Limited accountability: targeted killing, the ISC and the UK’s international legal obligations

 

 

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Last month, the Intelligence and Security Committee of Parliament (‘the ISC’) published its long-awaited report, UK Lethal Drone Strikes in Syria. The report sheds some light on the threat posed by the target of the UK’s drone strike, Reyaad Khan, but ultimately the report shows just how limited the ISC’s oversight function is in respect of the UK Government’s targeted killing policy.

Following strikes against British nationals Reyaad Khan, Junaid Hussain and Mohammed Emwazi, the ISC in October 2015 announced its intention to investigate the intelligence bases for those strikes. Consideration of the Hussain and Emwazi strikes was later ruled out by the then Prime Minister David Cameron on the basis that ‘the operational decisions were taken by the United States not the UK’. The ISC therefore sought to scrutinise:

  1. The assessment of the threat Reyaad Khan posed;
  2. The intelligence that underpinned that assessment; and
  3. How that intelligence was used in the Ministerial decision-making process.

The strike against Khan in fact fell outside the standard remit of the ISC as it was part of a wider ongoing intelligence operation. According to the Prime Minister, ‘the primary objective of the operation, of which the strike [against Khan] was a part, remains to identify and disrupt external attack planning by Khan and his wider network’.[1] It is far from clear how wide the ‘ongoing operation’ exemption is as no definition is provided in the Justice and Security Act 2013 (‘the JSA’). Nevertheless, following consultation with the ISC Chair, Dominic Grieve MP, the then Prime Minister, David Cameron, agreed to use his discretionary power under the JSA to ask the ISC to investigate.

The scope of the ISC’s inquiry thus fell to be determined by the Prime Minister, who attached conditions which limited its focus to the threat posed by Khan, and limited the evidence the Committee could receive to an oral brief and contemporaneous written security assessments. Both the former and current Prime Minister considered the decision-making process to be outside the scope of the ISC’s inquiry.

The narrowed scope meant that the ISC was unable to consider what it described as the ‘central document’ – the Ministerial submission to the Foreign Secretary of 1 April 2015. The request for this document was judged to go beyond the parameters of the investigation set by the Prime Minister, i.e. ‘the nature of the threat posed by Reyaad Khan to the UK’s national security’.

The ISC’s conclusions

The ISC sought to assess the intelligence against the Government’s legal position. Namely, that:

  1. The threat meets the definitional threshold of an ‘armed attack’;
  2. The armed attack is imminent; and
  3. The response taken to any imminent armed attack is both necessary and proportionate.

According to the ISC, Khan certainly posed a ‘very serious threat to the UK’. However, as was noted by the ISC, they were not in a position to determine whether or not the threat from Khan was ‘so severe’ as to reach the ‘same level as an armed attack by a State.’ The ISC conceded that any such determination ‘is clearly a subjective assessment’ for Ministers.[2] Denied sight of the key ministerial submission, however, the ISC were never going to be able to determine whether that assessment, although subjective, was nonetheless rational.

The ISC also noted that it was unable to comment on the process by which Ministers considered the question of imminence. Given there was no specific imminent attack about to take place, but rather a broader concern that a plot might go undetected due to gaps in coverage, the Committee was left to speculate that the concern that the Intelligence Agencies would lose sight of Khan altogether was a factor in the decision-making process.

In an interesting footnote, the ISC states that it ‘requested sight of any further intelligence reports which would disprove’ its statement on the imminence assessment.[3] The National Security Secretariat did not provide any such material. However, due to redactions, it is not possible to discern what statement the ISC purported to make on the Government’s imminence assessment. Ordinarily, the ISC would consider, challenge and negotiate each redaction proposed by the Government. However, due to the Prime Minister’s announcement that she would seek an early General Election, the only way the report could be published before the dissolution of Parliament was for the ISC to agree all the redactions requested. Though the Government was sent the report in December 2016, its requests for redactions were submitted to the ISC only six days before the General Election announcement.

By, in the first instance, establishing a narrow remit, and thereafter withholding crucial information and impeding the normal redactions procedure, the Government effectively obstructed the functioning of the Committee charged with overseeing the Government’s actions. In addition, wider policy issues around the Ministerial decision-making process remain unscrutinised. As the ISC itself noted, ‘without sight of the actual documents provided to Ministers we cannot ourselves be sure – nor offer an assurance to Parliament or the public – that we have indeed been given the full facts surrounding the authorisation process for the lethal strike against Reyaad Khan.’

