Joint Committee on Human Rights
Oral evidence: The UK Government’s policy on the use of drones for targeted killing, HC 574
Wednesday 9 December 2015
Ordered by the House of Commons to be published on Wednesday 9 December 2015
Written evidence from witnesses:
– Jennifer Gibson, Reprieve
– Professor Sir David Omand, Chair, Birmingham Policy Commission
– Professor Thomas Simpson, Associate Professor of Philosophy and Public Policy, University of Oxford
Members present: Ms Harriet Harman (Chair); Fiona Bruce; Karen Buck; Jeremy Lefroy; Mark Pritchard; Amanda Solloway; Baroness Buscombe; Baroness Hamwee; Lord Henley; Baroness Lawrence; and Lord Woolf
Witnesses: Jennifer Gibson, Reprieve, Professor Sir David Omand, Chair, Birmingham Policy Commission, and Professor Thomas Simpson, Associate Professor of Philosophy and Public Policy, University of Oxford gave evidence.
Q1 Harriet Harman MP (Chair): Thank you very much indeed for coming along to give evidence to us in this first evidence session for our inquiry into targeted killing, otherwise known as drone strikes. Can I start by asking a question of all three of you? We have quite a few questions, which we will all ask and which we will try to keep brief so that we can get through as many of them as possible. Do you think it matters that there is no government policy as such in respect of the use of drones for targeted killing—no government policy statement, White Paper, Green Paper, Written Ministerial Statement, policy document laid before the House, or anything like that? What do you think the policy is? Do you think it is the right policy, with a proper legal basis?
Professor Sir David Omand: Thank you for the opportunity to give evidence to the Committee. As you know, I have chaired a commission for Birmingham University, and we published a report and took extensive evidence on that very point. The Government maintained to us, and have since maintained, that their use of remotely piloted aircraft is one of a number of weapons systems available to a military commander, subject to the same rules of engagement, the same laws, the same targeting criteria as, for example, a fast jet. I am not aware that that has changed at all. Therefore, I am not surprised that there has been no White Paper on the subject, because government has made its position very clear. We reported that. We put down some warnings in our report, which we might come on to, about mission creep. But on the question of what an armed remotely piloted air system would be used for, I think the policy is clear.
Jennifer Gibson: I am going to disagree with David here. I think that what shifted between when we wrote the Birmingham Policy Commission report and now is Prime Minister David Cameron’s Statement in September, which was not limited to that strike; both he and members of his Cabinet repeated for several days afterwards that they were prepared to take such strikes not just in Syria but in Libya and anywhere else they deemed it necessary to take them. That indicates that this is a broader targeted killing policy, that it is not just about using drone strikes in traditional zones of armed conflict in the same way that we looked at in the Birmingham Policy Commission report. At that time we were talking about the very traditional use of British drones in declared war zones in Afghanistan and Iraq. That is not what we had in August 2015 when the British took a strike in Syria. That is not the statements that have come out of this Government in subsequent weeks.
Whether there is a policy is a question that the Government need to answer. I do not think they have been clear about whether they have a policy, and they do have a policy, on the framework within which they are operating. We have had contradictory statements from different members of this Cabinet as to whether they are operating under an international human rights law framework or an international humanitarian law framework, whether they think that they are in an armed conflict, whether they do not think that they are in an armed conflict, and who can be targeted. These are really important questions. If you are talking about a broader power which the British Government have apparently given themselves to take targeted strikes anywhere at any time, we need to know what the policy is for that; we need to know what the procedures are for deciding who gets hit in these strikes, where they occur, and what safeguards are in place. I do not think we know any of that right now.
Professor Thomas Simpson: I do not presume to know the Government’s intention for the future use of drone technologies, and the boring answer to the question of whether there is a declared policy is that it depends on what that intention is. So I would echo what David said in so far as the UK Government intend to use drones as part of declared wars or, indeed, as part of the Syria campaign in relation to the vote last week. There is absolutely no moral quandary or unclarity about that. If we are at a transition point and the UK Government do intend to target ISIS members internationally, in particular in areas where we do not have a clear legal mandate to operate, such as Libya and potential other failed states that might crop up, that is a departure. My own view is that the American programme has had serious negative consequences, and we would be well advised not to go down that route and to have a really clear policy to govern it.
Professor Sir David Omand: May I add rider to my answer, which is that 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. The priority given to this particular target I can understand fully from my background, given that this individual posed a direct threat to the UK. But that, of course, is why we are supporting the Iraqi Government in trying to prevent the Islamic State from being established: because it poses a threat to us. I am not a spokesperson for the Prime Minister by any means, but I think that you can reconcile these without jumping to the conclusion, which I would deplore if it were true, that there is a new policy of strikes by remotely piloted aircraft outside areas of combat where international humanitarian law applies.
The Chair: I think the problem is that the Prime Minister said that this is new. That gave us a bit of an indication that it might be new.
Mark Pritchard: Of course, conventions are not legally binding, and if one is saying—you might not be saying—that a convention has been broken, then, by definition, the convention no longer applies and it is therefore not legally binding.
Professor Sir David Omand: Sorry to interrupt, but I was not saying that the convention had been broken. I was saying the opposite: that actually in terms of the explanation given to the Security Council, which placed this firmly in the context of our actions in support of the Iraqi Government, this was a legitimate target: that although the individuals were civilians, they had forfeited their protection of the Geneva conventions by their actions. It appeared to be a priority because of the dangers they posed.
Mark Pritchard: I understand that. That is why I said “one” rather than “Sir David”. I just wanted to say the opposite to your opposite in order to hear your opposite articulated again. That makes sense, I hope.
Jennifer, I just wanted to come back to declared areas of war. I have some quick, rapid-fire questions. Who are we in a declared state of war with in Iraq, in your opinion?
Jennifer Gibson: Let me clarify what I mean by a declared state of war. In both Afghanistan and Iraq, there was a UN mandate at the time they were acting, and the British Parliament and the British Government had taken a joint decision to go to war there. At the time of the strike in August 2015, the British Parliament had—
Mark Pritchard: No, sorry, we will come to that. Specifically on Iraq—you referenced Iraq earlier—let me try to be helpful: who do you think the British thought was the enemy in Iraq at the time we agreed to airstrikes in Iraq?
Jennifer Gibson: I think there was no doubt that in Iraq the British had been invited in, as had the coalition, to combat ISIL.
Mark Pritchard: Right, okay, so if I can pause you there, ISIL does not recognise any borders, it is in Syria, we do not have a declared state of war in Iraq or against Iraq, but we have an enemy that has declared on us in Iraq. It is the same enemy in Syria. I am just trying to understand the difference legally.
