Written evidence from Professor Richard Ekins and Professor Thomas W Simpson (DRO0021)

 

 

Submission to the

Joint Committee on Human Rights

 

Inquiry on the Use of Drones

for Targeted Killing

 

 

 

 

Prof Richard Ekins

Associate Professor

Faculty of Law

University of Oxford

 

 

Prof Thomas W Simpson

Associate Professor of Philosophy & Public Policy

Blavatnik School of Government

University of Oxford

 

 

 


Executive Summary

The JCHR’s inquiry into the UK’s use of Unmanned Aerial Vehicles—‘drones’—for targeted killings is timely and important. This submission addresses the fundamental normative issues that should inform the UK’s policy, both ethical and legal. In relation to the Inquiry’s terms of reference, this submission addresses particularly (i) what should count as ‘sufficiency of evidence’, and (ii) what accountability there should be, for actions pursuant to the policy.

Specifically, we argue that the following two claims are compatible.

We recommend that this be achieved through the following substantive proposals.

These arguments are grounded in, among others, the following general propositions.

 

Authors. Prof Richard Ekins is Associate Professor in the Faculty of Law, University of Oxford, and a Fellow of St John’s College. He works on constitutional law and theory. He leads Policy Exchange’s Judicial Power Project and jointly authored its report, Clearing the Fog of Law: Saving our armed forces from defeat by judicial diktat (March 2015). Contact: richard.ekins@sjc.ox.ac.uk

Prof Tom Simpson is Associate Professor of Philosophy and Public Policy at the Blavatnik School of Government, University of Oxford, and a Senior Research Fellow at Wadham College. He works on the ethics of security and technology, and previously served with the Royal Marines Commandos. Contact: thomas.simpson@bsg.ox.ac.uk

This submission represents our personal views and not those of our institutions.

Introduction

1.               The UK has not been conducting a programme of covert or unacknowledged drone strikes in the way that the USA has since 2001. There are many problems with that evolving programme. A recent report identifies the serious strategic risks it has incurred and ethical questions it poses, including: the erosion of sovereignty norms; radicalization of civilian populations, who are otherwise neutral or even friendly, leading to blowback; a slippery slope to routinized international violence; lack of transparency; and significant unclarity about legal basis (Abizaid & Stohl 2014). There are related questions about UK-US intelligence cooperation that has enabled that programme. We set these aside, as beyond the scope of this inquiry.

2.               Drones, as such, do not raise any unique ethical or legal issues. They are an instrument for forcefully targeting opponents, in a way that poses no direct risk to the operators. They do so with a precision that is not matched by artillery. They do so without the separation in time between observation and time of strike that is imposed by Tomahawk cruise missiles. While that precision and timeliness can be matched, in some instances, by air strikes or special forces, these latter options also expose one’s own people to risk. These features of the technology give tactical reasons to favour the use of drones on occasion. They are not ethically complex.

3.               It is commonly suggested that the elimination of risk to the drone operator is problematic. This is dubious. ‘The object of war is not to die for your country, but to make the other die for his.’ Fairness may be relevant to boxing; it is irrelevant on the battlefield. A separate concern is psychological: the elimination of risk may make operators trigger-happy, and willing to use force when unjustified. But it may also allow for more considered judgment. There is also the possibility of institutionalizing checks on the decision to kill. Ultimately, identifying whether judgment is improved or worsened is an empirical matter.

4.               The targeted killing of terrorists in territories where there is no permissive access does raise significant ethical and legal issues. Drones’ technological features make them attractive options for these operations. That does not settle the ethical and legal issues, which are our focus.

The ethics of force

5.               There are two basic justifications for the use of lethal force by the state: for punishment and in defense of life. Punishment is the preserve of the criminal justice system, and is paradigmatically carried out after conviction by the courts.  Further, the UK no longer permits capital punishment for any crime. The justification of military action, and of lethal police action prior to conviction, is the defense of life only.

6.               Drones, and the military, should not be used to punish. Extra-judicial killing is illegitimate. It may be that someone deserves to die, and that the only means by which they can be killed is military. But for their killing to be legitimate, it must also be true that defense of life requires it. Consider the presumed killing by drone strike of Mohammed Emwazi— ‘Jihadi John’. It is a powerful, intuitive thought that Emwazi deserved to die. It is hard not to read President Obama’s statement that “we’re going to be bringing to justice those who perpetrated this terrible crime” (viz. the horrific murders of Sotloff and Foley) as an intention to kill based on Emwazi’s deserving punishment (3 Sep 2014). Even if capital punishment were permitted, his execution should follow only after conviction by a court for murder.