Accountability for the UK Government’s targeted killing policy

In announcing the Khan strike, the Prime Minister was clear that the UK ‘wouldn’t hesitate to take similar action again’, whether a threat emanates ‘from Libya, from Syria or from anywhere else’.

Considering the Government’s international obligations require it to undertake an independent and effective investigation into potential breaches of the right to life, questions remain as to whether the ISC can provide effective accountability for any future instances of targeted killing.

While it is accepted that the right to life and the procedural obligations that flow from it are derived from both treaty and customary law, it remains an open question as to whether the right to life found in the European Convention of Human Rights (and the International Covenant on Civil and Political Rights) applies to isolated incidents of lethal force abroad. The Court of Appeal decision in Al-Saadoon suggests that an element of control of an individual prior to the use of lethal force is required, though left it to Strasbourg to decide whether the logical consequence of Al-Skeini is that any use of extra-territorial force is within the acting State’s jurisdiction, thereby enlivening its obligations.

The Joint Committee on Human Rights last year noted that whether the victim of a drone strike falls within the UK’s jurisdiction will depend on a careful analysis of the degree of physical power and control exerted over the individual prior to the use of lethal force. The JCHR considered that questions such as the extent of surveillance on Khan, including both visual coverage and the interception of his communications by UK authorities, may be relevant to the question as to whether Khan’s situation was ‘so closely linked to the exercise of authority and control of [the UK] as to bring him within its jurisdiction’. The ISC’s report confirms that the Intelligence Agencies ‘had some reasonably good coverage on Khan which was providing useful intelligence.’ On this issue, extraterritoriality in the surveillance context will also be relevant. Though there is limited jurisprudence, the Investigatory Powers Tribunal last year ruled that persons not present within the UK but subject to surveillance by GCHQ are not within the jurisdiction of the UK.

What would the ECHR require? Could the ISC fulfil those requirements?

Article 2 ECHR and Article 6 ICCPR would, if applicable, require an independent and effective investigation capable of leading to accountability for any violations of the right to life. When faced with an investigation in difficult security conditions, Al-Skeini requires the authorities to take all reasonable steps in the circumstances to ensure such an investigation is conducted.

Whatever the mode of investigation, the authorities must act of their own motion.[4] The current remit and powers of the ISC may fall foul of this requirement. In the case of Khan, the ISC was only able to investigate after the Prime Minister exercised his discretionary power under the JSA. When asked to agree to automatic referral to the ISC where lethal force is used in the future, the then Prime Minister declined on the basis that it is for the ISC to decide its own work programme.

Whether the ISC would satisfy the independence requirement is also open to question. Members of the ISC are nominated by the Prime Minister. The Secretary of State can veto disclosure of information requested by the ISC. The Prime Minister retains control over what ‘ongoing intelligence or security operation’ matters may be considered, and as last week’s report shows, is able to set the parameters of an ISC investigation. Finally, before a report is made available to Parliament, the ISC must first send it to the Prime Minister to redact matters ‘prejudicial to the continued discharge of the functions’ of the intelligence agencies. This level of executive control over an investigation into the executive’s own actions may fail to fulfil the requirement that the persons responsible for and carrying out the investigation be independent from those implicated in the events.[5]

Finally, as the JCHR concluded, in order to conduct a thorough and complete investigation the ISC would need to consider the surrounding circumstances of the military operation. However, the current MoU between the Prime Minister and the ISC, dated November 2014, precludes the ISC from considering the operational activities of the MoD, meaning any future investigation would not be broad enough to consider all relevant questions.

The limited scope of the ISC, coupled with a high level of executive control over its activities, raise serious questions as to whether or not it is, as an institution, able to provide effective or independent oversight of the Government’s use of lethal force for counterterrorism purposes. Moreover, the report itself raises questions around the adequacy of the Ministerial decision-making process that leads to the use of lethal force, including the role of legal advice in that process. As the Chair of the ISC Dominic Grieve recommended, ‘the Government should be more transparent about these matters and permit proper scrutiny of them’.

  1. Letter from the PM to ISC, 5 January 2016
  2. Intelligence and Security Committee of Parliament, UK Lethal Drone Strikes in Syria, [30]
  3. Intelligence and Security Committee of Parliament, UK Lethal Drone Strikes in Syria, footnote 22
  4. Al Skeini v UK, [165]
  5. Al Skeini v UK, [167]

 

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