Jennifer Gibson: No, absolutely. First, let me say that I am not a UK lawyer. I am an international lawyer, so I will speak from that perspective. In Iraq, you have the consent of the Iraqi Government to come in; you have a non-international armed conflict, in legal terms, under international law, which has a different set of rules from an international armed conflict. In terms of there not being action in Syria: first, there was no Syrian Government consent for the action; secondly, there was no British authorisation to strike there—the Prime Minister had said repeatedly that he was not going to take military action in Syria without parliamentary authorisation. In terms of the strike in August, from a domestic legal perspective or an international legal perspective, Reprieve’s concerns are that we already have a US targeted killing programme that has operated for 10 years in complete secrecy without any accountability, that even by the US generals’ own account has been a failed strategy and counterproductive. We now have the UK Government standing up and declaring that they have taken a targeted strike. They have given conflicting reasons—
Mark Pritchard: Sorry, can I just pause you there? Forgive me. Our notes, which are very helpful, say that although the US’s legal position is controversial, it does have a published policy setting out its position.
Jennifer Gibson: It absolutely does.
Mark Pritchard: You used the word “secret”.
Jennifer Gibson: It has never admitted to where it is taking strikes. Nor has it acknowledged how many strikes it has taken. What it has done is put in place a one-page White Paper—
Mark Pritchard: But earlier in your introductory remarks in answer to the first question, you talked about legal frameworks et cetera, so the US does have a published legal framework. The United Kingdom arguably does, or does not, and that is part of this inquiry. Where the drones are positioned, where they take off, the targeting et cetera is a separate bit of the inquiry.
Jennifer Gibson: The US legal position is highly controversial and not entirely clear. There are key definitions, one of which the UK now appears to be adopting, the imminent standard, which the US has outright redefined. It matches no definition under international law. There is a one-page White Paper where the US stated in very basic terms that they will avoid civilian casualties, that they will take no strikes without near certainty, that they will not hit civilians in those strikes. They do not say where they will take them, they do not say where they are in armed conflict and who with, they say nothing about the numbers of strikes taken in the process or the accountability, nor which international framework they are operating under, other than the 2001 authorisation to use military force.
Mark Pritchard: Okay. Thank you. Briefly, and finally, there was an attack on 21 August in Raqqa in which Reyaad Khan and Ruhul Amin were killed along with a Belgian national; and, as we know, on 13 November the Prime Minister made a statement about the death of Mohammed Emwazi, or Jihadi John. Professor Simpson, notwithstanding those drone attacks, do you think the United Kingdom still has ISIL enemies in both Iraq and Syria?
Professor Thomas Simpson: Sorry, is the question whether ISIL—
Mark Pritchard: It is whether we have British citizens in Iraq and Syria who are affiliated or embedded with ISIL who are still a threat to this nation.
Professor Thomas Simpson: Undoubtedly. All the reporting points to this.
Mark Pritchard: Thank you. What do you think happened between 21 August, when there was a Royal Air Force strike against British nationals, and 13 November, when there was a US air strike against British nationals? Was there some discussion with the Ministry of Defence? Were they uncomfortable with the earlier decision, with the actions? Why were we outsourcing military action against a known immediate threat, in my view, to the Americans when we had already set the precedent earlier in the year?
Professor Thomas Simpson: Good question. Others here are much more informed on the political processes than I am. I am a philosopher and I should be very clear about my area of expertise.
Mark Pritchard: But you are a distinguished ex-veteran as well.
Professor Thomas Simpson: I have certainly served previously. It is no secret that the British military and other security forces have a close working relationship with the US, and it would not be implausible to suppose that uncertainty about the UK’s legal position had led to some suggestion that this might a strike that the US would want to take. I do not have a crystal ball, and I am not saying that that is what happened, but that would not be implausible.
Professor Sir David Omand: A more likely explanation, I have to say, is that it is simply the mechanics of joint command and that the commander uses the systems that are available. In Afghanistan, which Jennifer and I studied for our Birmingham Policy Commission report, we found instances where the Americans had loaned RPAS to the Royal Air Force, which the Royal Air Force then operated, instances in which Royal Air Force personnel were operating American RPAS, and instances in which the RAF was operating its own RPAS. It really depended on who was, as it were, nearest the target when the decision came to strike. I think that is a more likely explanation.
Q2 Mark Pritchard: My final question is: do you think that now that the precedent has been set, and within the rules of engagement, albeit a different piece of kit, the Prime Minister would not have to return to Parliament, given that we have had the Syria vote, that in terms of war it is just business as usual, as it were—they would not have to return?
Professor Thomas Simpson: Sure. May I return to the earlier question, because it is really important? Very few people, I suspect, will regret Mohammed Emwazi’s death, and for very good reason. There is a separate question about the justification of the strikes in the first place, but given that they were already committed on the same broad legal justification that we are committed on now in Syria, it would be an entirely appropriate action for them to take to seek to degrade ISIS fighters, particularly some of the propaganda value of Jihadi John. So I personally would have little objection to that strike as a result. It is very clear now, to me at least, that there is no significant moral difference between drones and air strikes; it is just the difference between whether someone is flying the plane in the actual vehicle itself or doing it remotely, and we would be absolutely justified in taking that strike now with the clear legal authorisation from the House last week, whether that was by drone or fast air strikes.
Ms Karen Buck: Can I ask a very quick supplementary? Mark was asking you about the laws governing intervention in Iraq. Had the House of Commons voted in 2013 for military intervention in Syria, would that have provided the legal basis for the targeted killings in August of this year, or would it have made no difference?
Professor Sir David Omand: It should have made no difference, in my view, because the legal basis already existed. By operating in support of the Iraqi Government against Daesh, or ISIL, in Iraq, if the target was across the border, in legal terms that is—
Ms Karen Buck: Even though the authority for that military action was against a different enemy?
Professor Sir David Omand: It was against the same enemy: Daesh, ISIL. You are talking about serious terrorists.
Ms Karen Buck: I was talking about the House of Commons vote for military intervention in 2013 in Syria.
Professor Sir David Omand: That was about a different enemy, as you rightly say. I do not think the failure of the House to agree with that proposition is relevant, frankly, to the legality of that particular strike in Raqqa.
The Chair: Can I just clarify something that you said earlier? Basically, you were saying that your understanding is that it was justified on the basis that it was part of our actions in Iraq and it was like collective self-defence of Iraq, not defence of us here in the UK, except by virtue indirectly of our interest in Iraq.
Professor Sir David Omand: Where the defence of us comes in is in the prioritisation that the military commander gives to the selection of where the limited resources he has are put. If somebody represents such a serious threat, as it appears that this individual did, you would expect him to come out near the top of the list.
The Chair: A threat to us here or a threat in Iraq?
Professor Sir David Omand: There is no inconsistency, in my view.
Jennifer Gibson: I disagree: I think there is a huge inconsistency between what the Prime Minister said on 7 September and what his Cabinet then submitted to the UN. He stood up in Parliament and said quite explicitly that this was not about collective self-defence of Iraq, this was not about ISIS, this was about a direct threat to the UK. Under that invocation of Article 51 in the UN charter, there has to be an imminent threat to the UK.
This is where it becomes very worrying, because there have been contradictory and confusing statements from the UK Government about how they are now defining imminence. We know from the US White Paper that was leaked in relation to the killing of Anwar al-Awlaki that the US has redefined imminence to mean anything but. It has basically said that there does not need to be sufficient evidence and that an attack does not need to be in the immediate future. That is not imminent by any definition of any dictionary; it is a US redefinition of a fundamental principal of international law that has been on the books for almost 150 years. It is an important restriction on a state’s use of force outside its own borders.
