but hopefully I’ve managed to elucidate a few extra points on the report.
Until next time!