Joint Committee on Human Rights Publishes Drone Report

Readers of Lawfare will be interested to learn that the UK Parliament’s Joint Committee on Human Rights has just published its report on the British Government’s policy on the use of drones for targeted killing. The report is the outcome of an inquiry launched by the Joint Committee in October 2015. The inquiry was launched in response to an earlier announcement made by Prime Minister David Cameron about a drone strike carried out by the Royal Air Force in Raqqa, Syria on 21 August 2015, killing three individuals, including two British citizens. The legal justifications and political expedience of this strike have attracted significant attention in the British press and public debate.

The purpose of the Joint Committee’s inquiry was to shed further light on the Government’s policy of conducting drone strikes and on the legal framework governing the use of lethal force in such circumstances. Accordingly, the report, which runs over 100 pages, devotes considerable attention to questions of international law.

The central finding of the report is this:

[O]ur inquiry has also confirmed what the Prime Minister appeared to tell the House of Commons on 7 September: that it is the Government’s policy to be willing to use lethal force abroad, outside of armed conflict (in Libya, for example), against individuals suspected of planning an imminent terrorist attack against the UK, as a last resort, when there is no other way of preventing the attack. The Secretary of State for Defence was unequivocal in his confirmation to us that this is the Government’s policy and it has now been put beyond any doubt by the recent permission given to the US to use UK airbases for the US airstrikes against an ISIL/Da’esh training camp in Libya. Although the Government says that it does not have a “targeted killing” policy, it is clear that it does have a policy to use lethal force abroad outside armed conflict for counter-terrorism purposes.

The Committee finds itself in agreement with the Government on some aspects of the law. However, according to the Committee, certain aspects of the Government’s view of the legal basis for its policy require urgent clarification. In particular, the Committee calls upon the Government provide clarification of its position on the following points:

• its understanding of the meaning of the requirement of “imminence” in the international law of self-defence;
• the grounds on which the Government says that the Law of War applies to a use of lethal force outside armed conflict;
• its view as to whether the right to life in Article 2 ECHR applies to a use of lethal force outside armed conflict, and if not why not;
• its understanding of the meaning of the requirements in Article 2 ECHR that the use of force be no more than absolutely necessary, and that there is a real and immediate threat of unlawful violence, in the context of the threat posed by ISIL/Da’esh;
• its understanding of the legal basis on which the UK takes part in or contributes to the use of lethal force outside armed conflict by the US or any other country adopting the same or a similar view with regard to the use of lethal force.

Further highlights of the report include the following. First, the Committee concedes that the right of self-defence extends to the use of force against armed attacks emanating from non-State actors. It also accepts that it includes the right to use force in anticipation of an imminent armed attack (paras 3.21­-3.42). Not too long ago, these points were regarded rather more controversial. The relative ease with which the Committee accepts them indicates how much they have moved into the mainstream. That said, the Committee does recommend that the Government spell out its understanding of ‘imminence’ required for the use of force in anticipatory self-defence. This may seem like a good idea from the perspective of controlling the use of lethal force by the executive, drawing bright red lines in the sand, assuming they can be drawn at all, will not be lost on potential adversaries.

Second, the Committee also concedes, without too much discussion given that the primary focus is elsewhere, that the substantive obligations imposed by international human rights law are ‘to be read in light of the more specific requirements of the Law of War’ (para 3.48). Coming from a committee responsible for scrutinising the compatibility of legislative proposals and Government policy with human rights, this deferential approach is welcome and refreshing (no doubt aided by the judgment in Hassan, referred to in support of this position in footnote 126). In fact, the Committee’s preference for referring to the law of armed conflict as the ‘law of war’ rather than ‘international humanitarian law’ is noteworthy, certainly from a European perspective.

Third, the Committee chides the Government for being confused and confusing with regard to the legal framework governing drone operations, in particular for conflating the law of war with the European Convention on Human Rights (para 3.90). This criticism is somewhat ironic, for it seems to rest on the Committee’s own lack of precision. As we saw, the report suggests that it is the ‘Government’s policy to be willing to use lethal force abroad, outside of armed conflict’.

The phrase ‘outside of armed conflict’ can mean two things. First, it could refer to the use of lethal force absent any connection with an armed conflict or even absent the very existence of an armed conflict. Obviously, in such circumstances the law of armed conflict cannot govern the use of lethal force and it would be a mistake for the Government to suggest otherwise, as the Committee points out (para 3.55). Second, the phrase can refer to the geographical scope of application of the law of armed conflict. While the matter is far from settled, it is common ground that the law of armed conflict applies beyond the immediate zone of combat. In so far as it is the Government’s policy to use lethal force abroad in areas beyond the battlefield, this is probably not quite as remarkable as the report seems to imply. In fact, the Committee shares the Government’s view that the drone strike carried out by the UK in August 2015 inside Syria took place within the wider context of the pre-existing non-international armed conflict between the UK and ISIL/Da’esh in the territory of Iraq (para 5.18). This position clearly implies that the applicability of the law of armed conflict depends not so much on geographical considerations, but on the conduct of hostilities by one party to a pre-existing non-international armed conflict (the UK) against another party (ISIL/Da’esh) within the context of that conflict.

Fourth, relying on the Osman case, the Committee suggests that the right to life recognised under Article 2 of the European Convention on Human Rights imposes a positive obligation on the UK to protect life ‘including by taking effective preventive measures against a real and immediate risk to life from a terrorist attack’ (para 3.70). In other words, Article 2 may require the UK to use lethal force to protect members of the British public from an imminent risk to life emanating from abroad, even ‘outside armed conflict’ (in both senses identified above). Remarkably, the Committee seems to propose not merely a human rights justification, but rather a positive duty, for anticipatory self-defence.

Finally, the Committee asks the Government to clarify on what legal basis it provides logistical and other support to the United States in the conduct of lethal operations ‘outside of armed conflict’ (para 3.89). In this context, the Committee specifically refers to Article 16 of the Articles on State Responsibility concerning ‘aid or assistance in the commission of an internationally wrongful act’. The Committee’s question raises obvious issues of inter-operability.