“Did Parliament intend that an absolute or qualified exemption would apply to the Disaggregated Information?”
“I want to be clear that the strike was not part of coalition military action against ISIL in Syria; it was a targeted strike to deal with a clear, credible and specific terrorist threat to our country at home. The position with regard to the wider conflict with ISIL in Syria has not changed.” 2.4 In response to a question from our Chair, as to whether this was the first time in modern times that a British asset has been used to conduct a strike in a country where we are not involved in a war, the Prime Minister said: “The answer to that is yes. Of course, Britain has used remotely piloted aircraft in Iraq and Afghanistan, but this is a new departure, and that is why I thought it was important to come to the House and explain why I think it is necessary and justified.” 2.5 The Prime Minister was therefore unequivocal that the lethal drone strike on Reyaad Khan in Syria on 21 August was a “new departure”, and it seemed that his reason for characterising it as a new departure was because it was the first time that a military asset had been used to deliver lethal force outside an area of armed conflict. 2.6 Earlier in his statement the Prime Minister had also made clear that this action was part of a wider counter-terrorism strategy, according to which such action would be taken wherever the threat comes from: “As part of this counter-terrorism strategy, [ … ] if there is a direct threat to the British people and we are able to stop it by taking immediate action, then, as Prime Minister, I will always be prepared to take that action. That is the case whether the threat is emanating from Libya, from Syria or from anywhere else.” 2.7 Following the Prime Minister’s statement, other ministers made clear that the exceptional action taken on 21 August in Syria was not a one-off, but the Government would do the same again if similar circumstances arose. The Secretary of State for Defence, for example, said: [2018] AACR 19 (JC and YA v IC, AG and CO) 30 “There are other terrorists involved in other plots that may come to fruition over the next few weeks and months and we wouldn’t hesitate to take similar action again. [ … ] There is a group of people who have lists of targets in our country, who are planning armed attacks on our streets, who are planning to disrupt major public events in this country and our job to keep us safe, with the security agencies, is to find out who they are, to track them down and, if there is no other way of preventing these attacks, then yes we will authorise strikes like we did.”
“I am writing to report to the Security Council that the UK has undertaken military action in Syria against the so-called Islamic State in Iraq and the Levant (ISIL) in exercise of the inherent right of individual and collective self-defence. [ … ] ISIL is engaged in an ongoing armed attack against Iraq, and therefore action against ISIL in Syria is lawful in the collective self-defence of Iraq.” 2.11 In a letter dated 23 October from the Government Legal Department to Leigh Day & Co., solicitors, in response to the letter before claim threatening judicial review proceedings referred to above, the Government’s lawyers similarly asserted that the strike in Syria was part of an armed conflict: “[ … ] your letter proceeds from the premise that the action taken in Raqqa occurred outside the context of an armed conflict. That premise is fundamentally mistaken. An armed conflict is taking place in Iraq, and crossing over into Syria, at present. The United Kingdom is not currently participating in coalition air strikes within Syria (but is [2018] AACR 19 (JC and YA v IC, AG and CO) 31 doing so in Iraq). The military action taken in Syria by the RAF on21 August 2015 was aimed at a specific ISIL target that presented a clear, credible and specific threat of armed attack on the United Kingdom in the context of an active armed conflict in which the three ISIL fighters killed in the attack were participants. The fact that the United Kingdom had not up to that point conducted any air strikes on Syrian territory provides no basis for the assertion that this action took place outside the context of an armed conflict. The Raqqa strike was a military operation which was consistent with international humanitarian law [ie. the Law of War].” 2.12 There is nothing inherently contradictory in the Government relying on both individual and collective self-defence as justification for its action in Syria on 21 August. A single use of force can simultaneously serve both purposes. There is, however, a direct contradiction between what the Prime Minister told the House of Commons on 7 September (that the drone strike was not part of coalition action to protect Iraq) and what the UK Permanent Representative told the UN (that it was). 2.13 On the basis of the statement of the UK Permanent Representative to the Security Council, Sir David Omand told us that in his view the Government had maintained what he and the Birmingham Policy Commission had concluded was the important distinction between the law that applies in times of peace and that which applies in times of war. He did not consider that the Government had a new policy of strikes by remotely piloted aircraft outside areas of armed conflict. He made clear that, if there were such a policy, he would “deplore” it. 2.14 Jennifer Gibson, on the other hand, another member of the same Policy Commission, disagreed. She read the statements of the Prime Minister and other ministers to indicate that the Government now had a broader targeted killing policy that is not just about using drone strikes in traditional zones of armed conflict. 2.15 The disagreement between these two members of the same, unanimous Birmingham Policy Commission, about what the Government’s policy now is, demonstrates the Government’s lack of clarity about its position as a result of the inconsistent statements made in the wake of the drone strike in Syria. Clarification 2.16 In view of the confusion and uncertainty created by the Government about its policy, when the Secretary of State for Defence appeared before us we asked him directly what the UK’s policy is on targeted killing outside recognised areas of conflict. The Secretary of State’s answers provided two important clarifications of the Government’s position. The significance of the constitutional convention to consult Parliament 2.17 The first clarification provided by the Secretary of State for Defence concerns the significance of the constitutional convention to consult Parliament before exercising the prerogative power to deploy the Armed Forces. 2.18 The Secretary of State for Defence confirmed what the Prime Minister had told the House of Commons on 7 September: “This was the first time that we had acted in an area in which we were not previously involved in an armed conflict.”
