Written evidence from Colin Murray (DRO0022)

 

 

 

 

 

 

 

Response to the Call for Evidence issued by the Joint Committee on Human Rights on UK Policy on Use of Drones for Targeted Killing

 

 

 

C.R.G. Murray, Newcastle Law School, Newcastle University

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Executive Summary

 

 

Author Information

 

Colin Murray is a Senior Lecturer in law at Newcastle University. His research examines the UK’s constitutional arrangements and counter-terrorism law. He is the author, alongside Professor Roger Masterman (Durham University), of the textbook Exploring Constitutional and Administrative Law (Pearson, 2013). From June to December 2013 he served as specialist adviser to the UK Parliament’s Joint Committee on the Voting Eligibility (Prisoners) Bill, assisting the Committee’s deliberations over the UK’s response to adverse judgments from the European Court of Human Rights on the issue of prisoner voting. His contributions to the legal debate on the UK’s counter-terrorism policy include articles on the UK’s obligations towards residents held at Guantánamo Bay (‘In the Shadow of Lord Haw Haw: Guantánamo Bay, Diplomatic Protection and Allegiance’ [2011] Public Law 115-138) and on judicial oversight of foreign affairs (‘The Ripple Effect: Guantánamo Bay in the United Kingdom's Courts’ (2011) 23 Pace International Law Review 15-40).


Targeted Killings by Drone as a Counter-Terrorism Strategy

 

[1]          The US has long employed targeted killing as part of its counter-terrorism strategy. The 1998 cruise missile strikes launched in an effort to kill Osama bin Laden after Al Qaeda’s bombing of the US embassies in Kenya and Tanzania under orders from President Bill Clinton illustrate how such operations pre-date the 9/11 attacks as a feature of US policy.[1] Israel also conducts targeted killing operations as part of its counter-terrorism strategy.[2]

 

[2]          The development of military drones facilitated this policy. Drones have the ability to remain over a target area longer than conventional military aircraft and do not have the lag time associated with cruise missile strikes. The use of drones does not put military personnel at direct risk. As the technology has developed, successive US governments made increasing use of this capability in counter-terrorism operations.[3] Since President Barak Obama took office the US has conducted well over 400 reported drone strikes in countries such as Yemen, Pakistan and Somalia. These are countries in which the US is not party to an ongoing armed conflict. The US continues to conduct drone strikes in Afghanistan, after NATO officially ended combat operations in December 2014.[4]

 

[3]          The UK has also expanded its drone capability in recent years, conducting drone strikes as an element of its military operations in Afghanistan between 2008 and 2014.[5] In the course of an armed conflict such as the fighting in Afghanistan, international humanitarian law (IHL) generally permits such activity against enemy combatants, provided that safeguards protecting civilians are maintained.[6] UK Governments have, however, been much slower than the US to employ drone strikes as part of counter-terrorism operations outside of armed conflicts to which it is a party. Whilst the RAF has used drones in a reconnaissance capacity over Syria since November 2014, the strike which killed Reyaad Khan and Ruhul Amin on 21 August 2015 was the first occasion in which the UK has used its drone capability outside of the context of ongoing combat operations.

 

[4]          Concerns over the efficacy and legality of drone strikes outside of armed conflicts in which the UK is a participant seem to have conditioned the use of the RAF’s drone capability. Although US political leaders have repeatedly discussed its use of targeted killing in terms of its accuracy and the level of safeguards in place,[7] UK Government ministers have in the past distanced the UK from US policy:

 

I listened to the anger and pain over the challenges that young Pakistanis growing up in Pakistan face, including the anger and frustration over US drone attacks. … [W]e need to ensure we are better at explaining our foreign policy, especially when it is distinct and different from [policy in] the US.[8]

 

[5]          Reports persist of GCHQ furnishing intelligence to the US to conduct drone strikes in Pakistan, with a challenge being mounted to the legality of co-operation in these attacks in the UK courts.[9] The Court of Appeal concluded that it had no jurisdiction to entertain aspects of the action which were hypothetical and which would lead it into a critique of US foreign policy.[10] Nonetheless, Prime Minister David Cameron’s admission that the UK worked ‘hand in glove with the US on the targeted killing of Mohammed Emwazi (known by the UK media as “Jihadi John”),[11] points to the degree to which the UK, beyond its limited use of drone strikes, is enmeshed within the US drone campaign.

