Sean Aughey and Tom Tugendhat MP

Introduction

The use of “drones” (i.e. unmanned, remote-piloted aeroplanes) lies at the centre of contemporary debate on national security.  Earlier this week, on 10 May 2016, the Parliamentary Joint Committee on Human Rights (“the Committee”) waded into this debate and published its 108-page report on “The Government’s policy on the use of drones for targeted killings”.  The two main objectives of the Committee’s inquiry were to clarify: (a) the existence and content of a UK policy on the use of lethal force abroad for counter-terrorism purposes; and (b) the legal basis under international law for any such policy.

The Committee’s report contains three core conclusions:

• First, “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.”

• Secondly, “he Law of War applies where there is an armed conflict” and “utside of armed conflict…the Law of War, by definition, does not apply”.

• Thirdly, “he right to life in the ECHR therefore clearly applies to the use of lethal force abroad outside of armed conflict.” This is because “n the current state of the case-law, the use of lethal force by a drone strike is sufficient to bring the victim within the jurisdiction of the UK” within the meaning of Article 1 ECHR (§§3.58-59).

 

What this means is that the use of force “outside of armed conflict” is governed, not by the Law of Armed Conflict (“LOAC”) but by international human rights law.  This matters because human rights law contains more restrictive rules, designed primarily for peace-time law enforcement, which would only permit targeting members of ISIL/Da’esh in self-defence if they represent an “immediate threat”.  By contrast, LOAC recognises that during war-time members of an organised armed group may be targeted, by virtue of their membership and participation in combat operations, in order to achieve a military objective.

In addition to seeking to clarify the UK’s position, the Committee set itself the ambitious task of “demystify some of the legal questions by identifying the most important legal issues” (§3.3).  The Committee is to be commended for attempting to distil and apply the relevant legal principles.  As the Committee notes, certain key questions are “not clearly settled in international law” (§3.22).  Some of these legal questions, and particularly those concerning the international law governing the resort to force, are carefully evaluated.

However, in our view, the Committee’s legal analysis suffers from two critical flaws, which call into question the soundness of its core conclusions.  First, the Committee’s analysis of the scope of LOAC is incomplete in the important sense that it does not explain or explore when force is used “outside of armed conflict”.  Secondly, the Committee adopts a blunt approach to the applicability of the ECHR to drone strikes abroad, disregarding a considerable body of high judicial authority and ignoring current litigation.

The Committee’s inquiry was launched in direct response to the Prime Minister’s announcement to the House of Commons, on 7 September 2015, that a drone strike killing three individuals, two of whom were British nationals, had been carried out by the Royal Air Force in Raqqa, Syria on 21 August 2015.  The Committee accepts, as a matter of principle, that this particular strike may have been lawful under international law.  It is right that the Government continues to attach considerable importance to the UK’s international law obligations.  In a speech in October 2015, the Attorney General emphasised that international law “is law. It does exist. And it does matter… subjected to by states and courts around the world, by academics and the public.”

Parliamentary oversight should be welcomed as an essential constitutional check on Executive action.  This includes questions concerning the UK’s compliance with its international law obligations.  At the same time, as the Committee observed, “he apparent legal complexity of this area is a real obstacle to parliamentary debate and therefore effective democratic scrutiny of the Government’s position on this important question” (§3.3).  It follows that constructive critical analysis of the Committee’s own legal reasoning can only help to refine the debate by clearing the ‘fog of law’.  That is our intention in preparing this rapid response note.

 

When is the use of force “outside armed conflict”?

The law of armed conflict recognises two broad classifications of conflict.  The first is an international armed conflict between two or more States.  The second is a non-international armed conflict between either (a) a State and one or more non-governmental organised armed groups, or (b) several organised armed groups.  The existence of a non-international armed conflict depends upon the existence of an armed group that is sufficiently organised and participating in hostilities of sufficient intensity, which excludes internal disturbances and riots.

 The Committee’s core objection, to the Government’s alleged policy and its legal basis, is to the apparent willingness to use force “outside of armed conflict”.  This finding rests, not on the 25 August 2015 strike in Syria, but on comments suggesting that a strike in Libya could lawfully be carried out as a last resort in self-defence.  In the Committee’s view, unlike the strike in Syria, a strike in Libya would necessarily be “outside of armed conflict” (§§3.66-67).  The Committee interprets the following statement of the Defence Secretary as “unequivocal” confirmation that this is the Government’s policy:

“If we had known that our 30 citizens were going to be murdered on the beach in Sousse , and we knew that that attack was being directly planned from, say, a training camp in Libya, would we have needed to seek authority if we were trying to forestall that attack by striking in Libya? I suspect that the answer would be fairly similar, that there was no political authority in Libya, there might have been no other way of preventing it and therefore we would have been justified in doing it – but, again, we would have had to explain it afterwards.”

