A Royal Air Force Reaper RPAS (Remotely Piloted Air System) at Kandahar Airfield in Afghanistan- Wikimedia Commons [This post was first published 2:50EDT]
The UK Government recently replied to a set of inquiries by the (Parliamentary) Joint Committee on Human Rights on the UK’s policy on the use of drones for targeted killings. It took the Government four months to come up with a few pages in response to the JCHR’s 110-page report. Inauspiciously, the Response begins “while high level answers have been given to the Committee’s questions, many of the questions are hypothetical … and the answers should not be taken as representing the Government’s detailed and developed thinking on these complex issues.” Stoic readers, undeterred by the girth of this caveat, may read on in the hope of finding illuminating “high level answers”. They will be disappointed.
The answers in the Response are singularly guarded. Some might regard that as unsurprising since the context is, as described in the Response, a policy “to defend the UK and its citizens against threats to their security”. But it is not excusable.
As Lord Bingham wrote, the rule of law requires compliance by the state with its obligations in international law as in national law (The Rule of Law, p.110). That applies to defence and security policies as much as it applies to other executive policies. Indeed it applies even more so to such policies because the deliberate use of lethal force is—as Lord Bingham said about war—an area where “scrupulous observance of the rule of law may be seen to serve the common interest of mankind” (p.120). But before the rule of law can be complied with it is necessary, first, to identify the applicable international law framework. And so it was that the JCHR report rightly sought to identify, and clarify, the legal basis of the Government’s policy.
That identification process is particularly significant in this context for two reasons.
First, it is significant in relation to drones since their use gives rise to complex and nascent legal issues. Secondly, it is significant that it was a Parliamentary committee that sought to engage the Government in this process – after all the Government’s position is that there should be only political/Parliamentary (and not legal) accountability because of the sensitive, non-justiciable nature of the issues (JCHR report, §§5.31-5.38). In short, the JCHR report was an important opportunity for the Government to be accountable to Parliament and engage meaningfully in identifying the applicable international law framework—an obvious pre-condition to comply with its international obligations and thereby uphold the rule of law.
The Government has missed that opportunity with its meagre Response. It has failed to give satisfactory answers on the meaning of “imminence” (re use of force in self-defence against an imminent attack); the scope and application of Article 2 of the European Convention on Human Right (the right to life) and the legal basis for UK support of US lethal force outside armed conflict.
However, the single most important question – from the perspective of identifying the applicable international law framework – that the Government failed to answer was “the grounds on which the Government considers the Law of War [i.e. international humanitarian law or IHL] to apply to a use of lethal force outside armed conflict (JCHR report, §3.92). Earlier in its report, the JCHR stated,
“In our view the Secretary of State’s position that the Law of War applies to the use of lethal force abroad outside of armed conflict, and that compliance with the Law of War satisfies any obligations which apply under human rights law, is based on a misunderstanding of the legal frameworks that apply outside of armed conflict. In an armed conflict, it is correct to say that compliance with the Law of War is likely to meet the State’s human rights law obligations, because in situations of armed conflict those obligations are interpreted in the light of humanitarian law. Outside of armed conflict, however, the conventional view, up to now, has been that the Law of War, by definition, does not apply. We recommend that the Government, in its response to our Report, clarifies its position as to the law which applies when it uses lethal force outside of armed conflict.” (§3.55; emphasis added)
In its Response, the Government says, “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.”
Unsurprisingly, the JCHR “did not find this to be a satisfactory answer”. It rightly observed that the Government’s Response “comes close to asserting that the applicable law follows the choice of means by the State to deal with a particular threat to its security: that if a State chooses to deal with it by military means, the relevant principles and standards are the Law of War, even if the military operation is carried out in an area which is outside armed conflict” (emphasis added). The Government’s Response is also, perhaps deliberately, ambiguous: it could mean that the Government regards compliance with IHL as satisfying any applicable international human rights law obligations, i.e. the human rights obligations would essentially be displaced by IHL. Or it could mean that the Government considers that any applicable human rights obligations are to be interpreted restrictively in light of IHL, i.e. the human rights obligations would be modified by IHL. In other contexts the Government has argued for the displacement or modification of human rights law (by IHL and UN Security Council Resolutions), including, for example, in Al-Skeini, Al-Jedda, Hassan and Serdar Mohammed. This litigation experience – of lengthy and complex cases – may explain the Government’s reluctance to identify its “detailed and developed thinking” on the use of lethal force outside armed conflict, but it cannot justify it. This is because, first, as the JCHR noted, “Parliament is entitled to expect an explanation of the Government’s view of the legal justification for such a use of force before it happens, rather than wait until it does.” Secondly, if any (justiciable) challenges are brought to the Government’s policy (and there is at least one in the pipeline), then it is surely desirable for them to be decided, so that the legal framework can be more fully considered, before there is any more loss of human life.
This is likely to be one of the “live issues” followed up by the JCHR. Perhaps the Government will decide that some hypothetical questions warrant detailed and developed thinking after all.
[Editor’s Note: For more on this topic, be sure to read Michael J. Adams and Ryan Goodman, “De Facto and De Jure Non-international Armed Conflicts: Is It Time to Topple Tadić?,” Just Security, Oct. 13, 2016]