 

[6]          Drone strikes, for all their superficial attraction to states able to deploy the most up-to-date military hardware, are not without considerable risks. Strikes which flout the legal strictures upon the use of force outside the context of an armed conflict to which the UK is a party can be used as a tool by terrorist groups to attract new recruits.[12] US use of targeted killings which have seen innocent individuals hit as the result of deficient intelligence, or civilian casualties alongside the intended target, have fed into terrorist propaganda.[13]

 

The Legality of the UK’s Use of Force

 

[7]          Questions as to the legality of the drone strike under UK law fall into two categories; questions over whether the UK Government has the authority to authorise such uses of force and questions over whether the manner in which a particular strike was conducted is lawful. As to the first question, under domestic law the UK Government can use the armed forces to conduct military operations overseas under the royal prerogative, but under a recently established constitutional convention it must ordinarily seek Parliament’s permission to use force, ‘except when there is an emergency’.[14] In circumstances requiring ‘urgent action’ the UK Government has maintained that subsequent reporting to Parliament of the use of force suffices.[15]

 

[8]          Despite acknowledging that the 21 August drone strike took place as a result of ‘meticulous planning’, David Cameron has nonetheless sought to characterise this use of force as an emergency response to the threat posed by Reyaad Khan without which ‘we had no way of preventing his planned attacks on our country.’[16] No evidence has been published providing the UK Government’s basis for asserting that Khan posed such an imminent threat that Parliament could not be informed in advance of the strikes.

 

[9]          The Prime Minister’s claims that the drone strike was an imminent necessity to prevent Reyaad Khan’s planned attack against the United Kingdom appears to be an effort to fit the action within Article 51 of the UN Charter. Article 51 permits a state to use force in self defence outwith a UN Security Council resolution. Whether a drone strike can be justified under Article 51 involves not simply a claim as to the extent of this provision of the UN Charter, but requires the UK to establish the facts upon which its claim is based. The Attorney General has further maintained that such action is possible in anticipatory response to an armed attack by a terrorist group.[17] Self defence can be invoked in anticipation of an attack:

 

[S]elf-defence includes the right to use force against a real and imminent threat when “the necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment of deliberation”.[18]

 

[10]      The limits of self-defence within of international law are contested, and even if the UK Government’s interpretation is accepted, the tests for a use of anticipatory self defence against a terrorist group are difficult to fulfil.[19] In these circumstances, the UK Government’s refusal to publish its full legal advice on the 21 August 2015 drone strike prevents it from publically establishing the lawfulness of its action.

 

[11]      Even if some military action is justified, the UK Government must further explain why the particular action taken to kill Reyaad Khan was lawful. As a matter of domestic law military operations against targets outside the UK’s jurisdiction have historically been protected against legal challenge in the courts by the act of state doctrine.[20] Even if this doctrine did not necessarily protect actions against UK citizens from legal challenge, the courts have maintained their reluctance to review Government actions under the defence and foreign affairs prerogatives.[21] The Government can also authorise the use of lethal force overseas by the Security Services, to the exclusion of liability in UK courts, including such action against UK citizens.[22]

 

[12]      Nonetheless, recent jurisprudence suggests that the UK courts will not declare a legal challenge to the use of lethal force inadmissible as a manifestation of the defence and foreign affairs prerogatives and will scrutinise such activity more actively than would historically have been the case when a citizen’s legal rights are engaged.[23] If the UK is to retain the respect due to a state which abides by international law, its obligations under IHL and international human rights law (IHRL) must now be considered in the conduct of such a strike. In the later regard, human rights norms may provide the basis for a legal challenge to UK drone strikes before the domestic courts under the Human Rights Act 1998.