7.              We have inherited a distinction between how defensive force should be used in war and peace. In peacetime, civilians and the police are entitled to use lethal force defensively only when their own or others’ lives are imminently threatened. The imminence condition is vital because, in the normal conditions of life, evidence of people’s intentions to act in the medium-term is hard to come by and generally unreliable. The human right to life, which exists regardless of the actual law, is protected in the UK by the common law of murder. In this respect, the incorporation of Art 2 (‘the right to life’) of the European Convention on Human Rights (ECHR) into domestic law, by way of the Human Rights Act 1998 (HRA), merely added another layer of legal protection, supplementing the existing prohibition on murder.

8.               The standard of sufficiency of evidence is different in war to peace. The norms that govern war are similar in some respects to the norms of peacetime, but importantly different in others. In war as in peace, soldiers retain the human right to life and they use lethal force in defense of their own and others’ lives. However, it is not the case that they are permitted to use force only when they are imminently threatened. Soldiers may ambush the enemy; attack them when they are retreating; or while bathing; and so on. When the enemy surrenders, it must be accepted. If the tactical situation allows a soldier to accept surrender without self-endangerment, he should do so. But the tactical situation may preclude, and the soldier may then act with a view to killing their enemy. Force that is defensive in justification may be proactive, and indeed aggressive, in execution. 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.

9.               Targeted killing in war is unexceptionable. Snipers aim for the battalion commander to incapacitate the unit. This is efficient in military terms. It is welcome ethically, for fewer people die.

10.              Until very recently, the law governing war consisted of the body of customary and positive law comprising International Humanitarian Law (IHL). The motivating thought behind IHL is the need to balance military necessity with humanity. Although the combatants on at most one side of a conflict fight for a just cause, all forego the opportunity to punish the enemy after the war for breaching their comrades’ right to life. In return, they gain the same immunity. Victors’ justice is too unreliable. Non-combatants are absolutely protected from intentional killing but IHL permits unintended, proportional non-combatant casualties. IHL is the means by which the human right to life is best achieved under far-from-perfect conditions. In many cases, including the UK, IHL is applied in first instance by the military justice system. This system is formally subordinate to civil law, and its effective administration is subject to civilian confirmation, but it has de facto autonomy in its day-to-day operation (see Armed Forces Act 2006). Justifications for this are various (see Nichols 1971: 483-9; Schlueter 2013). The principle that the accused should be tried by their peers is central; in this case, their peers are other soldiers who understand combat. The priority of IHL in times of war is an instance of the lex specialis principle, by which law governing a specific domain takes priority over that which is more general. The good sense of IHL enjoying priority is effectively recognised by Art 15 of the ECHR, which permits derogation.

Terrorism and unconventional force

11.               The distinction between war and peace is creaking at the seams. In a world where actors were predominantly statist in orientation, either acting on behalf of states or seeking to become a state, it preserved an adequate level of security. With the rise of violent non-state actors, who act with global reach, it is not obvious that the existing institutional apparatus is sufficient for an adequate level of security. The Paris attacks (Jan and Nov 2015) are illustrative. These are the latest fruits of jihadi Islamism, a global movement with over a 50-year history (Keppel 2006).

12.              It is sufficient evidence for justified killing that a target is shown to be a member of a terrorist group. This is in ethical terms alone; i.e. before any institutional facts are considered. This also assumes that other criteria are satisfied, such as the conflict as a whole being proportionate. Defensive force is used against non-state actors with the same justification as against private individuals or militaries. It is to prevent loss of innocent life. Likewise, membership of a terrorist group with a history of unjust violence has the same significance as membership of an enemy military in war: it is excellent evidence of a medium-term intention to kill you, or others in whose defense you act. So the imminence condition is here redundant. Where it is feasible without self-endangerment, or if surrender is offered, then the terrorist should be captured; but where not, the terrorist may be intentionally targeted. Likewise, targeted killing of members is not just permissible but welcome. It may feel different to war, in that the target is identified by name rather than uniform. But this is incidental; the morality of the act is of a kind. Given that terrorists usually avoid uniforms, the challenge is to identify someone as a member of a terrorist group or similar.