The UK Government and the Prime Minister need to clarify the basis for that strike. Was it, as David is saying, the political statement he made in Parliament on self-defence, or was it actually his submission for UN authorisation, where he said that there was an imminent threat to the UK and that, by the way, in case that does not work, there was also collective self-defence?
Professor Sir David Omand: It is possible to have two legal justifications; you do not have to have one. Lawyers are quite good at saying, “My client did not commit this murder, but if he did, he was of unsound mind”. The sounder basis, in my view, is that presented to the UN Security Council in the context of the conflict in Iraq. One very simple reason is that you do not then have to demonstrate the imminence that you have to demonstrate if you rely on the self-defence argument, which is a perfectly respectable one. The information is not in the public domain, and I do not have it, about how imminent the threat actually was.
The Chair: Would that by the same token justify a strike on anybody who is an ISIL person connected through the internet to someone in Libya, or indeed somewhere in Europe?
Professor Sir David Omand: No, quite the reverse. It has always been the case that legal force could be used if the threat is imminent.
The Chair: Oh yes, forget about Europe, because of course you could apprehend them. What about in Libya or, as Tom said, some other failed state?
Professor Sir David Omand: The point I want to emphasise to the Committee is the point we made in the Birmingham commission: if you are engaged in armed conflict on a sound legal basis, so the jus ad bellum is sound, which is the case in Iraq, there are legitimate military targets. Provided that it is necessary for the military mission—in this case, I would have said that those strikes were necessary—and the means adopted are proportional, so that you minimise collateral casualties, which was the case, it is perfectly justified.
You could find yourself in a situation where there is an imminent threat against the United Kingdom by an individual and you are unable to effect an arrest or get the local authorities to act, but that is a hypothetical. In this particular case, there was a sound legal basis. It might have been clearer if the Prime Minister had simply said that, but I can understand entirely from a political point of view why he would have wanted to reassure the House that he was not breaching the House’s will on other forms of military action in Syria against Assad’s forces.
Professor Thomas Simpson: May I pick up the question of imminence, because some very complex issues lie in the backdrop? Jennifer is absolutely right that the United Nations charter, the right of self-defence, is available only where there is an imminent threat for state-on-state conflict. We also have in our conventional domestic criminal law this test of imminence for the legitimate use of self-defence. If a police officer shoots an axe-wielding maniac in the street, it is because there is an imminent threat of murder.
We do not have the imminence threat used under international humanitarian law for the military in times of armed conflict, because the organisation of which an enemy soldier is a member has very clearly demonstrated intent to commit acts of violence against you in due course. Even though at the time there is no absolute necessity for a soldier to act against an enemy soldier, nevertheless there is a recognition that, in the longer term, there is imminent threat and therefore the action is justified.
This is a very general, broad-brush issue that societies across the world are facing, and I am just trying to sketch out the options before proposing my view on it. We have this very clear distinction in the law between peace and times of war; the category of imminence applies very clearly in times of peace but does not apply in times of war. Confronting terrorist groups pushes us into an awkward grey area.
Very roughly, our choice is maintaining that hard distinction, maintaining the requirement of imminence, and then forgoing the opportunity to strike terrorists, ISIL members, when we are not in conditions of armed conflict. We need to be really clear about the consequence of doing that. The consequence is very likely to be civilian deaths here in Britain, in America and in other western countries, because opportunities will be forgone to interdict terrorists, who thereby get away. We are just learning now about the Paris attacks and how opportunities were missed to catch those people beforehand.
Governments have the security of their people as their first concern and are stretching the definition of imminence because they recognise their duty to try to prevent this kind of atrocity. Therefore, they are trying to interdict terrorists when they have the opportunity to do so.
We should be really clear that the consequence of maintaining that hard distinction—I understand its pull—is likely to be increased civilian casualties in the long run.
Professor Sir David Omand: As members of the Birmingham commission, Jennifer and I were both on the side of maintaining that clear distinction. In Iraq, it is armed conflict: you do certain things and you do not require imminence. Once you move away from that, I think it is quite a slippery slope, and the Americans have demonstrated how far down you can go.
Jennifer Gibson: If I can just add, the Americans have stretched that definition to disastrous results. You have US generals calling it a failed strategy and talking about how counterproductive it has been and the possibility that it has created more terrorists and more threats than it has killed. You have the fact that these drones are absolutely precise weapons: they hit what you tell them to hit. If you tell them to hit the wrong thing, they will. If your intelligence is bad, as has shown to be the case quite frequently with the US drone programme, you have massive civilian casualties and communities that get angrier and angrier about the use of drones in their community.
We need to consider not just that experience, and learn from the experience of the US to make sure that we do not repeat those mistakes, but that if you start modifying the boundaries of international law, everybody gets to modify them. This is not a pick-and-choose smorgasbord where the UK gets to say, “This rule applies to us. We are going to modify it, but nobody else in the international community can”. When you start stretching definitions and finding grey areas, you need to think about whether you want every other state in the international community to use those grey areas and those same modified definitions. I think that when you start going down that road, it becomes very scary.
Q3 Fiona Bruce: Thank you. Good afternoon. My question is to Sir David. Do you think that the current rules of engagement that govern the UK’s use of legal force abroad are sufficient and sufficiently clear, specifically in relation to targeted killings using drones? Or, bearing in mind that you made a number of recommendations in your Birmingham report, should there not be a specific published policy on this? As a supplementary, why you think it should take until 2035 for the Government even to aim at achieving your recommendations—aim is the word you have used—on such a critical issue?
Professor Sir David Omand: The rules of engagement for any particular theatre—in this case we are talking about Iraq and now Syria—are approved by Ministers. They are not published for military reasons, so as not to tell the opponent exactly what the limits of your permissive action are.
When we took evidence for the report, we detected no dissatisfaction from the Royal Air Force or the military commanders with the clarity of their rules of engagement. They were not asking for looser or, indeed, tighter ones. They thought they had had it right. They were rules that we were told had been applied to manned aircraft for some considerable time, so they were very familiar with them. That seemed to us a safeguard: that there was no separate set of rules for “targeted killing by drones”. That would be a retrograde step.
We came to the conclusion that the sounder way of looking at this is that it is just a weapon system. In some circumstances, it has advantages: it is more precise, actions are recorded, you do not have the pilot in the cockpit whizzing past at high speed making instant decisions. In some circumstances, it has disadvantages: the weather, being slightly more vulnerable to enemy fire. It is up to the commander which he chooses. He might choose Special Forces. A number of options are open to a commander. We thought that to singularise and particularise this weapon system was a mistake. One of our main recommendations was that the Government should talk more about this to prepare parliamentary and public opinion. It has now been announced that we are going to buy more of them and this is probably the future, rather than the manned aircraft, so we had better get used to it and get used to the way we empower military commanders to use this weapon system.
Fiona Bruce: You talk about it being increasingly used. On the 2035 question, it is quite a long time for the Government to aim at your recommendations.
Professor Sir David Omand: Yes. We can see it taking time for procurement, for this to become, as it will, one of the major weapon systems in service. We were perhaps giving them a little more sea room than they needed.