 

The Conduct of the 21 August 2015 Drone Strike under IHL

 

[13]      IHL authorises the targeting of enemy forces in the course of an armed conflict, provided such attacks are conducted in a manner which takes account of potential civilian casualties in achieving military goals. Under an IHL paradigm, whether an attack like the 21 August 2015 drone strike is proportionate is dependent upon the correct identification of the target as an enemy combatant and upon whether the strike resulted in civilian casualties. As Aharon Barak, former President Israeli Supreme Court, has explained:

 

[P]roportionality is determined according to a values based test, intended to balance between the military advantage and the civilian damage. … [W]e cannot determine that a preventative strike is always legal, just as we cannot determine that it is always illegal. All depends upon the question whether the standards of customary international law regarding international armed conflict allow that preventative strike or not.[24]

The UK Government’s assurances that no civilians were killed in the course of the 21 August 2015 drone strike[25] is therefore an effort to maintain that the attack was carried out in accordance with the requirements of IHL.

 

[14]      Nonetheless, Parliament was informed that the drone strike against Reyaad Khan was a specific operation which did not require explicit prior parliamentary authorisation because of the imminent threat that the target posed to the UK. The strike was not undertaken in the context of ongoing UK military operations against Islamic State in Iraq or to extend those operations as ‘part of coalition military action against ISIL in Syria’.[26] Even though the Defence Secretary has subsequently maintained that the UK is actively contemplating similar strikes against ‘a number’ of suspected terrorists believed to be ‘actively involved in planning attacks on our streets’,[27] any strikes against such individuals in Syria would remain exceptional uses of force in response to an imminent threat unless the UK Parliament authorised full military engagement against Islamic State in Syria.

 

[15]      Wars are not waged against individuals, but against states and under specific circumstances against non-state groups such as Islamic State. It is highly doubtful that, in undertaking a single drone strike, the UK has evidenced the scale of operations necessary to indicate that it is party to an armed conflict against a specific non-stage group in Syria thus necessitating the operation of IHL.[28]

 

[16]      As David Cameron explained to Parliament, the 21 August 2015 drone strike was undertaken against a specific individual who had a ‘desire to murder us at home.’[29] In other words, outwith all of the UK Government’s reliance upon Article 51 of the UN Charter, the strike was aimed at preventing an individual from directing criminal offences within the UK from overseas. In light of the specific intention of this attack to stop an individual from advancing criminal aims within the UK IHL is a much less suitable paradigm under which to test the legality of the 21 August 2015 drone strike than international human rights law.

 

The Conduct of the 21 August 2015 Drone Strike under IHRL

 

[17]      The UK Government’s eagerness to discuss the case in IHL terms is evident in light of the account by Philip Alston, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, of the strictures upon uses of lethal force by the state under IHRL:

 

[U]nder human rights law, a targeted killing in the sense of an intentional, premeditated and deliberate killing by law enforcement officials cannot be legal because, unlike in armed conflict, it is never permissible for killing to be the sole objective of an operation. Thus, for example, a “shoot-to-kill” policy violates human rights law.[30]

 

The mere fact that military force is at issue does not, of itself, exclude the operation of IHRL norms.[31]

 

[18]      Indeed, the ability of the states to derogate from human rights treaties in time of war or comparable emergency[32] indicates that, without such a derogation, treaty-based IHRL remains operative:

 

The fact that this Article provides that a state may derogate from provisions of the Convention in time of war, rather than that such provisions are automatically rendered inapplicable, is incompatible with the notion that the Convention is applicable only in time of peace.[33]

 

The fact that the UK is not at present engaged in general military operations in Syria points to human rights law being the best paradigm under which to assess the lawfulness of the manner in which drone attacks are carried out.

