Scope of the report
The Government states that the UK military action taken against Reyaad Khan on 21 August 2015 was armed conflict, as part of the same armed conflict in which the UK was already involved in Syria, and the Committee accepts this. However, the report also establishes that it is the Government’s policy to be willing to use lethal force abroad, outside of armed conflict, when there is no other way of preventing an imminent terrorist attack against the UK.
The Committee concluded that the Government's view of the legal basis for this policy requires urgent clarification. The Government also needs to clarify the legal basis on which it contributes to the use of lethal force abroad outside armed conflict by other countries such as the US.
The report concludes that there should be greater accountability for such uses of lethal force and proposes giving the Intelligence and Security Committee a more prominent role in oversight. The report additionally urges the Government to take the lead by acting multilaterally to develop international consensus about how the international legal frameworks apply to the use of lethal force abroad in counterterrorism operations outside armed conflict, building support at the UN Human Rights Council and in the Council of Europe.
The Government’s policy
It is clear that the Government has a policy to use lethal force abroad outside armed conflict for counter-terrorism purposes. The Committee notes the Government’s recognition this should only ever be in exceptional circumstances. However, we recommend that the Government is explicit in setting out what they consider to be the legal basis for that policy. It is vital that the legal line between counter-terrorism law enforcement and the waging of war by military means does not become blurred, leading to the use of lethal force in circumstances not permitted by law.
The Government considers the use of drone attacks abroad outside of armed conflict to be justified if it complies with international law governing the use of force on the territory of another state, and the Law of War. However, the report sets out a number of areas where the Government’s understanding of the legal basis of its policy remains unclear and the Committee urges the Government to provide greater clarity in their response.
We recommend that the Government establishes how it understands key concepts, such as what constitutes an ‘imminent threat’ under international law. Most significantly, the Government should explain why in its view the Law of War, rather than human rights law, applies to a use of lethal force abroad outside armed conflict.
The government must acknowledge that where the government takes a life where we are not in armed conflict, the higher standards laid down in the Human Rights Act and the ECHR have to be met. It is only where the taking of life is in an armed conflict, that the lower standards of the law of war applies.
Clarification of the legal basis is essential in order for Parliament and the public to be satisfied that the Government is complying with the rule of law and to provide absolute clarity for all those involved in the chain of command for such actions (intelligence personnel, armed forces, officials, Ministers et al) so they have a legal defence against any possible future criminal prosecution for murder from within or outside of the UK. The need for clarification is urgent in view of the increasing use of lethal force in Libya.
Decision Making Process and Accountability
The decision making processes governing the use of lethal force should be robust, with sufficient safeguards built in, to ensure that operations resulting in the use of lethal force outside armed conflict are planned and controlled in a way that minimises the risk of loss of life, as required by the right to life in the ECHR. The decision-making process for more conventional uses of lethal force in armed conflict may not be sufficient to ensure compliance with the relevant standards where the use of force is outside armed conflict.
The JCHR recommends that after each use of lethal force abroad outside of armed conflict there is automatic referral to the Intelligence and Security Committee (ISC). The Government should accept that the ISC should have the power to consider intelligence-based military operations and they must be provided with all relevant information by the Ministry of Defence.
Developing International Consensus
The Government should take the lead in initiatives to advance understanding and build international consensus on the legal justification for the use of lethal force in counter-terrorism operations outside of armed conflicts, by acting multi-laterally using a variety of international avenues, both at the UN and in the Council of Europe.
On publication of the report, Committee Chair Harriet Harman commented:
"We find ourselves today in a new situation for which our long established legal frameworks were not designed. The line between war in the traditional sense and countering the crime of terrorism has been blurred by two developments: rapid technological advance, including drone technology, has transformed the nature of the threat from terrorism and the capacity to counter it; and the nature of armed conflict has changed, with the steady rise of non-state armed groups such as ISIL/Da'esh with the intent and capability to carry out terrorist attacks globally and aspirations without territorial limit.
When dealing with an issue of such grave importance, taking a life in order to protect lives, the Government should have been crystal clear about the legal basis for this action from the outset. They were not. The statements of the Prime Minister, the Permanent Representative to the UN and the Defence Secretary in the aftermath of this military action were confused and confusing.
When the government orders our military to take a life outside of armed conflict, there should be proper accountability. Those making and carrying out the order to take a life need to know that there will be independent scrutiny to ensure that the highest standards have been adhered to.
As the world faces the grey area between terrorism and war, there needs to be a new international consensus on when it is acceptable for a state to take a life outside of armed conflict. The UK Government should lead in the establishment of that consensus and thereby ensure that states are able to take the action which is necessary to protect their citizens without breaching the rule of law."