“was not only a country in which we were not involved militarily but a country in which we said we would not be involved militarily when we first came to Parliament in August 2013 [sic] to get approval to act in Iraq.” 2.19 The Secretary of State’s answers have clarified the context in which the Prime Minister spoke of the drone strike on Reyaad Khan in Syria being a “new departure”. 2.20 In March 2011 the Government acknowledged that in recent years a convention had developed that the House of Commons should have the opportunity to debate a proposed use of military force. The then Leader of the House of Commons, Rt Hon Sir George Young MP, said: “A convention has developed in the House that before troops are committed, the House should have an opportunity to debate the matter. We propose to observe that convention except when there is an emergency and such action would not be appropriate. As with the Iraq war and other events, we propose to give the House the opportunity to debate the matter before troops are committed.” 2.21 The Cabinet Manual confirms that this is the case. It states: “In 2011, the Government acknowledged that a convention had developed in Parliament that before troops were committed the House of Commons should have an opportunity to debate the matter and said that it proposed to observe that convention except when there was an emergency and such action would not be appropriate.” 2.22 Examples of when it might not be appropriate to have a prior debate in the House of Commons include if there were “a critical British national interest at stake”; “the need to act to prevent a humanitarian catastrophe”; or “considerations of secrecy make it impossible”
“If there was the need to take urgent action to prevent, for instance, the massacre of a minority community or a Christian community, and Britain could act to prevent that humanitarian catastrophe [ … ] I would order that and come straight to the House and explain afterwards.” 2.23 The Prime Minister’s statements on7 September 2015 about a new departure in UK policy, and the strike on Reyaad Khan not being part of an armed conflict in which the UK was involved, were made in the context of this constitutional convention and should be read in that light. The Government used military force to target and kill Reyaad Khan in Syria on 21 August. The nature of the operation was such that it was not appropriate for the House of Commons to debate the use of force in advance. The Prime Minister came to the House of Commons on 7 September, Parliament’s first day back after the summer recess, to explain the use of military force in Syria. While this was not the first time since the emergence of the recent constitutional convention that the Government had used military force abroad without a prior debate in the House of Commons, it was the first time that [2018] AACR 19 (JC and YA v IC, AG and CO) 33 military force had been used in a country where the House of Commons had not only voted against the use of military force in 2013, but had specifically excluded the use of airstrikes in its resolution in September 2014 supporting air strikes against ISIL/Da’esh in Iraq: “[ … ] this House [ … ] notes that this motion does not endorse UK air strikes in Syria as part of this campaign and any proposal to do so would be subject to a separate vote in Parliament.” 2.24 It was therefore a “new departure” in terms of the domestic constitutional convention governing the use of military force abroad: the first time since the establishment of that convention that the Government had invoked the exception recognised by the convention, by using military force against ISIL/Da’esh not only outside the geographical area (Iraq) already authorised by the House of Commons, but in the very area (Syria) where the use of such force had been expressly excluded by the terms of the authorising resolution, and against the background of the House of Commons having voted not to support airstrikes in Syria in 2013. 2.25 In our view, these very particular circumstances also explain why the Prime Minister was so insistent in his statement on 7 September that the 21 August drone strike in Syria was not part of an armed conflict in which the UK was already involved. Indeed, it is testament to the remarkable normative strength already acquired by the recently established constitutional convention. Because of the importance attached to that convention, he was keen to establish that the Government had not ignored the will of the Commons, but rather had acted in accordance with the convention, by taking urgent military action and then coming to the Commons at the earliest opportunity to explain the justification for that action. His remarks about the strike not being part of armed conflict were part of his explanation as to why the Government had in fact acted in accordance with the domestic constitutional convention rather than ignored it. 2.26 Whether the drone strike in Syria on 21 August was part of a wider armed conflict with ISIL/Da’esh, for the purposes of whether the Law of War applies, is a wholly separate question of international law. For reasons we explain in more detail in Chapter 3 below, we accept the Government’s argument that the drone strike in Syria on 21 August was part of the same armed conflict with ISIL/Da’esh in which the UK was already involved in neighbouring Iraq, at the request of the Iraqi Government. It was therefore a use of force to which the Law of War applies. 2.27 As Sir David Omand said in evidence: “I have read the authoritative statement as that of Matthew Rycroft, the Permanent Representative to the United Nations, to the Security Council on 7 September, where the strike in Syria was seen as action against ISIL in Syria in the collective self defence of Iraq. That is a formal letter that is on the record. That, I think is the formal position. I had to read the Prime Minister’s statement several times to try to square it with that. It was, I think, a political statement to explain to the House that, although this strike was in Syria, it was not going against the will of the House, which had failed to authorise strikes against President Assad’s forces.” [2018] AACR 19 (JC and YA v IC, AG and CO) 34 2.28 We welcome the Government’s commitment to the recently established constitutional convention that, other than in exceptional emergencies, the Government will not use military force abroad without first giving the House of Commons an opportunity to debate it. We welcome too the fact that the Prime Minister came to the House of Commons at the earliest opportunity on 7 September to explain the exceptional use of force in Syria. In our view, his statements that the drone strike in Syria on 21 August was a “new departure” and was not part of an armed conflict must be read in the context of that domestic constitutional convention. 2.29 We accept that the action taken against ISIL/Da’esh in Syria was part of the same armed conflict in which the UK was already involved in Iraq. Whether the Law of War applies depends on the proper characterisation of the situation from the point of view of international law, not domestic rules of constitutional law governing when the Government will use military force. We are satisfied that the strike on Reyaad Khan was a new departure in terms of the domestic constitutional convention governing the use of military force abroad. It was not, however, a new departure in the sense of being a use of lethal force outside of armed conflict, because we accept, as a matter of international law, that it was part of the wider armed conflict with ISIL/Da’esh already taking place in Iraq and spilling over into Syria. Lethal force abroad outside of armed conflict 2.30 The second clarification provided by the Secretary of State for Defence concerns whether it is the Government’s policy that it would be prepared in future to use lethal force against terrorist suspects abroad even outside of armed conflict. 2.31 In the Government’s response to the letter before claim from Caroline Lucas MP and Baroness Jones, it argued that the Government does not have a “policy” as such at all: rather, in deciding whether to initiate a strike when faced with a threat such as that posed by ISIL/Da’esh in Iraq and Syria, it will consider the applicable law (including international law) and then consider whether, on the facts, a strike is justified in law. That involves a factual assessment as to whether or not military action should be taken and is justified, applying the relevant legal framework. 