 

[19]      Before the application of the ECHR’s right to life to the 21 August 2015 drone strike can be tested, however, consideration must first be given to the question of whether the ECHR’s remit extends to the conduct of drone strikes in Syria. The ECHR’s right to life does not ordinarily extend to uses of force beyond the territorial boundaries of the Convention states,[34] as seen in the Grand Chamber’s dismissal as inadmissible of a challenge to NATO’s bombing of a Serbian television building in the course of the Kosovo campaign in 1999.[35] Decisions which saw the ECHR’s ambit extended to cover some UK military activity in Iraq, moreover, were reached on the basis of the level of control that the UK exercised in Basra and its surrounding region.[36] Leaked human rights reform proposals, which would prevent overseas combat operations from being challenged on human rights grounds before the UK Courts, nonetheless indicate that the UK Government recognises that the ECHR could have broad application to such activities.[37]

 

[20]      A passage in the High Court’s recent Al Saadoon decision,[38] however, could be interpreted as acceptance that targeted killings display the requisite level of control over an individual by the UK to extend the ECHR’s reach to cover the 21 August 2015 drone strike (which were carried out outwith an operative derogation under Article 15 ECHR):

 

I find it impossible to say that shooting someone dead does not involve the exercise of physical power and control over that person. Using force to kill is indeed the ultimate exercise of physical control over another human being. Nor as it seems to me can a principled system of human rights law draw a distinction between killing an individual after arresting him and simply shooting him without arresting him first, such that in the first case there is an obligation to respect the person's right to life yet in the second case there is not.[39]

 

Legatt J continued that, ‘where an individual is not in the state’s custody (and the state is not exercising any governmental powers in the territory), the only relevant obligation so far as I can see will be the negative one under article 2 to refrain from unlawful killing.[40] These statements, it must be noted, were not made with consideration of a drone strike in mind.

 

[21]      Even if the ECHR does apply to the 21 August 2015 strike, the Article 2 ECHR right is not an absolute right. A Convention state can employ lethal force provided that it does so in a manner which is ‘no more than absolutely necessary in defence of any person from unlawful violence’.[41] The test is therefore whether the use of lethal force was necessary and proportionate in light of the imminence of the threat of a terrorist attack posed by Reyaad Khan. Whilst the wording of the proportionality test under the right to life seems particularly strict, the Strasbourg Court’s case law grants Convention states a degree of leeway (“margin of appreciation”) when lethal force is used against a backdrop of armed activities.[42] Notably, the Court does not require the UK’s base of intelligence for constructing the attack to be accurate in every regard, but that the strike was ordered based upon an honest belief which was perceived, for good reasons, to be valid at the time’.[43]

 

[22]      Under Article 2 the Strasbourg Court evaluates whether an operation was conducted ‘so as to minimise, to the greatest extent possible, recourse to lethal force’.[44] The correct identification of the targets of the strike as terrorists and the exclusion of civilian casualties are important factors in the assessment of the proportionality of a use of lethal force under Article 2 ECHR. If the UK Government is able to evidence its claims that the three victims of the strike were all members of Islamic State,[45] and that the strike resulted in no civilian casualties,[46] these are factors which will weigh in its favour in an assessment of the strike’s proportionality. In other words, a human rights evaluation of the strike is unlikely to find it disproportionate simply because two other members of Islamic State were killed alongside the target, Reyaad Khan.

 

[23]      In McCann v United Kingdom,[47] the Strasbourg Court drew attention to the multiple opportunities the UK authorities had to arrest the Provisional IRA members subsequently killed by SAS personnel in the course of conducting reconnaissance ahead of a bomb attack.[48] In the circumstances of the 21 August 2015 drone strike, judges interpreting the Convention would likely give considerable weight to the UK Government’s contention that it did not have a partner government with which it could have engaged in an arrest-and-extradition process.[49]

 

[24]      But the UK will likely need to do more to evidence its claims that Khan’s killing was necessary as he was, in the words of the UK’s notification of the strike to the UN Security Council, actively engaged in planning and directing imminent armed attacks against the United Kingdom.[50] Khan’s presence in Syria might well have prevented his detention by UK suspects, but it also reduced the likelihood that he would be personally able to conduct an attack against UK interests. The UK Government would also be expected to evidence the claim that he was directing individuals within the UK by pointing to police activity against his alleged co-conspirators.[51] These issues go to the necessity and proportionality of conducting this strike under Article 2 ECHR and have not, to date, been evidenced by the UK Government’s terse statements on the attack.[52]

 