These comments are primarily directed to the question whether the UK would be entitled to use force on the territory of Libya in self-defence, rather than how force may lawfully be used.  As the Committee accepts, these two questions are governed by separate international law frameworks (§3.2).  Yet, the Committee then appears to conflate the two questions and distinct legal frameworks:

“Libya is outside the geographical area (Iraq and Syria) in which the UK is involved in an armed conflict with ISIL/Da’esh. There are no extant UN Security Council Chapter VII resolutions authorising the use of force against ISIL/Da’esh in Libya. The Secretary of State for Defence was therefore quite unequivocal in his oral evidence to us that the Government does claim the right to use lethal force against suspected terrorists outside of armed conflict, if there is a direct and immediate threat to the UK which cannot be averted in any other way.” (§2.37)

Unfortunately, the Committee does not explain what it means by the imprecise phrase “outside of armed conflict”, which is not found in the Government’s explanation of its position.  It is unclear whether the Committee’s concern is with (a) the existence of an armed conflict, or (b) the geographical scope of a pre-existing armed conflict.  Confusingly, the Committee uses the phrases “outside of armed conflict” and “outside the area of armed conflict” interchangeably, and sometimes in the same breath (see e.g. §§2.2 and 3.17).  Specifically, Libya is said to be “outside of armed conflict” and “outside the geographical area (Iraq and Syria) in which the UK is involved in an armed conflict with ISIL/Da’esh” (compare §§1.63, 2.37 and 3.67).

It appears that the Committee’s real focus is on the geographical scope of the existing non-international armed conflict between the UK and ISIL/Da’esh.  The starting point is that the armed conflict between the UK and ISIL/Da’esh is not a global “war on terror”:

“We welcome the unequivocal statement by the Secretary of State for Defence in his evidence to us that the Government does not consider the UK to be in a non-international armed conflict with ISIL/Da’esh wherever it may be found. This disavowal of the controversial US position” (§3.53)

At the same time, the Committee accepts that “ non-international armed conflict can take place across State boundaries” (§3.45).  Indeed, it finds that the 25 August 2015 drone strike was carried out as part of the conflict against ISIL/Da’esh in Iraq that has “spilled over” across the border into Syria:

“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. …We are satisfied that the strike on Reyaad Khan was a new departure in terms of the domestic constitutional convention governing the use of military action abroad. It was not, however, a new departure in the sense of lethal force outside of armed conflict, because we accept, as a matter of international law, that it was part of the wider armed conflict with ISIL/Da’esh already taking place in Iraq and spilling over into Syria.”

The Committee’s report lacks any further analysis of the geographical scope of non-international armed conflict and the reach of LOAC. This leaves at least three important questions unexplored.

First, the Committee’s acceptance that the non-international armed conflict against ISIL/Da’esh in Iraq has spilled over into Syria needs to be unpacked.  As the Committee notes, the UK had not previously been involved in combat operations against ISIL/Da’esh on Syrian territory.  In geographical terms, the “hot battlefield” (the immediate zone of combat operations) was confined to Iraqi territory.  This was precisely why the Prime Minister referred to the strike as a “new departure”.  In accepting that the armed conflict has spilled over into Syria, the Committee has implicitly accepted the Government’s position that LOAC extends beyond the “hot battlefield”.

Secondly, it is unclear whether the Committee considers that the consequence of the spill over conflict is that the conduct of UK Armed Forces is governed by LOAC: (a) in the entire territory of Syria, or (b) only in those parts under the effective control of ISIL/Da’esh.

Thirdly, assuming the necessary facts are established, why does the Committee’s acceptance of the existence of a spill over armed conflict outside the geographical sphere of the “hot battlefield” not extend to members of the same organised armed group who establish a base of operations in Libya, because its territory is relatively ungoverned, and directly participate in hostilities against the UK in Iraq or Syria from that location?  As the Committee notes, “we live in an era of instantaneous communication” and this enables forces to be commanded remotely (§3.36).

By failing to explain when force will be used “outside of armed conflict”, the Committee has ducked these difficult questions.  Our point in all of this is not that there is a clear legal answer.  Since the relevant treaty law governing non-international armed conflict does not clearly explain the geographical scope of application of LOAC, there is room for reasonable disagreement and various different views have been proposed.  However, the Committee has neither engaged with that heated debate nor tested the logical conclusion of its own reasoning.