13.               To repeat, these judgments are ‘pre-institutional’. If an institutional regime exists that provides for a sufficiently close approximation to the demands of justice, including provision of a satisfactory level of security, then actions justifiable in the terms of the prior paragraph may become impermissible. This is because the benefits of such a regime would outweigh the costs, including some security foregone. (The risk is parallel to that run domestically, when courts release those who are dangerous and probably committed an offence, but the standard of evidence is insufficient for conviction.)  

14.              There is a lack of clarity over what institutional apparatus, if any, should provide for the use of defensive force against non-state terrorist groups. This is so both domestically and globally, and specifically in relation to territories where: terrorists operate freely; there is either no effective governance or merely nominal governance; and UK personnel do not have freedom of movement. The lack of clarity reflects international disagreement, in that there is no settled norm internationally on how to address terrorist groups. In turn, this reflects the deeper fact that it is not obvious what institutional apparatus would be best, given that the apparatus needs to be impartially applicable for, e.g., states as different in character as the USA, Russia, and Iran. Here are three possibilities, in very broad-brush terms.

15.              First, the distinction between war and peace could be retained as a hard one. That is, drone strikes should be undertaken only in contexts of international armed conflict between states. The key consideration here is the value of the norm of sovereignty, as an impartially applicable standard. Although it is not certain, the consequences of the resulting principled inaction would likely be civilian casualties from acts of terrorism that are not prevented, viz. carried out by terrorists who are not killed by military action. That may be a price worth paying.

Second, force used in counter-terrorism could be conducted in the ways that unconventional force predominantly has been hitherto. The secret services have been, in effect, accountable only to the executive, which in turn is politically accountable to the electorate. Such an arrangement eschews legal accountability. The USA’s covert responses to Islamist terrorism since the late 1990’s, in particular by the CIA, have been a way of addressing the threat within these parameters.

Third, one could develop and elaborate legal restraint on the use of force outside of international armed conflicts. This would institutionalize this kind of force. Counter-terrorism operations using aggressive force, under defensive justification, would be carried out under a regime of legal accountability that was specific and tailored to this context. This may involve clarification and elaboration of IHL in relation to non-international armed conflicts (see Sivakumaran 2012 for a survey, history and proposals). The executive would remain politically accountable for the deployment of force, and military personnel would be subject to the relevant specified legal norms, administered in the first instance by military courts.

16.               If the UK advocates the use of defensive force for counter-terrorist operations, it should do so under a clear regime providing for legal accountability. Of the above broad-brush possibilities, the second can be ruled out. We reject a regime of solely political accountability for unconventional force. That may have justification for discrete, very limited acts of force. But in our view, it is clearly inadequate for the scale of operations being conducted or considered today. That scale of operation fails the impartial applicability test: a world where other states were permitted so to act would be a dangerous one indeed. In this submission we do not argue for either the first or the third remaining broad-brush possibilities, although in our provisional view, the third has greater support. The issue is, we presume, also outside the remit of this Inquiry. But it informs the conclusions reached, and permits the conditional claim above.

Provision for legal accountability

17.               Provision for legal accountability should not be by way of the ordinary criminal law or by way of human rights law. The outline reasons are noted above (§10), but require elaboration. IHL is the body of law that has evolved with specific application to times of war and should be elaborated further in relation to non-international armed conflicts. The ordinary common law of murder and of tortious wrongdoing, supplemented by international human rights law (especially the ECHR, incorporated by way of the HRA), is envisaged for application in times of peace. Armed conflict against terrorist groups and other threatening non-state actors more closely parallels war than it does peace. In this context, imminence of threat is not a necessary condition for the justified use of force. In the same way that IHL balances military necessity with humanity, so too must the body of law that governs armed conflict between state and non-state groups.

18.              The procedure for third-party verification of membership of a terrorist group must be efficient. To the extent that the relevant body of law is to regulate armed conflict of a kind akin to that of war, procedural norms must not unduly hamper the aim of military effectiveness. So there is good reason why third-party verification of targets’ liability to attack should not be prospective.

19.               Clarifying the application of IHL, whether suitably modified or otherwise, to armed conflict between states and non-state groups is urgently required to avoid problematic legal liability. The ordinary common law of murder does not proscribe killing an enemy alien in the heat of war. However, it is not clear whether on current law this would extend to the killing of a member of a terrorist group: liability would turn on whether the action was held to have been taken in the heat of war. Relatedly, while Art 15 of the ECHR makes provision for derogation, any derogation to Art 2 (the right to life) extends only to deaths that are the results of lawful acts of war.