2.32 In the Government’s memorandum which it provided to us for the purposes of our inquiry, however, it set out its position under the heading “The policy”, and made clear its preparedness to use force in accordance with international law where it is necessary to do so and there is no alternative: “It is the first duty of any Government to ensure the safety and security of the people they serve. This is a responsibility which this Government takes very seriously and which it will discharge by all lawful means it considers necessary. The Government has made very clear that when there is an identified direct and imminent threat to the UK and British interests abroad it will take action to counter that threat. [ … ] Lethal action will always be a last resort, when there is no other option to defend ourselves against an attack and no other means to detain, disrupt or otherwise prevent those plotting acts of terror. The principles of necessity and proportionality underpin all our decision-making.” [2018] AACR 19 (JC and YA v IC, AG and CO) 35 2.33 When we asked the Secretary of State directly what the UK’s policy is on targeted killing outside recognised areas of conflict, his response was unequivocal: “There is no policy of targeted killing.” 2.34 We understand the Government’s reluctance to describe its policy as one of “targeted killing”. “Targeted killing”, outside of armed conflict, sounds uncomfortably close to assassination, which is illegal under international law, and has always, rightly, been rejected by the UK, which has criticised other countries such as the US and Israel when it has judged their policies to go too far. 2.35 However, when we asked the Secretary of State whether the Government’s approach “would apply anywhere where there is no recognised Government, where there is a vacuum”, the Secretary of State confirmed that this was indeed the Government’s position: “If there is a direct and imminent threat to the United Kingdom and there is no other way of dealing with it–it is not possible to interdict that threat or to arrest or detain the people involved in that threat–then of course as a last resort we have to use force.” 2.36 Later in his evidence, the Secretary of State gave a hypothetical example of such a use of lethal force outside an area of armed conflict in which the Government had been authorised to use military force: “If we had known that our 30 citizens were going to be murdered on the beach in Sousse [Tunisia], and we knew that that attack was being directly planned from, say, a training camp in Libya, would we have needed to seek authority if we were trying to forestall that attack by striking in Libya? I suspect that the answer would be fairly similar, that there was no political authority in Libya, there might have been no other way of preventing it and therefore we would have been justified in doing it–but, again, we would have had to explain it afterwards.” 2.37 Libya is outside the geographical area (Iraq and Syria) in which the UK is involved in an armed conflict with ISIL/Da’esh. There are no extant UN Security Council Chapter VII Resolutions authorising the use of force against ISIL/Da’esh in Libya. The Secretary of State for Defence was therefore quite unequivocal in his oral evidence to us that the Government does claim the right to use lethal force against suspected terrorists outside of armed conflict, if there is a direct and immediate threat to the UK which cannot be averted in any other way. Even if, as we accept above, the particular strike in Syria on 21 August is correctly characterised as being part of an armed conflict, the Secretary of State’s Libyan example leaves no room for doubt that it is the Government’s policy to use lethal force abroad outside of armed conflict if the same circumstances arose. It confirms the Prime Minister’s statement to the House that he will always be prepared to take immediate action to stop a direct threat to the British people, “whether the threat is emanating from Libya, from Syria or from anywhere else.”
“[t]he most important aspect of this debate is the blurring of the area between war and peace. Drone operations in war zones worry me much less than drone operations outside war zones. That is where Governments will be tempted to do things that are beyond what we normally expect of a civilized Western Government.” 2.41 We therefore turn to consider the legal basis for the Government’s policy of the use of lethal force abroad outside of armed conflict for counter-terrorism purposes. 3 Legal Basis Introduction 3.1 The second main objective of our inquiry has been to clarify the legal basis of the Government’s policy on the use of lethal force abroad outside of armed conflict for counter-terrorism purposes. The legal basis of the Government’s policy matters for a variety of reasons. The rule of law requires the Government to act lawfully when countering terrorism, including in accordance with the UK’s international legal obligations. Moreover, the legal basis of the policy determines the legal standards that apply. The circumstances in which the Government will be prepared to use lethal force abroad outside armed conflict, pursuant to its policy, will therefore depend on the Government’s view of its legal basis. If the Government proceeds on a misunderstanding about any aspect of the legal basis of its [2018] AACR 19 (JC and YA v IC, AG and CO) 37 policy, it runs the risk of using lethal force in circumstances which cannot be legally justified, thereby exposing ministers and other personnel involved in such action to the risk of criminal prosecution. 3.2 In this chapter we examine the Government’s apparent understanding of the legal position in light of the most relevant aspects of the various international legal frameworks that apply and the relationship between them. We consider first the international law on the use of force, which governs whether a State is entitled to resort to force at all on the territory of another State, and in particular the right of self-defence against threatened armed attacks by terrorist organisations. We then go on to consider the other relevant international legal frameworks which govern not whether but how force may be used: the Law of War and human rights law. We consider, first, when the Law of War applies and what it requires when it does apply; and, second, when human rights law applies and what it requires if it is applicable. Finally we consider the legal position where the UK provides support for the use of lethal force outside armed conflict by a third country such as the US. 3.3 The apparent legal complexity of this area is a real obstacle to parliamentary debate and therefore effective democratic scrutiny of the Government’s position on this important question. We hope that our Report will help to demystify some of the legal questions by identifying the most important legal issues on which the Government’s position requires clarification. Annex 1 to this Report contains a more detailed account of the relevant international legal frameworks. Annex 2 contains three flowcharts which are intended to make the complex legal framework more accessible by parliamentarians and the public. The flowcharts do not purport to provide an exhaustive legal analysis of the issues, but are designed to help explain the relationship between the relevant international legal frameworks and identify the main questions that need to be asked under each of those frameworks when assessing the lawfulness of the use of lethal force abroad. Readers looking for more detailed analysis are referred to Annex 1, and also to the written evidence we received, much of which concerned what legal frameworks are applicable and what they require. The Government’s understanding of the legal position 3.4 In our letter of 4 November to the Government at the start of our inquiry, we asked for a comprehensive description of the legal framework which the Government considers to be relevant to its policy, including international law, and an explanation of the circumstances in which it is lawful to use drones for targeted killing. We also asked for the Government’s memorandum to address a number of much more detailed questions about their view of the relevant international law frameworks that govern the use of lethal force abroad, including the following four important questions: • the Government’s understanding of the meaning of the requirement in the international law on self-defence that an attack on the UK must be “imminent” • whether the Government considers the UK to be involved in a non-international armed conflict with ISIL/Da’esh • whether the Law of War applies to UK drone strikes in Syria • whether international human rights law applies to UK drone strikes in Syria and, if so, what it requires. 3.5 The answers to these legal questions are absolutely central to our inquiry because, having established that it is the Government’s policy to use lethal force abroad outside armed conflict [2018] AACR 19 (JC and YA v IC, AG and CO) 38 for counter-terrorism purposes, how far that policy goes depends entirely on the legal basis on which it rests. 3.6 While the Government’s memorandum contains some helpful analysis of some of the legal issues, we regret to say that, despite repeated requests, we never received a detailed memorandum from the Government setting out its understanding of the relevant international legal frameworks (such as whether human rights law applies) or its answers to some of our more specific questions about important aspects of those frameworks. We note that in the Government’s response to the letter before claim from Caroline Lucas MP and Baroness Jones, it argued: “There is no requirement to publish the Government’s conception of the applicable legal framework in any particular context, still less in a context such as the present. Indeed, such information is privileged and the courts have consistently recognised the importance to be attached to the concept of legal professional privilege.” 