WRITTEN SUBMISSIONS ON BEHALF OF RIGHTS WATCH (UK)
1. Rights Watch (UK) (‘RW(UK)’) welcomes the opportunity to provide submissions to the Committee in respect of its timely and important Inquiry into the UK Government’s Policy on the Use of Drones for Targeted Killing. RW(UK) is concerned that August 2015’s unprecedented killing of British citizens overseas by means of a targeted drone strike occurred without prior consideration outside government and with minimal subsequent transparency or disclosure of relevant information against which the reasons for the strike, the legality of it, and the implications of it may properly be assessed. Accordingly,RW(UK) supports the work of this Committee in conducting the present Inquiry to seek to determine the policy and legal basis for the strike (or any similar contemplated strike), the decision-making process and safeguards relating to such a strike, and the mechanisms to ensure accountability.
2. RW(UK) is a non-government organization which works to draw on the lessons of Northern Ireland to promote, protect, and monitor human rights, especially in the context of the United Kingdom’s engagement in conflict and counter-terrorism measures. RW(UK) is concerned to ensure that the decisions taken in purported pursuit of national security always conform with the requirements of international and domestic law: requirements which have too frequently been breached in past conflicts by British agencies.
3. RW(UK) submits that clarity is required with respect to the legal framework upon which the government is relying in its use of targeted drone strikes. RW(UK) submits that, whatever legal framework is may be applicable, the government will need to explain details of its legal reasoning to provide assurance that its actions in authorizing comply with relevant legal standards.
4. RW(UK) further submits, in relation to matters preceding government decision-making on drone strikes, the government must provide a proper explanation of why it has failed as yet to provide Parliament and the public with an opportunity to scrutinize such action.
5. Finally, RW(UK) submits that, given the potential impact of the strikes, it is crucial, as part of the government’s obligation to ensure that proper investigation of any potential rights breach, and as an incident of the right to truth, for the government to disclose sufficient information to ensure compliance with its international human rights law and international humanitarian law obligations.
Clarification of the government’s policy and its legal basis
6. RW(UK) submits that there is certainly a pressing need for the government’s clarification of the policy under which decisions are to be taken to launch fatal targeted drone strikes overseas, as well as the government’s reasoning as to why it considers that carrying out such drone strikes is lawful. But, at a more basic level, RW(UK) submits that, before the lawfulness of any contemplated drone strikes may be assessed, it is necessary for the government to clarify what legal framework it considers to apply to targeted drone strikes overseas.1
7. In this regard, RW(UK) notes with concern that, following the Prime Minister’s announcement on 7 September 2015 that three people (alleged to be associated with the Islamic State in Iraq and the Levant (‘ISIL’)) had been killed by a targeted Royal Air Force drone strike near Raqqa in Syria, there has been a lack of clarity in the government’s public representations as to what legal framework applied to that strike (and, presumably, what framework is contemplated to apply to any future strikes):
7.1. The government has justified its resort to the use of force by asserting that the strike was an act of self-defence, and outside the scope of an ongoing armed conflict. On 7 September, the Prime Minister stated that, in launching the drone strike, the government was ‘exercising the UK’s inherent right to self-defence’ and that he considered the act a use of force at the international level, which was reportable under Article 51 of the United Nations Charter.2 Immediately following, the UK’s Permanent Representative to the UN wrote to the President of the UN Security Council relying not only on individual self-defence, but also on the collective selfdefence of Iraq.3 It is unclear in what circumstances the UK government is asserting collective self-defence given that the Prime Minister has expressly stated that the strike was not part of coalition operations in Syria (those operations being justified on the basis of the collective selfdefence of Iraq). Furthermore and as discussed below, there are a number of issues that remain to be clarified with respect to the justification of using force in self-defence in these circumstances in any event;
7.2. Furthermore, it is not clear what legal framework governs the lethal force used. The Attorney General, in giving evidence on 15 September to the Commons Justice Select Committee, justified the same drone strike as an act of self-defence, and went on to suggest that the action taken complied with ‘international and humanitarian law.’4 The reference to ‘humanitarian law,’ the lex specialis governing the conduct of hostilities in an armed conflict, suggests that thegovernment considers that it is engaged in an armed conflict with ISIL. However, it is not clear how a conflict between the UK government and ISIL passes the intensity threshold necessary to be considered an armed conflict for the purposes of international law. Further, it should be noted that the UK government has consistently rejected the notion (proposed previously by the United States) that there exists a global ‘war on terror’ such that States are permanently in a state of war with terrorist groups, engaging international humanitarian law. If there is no armed conflict then international humanitarian law does not apply and the only other legal framework applicable is that provided by international human rights law, which sets more rigorous standards with respect to the use of lethal force.