[25]      IHRL also requires the effective investigation of a killing carried out by state forces to establish its lawfulness.[53] This requirement would be particularly burdensome for states to fulfil in the context of an ongoing armed conflict but, as noted above, the 21 August 2015 drone strike has been cast by the UK Government as an exception to the UK’s decision, to date, not to engage in an armed conflict in Syria against Islamic State. In those circumstances IHRL maintains that states must publically account for the killing of individuals specifically to prevent a legal lacuna emerging which would facilitate the use of lethal force by a state.[54]

 

[26]      Beyond the ECHR, the UK’s obligations not to arbitrarily deprive someone of their life under Article 6 ICCPR are potentially triggered by the 21 August 2015 drone strike. In a similar vein to the ECHR, the UN Human Rights Committee has affirmed that the ICCPR extends to areas in which a state has “effective control” even outwith their formal jurisdiction.[55] This makes drone strikes an issue which can be raised in the course of the UN Human Rights Council’s Universal Periodic Review of human rights (required once every four years and next due for the UK in 2016).

 

[27]      The UK Government should therefore assume that human rights law is applicable to targeted drone strikes against specific alleged terrorists in response to an urgent threat which take place outside the context of an armed conflict to which the UK is a party. This requires that the conduct of the strike be investigated by an independent body and that the UK releases to this body sufficient evidence to establish whether its right to life obligations have been fulfilled.

 

November 2015

1

 


[1] R. Hendrickson, ‘American War Powers and Terrorists: The Case of Usama bin Laden’ (2000) 23 SCT 161, 169.

[2] S. David, ‘Israel’s Policy of Targeted Killings’ (2003) Ethics and International Affairs 111.

[3] M. Aslam, ‘A Critical Evaluation of American Drone Strikes in Pakistan: Legality, Legitimacy and Prudence’ (2011) 4 CST 313, 317.

[4] See Christian Schaller, ‘Using Force Against Terrorists “Outside Areas of Active Hostilities” The Obama Approach and the Bin Laden Raid Revisited’ (2015) 20 Journal of Conflict & Security Law 195.

[5] For a summary of UK drone use, drawn from Freedom of Information requests, see C. Cole, ‘New figures on UK drone use in Iraq and Syria’ Drone Wars UK (16 November 2015). Available at: http://dronewars.net/2015/11/16/new-figures-on-uk-drone-use-in-iraq-and-syria/.

[6] See Louise Doswald-Beck, Human Rights in Times of Conflict and Terrorism (OUP, 2011) 189-190.

[7] BBC News, ‘US drone programme: “Strict, fair and accountable” - Kerry’ (28 May 2013). Available at: http://www.bbc.co.uk/news/world-radio-and-tv-22690918.

[8] Sadiq Khan (Minister for Community Cohesion, 2008-2009), reported in D. Gardham, ‘UK should Distance itself from US Drone Attacks in Pakistan, says Minister’, Daily Telegraph (12 April 2009).

[9] R (On the Application of Khan) v Secretary of State for Foreign and Commonwealth Affairs [2014] EWCA Civ 24; [2014] 1 WLR 872.

[10] Ibid., [37] (Lord Dyson).

[11] John Shammas, ‘Jihadi John: Airstrike on ISIS butcher saw US and Britain working 'hand in glove' together’ The Mirror (13 Nov 2015). Available at: http://www.mirror.co.uk/news/uk-news/jihadi-john-airstrike-isis-butcher-6823286.

[12] M. Powers, ‘Sticks and Stones: The Relationship Between Drone Strikes and Al-Qaeda’s Portrayal of the United States’ (2014) 7 Critical Studies on Terrorism 411, 420.

[13] P. Alston, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (United Nations Human Rights Council, May 2010), Para.83.

[14]  G. Young MP, HC Deb., vol.525, col.1066 (10 March 2011).

[15] D. Cameron MP, HC Deb, vol.585, col.1259 (26 Sepember 2014).

[16] D. Cameron MP, HC Debates, vol.599, col.26 (7 September 2015).

[17] Justice Select Committee, ‘Oral Evidence: The Work of the Attorney General’ (15 September 2015) HC 409, Q39.