20.               Art 2 of the ECHR provides that the right to life may be deprived only if this ‘results from the use of force which is no more than absolutely necessary…in defense of any person from unlawful violence’. The ‘absolute necessity’ test enshrines the imminence condition noted above (§§7-8). That condition is appropriate in peacetime. It is not morally obligatory in war, or other armed conflict. For the UK to hold itself to that standard is not just to fight with a hand behind the back, in the way that any decent military must when confronted by an inhumane adversary. It is to do so blindfolded: i.e. foolishly, and recklessly endangering the lives of our soldiers. 

21.               Art 1 of the ECHR provides that the rights therein, including Art 2, apply to persons within the jurisdiction of the member states. It follows that Art 2 should not apply to British military action taken outside the territory of the UK. However, the ECtHR has misinterpreted Art 1, effectively ruling that anyone in the world who is subject to British military force falls within the jurisdiction of the UK and may rely on Art 2 protection (Ekins, Morgan, Tugendhat 2015). Hence, they may sue the Crown in the ordinary courts by reason of the HRA, as hundreds of Iraqis are doing. In this way, IHL is largely displaced and the ‘absolute necessity’ test is wrongly extended beyond its proper reach. The UK should derogate from the ECHR to avoid this test and to avoid ordinary courts having to consider in consequence the risk of terrorist attack, the evidence of terrorist affiliation, the adequacy of military intelligence, or the aptness of other means of incapacitation. These are not fit questions for lawyers and judges to resolve by way of legal argument. They call for national security expertise and political accountability.

22.               In addition to legal accountability by way of IHL, the government should be politically accountable for its policy for the use of drones and for particular decisions about drone strikes.  A specialist parliamentary committee may have suitable expertise, and legitimacy, to consider questions that would not be fit for adjudication in ordinary courts, including the sufficiency of evidence in particular cases, the prudence of particular decision-making, and evaluation of wider implications.

23.              A full understanding of the Armed Forces Covenant supports this opposition to legal accountability by way of human rights law. The Armed Forces Covenant (2011), the principles of which are enshrined in the Armed Forces Act 2011, is predominantly concerned with welfare provision for service personnel and their families. This is in recognition of the unique nature and demands of service in the military. The principles there are derived from an earlier, wider-ranging and reflective document, Soldiering: The Military Covenant (2000).  Soldiering articulates the Army’s ‘common ethos and moral basis’, which it argues consists of mutual obligations tying together the nation, Army and individual soldier. Running through it is the distinctiveness of the demands of soldiering with ‘above all, high degrees of personal and collective commitment, self-sacrifice, forbearance and mutual trust’ (2000: 1-1). The document does not demand the following interpretation, but is suggestive of it: preserving the unique fighting virtues required for effective soldiering are fostered when the military community enjoy a degree of de facto autonomy not found elsewhere. This distinction between the military virtues and those of civil society—in order for the military to better serve society—is expressed through distinctive uniform, living arrangements, vocabulary, and so forth. It is, in part, expressed also in its self-administration of the law that is specific to its tasks, a responsibility that preserves also the principle of the accused being tried by one’s peers. Insofar as legal accountability would be by way of inapt norms in civilian courts of law, the long-standing de facto autonomy of military justice is thereby compromised.

Contextual specificity

24.               The appropriate legal regime for accountability for targeted killings is deeply sensitive to context. The case for targeted killings of terrorists, and the question of legal accountability, arises specifically when such groups operate in contexts where UK personnel cannot do so safely, and, with the absence of governance, the norm of sovereignty has broken down.

References

Armed Forces Covenant: Today and Tomorrow. Ministry of Defense, May 2011

John Abizaid & Rachel Stohl. 2014. Recommendations and Report of the Task Force on US Drone Policy. Stimson Center

Richard Ekins, Jonathan Morgan & Tom Tugendhat. 2015. Clearing the Fog of Law: Saving our armed forces from defeat by judicial diktat. Policy Exchange.

Gilles Keppel. 2006. Jihad: The Trail of Political Islam. Trans. Roberts. London: I. B. Tauris

Louis B. Nichols. 1971. The Justice of Military Justice. Wm & Mary Law Review 12 (3): 482-511

David A. Schlueter. 2013. The Military Justice Conundrum: Justice or Discipline? Military Law Review 215: 1-77

Sandesh Sivakumaran. 2012. The Law of Non-International Armed Conflict. Oxford University Press

Soldiering: The Military Covenant. Army Doctrine Publication Vol. 5. Feb 2000

 

November 2015

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