Baroness Hamwee: I can understand that in terms of procurement, but your recommendations covered things such as reporting to Parliament, just to pick one. As it is simply just another form of weapon, that does not seem to me to need 20 years to implement. Quite the contrary.
Professor Sir David Omand: I think that is a very fair point.
Q4 Jeremy Lefroy: This is a question for Professor Simpson—first of all, anyway. You say in your written evidence that drone technology does not raise any unique ethical or legal issues. How would you comment on US General McChrystal’s concern, which he expressed recently in Parliament, that because drones make targeted killing easier, they risk lowering the threshold for the use of lethal force and so reduce protection for the right to life?
Professor Thomas Simpson: I would not disagree with his observation. I do not wish to be pedantic, but the point is that any weapon which gives you an asymmetry in power over your enemy lowers that threshold of force. The first tribesman who picked up a bow and arrow had an asymmetry and a lower threshold to the use of force than someone who had a club against him.
The general point that we have acknowledged here is that nations will seek to arm themselves to the best of their ability; in fact, that is a duty, in my view. It is then for the people who make the political decision about whether to deploy force to resist the temptation to use the force which they have by virtue of having greater power.
There is no doubt that some of the particular technological affordances, if you like, of drones make them attractive for deployment in contexts which you would not otherwise consider. That is just to say that a capability exists and that responsibility needs to be exercised.
Q5 Jeremy Lefroy: Given that this capability exists and a country such as the United Kingdom will want to have it, and given that, as General McChrystal has said, it has the risk of reducing the threshold, there is all the more reason to increase the legal thresholds for use of that particular capability, or to ensure that they are complied with.
Professor Thomas Simpson: Absolutely. If I can tie this back to our earlier discussion, I was halfway through putting a dilemma; I got through one half of it. The other side of the dilemma is that lethal force is used in a kind of grey zone. There is an undeclared grey zone by the secret services, who have the legal authority to use lethal force but usually on a basis deniable by the Government, so we rarely hear about it. What is puzzling about the August strike is that it was publicly declared. Drone technology is very attractive for use in that category. I do not want to say that that power should never be exercised, because it seems to me that there are very restricted scenarios where that would be an appropriate thing to do. I would say that that is not a programme that we want to have institutionalised in a significant way. It is important that there be very clear legal accountability.
Professor Sir David Omand: Just to add two thoughts, first, I cannot see the case for increasing the legal threshold. It seems to me a case for maintaining it so that you do not allow it to be lowered. Secondly, as we said in our report, if you are using a lethal weapon system, it should be done by Her Majesty’s Armed Forces, not by civilian agencies. There is no authority that Ministers can give the secret services to conduct assassinations, and I am pretty sure that that has not happened in my lifetime. That is unlike the United States, which has used this as a covert weapon system operated by the CIA. The President has said that it should be gradually transferred into the hands of the uniformed services. That, I think, is the right decision. I would be concerned if there were any move to have this operated by civilians. Their legal status is different from that of the Armed Forces and we would get ourselves into some difficulty.
Professor Thomas Simpson: I add as a corollary that that is very important. I absolutely back that this should be a military operation; it should be the RAF operating it. As a consequence, it should be doing so under international humanitarian law, as opposed to the legal frameworks that apply in peacetime.
Professor Sir David Omand: I am talking here, of course, about armed remotely piloted aircraft. The use, which will be pretty ubiquitous, for surveillance, does not raise the same point.
Q6 Jeremy Lefroy: I understand. Thank you. I would like to ask just one question of fact. Has the US Congress initiated an inquiry similar to ours into US policy on the use of armed drones, and is it a hot topic at the moment?
Jennifer Gibson: Accountability of the US programme is a hot topic, and has been for some years. Because the CIA has taken the vast majority of drone strikes outside declared war zones for the US, the Senate Intelligence Committee has oversight. That oversight has been extremely limited, has not been made public and has by most accounts—most people believe—been inadequate. The military strikes have been taken in Yemen by JSOC, the Joint Special Operations Command, which is the special ops branch of the US military. In Yemen, you have both a CIA programme and a US military programme, not always working in co-ordination. The defence committee in the US will have some oversight of that, but it is unclear how much. Again, there has been no inquiry, no public examination of the policy. There has been no willingness by the White House to engage on that level.
Q7 Jeremy Lefroy: Thank you for that clarification, Finally, I ask all three witnesses what they have to say on a question that seems straightforward, but we still need to hear the answer. Does there need to be clarification of the international legal framework that applies to targeted killing by drones? Saying “clarification” implies that there is an international legal framework. I am not sure that there is. Perhaps we could hear from all three of you.
Professor Sir David Omand: I am uncomfortable with the use of the word “targeted” in relation to killing. I would hope that these days, under international humanitarian law, military strikes are targeted. The objective is very often to inflict lethal force; that is what militaries do. Provided that we are within the context of an armed conflict, whether interstate or not, and we are applying international humanitarian law, the question falls away. The military commander is not and should not be engaged in “targeted” killing; he is engaged in pursuing his mission. That will involve the delivery of lethal force when people are attacking him.
Jeremy Lefroy: So in your view the question is not which vehicle that lethal force is delivered by, but whether the lethal force is delivered in an appropriate and legal manner.
Professor Sir David Omand: In a legal manner, yes. The commission received assurances from the Government, from Ministers, that all Armed Forces operations will be in accordance with the law.
Mark Pritchard: Surely untargeted lethal force or untargeted killing is far worse than targeted killing. Targeting is just another term for intelligence-led lethal force. Let us take it as a given that there is legal cover, which one hopes there is—we will find out, but that is certainly your position, Sir David. Intelligence-led lethal force is exactly the same, is it not, as targeted killing?
Professor Sir David Omand: Yes. What I was reacting to was the penumbra, if you like, of meaning that has surrounded the words “targeted killing”. They have acquired a certain meaning because of the way that the United States, particularly the CIA, has used it to eliminate key members of terrorist organisations outside any zone or area of armed conflict.
If we talk about targeted killing, there is a risk that the public will be confused into thinking that we have adopted that kind of strategy. We were very clear that that is where we strongly recommend that the Government should not go.
Military commanders will pick targets, of course. General Montgomery famously had Rommel’s picture on his caravan in the Western Desert. If he had known where Rommel was, would he have hesitated to order a strike on his headquarters? I suspect he would not.
The Chair: It might not, of course, be the military picking the target; it might be the security services through intelligence, as Mark said, albeit that it was the military carrying out the strike.
Professor Sir David Omand: The intelligence officer of any military commander will probably be the one recommending the target, but in the end legal responsibility rests with the chain of command. That is why I am so keen that it should be the Armed Forces, where you have accountability: you know who was in command and therefore you know who has carried it out.
Jeremy Lefroy: Sir David, what you are really saying is that it is extremely important that this particular incident in August does not lead to a change towards the American position, which is what you would describe as targeted killing.
Professor Sir David Omand: Correct.
Q8 Baroness Lawrence of Clarendon: In our papers, we were reading about a list of killings. Who exactly drew up the list? As you have been talking, that has not been clear. Is it the Security Service? Who actually drew up the list that we read in our papers?