 

Does the ECHR apply to drone strikes abroad?

 The Committee concludes, in the space of two short paragraphs and in reliance on a single case, that “he right to life in the ECHR therefore clearly applies to the use of lethal force abroad outside of armed conflict.”  According to the Committee, “n the state of the case-law, the use of lethal force abroad by a drone strike is sufficient to bring the victim within the jurisdiction of the UK” (§3.58).  It rests this conclusion entirely on the recent decision in Al Saadoon v. Secretary of State for Defence, in which the High Court held that an aerial assault and shooting incidents involving UK Armed Forces in Iraq fell within the UK’s jurisdiction.

The Committee’s approach is far too simplistic.  It ignores both the vast body of Strasbourg and domestic case law preceding Al Saadoon, which was explained in written evidence before it, and the obvious need for caution given that this case is currently under appeal.

The threshold criterion for the application of the ECHR is that the individual targeted by a drone strike falls within the “jurisdiction” of the UK (Article 1 ECHR).  Whereas the Committee refers to the Strasbourg Court in Al Skeini v UK as having said that jurisdiction is a “primarily territorial” concept but that the ECHR may apply extra-territorially in “certain circumstances”, what the Strasbourg Court actually said was:

“Article 1 of the Convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other basis of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case” (at §61)

One of the recognised exceptional bases for extra-territorial jurisdiction is where UK Armed Forces (or other State agents) exercise “physical power and control over the person in question” (Al Skeini, §§136-137).  The Supreme Court has held that the English courts should not interpret “jurisdiction” as “reaching any further than the existing Strasbourg jurisprudence clearly shows it to reach” (Smith v MOD, §44).  This was not a problem in Smith itself, a case concerning the adequacy of military equipment, since it was obvious that the UK exercises authority and control over members of its Armed Forces.

It is clear from the authorities that detention involves the ultimate exercise of power and control over an individual.  More recently, the Court has held that the operation of a vehicle checkpoint entailed the exercise of power and control over those passing through when they were shot by Dutch soldiers (Jaloud v Netherlands).  But the Court has never previously held that a drone strike, or any form of aerial bombing, falls within this exception.  In fact, that argument was expressly rejected in the landmark case of Bankovic v. Belgium.  That case concerned a claim brought by the relatives of individuals killed by NATO bombing during the Kosovo conflict.  In the Court’s view, Article 1 does not encompass a “cause and effect” notion whereby the instantaneous act of dropping a bomb abroad would trigger the application of the ECHR.

Although the Strasbourg Court has since departed from certain aspects of its judgment in Bankovic, the preferable view is that the essence of that decision has not been overruled.  The Court in Al Skeini was fully aware of its earlier decision in Bankovic, and even cited parts of that judgment with approval.  Closer to home, recent comments of the Supreme Court may be read as implicitly suggesting that Bankovic was correctly decided (see Saniford v Secretary of State for Foreign and Commonwealth Affairs, §30).

The Committee’s conclusion that the right to life under Article 2 ECHR clearly always applies to drone strikes “outside of armed conflict” must be approached with extreme caution.  The question of the extra-territorial application of the ECHR continues to raise complex legal issues and must be carefully assessed on a case-by-case basis.

 

Conclusion

 The Committee’s understanding of the geographical scope of application of LOAC and the ECHR is incomplete and untested.  In this respect, its report must be approached with extreme caution.  International law provides no clear answer to various key questions concerning the applicability of LOAC and the ECHR to drone strikes outside the “hot battlefield” or in the territory of another State altogether.  Different States and academics have adopted a range of views, and some of the broader relevant legal issues are currently being litigated before the English courts.  We hope that this brief note helps to highlight the complexity of the relevant legal issues, any sense of which is sometimes lacking from press coverage, and that the Committee may be encouraged to strive for a more rigorous analysis and clearer exposition of its views.

 

  Sean is a barrister at 11KBW Chambers specialising in public international law. He writes this legal opinion in a personal capacity and without affiliation to any political party.

Tom is the Conservative MP for Tonbridge, Edenbridge and Malling. He writes in his personal capacity as a former military assistant to the Chief of the Defence Staff.

Attorney General Jeremy Wright QC MP, key note address to the Government Legal Service International Law Conference, ‘The Importance of International Law for Government Lawyers’, 15 October 2015 (available at https://www.gov.uk/government/speeches/the-importance-of-international-law-for-government-lawyers).