3.7 We are disappointed by the Government’s unhelpfulness in this respect. Invoking the Government’s acknowledged right to legal professional privilege seems quite inappropriate in this context. We have made very clear that we do not wish to see the Government’s confidential legal advice or any documents which attract such privilege. However, considerations of transparency and democratic accountability require the Government to explain publicly its understanding of the legal basis on which it takes action which so seriously affects fundamental rights. We routinely receive from Government departments, for example, detailed and very helpful human rights memoranda accompanying Bills which explain the Government’s reasons for its view that the provisions in a Bill are compatible with the European Convention on Human Rights and other relevant human rights instruments. Such human rights memoranda often contain detailed legal analysis, including the Government’s understanding of the requirements of human rights law in the context of specific provisions in Bills. Although strictly speaking some of this analysis no doubt attracts legal professional privilege, the Government chooses to make it available in the interests of transparency and democratic accountability, in order to facilitate effective parliamentary scrutiny of the human rights compatibility of its legislation. It has been invaluable to us and our predecessors in enabling this Committee to perform that function. 3.8 We understand the sensitivity around the matters which we are investigating in this inquiry and respect the legitimate requirements of national security which make this different from our regular scrutiny work on legislation brought forward by the Government. However one of our roles as a select committee is to give careful and detailed scrutiny to Government policy which has significant implications for human rights, including those of our armed forces who are involved in such actions. In order to fulfil this important function, it is vital that the Government engage with the detailed questions which we ask about its understanding of the legal frameworks in which the policy is situated. 3.9 In the absence of a detailed Government memorandum on the relevant legal frameworks, we have pieced together what we believe to be the Government’s understanding of those frameworks from a variety of sources. The Government’s understanding of the legal position is to be found primarily in the Prime Minister’s statement to the House of Commons on 7 September; the evidence of the Attorney General to the Justice Committee on 15 September; the Government’s brief memorandum [2018] AACR 19 (JC and YA v IC, AG and CO) 39 responding to our letter at the beginning of our inquiry; and the oral evidence of the Defence Secretary on 16 December. 3.10 The Prime Minister first set out the legal basis for the drone strike on Reyaad Khan in Syria in his statement to the House of Commons on 7 September. He said: “I am clear that the action we took was entirely lawful. The Attorney General was consulted and was clear that there would be a clear legal basis for action in international law. We were exercising the UK’s inherent right to self-defence. There was clear evidence of these individuals planning and directing armed attacks against the UK. These were part of a series of actual and foiled attempts to attack the UK and our allies, and given the prevailing circumstances in Syria, the airstrike was the only feasible means of effectively disrupting the attacks that had been planned and directed. It was therefore necessary and proportionate for the individual self-defence of the United Kingdom. The United Nations charter requires members to inform the President of the Security Council of activity conducted in self-defence, and today the UK permanent representative will write to the President to do just that.” 3.11 As we pointed out above, when the UK Permanent Representative wrote to the President of the Security Council later the same day, as well as the individual self-defence of the UK referred to by the Prime Minister, he invoked the right of collective self-defence of Iraq, notwithstanding that the Prime Minister had expressly disavowed that as the legal basis in his statement to the Commons. We asked the Defence Secretary, the Foreign Secretary and the Attorney General in our letter of 4 November why the right of collective self-defence of Iraq was relied on by the UK Permanent Representative but not mentioned by the Prime Minister in his statement to the House on 7 September, but we did not receive a reply to this question. 3.12 The Prime Minister’s summary of the Government’s legal position has been supplemented somewhat by subsequent statements by ministers. The Attorney General himself went a little bit further than the Prime Minister when giving evidence to the Justice Committee on 15 September. He declined an invitation to disclose the legal test he had applied when advising that there was a clear legal basis for the drone strike, on the grounds that this would disclose the detailed content of his advice in breach of the “Law Officers’ Convention” whereby the content of the Attorney’s advice is not disclosed. However, he went on to say: “[ … ] in order for any state to act in lawful self-defence, it is necessary to demonstrate that there is an imminent threat that needs to be countered and that, in countering that threat, the action taken is both necessary and proportionate, and it is necessary to demonstrate that what you do complies with international and humanitarian law. In all of those respects I was satisfied that this was a lawful action.” 3.13 This went further than the Prime Minister’s statement by indicating that, in addition to satisfying the tests for lawful self-defence, the action also had to be compatible with the Law of War. 3.14 The Government’s memorandum to our inquiry gives a little bit more detail in its explanation of the legal basis for the Government’s military action against ISIL/Da’esh in [2018] AACR 19 (JC and YA v IC, AG and CO) 40 Syria. Invoking the inherent right of individual and collective self-defence, as recognised by Article 51 of the UN Charter, the memorandum explains why, in the Government’s view, the requirement of an “armed attack” is satisfied: “Individual terrorist attacks, or an ongoing series of terrorist attacks, may rise to the level of an “armed attack” for these purposes if they are of sufficient gravity. This is demonstrated by UN Security Council resolutions 1368 (2001) and 1373(2001) following the attacks on New York and Washington of11 September 2001 . Whether the gravity of an attack is sufficient to give rise to the exercise of the inherent right of self-defence must be determined by reference to all of the facts in any given case. The scale and effects of ISIL’s campaign are judged to reach the level of an armed attack against the UK that justifies the use of force to counter it in accordance with Article 51.” 3.15 The memorandum also explains that, in keeping with the long-held position of successive UK Governments, force may be used in self-defence not only where an armed attack is underway, but also where such an attack is imminent, and where the UK determines that it faces an imminent armed attack from ISIL, it is therefore entitled to use necessary and proportionate force to repel or prevent the attack. It explains why the legal test of an imminent armed attack was satisfied in the particular case of Reyaad Khan: “There was clear evidence of Khan’s involvement in planning and directing a series of attacks against the UK and our allies, including a number which were foiled. That evidence showed that the threat was genuine, demonstrating both his intent and his capability of delivering the attacks. The threat of attack was current; and an attack could have become a reality at any moment and without warning. In the prevailing circumstances in Syria, this airstrike was the only feasible means of effectively disrupting the attacks planned and directed by this individual. There was no realistic prospect that Khan would travel outside Syria so that other means of disruption could be attempted. The legal test of an imminent armed attack was therefore satisfied.” 3.16 Finally, the Memorandum, like the Attorney General, goes beyond invoking the right of self-defence, and states that in addition “[t]he UK always adheres to International Humanitarian Law [i.e., the Law of War] when applying military force, including upholding the principles of military necessity, distinction, humanity and proportionality.” 3.17 The Secretary of State for Defence, in his oral evidence to us, also elaborated a little on the law which the Government considers to apply to the action it takes in self-defence. He said “the military force we use is governed by humanitarian law [i.e., the Law of War].”