Professor Sir David Omand: I am unsure of the status of a so-called kill list. I have read about it in the newspapers. It would not be the first time that spin doctors have put such ideas around because they have resonance, particularly after terrorist attacks. The military commander would turn to his intelligence authorities, including the support that civilian intelligence agencies give, and say, “Who do we go after? Who are the important figures in the battle that we are trying to fight to support the Iraqi forces?”
The Chair: So what is the answer to Doreen’s question, as far as you understand it? Who draws up such a list?
Professor Sir David Omand: If such a list were to exist—I am retired; I have no independent confirmation that such a list exists—the intelligence authorities would suggest it. It would eventually have to get to the military commander who is going to order the strike. He would legally have to make sure—
The Chair: We are not trying to focus at the moment on who is doing it. Doreen’s question was how people get put on this list, and how they get off it.
Mark Pritchard: Professor Simpson, you have been in the field, you have been at the coalface. What is your interpretation?
Professor Thomas Simpson: There is a whole series of different lists. There are lots of different agencies doing different things, most of which will have an intelligence element. The military has an intelligence branch, and GCHQ, the secret services and the police, when they are investigating organised crime, all have their area of work, the kind of security that they are trying to provide. Within that context, in most of these situations, the enemy you are facing has some kind of organisation. Apart from the absolute lone wolf, there is some kind of organisation. People within that branch are trying to identify what that organisation is.
When lethal action is then executed on the basis of that will depend on the particular framework. Paradigmatically, it will be the military. GCHQ operates in support of the military in operational theatres, in addition to the other services. It is a collaborative effort, but ultimately the military intelligence owns the network diagram which indicates who is targeting.
To come back to Jeremy’s question, if I may, the issue is not whether there should be an international policy on the use of lethal force by drones but what should be the policy on the use of force in a very particular subset of states: namely, those that are either rogue or failed in some sense. They are states that in some sense resemble Syria today, where the rump regime that has inherited, that has some continuity with, what used to be the legitimate regime, Assad’s regime, and then actors on the ground who control various areas.
Jeremy Lefroy: Could we be a bit precise about the terminology here, because various terms go around? We have conflict-afflicted states, we have fragile states, we have rogue states and we have failed states. It appears to me that ISIL falls into none of those categories; it is, in effect, an organisation that has grown up in a vacuum where there is no authority. I would appreciate your definition of it.
Professor Sir David Omand: It is an insurgency, I would suggest.
Jeremy Lefroy: Yes. I think it is very important that we understand what we are talking about here. It is not a state in any shape or form. It is, as you say, an insurgency within a geographical area.
Professor Thomas Simpson: Sure, but the UN system is essentially statist in orientation, and the lines on the ground imposed by the maps from the late 1940s/early 1950s are effectively the inheritance. Most of the time that works, because we have states that control those borders.
There is a particular complication; the US drone strike programme has actually been quite careful about where it has operated. It has tended to operate in areas where there is some government it can claim some kind of authorisation from, as is the case in Yemen. Somalia is an outright failed state or at least has some entity that claims legitimate governance, even though it does not exercise de facto governance; and there is authorisation, so the consent justification applies.
There is particular complexity in relation to Pakistan. All the evidence—I do not have this first hand, clearly—is that there is back-door approval by the Pakistani Government of the US drone programme but public disavowal. Every time a drone strike takes place, someone comes on TV to say, “This is a terrible thing”, but there is clearly co-operation between the Pakistani Government and the American security forces, so Pakistan is a particularly complicated case because of this potentially tacit agreement on the programme. But the issue is the legal framework for the use of force in that subset of states.
The Chair: Thanks. Can we move on to the legal issues? Perhaps Harry can lead the questioning on this.
Q9 Lord Woolf: I am very conscious of the clock, so I will try to truncate what I was going to ask you. If I may, I would like to try to unpack a little what is special about the position that we are in in this examination, bearing in mind the legal concepts that are, I think, reasonably clearly known now. We grew up dealing with a different situation, and there are two features that may affect the legality on which I would like your help. The question is directed at all of you. First, there is the fact that we are dealing with drones. Sir David, you said that drones are just another form of aircraft—they are unmanned, they are controlled remotely, but you also said that they have greater precision when they are going for a target. Is the fact that they have greater precision and so can reduce the risk of collateral damage a matter that must be taken into account in considering legality? Does anybody dissent from that?
Professor Sir David Omand: No.
Lord Woolf: Then I will move on to the other aspect, which we talked a moment ago and which makes it more difficult: that we are dealing with ISIS and not a state. ISIS is anti-state, as I understand it—I may be wrong. It believes in a caliphate, which is not governed by territorial limits, so from its point of view it is seeking to achieve, by using its methods, something that is not the same as if a state was doing it. Do you agree with that, or not?
Professor Sir David Omand: I would qualify that, because they do intend to administer the territories that they hold and to impose their form of justice. They intend to extract oil and sell it, and therefore have finances which they can then use for social purposes in the populations they control. They are not quite a state in the United Nations definition of a state, but in geographical terms their intent is to control an increasingly large area that will gradually spread over all Muslim lands, or those that were formerly Muslim—the original caliphate ambitions of al-Qaeda extended into southern Spain.
Lord Woolf: Thank you very much. Does that mean that we have to modify the conventional definitions of what is legal in these circumstances? As I understand it—again, I may be wrong; if so, please correct me—the first aspect is that you have a situation where, it could be said, the law is rather similar to the domestic criminal law that would be applicable and which we would observe in regard to killing. The second aspect is: does it mean that it is possible to say that if terrorists who come from a different area altogether were to subscribe to the doctrine of ISIL, they may not be confined as targets to a geographical area that is readily identifiable?
Professor Thomas Simpson: May I come in? It is already an offence under our criminal law to be a member of a terrorist organisation, so in countries where we have extradition agreements we will be able to request the arrest of ISIL members and bring them back to the UK for trial, as appropriate. The particular complexity with regard to ISIL/IS is that it seems that, for a lot of them, they are genuinely ideological fighters, and death is no object in that situation. So while we have the power to imprison, ultimately ISIL has to be defeated militarily, if you have people who have guns and are willing to oppose you with force. The long-term objective is to contain the violence; we do not want to see it spread. The near-term prospect is that the violence that is ISIL-motivated is spreading. We are seeing ISIL in Afghanistan now, we are seeing it in Libya, and we need to be equipped to be able to address this threat in these contexts.
The best means by which to do that is a bigger question. Where possible, we want to seek the conventional application of civilian domestic law through the police, but there will be contexts where the military is appropriate.
Lord Woolf: Does it follow from what you are saying, which I understand very clearly, Professor, that what is true in relation to Iraq may not be true in relation to Syria, because the situations may be different? Certainly, if we could identify someone who could be killed by a weapon in another part of the Middle East, Saudi Arabia, that would be another situation. This is very much what I want to extract from you. The answers to these issues are very fact-related.