8. Clarity is required from the government because different legal frameworks entail significantly different standards. In relation to those standards, RW(UK) makes the following points:
8.1 If the government is relying upon the right of self-defence recognized in the UN Charter as a response to an apparently imminent armed attack by the target of the drone strike, the government must demonstrate: (a) by what yardstick it judges imminence for the purposes of planning a targeted drone strike; (b) the circumstances which allow the government to rely upon collective self-defence; (c) how the allegedly imminent acts of the target would have constituted an act of sufficient gravity to be classified as an armed attack under Article 51, bearing in mind the high threshold that the International Court of Justice has applied to this question;5 and (d) how the use of force against a non-State actor such as ISIL, whose acts are not imputable to Syria – the State in which the drone strike occurred, is consistent with the fundamental international legal principle of State sovereignty and non-intervention, as recognized in Article 2(4) of the UN Charter;
8.2 If the government considers that international humanitarian law applies to any degree to the drone strike, the government must demonstrate: (a) that the intensity threshold has been met for the purposes of international humanitarian law; (b) that the target of the strike came within the definition of being a combatant or otherwise directly participating in hostilities,6 bearing in mind the requirement that there must be a nexus between the participant’s actions and harm caused to a party to the conflict (RW(UK) considers it unlikely that the target so qualifies, given that the UK was not, and indeed is not, a party to any armed conflict with ISIL); and (c) that the killing was a military necessity, the explanation of which is all the more important in the circumstances of the August 2015 drone strike, given that the disclosed alleged plots attributed to the target related to planned terrorist acts in the UK which never came to pass; and
8.3 If and insofar as international human rights law apply (and RW(UK) submits that it should, even where international humanitarian law also applies),7 the government must demonstrate that the use of a fatal drone strike was a necessary and proportionate means to protect life,8 mindful that, in the words of the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, ‘[t]he necessity requirement imposes an obligation to minimize the level of force used.’9 Given the centrality of the principle of proportionality to human rights law (and, indeed, international humanitarian law) RW(UK) would be very concerned with any government policy which applied inflexibly, rather than assessing the appropriateness of lethal force on a case by case basis.
Decision-making process that precedes the government’s use of drones, including safeguards and sufficiency of evidence
9. With respect to procedures prior to a government decision to use drones, RW(UK) notes with concern that the unprecedented use of a drone strike to kill a British citizen in Syria, outside the context of a war, was never notified to, let alone debated by, Parliament or the public. This appears to be inconsistent with the Parliamentary convention by which the government is expected to provide Parliament with the opportunity to debate decisions to use military force and, except in an emergency, to conduct that debate and seek Parliamentary approval before such action is taken. The then Cabinet Secretary in March 2011 referred to this convention in evidence submitted to the Political and Constitutional Reform Committee Inquiry,10 and the first edition of the Cabinet Manual expressly notes that the government has expressly acknowledged the same.11 In keeping with this convention, the then coalition government held a debate in 2011 on the UK’s involvement in international military action in Libya and sought Parliamentary approval for that involvement,12 while the same government held a debate and sought approval in September for action against ISIL targets in Iraq.13
10. Accordingly, last year, the Commons Defence Committee noted, in its report of 8 April 2014, that ‘[s]uccessive governments have undertaken to involve and inform Parliament, both in the decision to use force and the progress of military campaigns’ (emphasis added).14 In recent days following the attacks in Paris attributed to ISIL, the Prime Minister has proposed extending conventional airstrikes to targets in Syria, and has acknowledge, in line with the Parliamentary convention, that ‘[i]t is for the government, I accept, to make [the case for extending airstrikes] to this house and to the country … I hope that in setting out the arguments in this way I can build support right across this house for the action that I believe is necessary to take.’15
11. Against the clear Parliamentary convention relating to the use of military force, with which the government has accepted it must abide, RW(UK) considers that the government must explain the basis upon which it considered that the use of military force in the form of a drone strike could be distinguished from the subject matter of the relevant convention such that prior Parliamentary scrutiny could be avoided entirely. RW(UK) submits that it is appropriate and necessary for decisions regarding military action to be specifically considered and authorized by Parliament (and therefore exposed to public scrutiny at the same time), given their serious consequences both for combatants and civilians within the theatre of conflict and for the British public at large. At a minimum, RW(UK) submits that, if the government is to take emergency military action, the public is entitled to an explanation, after the fact, which contains the same level of detail and justification as would have been provided to Parliament had prior Parliamentary approval been sought.