“The human rights law standard says that lethal force outside an armed conflict situation is justified only if it is absolutely necessary to protect life. Is that the standard?” [2018] AACR 19 (JC and YA v IC, AG and CO) 41 Michael Fallon MP: “I think that compliance with international humanitarian law discharges any obligation that we have under international human rights law, if I can put it that way. If any of those obligations might be thought to apply, they are discharged by our general conformity with international humanitarian law.” 3.18 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. Between the statements of the Prime Minister, the Permanent Representative to the UN and the Defence Secretary, they were confused and confusing. 3.19 The legal basis of the Government’s policy appears to be that the use of lethal force abroad outside of armed conflict for counter-terrorism purposes is lawful if it complies with (1) the international law governing the use of force by States on the territory of another State, and (2) the Law of War. In the Government’s view, it is not necessary to consider whether human rights law applies, or what it requires, because compliance with the Law of War, it argues, is sufficient to discharge any obligations that apply under international human rights law. 3.20 We now turn to consider whether this is a sound legal basis on which to rest the Government’s policy of using lethal force abroad outside of armed conflict for counter-terrorism purposes, or whether there are aspects of the Government’s legal understanding which require clarification. The right of self-defence in international law 3.21 As the Government rightly observes, any use of lethal force abroad outside of armed conflict must, first, be lawful under the international law on the use of force which governs whether a State is entitled to resort to force at all. The Government invokes the inherent right to self-defence against a threat of imminent armed attack. 3.22 Whether the right of self-defence can be exercised where the threat of armed attack emanates from non-state actors such as ISIL/Da’esh who are not acting under the control or direction of another state is an issue which is not clearly settled in international law. Some international lawyers appear to take the view that the right of self-defence can only be invoked against another State. Others, including the Government, take the view that a State’s inherent right of self-defence extends to attacks originating from non-state actors such as ISIL/Da’esh. State practice since 9/11 certainly supports the view that a State’s right of self-defence includes the right to respond with force to an actual or imminent armed attack by a non-State actor, and the most recent UN Security Council Resolution 2249 (2015) lends support to this view. To be entitled to rely on self-defence against non-state actors, the State from whose territory the armed attack is being launched or prepared for must be unable or unwilling to prevent the attack. 3.23 The Government’s position is that the right of self-defence can be invoked against non-state actors such as ISIL/Da’esh operating in another state which is unwilling or unable to prevent the attack by the non-state actors. The Prime Minister told the Commons in the run up to the debate on extending authorisation for use of military force to Syria that “there is a solid basis of evidence on which to conclude, first, that there is a direct link between the presence and activities of ISIL in Syria and its ongoing attack on Iraq, and secondly, that the Assad [2018] AACR 19 (JC and YA v IC, AG and CO) 42 regime is unwilling and/or unable to take action necessary to prevent ISIL’s continuing attack on Iraq, or indeed attacks on us.” 3.24 We accept the Government’s argument that there is a right of self-defence against armed attack by non-State actors such as ISIL/Da’esh, and that anticipatory self-defence is also permitted. We have examined carefully two particular aspects of the Government’s individual self-defence argument: first, the assertion that the scale and effects of ISIL’s campaign reach the level of an “armed attack” and, second, the assertion that the armed attack the UK faces is “imminent” in the sense required by the right of self-defence. The meaning of “armed attack” 3.25 For a State to invoke the right of self-defence there must be an “armed attack” or the threat of an imminent armed attack. To constitute an “armed attack” for the purposes of the right of self-defence the attack must cross a certain threshold of seriousness or intensity. A series of minor attacks is not necessarily enough to constitute an armed attack. The scale and effect of the attack must reach a certain threshold of gravity. 3.26 The Prime Minister told the House of Commons that “It is [ … ] clear that ISIL’s campaign against the UK and our allies has reached the level of an ‘armed attack’, such that force may lawfully be used in self-defence to prevent further atrocities being committed by ISIL.”