Professor Sir David Omand: Yes. I will give an example. Where, for national interest reasons, we decide to deploy the Armed Forces on a combat mission, a commander is chosen, the objectives of the mission are agreed by government, the rules of engagement are agreed, and we have a sound legal basis on which to conduct that, as is the case in Iraq today, then international humanitarian law, the Geneva conventions, is what should apply, and the assurances from this Government, and the previous Government, were, “Yes, it would”. Where we deploy the Armed Forces outside such circumstances—for example, Special Forces sent to rescue some hostages from another country—international human rights law applies, and the lethal force that is used, if it has to be used, is in the immediate defence of the hostages, which we are used to from past terrorist incidents over the past 20 or 30 years. There is a different set of rules, a different legal framework. My fear is that we end up slightly muddling those and saying that we can use international humanitarian law, the Geneva conventions, without necessarily having that legal basis.
Jennifer Gibson: Can I just add that one of the things that particularly concerns us at Reprieve about the Prime Minister’s statement is that he seems to be indicating that he will go beyond the boundaries of armed conflict, that he will go to Saudi Arabia if he finds someone—or to Libya, which both he and the Secretary of Defence have mentioned. Those are strikes outside armed conflicts in which the UK is involved; they are strikes that are governed by international human rights law, not international humanitarian law. It is a very different standard. It is also the approach which the US has taken that has led to many of the problems with the US drone programme. It has declared a war against a non-state actor and then said that it is going to chase it down wherever it might be without any regard to the states in question where that person might be located. That has led to a programme that has now involved hundreds of strikes. The US drone programme in Pakistan and Yemen alone has taken over 500 drone strikes since 2009, when Obama came in, and when you are talking about precision, which was your point earlier in relation to casualties, the drone is absolutely precise and has immense potential to reduce civilian casualties when targeted. The problem then is that if it lowers the threshold so that you take hundreds of strikes in which you are making mistakes, it does not reduce the number of civilian casualties; it actually increases them.
Professor Sir David Omand: It is fact-based. You could construct a scenario where conflict erupts in Libya, the civil war intensifies, the United Nations Security Council passes a Chapter 7 resolution to help save the situation, and we get involved. You are then back to my humanitarian law situation and armed conflict in support of whatever Government the United Nations has decided to back. Essentially, however, it is a different situation
Q10 Lord Woolf: I think you would agree with me on this, Sir David—I know you will make it clear if that is not the case—but it is very important in looking at any factual context to identify the three categories, which you have been talking about, of situations, each of which is different and which has slightly different rules to control it. Some of them may overlap, but you have to make sure that you are applying them to the right group.
Whether a Prime Minister gets it right or wrong when he makes a Statement in the House, from a lawyer’s point of view, does that affect the legality? One may say that there was a danger of him misusing the power if he has not got it right, but does it affect the legality?
Professor Sir David Omand: I would say no. The formal situation of the Raqqa strike was set out to the Security Council, and that letter reads like one that has been lawyered thoroughly.
Jennifer Gibson: It depends on what the underlying legal policy or legal rationale was. If it was just that the Statement did not match the legal policy, that is one thing. If there was a broader intent in that legal policy to expand IHL beyond the borders of the armed conflict, that matters a great deal.
Q11 Lord Woolf: I was going to ask you about one further matter, to get it out of the way. In this country, of course we do not have capital punishment, but the fact that in our domestic law we do not have capital punishment does not mean that we approach any different standard to see whether what we have done can be appropriately defended.
Professor Thomas Simpson: Absolutely. Just to be very clear, the justification for the use of military force or drone strikes in any context will only be self-defence. Again, there could be an overdetermination of moral reasons, so it may be that Mohammed Emwazi deserved to die—I am amenable to that idea—but certainly the state should act lethally only in self-defence. That is very clear.
The Chair: Thank you, Lord Woolf. Obviously, we are involved in this in two ways: directly, but also as regards our support for the US in doing what they are doing. Fiona has some questions around legality.
Q12 Fiona Bruce: In light of the time, I will be try to be brief. Sir David, where does it leave the UK in terms of our legal position when we provide intelligence to the US to facilitate targeted killings or lethal force, if you prefer, by the US where there may be unlawful action in terms of international law? We are asking this because of the Committee’s understanding that your Birmingham Policy Commission was concerned that this might be a possibility.
Professor Sir David Omand: Yes. We wanted effectively to rule out the possibility that either advertently or inadvertently our authorities could be colluding in something that would be contrary to international law. We were not saying that that was the case. One step we took was to write to the then Foreign Secretary and say, “Can we have at least assurance that properly lawyered guidance is available to the intelligence authorities?” I am sure that such guidance would be classified. I would not necessarily expect it to be published, although the guidance in respect of interrogation and avoiding collusion in other countries’ interrogation methods was published.
It is very impossible to draw a hard and fast line here. The United States is our major ally, we are at this moment engaged in armed conflict in Iraq alongside it, so we share intelligence with it and it shares intelligence with us. With that continuous flow both ways, some of that intelligence could well be used by the United States for military actions that it decides to take. It is impossible to rule that out without severing the intelligence relationship, which would be disastrous for our own security. Therefore there is no easy way round it other than having guidance to remind the intelligence authorities that they have to be careful and if necessary take legal advice if there was a very specific piece of information, and in those circumstances they might refuse to pass it over. However, we are talking in the abstract, and I do not have access inside the agencies, so I cannot take it much further than that.
Jennifer Gibson: And they have not acknowledged that they have the policy—they did not respond to that request.
Professor Sir David Omand: No, and I was disappointed that we did not even get confirmation that such legal advice existed, which we felt would help to strengthen the United Kingdom’s case if anyone took us to an international court over the issue. But there we are.
Q13 The Chair: We have touched a bit on the question of accountability oversight in the American context, but there is an issue about oversight in relation to the action that was taken in August in Syria. If it were to be taken again in another country—not in Syria, because we recognise that the position there is different—what would be the oversight, and does there need to be any accountability for what was done in August in Syria, because obviously accountability is an important way of ensuring that standards are kept to? Karen will ask about this.
Q14 Ms Karen Buck: The general consensus is that there is an issue around transparency and accountability. As Harriet said, I just want to ask you a couple of questions about what should be done, who should do it and what the pros and cons of that are. However, to go back to the core question of whether drones are simply another piece of hardware—as I think certainly you have been suggesting, David—in terms of transparency, one of the pieces of information coming through is that the Ministry of Defence publishes information about airstrikes; for example, in the context of Iraq, but not about the use of Reaper. I wondered why there would be an information difference between different types of hardware and whether they should all be treated the same.
Professor Sir David Omand: In the commission, we were concerned that information that was not classified was not being made readily available. When we investigated, we discovered that to some extent information was available but it was not exactly easy to find. We thought that government, and the Ministry of Defence, could be much more open. To some extent it has responded, but not as much as we would want.
As regards your question, I can only hazard an answer, which is that there is probably nervousness that once you singularise the Reaper, people will jump on that, and their policy is to treat it as another manned weapons system—it is just that the pilot happens to be on the ground rather than in the air. However, it is a manned system, and a human being is in control of it at all times—it is not some autonomous killing system.
Ms Karen Buck: So we are confident that they do not roll that into their published information about air strikes?
Professor David Omand: I could not be confident of that.
