Yesterday, the British Parliament’s Joint Committee on Human Rights published the report of its months-long inquiry into the use of drones for targeted killing. The 110-page report provides a detailed and revealing analysis of the British government’s sometimes confusing statements about its approach to individualized strikes, gives the Committee’s assessment of the legal regime that should apply in such cases, and makes a number of valuable recommendations. Coming at a time when British policies (like those of other European countries) on the use of force against external terrorist groups have been evolving in the face of the new threat posed by ISIS, the report is one of the most significant efforts yet made by a European parliament to define a position on the use of lethal force against terrorists.
The Committee’s inquiry was spurred by the UK’s August 2015 drone strike in Syria against British citizen Reyaad Khan, which also killed two other people, one British and one Belgian. Revealed by Prime Minister David Cameron to the House of Commons the following month, the strike became the first acknowledged use by a European country of a lethal drone strike against a specific individual, outside the framework of a wider military campaign. Cameron described the strike as a “new departure” and it raised immediate fears in the UK that the country was preparing to follow the United States down the path of a geographically unbounded campaign of deliberate killing of terrorist fighters.
Strikingly, however, the Joint Committee’s report ultimately concludes that the August strike did not break new ground in the use of lethal force outside the framework of a pre-existing armed conflict. This assessment is based on a distinction between the political and legal justifications that the British government offered for targeting Khan. When Cameron addressed the House of Commons about the August drone strike, he wanted to convey the message that his government was not extending its existing military campaign against ISIS in Iraq (which had been authorized by Parliament the previous year) into Syria without Parliamentary approval. For this reason, he emphasized that this was a one-off — a targeted strike to deal with a clear and specific threat to the UK.
However, when the UK wrote to the Security Council to justify its use of military force on Syrian territory without Syrian consent, it presented its action as an extension of the existing coalition campaign to defend Iraq against ISIS. It was hardly surprising that the UK chose to make this argument, since it gave a much more secure legal basis for its action; otherwise, the British government would have had to argue that its violation of Syrian sovereignty was justified in response to an actual or imminent armed attack by ISIS on the UK, a far more debatable proposition.
The Joint Committee took this second version of the justification for Britain’s action as the authoritative legal account, and therefore decided that the August drone strike was not outside an existing armed conflict: “We accept that the action taken against ISIL/Da’esh in Syria was part of the same armed conflict in which the UK was already involved in Iraq,” the report states. And indeed, following a Parliamentary vote in December 2015, the UK embarked on a wider campaign of airstrikes against ISIS in Syria that has been justified as a direct extension of its actions against the group in Iraq.
The Committee’s reasoning is legally sound, but this still comes across as an incomplete account of Britain’s action. The August drone strike may have been justifiable under international law as part of a broader campaign to defend Iraq against ISIS. But there is surely no doubt that the real reason the UK targeted Khan was precisely because of his role in ISIS’s campaign against Britain, as a propagandist, recruiter and (according to Cameron’s statement) would-be organizer of terror attacks. In this case, the legal cover of a campaign to push ISIS out of Iraqi territory was instrumentalized to pursue a direct strike against a terrorist overseas who was believed to pose a threat against the British homeland. Stripped of its connection with the coalition’s broader military action, the strike would indeed bear more than a passing resemblance to what the United States has been doing in a number of countries over the last decade.
Moreover, in this respect, the British drone strike was only the most obvious manifestation of a broader European trend. Several EU member states have taken military action against ISIS and other jihadist groups in the last few years, and it is a distinguishing feature of these new European counterterror wars that, in at least some cases, they mix a conventional effort to shrink the territory controlled by armed groups with more direct strikes against individuals or groups of recruits who are said to be planning overseas terrorist attacks. This evolution of military action against terrorists is largely a response to the changing nature of the groups involved (ISIS is much more focused on controlling territory than al-Qaeda was, at least until recently).
Indeed, despite its finding on the Khan strike, the Joint Committee’s report does confirm the existence of a wider British policy “to use lethal force abroad, even outside of armed conflict, against individuals suspected of planning an imminent terrorist attack against the UK, when there is no other way of preventing the attack” (emphasis in original). The Committee calls for the government to clarify its view of some legal questions surrounding this policy, in particular its understanding of the meaning of the requirements of “armed attack” and “imminence” in the international law of self-defense, and its view on the rules that would govern the conduct of any action that uses lethal force outside armed conflict. The British government’s position on the second point emerges as particularly unclear in the report, but this may reflect in part the fact that the Committee has given too much weight to some comments from the Defence Secretary (suggesting that the targeting prerogatives implicit in the laws of war would apply even outside armed conflict) that are surely not reflective of the government’s true position. Finally, the report calls for clear independent accountability mechanisms, including automatic referral to Parliament’s Intelligence and Security Committee, when lethal force is used outside armed conflict.
The Committee’s view is that human rights law provides the framework for the use of lethal force against terrorists outside an armed conflict — a position that in general terms would be widely supported in Europe. (Although, as the report acknowledges, the British government is appealing last year’s High Court ruling in Al Saadoon that would bring the use of lethal force overseas within the reach of the European Convention on Human Rights.) In a key passage, the report accepts that human rights law would permit targeted strikes against terrorists where “there was a real and immediate threat to life by ISIL/Da’esh fighters and the use of force was proportionate to the threat to life posed by those fighters. Any assessment of the necessity and proportionality of the use of force will have to take account of the unprecedented nature and seriousness of the threat posed by ISIL/Da’esh.” This language seems less permissive than the test of a “continuing, imminent threat” applied as a matter of policy by the Obama administration, but more permissive than other statements by human rights experts, such as Philip Alston’s suggestion in 2010 that “outside the context of armed conflict, the use of drones for targeted killing is almost never likely to be legal.”
The report gives one indication of how it believes this standard might apply in practice by referring to the US attack on an ISIS training camp in Sabratha, Libya earlier this year, which was launched from bases in the UK. Quoting a Pentagon spokesman as saying that the group that was attacked “had ill intent on its mind,” the report writes that whether the requirement of necessity in human rights law is satisfied when 41 people are killed with such justification “requires careful scrutiny.”
The Committee’s central recommendations are sensible and valuable, and with luck it will help to promote greater debate and clarity in the UK and perhaps elsewhere in Europe as European countries increasingly find themselves drawn into military counterterror action. However, the report’s exclusive concern with targeted strikes outside armed conflict risks missing a new dimension of European counterterror wars, in which individualized targeting and conventional military campaigns coexist; such campaigns pose strategic and normative questions that are likely to require further debate.