“The concept of what constitutes an ‘imminent’ armed attack will develop to meet new circumstances and new threats [ … ] It must be right that States are able to act in self-defence in circumstances where there is evidence of further imminent attacks by terrorist groups, even if there is no specific evidence of where such an attack will take place or of the precise nature of the attack.” 3.32 However, the then Attorney-General distinguished the UK Government’s position from the much more expansive US doctrine of pre-emptive self-defence set out in the US’s 2002 National Security Strategy: “It is [ … ] the Government’s view that international law permits the use of force in self-defence against an imminent attack but does not authorise the use of force to mount a pre-emptive attack against a threat that is more remote.” 3.33 The Government has made clear, in the course of our inquiry, that it favours a more flexible approach to the meaning of “imminence”, to include an ongoing threat of a terrorist attack from an identified individual who has both the intent and the capability to carry out such an attack without notice. 3.34 The Attorney General, for example, indicated that he considers that the traditional “Caroline” test for imminence (that the threat must be “instant, overwhelming, leaving no choice of means and no moment for deliberation”) needs to be reassessed in the light of modern conditions: “The Caroline case, as you will appreciate, goes back to the 19th century, and we are talking about very different circumstances now. [ … ] One of the things we probably need to think about as a society in any event is what imminence means in the context of a terrorist threat, compared with back in the 1890s when you were probably able to judge imminence by a measure of how many troops you could see on the horizon. That is something that everyone—including the academic world, no doubt—will want to consider, but the basic tenets of acting in self-defence have not changed.” 3.35 The Secretary of State for Defence also preferred a much more flexible approach to the meaning of imminence: [2018] AACR 19 (JC and YA v IC, AG and CO) 44 “Jeremy Lefroy: Secretary of State, to return to the understanding of the word “imminence”, because it is clearly very important, in the past an armed attack was considered imminent only if it was so proximate in time that it left no moment for deliberation. Clearly, we live in an era of instant communication and the fact that we are dealing with people who have made it quite clear that they want to kill us at any time and in any way possible means that that definition of “imminent” may have changed a bit. Is your understanding that “imminence” means what it used to mean—that is, so proximate that it leaves no time for deliberation—or have circumstances changed so that an ongoing threat from a specific terrorist is considered imminent all the time? Michael Fallon MP: Circumstances have certainly changed from the definition that you have quoted. I would not want to rest on that. You look at these things on a case-by-case basis in the light of the assessment that you make in each particular case. I do not think it is possible to have a hard and fast rule about how you would define “imminent”. [ … ] The Chair: Basically, to summarise your response to Jeremy’s question, an imminent threat can be ongoing: somebody by their very nature, by their ongoing commitment to a particular course of action, can be an ongoing imminent threat by virtue of what they have done in the past and their general way of going about things? Michael Fallon MP: I am not, as you have probably realised, a lawyer. But yes, an imminent threat can presumably grow in immediacy. It may grow in seriousness. It may grow in likelihood. It may exist for some period of time, absolutely.” 3.36 We accept that the meaning of “imminence” in the international law of self-defence must be interpreted with a degree of flexibility, in light of modern conditions and in particular the fact that we live in an era of instantaneous communication. A terrorist on the other side of the world may well have the capability to launch a terrorist attack in the UK literally at the touch of a button. While opinion is divided amongst international law experts as to the legally correct interpretation of “imminence” in the international law of self-defence, we note that the broader interpretation of “imminence” preferred by the Government appears to have the implicit support of the UN Security Council in its most recent resolution concerning ISIL/Da’esh in Syria and Iraq (UNSCR 2249 (2015)). 3.37 We welcome the implicit indication in the Government’s memorandum that for the test of imminence to be satisfied the threat must be “genuine” in the sense that there was both an intention to attack and the capability to do so; and that the attack could happen at any moment and without warning. We also note the Government’s recent answer to a written question asking the Secretary of State for Defence “what working definition of imminence his Department uses in the application of Article 51 of the UN Charter?” “It has long been the position of successive UK Governments that “the inherent right of self-defence”, as recognised in Article 51 of the UN Charter, does not require a State to wait until an armed attack is actually under way before it can lawfully use force to alleviate the threat. A State may use force in anticipation of an armed attack where such an attack is imminent, provided that such force is both necessary and proportionate to averting the threat. The assessments would depend on the facts of each case, with consideration likely to include issues such as the nature and immediacy of the threat, the [2018] AACR 19 (JC and YA v IC, AG and CO) 45 probability of an attack, its scale and effects and whether it can be prevented without force.” 3.38 We welcome the Government’s indication in this written answer that, while the assessment of imminence will be fact-dependent, it will include consideration of relevant issues which clearly go to the question of imminence, such as the nature and immediacy of the threat and the probability of an attack. 3.39 We nevertheless have some concerns about the implications of too expansive a definition of “imminence” for the width of the right of self-defence in international law. Introducing flexibility into the meaning of imminence raises important questions about the degree of proximity that is required between preparatory acts and threatened attacks. Is it enough to trigger the right of self-defence, for example, if there is evidence that an individual is planning terrorist attacks in the UK, or does the preparation need to have gone beyond mere planning? Once a specific individual has been identified as being involved in planning or directing attacks in the UK, does the wider meaning of imminence mean that an ongoing threat from that individual is, in effect, permanently imminent? These questions arise directly in relation to the UK drone strike in Syria on 21 August, as it appears that the authorisation of the use of force may have been given by the National Security Council in May 2015, up to three months before the actual use of lethal force. Whether the test of imminence was in fact satisfied on that occasion will, of course, turn on the intelligence and should therefore be a question for the ISC to consider, not us. 3.40 We do not feel that all of these questions about the Government’s understanding of the meaning of “imminence” in the international law of self-defence have been fully answered by the end of our inquiry. The Government’s interpretation of the concept of “imminence” is crucial because it determines the scope of its policy of using lethal force outside areas of armed conflict. Too flexible an interpretation of imminence risks leading to an overbroad policy, which could be used to justify any member of ISIL/Da’esh anywhere being considered a legitimate target, which in our view would begin to resemble a targeted killing policy. 3.41 We therefore recommend that the Government provides, in its response to our Report, clarification of its understanding of the meaning of “imminence” in the international law of self-defence. In particular, we ask the Government to clarify whether it agrees with our understanding of the legal position, that while international law permits the use of force in self-defence against an imminent attack, it does not authorise the use of force pre-emptively against a threat which is too remote, such as attacks which have been discussed or planned but which remain at a very preparatory stage. 