Accountability for actions taken pursuant to the policy
12. RW(UK) submits that it is crucial to the lawfulness of government action, and to the maintenance of public trust in government decision-making in the counter-terrorism field, that the oversight and accountability mechanisms relating to targeted drone strikes comply with the UK’s obligations as a matter of international law. As the UN General Assembly has recognized, if States are faced with credible allegations that they are responsible for violations ‘[t]he obligation to … ensure respect for and implement international human rights law and international humanitarian law … includes, inter alia, the duty to … [i]nvestigate violations effectively, promptly, thoroughly and impartially and, where appropriate, take action against those allegedly responsible in accordance with domestic and international law.’16 RW(UK) submits that, if the UK is to be in a position to discharge its investigative obligation if concerns are raised in respect of any particular targeted drone strike, what is required is the disclosure of adequate material regarding the reasons for any particular strike to ensure that the legality of the action can properly be assessed.
13. An absence of transparency about policies relating to targeted killing, as the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions has noted, ‘violates the international legal framework that limits the unlawful use of lethal force against individuals.’17 If governments fail to provide reliable policies to their agents to assist them in assessing the targeting and proportionality of each individual strike, there can be no guarantee that drone strikes are being conducted in line with international legal obligations. That lack of certainty as to the lawfulness of government action is itself a breach of international human rights law and international humanitarian law: RW(UK) notes that both the right to life18 and the Geneva Conventions19 place a positive obligation upon States to ensure that the conduct of their agents with respect to lethal force is, at all times, compliant with relevant standards.
14. Further, unless information as to the policies informing targeting decisions and the reasons for particular decisions are disclosed, there can be no confidence that investigations into any potential breaches is sufficiently robust. This is why eminent international lawyers, compiling the Harvard University Humanitarian Policy and Conflict Research program’s Manual on International Law Applicable to Air and Missile Warfare have urged that States ought, in the context of targeted drone killings, provide reliable information to agents, ensure adequate intelligence relating to any target area, provide mechanisms for proportionality review before a strike, and abortion or suspension during an operation, and that States ought also to disclose that information to the public.20 RW(UK) notes that the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions has strongly endorsed this approach, stating that ‘[i]n order to ensure that accountability is meaningful, States must specifically disclose the measures in place to investigate alleged unlawful targeted killings.’21
15. RW(UK) notes that greater disclosure of matters relating to the decision-making processes of government which have the capacity to affect rights is entirely consistent with the recognition of a ‘right to truth’ at the international level. In the past ten years this ‘right to truth’ has been consistently endorsed by the UN Human Rights Council as part of the necessary architecture of rules combatting the impunity of those who violate human rights, 22 and was re-affirmed by the General Assembly last year, when it resolved that ‘the public and individuals are entitled to have access, to the fullest extent practicable, to information regarding the actions and decision-making processes of their Governments,’ and recognized ‘the importance of respecting and ensuring the right to truth so as to contribute to ending impunity and to promote and protect human rights.’23 Eminent publicists have also endorsed the right in the Tshwane Principles on National Security and the Right to Information (drafted by leading publicists and international organizations), 24 which themselves have been endorsed by the Parliamentary Assembly of the Council of Europe.25
16. In the same vein, the UN High Commissioner for Human Rights has argued, as an intervener at Strasbourg in the case of El-Masri v FYR Macedonia, 26 that the right to truth is ‘an autonomous right triggered by gross violations [of human rights]. This right [is] also embodied in Article 13 [the right to an effective remedy] and woven into Articles 2, 3, and 5 of the Convention [the rights to life, freedom from torture, and security respectively].’27 In favourably considering those submissions, the Grand Chamber noted that part of an ‘adequate response’ by State authorities to an alleged rights violation entailed ‘a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory,’28 and that the summary investigation in fact carried out by Macedonia in that case ‘cannot be regarded as an effective one capable of leading to the identification and punishment of those responsible for the alleged events and of establishing the truth’ (emphasis added).29
17. Against the backdrop of the need for adequate information to ensure that the State may properly discharge its investigatory obligations in the event of violations of rights, RW(UK) notes that there is no necessary requirement for secrecy in this field, and no reason in principle for the government to resist provision of further information. RW(UK) notes that, in analogous fields, policy guidance and summary legal justifications have been provided apparently without any adverse operational consequences. RW(UK) recalls the Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees,30 the Overseas Security and Justice Assistance Guidance,31 the Code of Practice on the Police Use of Firearms and Less Lethal Weapons,32 the Covert Surveillance and Property Interference Revised Code of Practice,33 and the Surveillance Camera Code of Practice.34 Further, RW(UK) is also aware that, in the specific field of targeted drones, the United States Air Force has released formal policy guidance setting out, in detail, the procedures to be carried out before any strike takes place.35
18. RW(UK) considers that the decision by the government to kill British citizens overseas by means of targeted killings with drones is a significant departure in the conduct of hostilities. If it is to form part of UK policy in the future, clarity is required as to the reasons for the use of such a tactic, the legal framework which applies to it (and how each test within that framework is satisfied), the entitlement of Parliament and the public to know what is being done in their name, and the means by which those who participate in any system of targeted killing may be held accountable. No such clarity has been provided to date, and RW(UK) urges the government to provide it to this Committee.