[18] P. Alston, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (United Nations Human Rights Council, May 2010), para.45.

[19] Ibid., para.86. See also Christian Schaller, ‘Using Force Against Terrorists “Outside Areas of Active Hostilities” The Obama Approach and the Bin Laden Raid Revisited’ (2015) 20 Journal of Conflict & Security Law 195, 201-204.

[20] See Johnstone v Pedlar [1921] 2 AC 262, 271-272 (Viscount Finlay).

[21] See Council for Civil Service Union v. Minister for the Civil Service [1985] AC 374, 398 (Lord Fraser).

[22] Intelligence Services Act 1994, s.7.

[23] See Shergill v Khaira [2014] UKSC 33, [43] (Lord Neuberger).

[24] Case HCJ 769/02, Public Committee Against Torture v The Government of Israel (2006), [60].

[25] D. Cameron MP, HC Debates, vol.599, col.25 (7 September 2015).

[26] D. Cameron MP, HC Debates, vol.599, col.26 (7 September 2015).

[27] BBC Radio 4, Today Programme (8 September 2015). Available at: http://www.bbc.co.uk/programmes/b068tz6b.

[28] Christian Schaller, ‘Using Force Against Terrorists “Outside Areas of Active Hostilities” The Obama Approach and the Bin Laden Raid Revisited’ (2015) 20 Journal of Conflict & Security Law 195, 207-208.

[29] D. Cameron MP, HC Debates, vol.599, col.25-26 (7 September 2015).

[30] P. Alston, Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (United Nations Human Rights Council, May 2010) para.33.

[31] See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories [2004] ICJ Rep 136, para. 106. See also U.N. Doc. CCPR/C/21/Rev.1/Add.13, Human Rights Committee, General Comment 31 Nature of the General Legal Obligation Imposed on States Parties to the Covenant, para. 11.   

[32] ECHR, Article 15; ICCPR, Article 4.

[33] Christopher Greenwood, ‘Rights at the Frontier: Protecting the Individual in Time of War’ in Barry Rider, Law at the Centre (Kluwer, 1999) 277, 279.

[34] ECHR, Article 1.

[35] Banković and Others v Belgium and 16 Other Contracting States (2007) 44 EHRR SE5.

[36] Al-Skeini and Others v United Kingdom (2011) 53 EHRR 18, [136].

[37] See Tim Shipman, ‘Human Rights Law to be Axed’ Sunday Times (8 November 2015). Available at: http://www.thesundaytimes.co.uk/sto/news/Politics/article1630327.ece.

[38] Al-Saadoon and Others v Secretary of State for Defence [2015] EWHC 715 (Admin). 

[39] Ibid., [95] (Legatt J).

[40] Ibid., [98].

[41] Article 2(2) ECHR.

[42] See Khatsiyeva and others v Russia (2008) App. no. 5108/02, [134].

[43] Makaratzis v Greece (2004) App. no. 50385/99, [66].

[44] See McCann v United Kingdom (1996) 21 EHRR 97, [194].

[45] See Khatsiyeva and others v Russia (2008) App. no. 5108/02, [137]-[138].

[46] See Isayeva, Yusupova and Bazayeva v Russia (2005) 41 EHRR 39, [199].

[47] McCann v United Kingdom (1996) 21 EHRR 97.

[48] Ibid., [205].

[49] D. Cameron MP, HC Debates, vol.599, col.26 (7 September 2015).

[50] Matthew Rycroft to Vitaly Churkin (7 September 2015) UNSC Doc S/2015/688.

[51] Erodgan v Turkey (2006) App. no. 19807/92, [78]-[79].

[52] On evidencing claims regarding the necessity and proportionality of lethal force see McCann v United Kingdom (1996) 21 EHRR 97, [166].

[53] McCaughey & Grew v United Kingdom (2014) 58 EHRR 13, [140].

[54] See Kaya v Turkey (1998) 28 EHRR 1, [91].

[55] See Burgos v Uruguay and Celiberti de Casariego v Uruguay, case nos. 52/1979 and 56/1979 (29 July 1981), at [12.3] and [10.3] respectively.