3.42 Subject to the two questions we have raised above about the Government’s understanding of the meaning of “armed attack” and “imminence”, we accept the Government’s understanding of the international law of self-defence which forms the first part of the legal basis for its policy of using lethal force abroad outside of armed conflict. [2018] AACR 19 (JC and YA v IC, AG and CO) 46 Other relevant international law frameworks 3.43 However, compliance with international law on the use of force does not exhaust all the questions which must be asked about the legal basis of a use of lethal force abroad. The fact that a use of lethal force is lawful under the international law on the use of force, for example because it was taken in self-defence, does not mean that the use of force is necessarily lawful under the other relevant international legal frameworks: the Law of War (otherwise known as the law of armed conflict or international humanitarian law) and international human rights law, which govern not whether but how force may be used. Any use of force in lawful exercise of the right of self-defence must also comply with those other legal frameworks where they apply. Human rights law requires standards to be met which are more protective of the right to life than those required by the Law of War. Which legal framework applies to a particular use of lethal force, and precisely what they require, are therefore of crucial importance. The applicability and requirements of those legal frameworks must also therefore be addressed, separately and in turn. The Law of War 3.44 In the case of force used in armed conflict, the most relevant legal framework is the Law of War. The Law of War is the set of international law rules that governs the way in which armed conflict is conducted, premised on the idea that even in war some things are not permitted because military necessity must be tempered by basic principles of humanity. When does the Law of War apply? 3.45 The Law of War applies where there is an armed conflict. Whether an armed conflict exists, for the purposes of deciding whether the Law of War applies, is not a matter for a State to decide for itself, by mere assertion; it is a legal question, governed by the international Law of War. Armed conflicts are of two types. An international armed conflict is the traditional type of armed conflict, between two or more States. A non-international armed conflict is an armed conflict between a State and an “organised non-State armed group” or several such groups. A non-international armed conflict can take place across State boundaries: the conflict is “non-international” because one of the parties is a non-State actor, even though the territorial scope of the conflict may cross State boundaries. 3.46 A non-international armed conflict exists if armed violence reaches a certain level of intensity and is with an armed group that is sufficiently organised to meet the international law criteria. Although ISIL/Da’esh claims to be a State, it is not recognised as such in international law. It is an organised non-State armed group, involved in protracted armed violence with governmental authorities in Iraq and Syria. It seems clear to us that, as a matter of international law, the UK is therefore involved in a non-international armed conflict with ISIL/Da’esh in Iraq and Syria, and that the Law of War applies to that armed conflict. What does the Law of War require? 3.47 Where the Law of War applies, it permits targeted killing in an armed conflict, provided certain principles are complied with. The principle of distinction requires targeting to distinguish between lawful military targets and civilians. A person is a lawful target in a non-international armed conflict if he or she is a member of an armed group or a civilian [2018] AACR 19 (JC and YA v IC, AG and CO) 47 directly participating in hostilities. The principle of proportionality requires civilian casualties to be proportionate to the military advantage to be gained from the use of force. The principle of precaution requires care to be taken to minimise the danger to civilians in any use of force. 3.48 International human rights law also applies in armed conflict. However, the substantive protections of human rights law, including for the right to life, are to be read in light of the more specific requirements of the Law of War. Compliance with the lower standards of the Law of War will therefore usually be sufficient to satisfy the requirements of human rights law in armed conflict. 3.49 As will be seen when we consider the requirements of human rights law below, the relevant legal standards on the use of lethal force are therefore more permissive where the Law of War applies than where only international human rights law applies: the Law of War does not prohibit deliberate “targeted killing” in armed conflict provided certain principles are observed. The US and UK positions on the applicability of the Law of War 3.50 The United States has caused controversy in the years since 9/11 by arguing that it is involved in a single, global non-international armed conflict with Al Qaida, so that the permissive rules of the Law of War, rather than the stricter rules of human rights law, apply to the use of lethal force against members of Al Qaida wherever in the world they may be found. The International Committee of the Red Cross has criticised this view that the international fight against terrorism is a single, global non-international armed conflict, but the US has continued to take this position and to use it to justify lethal drone strikes against suspected terrorists in a variety of countries which are not in an area of armed conflict, such as Yemen, Somalia and Pakistan. 3.51 The US position has been widely criticised on the ground that it risks turning the world into a global battlefield in which the lower protection of the Law of War is the norm rather than the exception. Some of the broader statements by ministers since the drone strike in Syria on 21 August suggested that the UK Government may have adopted the same position, and considers itself to be involved in a global armed conflict with ISIL/Da’esh wherever it may be found. 3.52 Our inquiry has importantly established, however, that the UK Government does not take the US position that it is in a global war against ISIL/Da’esh such that it can use lethal force against them anywhere in the world. We asked the Secretary of State for Defence about this directly and he made absolutely clear in his evidence to us that the Government does not consider the UK to be in a non-international armed conflict with ISIL/Da’esh wherever it may be found: rather than such a generalised state of conflict, with no geographical limits, the Government considers itself to be involved in a geographically defined non-international armed conflict with ISIL/Da’esh in Iraq and Syria: “The Chair: Can you clarify whether the Government consider the UK to be in a non-international armed conflict with ISIL wherever it may be found? Michael Fallon MP: We consider that to be true in Iraq and Syria. The Chair: Wherever it is? [2018] AACR 19 (JC and YA v IC, AG and CO) 48 Michael Fallon MP: No, in Iraq and Syria. The Chair: So we are not in a generalised state of conflict with ISIL, except in Iraq and Syria? What about in Yemen, Somalia or Libya, as Mr Lefroy asked? Michael Fallon MP: No, we consider we are involved in a non-international armed conflict in Iraq and Syria, primarily because we have been invited to assist by the legitimate Government of Iraq. The Chair: That is different from the Americans’ policy, is it not? Michael Fallon MP: There may well be differences, yes, as I said.” 3.53 We welcome the unequivocal statement by the Secretary of State for Defence in his evidence to us that the Government does not consider the UK to be in a non-international armed conflict with ISIL/Da’esh wherever it may be found. This disavowal of the controversial US position according to which it considers itself to be in a single, global non-international armed conflict with Al Qaida and its associates goes some way towards meeting concerns that the Government’s policy is now so wide as to seek to justify using lethal force against any person it considers to be a member of ISIL/Da’esh wherever they are. 3.54 However, the Secretary of State went on to assert that where the UK uses lethal force abroad outside of armed conflict, pursuant to the policy we described in Chapter 2 above, it will comply with the Law of War and that compliance will be sufficient to meet any obligations that the UK may have under human rights law. The effect of that assertion is that the UK Government’s policy ends up in the same place as the US policy, despite disavowing the wide American view of the existence of a non-international armed conflict. 