Rights Watch (UK)
18 November 2015
2 Hansard, House of Commons, 7 September 2015, Col 25 (Rt Hon David Cameron MP).
3 UN Doc. S/2015/688 (8 September 2015).
4 Commons Justice Select Committee, The Work of the Attorney General, HC 409 (Rt Hon Jeremy Wright QC MP).
5Such that even a campaign of attacks cannot be aggregated to constitute an armed attack justifying action in selfdefence if no single attack is sufficiently substantial in its effect: see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States), 1986 ICJ Rep 14; Oil Platforms (Iran v United States), 2003 ICJ Rep 161; and Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 ICJ 136.
6 See: Geneva Conventions, Additional Protocol 1, 1125 UNTS 3 (1978), Article 51(3).
7In keeping with the position of the International Court of Justice in, for instance, Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Uganda), 2005 ICJ 168, ; and Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996 ICJ 226, .
8 RW(UK) notes that the requirement that the use of lethal force to protect life comply with the cumulative criteria of necessity and proportionality is recognized by the international community in the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the 8th UN Congress on the Prevention of Crime and the Treatment of Offenders (1990), Principle 9.
9 Philip Alston, UN Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions, Study on Targeted Killings, UN Doc. A/HRC/14/24/Add.6,  (‘Alston Study’).
10 See: Sir Gus O’Donnell, Written evidence supplied to the Political and Constitutional Reform Committee Inquiry into The Role and Powers of the Prime Minister, Session 2010-12.
11 Cabinet Office, The Cabinet Manual: A Guide to Laws, Conventions, and Rules on the Operation of Government (1st ed, October 2011), [5.38].
12 Albeit that the vote post-dated the UK’s participation in the Libya conflict. Participation was announced on 18 March 2011, while debate on a motion retrospectively supporting the action was held on 21 March 2011. The motion was approved by a vote of 557 to 13.
13Debate on the motion was held on 26 September 2014. The motion was approved by a vote of 524 to 43
14 Commons Defence Committee, ‘Intervention: Why, When and How?,’ Fourteenth Report of Session 2013-14, HC 952, .
15 See: Nicholas Watt, ‘Cameron Announces Plan for Commons Vote on Syria Airstrikes,’ The Guardian, 17 November 2015, available at: http://www.theguardian.com/world/2015/nov/17/david-cameron-plan-commons-votesyria-airstrikes.
16 UN General Assembly, Resolution 60/147, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law
17 Alston Study, .
18 See: UN Human Rights Committee, General Comment 6 (1982), UN Doc. CCPR/C/21/Rev.1; Suarez de Guerrero v Colombia, UN Doc. Supp. No. A/37/40 (1982).
19 Geneva Conventions, Article 1; Additional Protocol, Articles 11 and 85.
20 Harvard University, Humanitarian Policy and Conflict Research program, Commentary on the HPCR Manual on International Law Applicable to Air and Missile Warfare (2010), [G.32(a)-(c)]. 21 Alston Study, .
22 UN Human Rights Council, Resolution 9/11, Right to the Truth, UN Doc. A/HRC/RES/9/11 (2008), Article 1; and Resolution 12/12, Right to Truth, UN Doc. A/HRC/RES/12/12 (2009), Article 1.
23 UN General Assembly, Resolution 68/165, Right to the Truth, UN Doc. A/RES/68/165 (2014), Preamble and Article 1.
24 Global Principles on National Security and the Right to Information (Tshwane Principles) (June 2013).
25 Parliamentary Assembly of the Council of Europe, Resolution 1954 (2013) on National Security and Access to Information.
26El-Masri v Former Yugoslav Republic of Macedonia (2013) 57 EHRR 25;  ECHR 2067 (‘El-Masri’).
27 El-Masri, .
28 El-Masri, .
29 El-Masri, .
30 HM Government, Cabinet Office, Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees (July 2010).
31 HM Government, Cabinet Office, Overseas Security and Justice Assistance Guidance: Human Rights Guidance (December 2011).
32 Home Office, Code of Practice on Police Use of Firearms and Less Lethal Weapons (November 2003).
33 Home Office, Covert Surveillance and Property Interference: Revised Code of Practice (2010).
34 Home Office, Surveillance Camera Code of Practice (June 2013).