Ms Karen Buck: Does anybody else have a view, because it does not seem possible to have the two arguments at the same time. Either it has to be published information—even if, as you are saying, it becomes part of general oversight—or you have to treat it separately, in which case scrutiny would have to be done in a distinct way.
Jennifer Gibson: My understanding is that it depends on the context. I can send the Committee some more information on this, but in certain areas they are willing to publish disaggregated numbers between the types of aircraft and in certain places they are not. With Iraq and Syria, it is one of those bizarre divisions. There have also been problems in Libya, where UK pilots were flying US Reapers and taking strikes. In Iraq, the MoD has been unwilling to provide more disaggregated numbers as to how many strikes were taken and where. I echo David’s comment, which is that the MoD would be well placed to be more transparent with this information. It is hard to see how it would in any way jeopardise national security, but it would go a long way towards reassuring the public that the British programme is different from that of other states.
Professor Sir David Omand: One suggestion we made was that, if there was a military reason for withholding breakdown of such figures—and there could be—there is nothing to stop the Ministry of Defence telling the Defence Committee in confidence so that at least a parliamentary committee is aware of the full facts. I am not sure why it does not do that.
Professor Thomas Simpson: Can I give a slightly qualifying view? When I trained for Northern Ireland in 2004—thankfully, it was a very quiet time—every time in our practice we fired a baton round, a plastic, non-lethal round, we had to fill in a bat rep afterwards declaring use of it. Sadly, after my tour, the violence increased around the marching season. Whereas the PSNI had fired one baton round in the year prior to my deployment, there was a spate where 450 baton rounds were fired. You then had an instance where 450 bat reps had to be filled out. So a procedure had been put in place that was effective and appropriate for a particular operational context, but such procedures become inappropriate given a different tempo of operation. It is easy to envisage a situation where the weight of procedure becomes redundant in particular operational contexts. When we are talking about one drone strike here, one drone strike there, accountability and investigations for particular drone strikes become a possible action, but when an operational tempo is higher that becomes much less clearly appropriate, and more traditional international humanitarian law and accountability mechanisms become appropriate. So there may be a procedural caution driving it there.
Ms Karen Buck: I think I can see that there would be, but at the same time if we were more concerned with the use of such technology outside the context of an authorised conflict, I would struggle to see how the numbers could add up. Who should be responsible for introducing a level of accountability, or what institution should it be? Should it be the Intelligence and Security Committee? Where should the accountability best lie in this context and what information would need to be provided, whether public or redacted, to satisfy the greater level of oversight that most of our witnesses have suggested to us in their written evidence?
Professor Sir David Omand: I think the answer is that it is responsibility of the Defence Committee, but it would need to exercise that, for the reason that we have just heard, with some moderation, because there are ongoing operations. To some extent, you have to leave the military commanders to get on with it without continually demanding accounts from them. But at some point the Defence Committee would want to look not at the specifics but at the progress being made with the campaign that we are engaged in. That is a perfectly proper thing for a committee of the House to look at. Some of the evidence might have to be confidential, but there are procedures for dealing with that.
On the intelligence-sharing point that was brought up, we recommended in our report that it should be picked up by the Intelligence and Security Committee, because it can hear top secret evidence very easily. If there are any particular sensitivities, it can be told and then it can produce its own report.
Ms Karen Buck: I would be interested to know Jennifer’s view on that, because I suspect it will test a slightly different angle.
Jennifer Gibson: Yes, I think that it needs to go broader than just a committee. There needs absolutely to be some parliamentary committee, but it needs to be independent of the Executive. I would have concerns about the ISC, given the role that the Prime Minister, his Cabinet and Secretary of State play in vetting members of the committee and their veto over information that is seen and information that can be cleared. It is also not a great track record in the war on terror historically. Besides the accountability coming from Parliament, there needs to be a judicial role here. If you are talking about drone strikes outside declared war zones, which is effectively using the death penalty without any sort of due process—a death penalty that this country decided more than 50 years ago was not in line with British values—it seems that having just parliamentary committee oversight is not sufficient. As Sir David has said, drone strikes should not be used outside declared war zones; they are not a tool for handling such a threat, unless it is of the imminent standard required under Article 51 of the UN charter. So we are talking about accountability for a policy that I am not sure should be in place in the first place. Before we start talking about accountability, we need the Government to answer some hard questions about the scope of this policy. Are they limiting it to Syria? Are they going elsewhere with it? What legal framework do they think they are operating under?
Professor Thomas Simpson: I disagree very strongly. This is not the death penalty; this is a forced exercise in self-defence. Civilian judges are particularly ill placed to make judgments about the exercise of lethal force in times of operation. That is why we have military courts to try soldiers: because civilian judges are not aware of the pressures that commanders are under. Commanders need to have the assurance that they will not be second-guessed as to what should and should not be done by civilians who do not experience those pressures. It seems to me deeply inappropriate that civilian judges be placed in oversight.
Jennifer Gibson: Let me clarify that, because I am not talking about criminal responsibility on the part of individuals here; I am talking about oversight of a policy and whether the policy is lawful. That seems to me very much within the judiciary’s remit.
Q15 The Chair: Certainly, I do not understand our issues to be just about the policy, because there are two things. First, what is the policy and do we all generally with it? We can all look at that—the Commons, the Lords, the Defence Select Committee; everybody can have a look and see what they think about the policy. The next question, bearing in mind that we are not in a war zone and somebody has been killed in a determined killing, is whether we think there needs to be some accountability to see whether, operationally, the standards have been met, both legally and to meet the policy. If a policeman kills somebody in the street, there is accountability for that. You might call it second-guessing, but the police welcome it as a way of making sure that everybody understands that they live up to certain standards. The Independent Police Complaints Commission looks afterwards at every killing by the police. The Defence Committee could not necessarily look at matters like Syria on an individual basis, because it is not security-cleared. You would have to be security-cleared, because if you are going to look at whether the policy has been met in respect of any individual circumstance, you have to look at the sufficiency of evidence and whether there is collateral damage all the way along. Are you saying, David, that it is perfectly all right for outside a war zone, with the strike having been done in Syria, that nobody should look over the shoulder at it? Are you saying, Tom, that nobody should anyway, because we do not want to second-guess people, they can just do it operationally and they might or might not tell us about it afterwards depending on whether they feel like it? And are you saying, Jennifer, that none of it is good enough because you do not agree with the policy, and anyway it would have to be a judge? What is wrong with the Intelligence and Security Committee, which is security-cleared, which is here and everybody is appointed by somebody?
Professor Sir David Omand: Let me restate what I believe is the import of my evidence. It is that the use of armed force through manned aircraft, through Special Forces and through remotely piloted aircraft within the context of an armed conflict, which is the case with the strike in Raqqa—that is the Government’s explanation to United Nations—is sound. That is one thing.
I am most emphatically not suggesting that there should be another policy that authorises remotely piloted air systems to eliminate serious terrorists who are found elsewhere in the world. That, it strikes me, is a slippery slope that the United Kingdom should not go down.