3.55 In our view, the Secretary of State’s position that the Law of War applies to the use of lethal force abroad outside of armed conflict, and that compliance with the Law of War satisfies any obligations which apply under human rights law, is based on a misunderstanding of the legal frameworks that apply outside of armed conflict. In an armed conflict, it is correct to say that compliance with the Law of War is likely to meet the State’s human rights law obligations, because in situations of armed conflict those obligations are interpreted in the light of humanitarian law. Outside of armed conflict, however, the conventional view, up to now, has been that the Law of War, by definition, does not apply. We recommend that the Government, in its response to our Report, clarifies its position as to the law which applies when it uses lethal force outside of armed conflict. The European Convention on Human Rights (“ECHR”) 3.56 International human rights law recognises and protects the right to life. This includes customary international law’s rule against the arbitrary deprivation of life; the right to life under Article 6 of the International Covenant on Civil and Political Rights; and the right to life underArticle 2 ECHR . The right to life is often referred to as the most fundamental human right, or the supreme right. The common law has also long recognised and protected the right to life, as demonstrated, for example, in the common law criminal offences of murder and manslaughter. Of the international human rights standards, we focus in this [2018] AACR 19 (JC and YA v IC, AG and CO) 49 Report on the right to life inArticle 2 ECHR , which is part of UK law by virtue of the Human Rights Act, and from this point on we therefore refer to “the ECHR” rather than “human rights law” more generally. 3.57Article 2 ECHR provides, so far as relevant: “2(1) Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
“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. [ … ] jurisdiction arose through the exercise of physical power and control over the individual who was shot and killed.” 3.59 The right to life in the ECHR therefore clearly applies to the use of lethal force abroad outside of armed conflict. The same applies to the right to life in the ICCPR. 3.60 The ECHR permits States to take measures “derogating” from their obligations under the Convention “in time of war or public emergency threatening the life of the nation.”
“In war [ … ] it is not the case that [soldiers] are permitted to use force only when they are imminently threatened. [ … ] The imminence condition is redundant because, in war, the enemy’s future intentions are plain. Someone is killed justifiably if there is sufficient evidence that they are a combatant, and without proof of personal, imminent intention to attack.” [2018] AACR 19 (JC and YA v IC, AG and CO) 51 3.66 In Syria, for example, where we accept that the UK is involved in an armed conflict with ISIL/Da’esh, the question of the imminence of an armed attack by ISIL/Da’esh fighters does not arise so long as that armed conflict subsists, so they can be targeted without having to demonstrate that they pose a direct and imminent threat to the UK. 3.67 In Libya, however, which is outside armed conflict, the higher standards of the ECHR alone would apply and require there to be an immediate threat of unlawful violence to other people which makes it “absolutely necessary” to act to prevent it. In other words, outside of war the right of self-defence can only be exercised if there is an imminent threat of unlawful violence. Even if an individual has been previously identified as somebody suspected of planning terrorist attacks, the critical time for consideration of the imminence question is before the decision is taken to use lethal force against that individual. That assessment will depend very much on the facts, but it is important that the mind of the relevant decision-maker is directed to the question of imminence at the relevant point in time. 3.68 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 apply. 3.69 The fact that the ECHR, and not the Law of War, applies to the use of lethal force outside of armed conflict does not, however, make it impossible to use force in such circumstances, and therefore shackle the Government’s ability to protect the UK from terrorism, as is commonly supposed, for two main reasons. ECHR may require the use of lethal force to protect life 3.70 First, in the Government’s hypothetical example of the circumstances in which it might use lethal force abroad outside armed conflict (that is, as a last resort, where the Government has intelligence that there is a direct and imminent threat to the UK and there is no other way of preventing that threat), the ECHR would not only permit but positively require the use of lethal force by the Government if it were in a position to do so. This is becauseArticle 2 of the ECHR imposes a positive obligation on the State to protect life, including by taking effective preventive measures against a real and immediate risk to life from a terrorist attack. 3.71 The European Court of Human Rights made this clear in the case of Osman v UK, in which it held that the obligation inArticle 2(1) ECHR to protect life requires the State to take preventive action where “the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and [ … ] failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.”
“[ … ] my overview of 2015 would not be complete without mentioning the crises that we have witnessed: [ … ] above all the terrorist attacks which have struck us in Europe–again recently–and which have left our democracies in a state of shock. [ … ] I felt that it was important to emphasise, on this occasion, that the Court is [, to use the words of its case-law,] “acutely conscious of the difficulties faced by States in protecting their populations against terrorist violence, which constitutes, in itself, a grave threat to human rights”
“I welcome this strike that has taken out a Da’esh training camp being used to train terrorists to carry out attacks. I was satisfied that its destruction makes us all safer, and I personally authorised the US use of our bases.” 3.83 Asked at Defence Questions in the Commons to explain his assessment of whether the action in Libya was lawful according to the law relating to the use of force, international humanitarian law and human rights law, the Defence Secretary said: “The United States followed standard procedures, and made a formal request to use our bases. Once we had verified the legality of the operation, I granted permission for the United States to use our bases to support it, because they are trying to prevent Da’esh from using Libya as a base from which to plan and carry out attacks that threaten the stability of Libya and the region, and indeed, potentially, the United Kingdom and our people as well. I was fully satisfied that the operation, which was a United States operation, would be conducted in accordance with international law.” 3.84 The US spokesman explained the US view of the legal basis for the air strikes in Libya. The strikes were said to demonstrate that the US will go after ISIL/Da’esh whenever it is necessary, confirming President Obama’s statement that the US “will go after ISIS wherever it appears, the same way that we went after al-Qaida wherever they appeared.”
“they had ill intent in their mind” said the Pentagon spokesman. 3.85 The UK’s support for this use of lethal force abroad by the US demonstrates the urgent need for the Government to clarify its understanding of the legal basis for the UK’s policy. The US policy, in short, is that it is in a global armed conflict with ISIL/Da’esh, as it has been since 9/11 with al-Qaida, which entitles it to use lethal force against it “wherever they appear.”