Why the Joint Committee on Human Rights got the law wrong on drone warfare

May 17, 2016

The challenges facing the British armed forces – and indeed the British Government – on the battlefield are changing rapidly. While conflict between nation states cannot be ruled out in the future, battles are increasingly being fought against highly mobile organisations that do not pledge allegiance to traditional nation states. Furthermore, these organisations are using terror against civilian populations as a preferred method of choice.

Both the British and American Governments are therefore turning towards airborne drones to defend their national interests. Highly versatile and accurate, these drones allow armed forces to take rapid action to kill enemies that are armed, dangerous and planning to strike. With this new battlefield innovation comes obvious legal complexity.

Last week, the Joint Committee on Human Rights issued a new report seeking to clarify the Government’s position on the use of drones in warfare – and to set out its own thoughts on relevant international law rules and the lawfulness of the Government’s position. In a new research note for Policy Exchange, leading barrister Sean Aughey (11KBW) and former British Army Officer Tom Tugendhat MP argue that the Committee has excessively simplified what is a highly complex area of law.

The Committee’s report drew three main conclusions: (i) that Britain has a policy of using lethal force abroad outside armed conflict zones to prevent imminent terrorist attack; (ii) that the law of armed conflict does not apply “outside of armed conflict”; and (iii) that the ECHR’s commitment to the right to life therefore applies to the use of lethal force outside of armed conflict.

In their paper, Aughey and Tugendhat conclude that, “[t]he Committee’s understanding of the geographical scope of application of [the Law of Armed Conflict] 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.”

Their assessment is a timely and important assessment of the legal analysis underpinning what is set to be a landmark report on the issue of drone warfare.

To read the full report, please click here.

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