Therefore, when I talk about the Defence Committee overseeing, it should be overseeing what we are doing in Iraq—that is what defence committees do—the policy that is being followed and whether the forces have the right equipment. It can from time to time take evidence from commanders. That is one thing. The Intelligence and Security Committee can look at the way intelligence is being shared with our allies. That is part of its function.
As long as we do not have an alternative policy, the discussion can stop. If it became clear that the Government were intent on pushing an alternative policy on the back of the strike in Raqqa, that would need very serious examination, but I have no evidence that that is what they are trying to do.
Q16 Ms Karen Buck: I have one question that follows on from that. You referred to the role of military courts in making these decisions. The argument I think you are making is that civilian judges are unable to exercise best judgment because they do not understand conflict. Surely, in the case of drones and—sorry, Sir David—targeted killings, for this purpose, that argument does not apply in the same way, does it? The same pressure will not come to bear on the chain of processes that leads to a decision to use a drone in a particular case.
Professor Thomas Simpson: Perhaps I can just clarify the evidence that I have given. In my submission, I argue that if the UK were to extend the use of drones to other contexts in which we are not in declared war, there should be a very clear legal framework, and that should be modified international humanitarian law. Under that, the military justice system is accountable to the civilian justice system but has a de facto autonomy within which it works. The military justice system is responsible for holding—and does hold—soldiers to account for failures to meet that.
The core justification in terms of understanding conflict seems to me to apply to the system. I take the point that we are reaching a stage here where the parameters within which people are operating are more considered, there is more evidence available and more prospect for scrutiny. However, if you take seriously the point, which I absolutely back, that drones are one tool in the tool box which the military command can employ, we are trying to identify the accountability mechanisms that apply to the different contexts in which military force may be used. It seems to me that the most efficient way, by virtue of it already existing, is to use the robust accountability mechanisms that apply to the military in times of conventional international conflict. Were there to be a more extended programme—my conclusion is conditional on such a programme being developed—there should be a clear framework that applies to it. Mutatis mutandis, you take this accountability system and apply it there.
The Chair: But is it not the case that you only get to a military court if somebody has, in the view of the prosecutors, committed a military offence? That is not general oversight; that is holding to account for an offence. I am trying to ask, but not really getting anywhere, about the parallel, analogous case of the Independent Police Complaints Commission.
Professor Sir David Omand: What I am arguing, Chairman, is that you do not need that oversight of a military operation properly conducted on a sound legal basis with the right rules of engagement. You need policy oversight as to whether it was a sensible idea to engage in it. As long as you are in the parameters of an armed conflict, you have a way to hold the military system to account through its chain of command, and ultimately through Ministers to the House. Once you step away from that and start talking about targeted killings outside conflict, you probably have to think quite hard about how you oversee it, but I hope that that is not where we are going.
Ms Karen Buck: I worry that that does not solve your problem. As Jennifer was saying, the admittedly United States-led drone programme has led to concern that the threshold of intelligence is insufficient to protect against errors. An accountability system has to be able to look at whether the intelligence on which those decisions are based is sufficiently rigorous.
Jennifer Gibson: There are couple of things to add. Some of this is cross-talking. David and I are 100% on the same page that the UK should limit its use of drone strikes to armed conflicts. If it plans to go outside those, it will be governed by international human rights law. Then it must be used against an imminent threat—and the definition of imminent under the Caroline standard is instant, overwhelming, leaving no choice of means or thought. I would hope that we would be acting only rarely, and then oversight would be easy. If we are talking about a targeted killing programme much like the US programme, there are huge problems. I think that the courts would have a role in those, because they have been able to play an oversight role over human rights violations. It is a straight-up human rights violation. You are talking about international human rights law applying, you are talking about a police officer-type situation where the state has used lethal force against someone.
The Chair: But they do not do oversight, do they? The oversight happens only where there is a cause of action, such as a criminal case, a civil case or a case in the military courts. They do not do oversight.
Jennifer Gibson: Absolutely, there needs to be parliamentary oversight as well, and I would hope that it would be far more rigorous than what we see in the US.
My concern about the ISC—to address your earlier question—is that much of the ISC’s dealings are secretive. A lot of it is not public. If the UK is to carry out a targeted killing programme much like the US programme, that secrecy cannot exist. You cannot have accountability and secrecy, with a parliamentary committee having oversight; there needs to be far more transparent mechanisms for assessing what is taking place. I have concerns about the ISC specifically because I have concerns about an accountability mechanism where the person being held accountable has a key say in whether he is accountable, in terms of the evidence given and in terms of the people making the assessment. In the post-9/11 environment, the ISC does not have a good track record. In 2007, the ISC issued a report saying that there was no evidence that the UK was involved in US renditions, yet several months later senior members of the Government were standing up and having to give evidence on that very same involvement.
Professor Sir David Omand: But the House has reformed the ISC. I think that Dominic Grieve was intent that they will—
Jennifer Gibson: There is definitely a new ISC right now, and I make no comment on that. I just make comment on the track record. The reforms have not limited the role that the Prime Minister and the Secretary of State play in approving who sits on the committee and approving the evidence that the committee sees.
Q17 Baroness Lawrence of Clarendon: What brought us here in the first place is what happened in August, and I feel that in some respects I have not heard justification for that. There was UK military involvement in Iraq, but they were not involved in anything happening in Syria at that time, yet the drone strikes took place in Syria when we were not having any military action in Syria. I still feel that we have not yet come to the point about where the justification is and that the Prime Minister is trying to cover himself after the fact, which I think is where we are now.
Professor Sir David Omand: The simplest way to put it is that we are engaged in action at the request of the Iraqi Government with our allies against ISIL/Daesh, which operates on both sides of the border and has key facilities in Syria. This is not taking action in Syria in order to help solve the Syrian situation; this is simply the carrying out of the policy of combating ISIL. I was satisfied that the legal base existed in the collective self-defence of Iraq.
Q18 Baroness Lawrence of Clarendon: Can I ask another question about humanitarian laws? Has the threshold been lowered?
Professor Sir David Omand: In our study, which is on Afghanistan, we got no evidence that the United Kingdom was lowering its threshold. Clearly, the risk exists in theory, because you are not putting a pilot at risk but sending a machine. There is a risk, but it all comes down to the rules of engagement and the way the weapons system is being used. I have no reason to believe that that threshold is not exactly what it should be, because it is the same threshold as for manned aircraft, where the pilot is in the aircraft rather than on the ground.
Professor Thomas Simpson: On the oversight question, I might add that if the push is to treat drones as a weapons system, which I think is absolutely right, and they are operated by the RAF rather than by the secret agencies, it seems likely that the Defence Committee would be the appropriate home, as opposed to the ISC, by virtue of preserving its oversight of the Ministry of Defence.
The Chair: But it cannot look at things that have not been security-cleared, so it would be of pretty limited use for it to look at the evidence threshold.
On that note, having had the last word myself, can I just thank you all very much indeed for our first evidence session? You have answered our questions, but you have also, I am sure, put even more questions in our minds, so we do not promise not to come back to you with further written requests. Thank you very much indeed for your time. I know that Jennifer has to catch a manned aircraft at this point.
Oral evidence: The UK Government’s policy on the use of drones for targeted killing 21