Supplementary written evidence from Reprieve (DRO0026)

  1. At the request of the JCHR, Reprieve has prepared this short, supplemental submission to its written evidence and the oral evidence already given by staff attorney Jennifer Gibson. The submission addresses specific questions asked by the committee around the decision-making process and legal accountability mechanisms, as well as outstanding questions raised by Secretary of State Michael Fallon in his appearance before the committee in December 2015.

 

A.                  What do you think the decision-making process ought to be when deciding to carry out a drone strike?

  1. The right to life is the most fundamental of all rights. The power of the state to take life must therefore be exercised only in the most extreme circumstances, and with the most comprehensive and independent scrutiny, both before and after the event. There are only two instances in which a state may lawfully use lethal force against an individual: armed conflict and self-defence.

 

  1. Reprieve’s work historically has focused on the US’s use of drones outside of declared warzones, as it is almost always done illegally, in secret and without accountability. There are worrying indications that the UK has followed the US lead in this regard. Not only has the Government acted outside of a declared warzone and without Parliamentary approval, it has indicated it intends to do so again “wherever” it deems necessary. More worryingly, it has refused to answer even the most basic questions about the legal basis for its action.

 

  1. The Government’s complete lack of transparency means any discussion of a decision-making process is premature. No decision-making process, no matter how well thought out, could make an illegal act legal. We, therefore, first and foremost need the Government to answer key questions about whether a policy exists, and if it does, the scope of that policy.

 

  1. A threshold question in this regard revolves around the UK’s invocation of self-defence and its definition of imminence. International and domestic law dictate that drones cannot be used outside of declared warzones except in the rare and exceptional instance where the state must act in self-defence to prevent an imminent attack upon itself.

 

  1. For self-defence to be invoked, the pending attack upon the state must be “imminent”. The imminence requirement is not one that is open to interpretation. Government cannot unilaterally or secretly change or re-define it. Reprieve is extremely concerned that this is exactly what has happened.

 

  1. Under customary international law, as defined by the Caroline test, a threat is imminent only when it is “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.”

 

  1. The Caroline test is the evidentiary threshold by which any act of self-defence must be measured. It is a very high bar for the use of force and one that will be met only in exceptional circumstances. There is good reason for this very high bar. The international system is premised on the principle of sovereignty and a prohibition on the use of force by one state against another. Any exception to this prohibition, unless carefully circumscribed, therefore poses an inherent danger to international peace and security.  The international system is a one rule applies to all system. If we loosen the test that we apply when we act in self-defence, others will likewise lower their own bar.

 

  1. Neither the attorney general nor the Secretary of State for Defence have confirmed that they followed the standard set forth in Caroline. In fact, quite the opposite. The Attorney General has signalled he believes it may need to be re-examined in light of new threats. The Defence Secretary went further in his testimony to the JCHR. He stated:

Circumstances have certainly changed from the definition that you have quoted. I would not want to rest on that. You look at these things on a case-by-case basis in the light of the assessment that you make in each particular case. I do not think it is possible to have a hard and fast rule about how you would define “imminent”.

  1. The Defence Secretary’s statement is not only worrying. It is simply wrong. There is a hard and fast rule on how imminence is defined. It is one that has been in place for almost 200 years. Moreover, it is a rule that limits not only our own use of force, but also that of others in the international community who may also want to use it, others whose intentions may not be as honourable as our own.

 

  1. Self-defence does not give the state the right to use force in instances where they think an attack “might” or “could” occur. The “imminence” threshold means an attack will occur immediately if no action is taken. There is, quite literally, “no moment for deliberation.”

 

  1. The imminence test, as properly defined, requires the threat in response to which action is taken to be “instant” and “overwhelming". The Government should clarify without delay that it has applied this proper definition of imminence, and rectify any confusion caused by the ministerial statements above. Any divergence from this internationally recognised definition is a cause for deep concern.

 

  1. The Government must also develop and make public a policy prior to any action being taken. The policy must very clearly set out the legal basis for such actions. It must set out both the pre-action independent safeguards and post-strike accountability mechanisms. The decision making-process must be as public as possible, recognizing that there will be national security limitations.

 

  1. The formulation and publication of a policy in itself will not make targeted killing by drones lawful. Instead, it is the prerequisite first step in a conversation that requires far greater clarity, parliamentary debate and public scrutiny.

 

  1. Without such a policy in place, targeted killings outside of declared warzones cannot be lawful. The failure to formulate and publish a policy is a concerning indicator that the UK is at risk of falling into the same trap as the US: a drone programme operating under expanded definitions of international law that occurs beyond scrutiny and debate."

B.                  How far can legal accountability for individual drone strikes go?  Given the role played by intelligence information in the decision-making process, is it capable of judicial supervision?   

  1. The reality is that the courts have been handling and adjudicating sensitive issues throughout history. At no time has this been more important than when the state is acting in secret and outside the purview of public scrutiny. In such situations, the court plays an important role in the checks and balances system that enable rights to flourish. It is these checks and balances that make democracies work.

 

  1. The courts cannot act, though, unless they are given the space to do so. Parliament has an important role to play in creating that space by encouraging, rather than hindering, accountability. Parliament needs to not only ask tough questions of the Government, as this committee is doing, but also ensure courts have the space they need to step in when Parliamentary oversight is not possible and/or fails.

 

  1. If Parliament fails to create this space, the result is an accountability vacuum. In the US, Congress has failed to play this vital role in the post-9/11 environment. As a result, the doors of the courts have been all but shut, making accountability for such disastrous policies as Guantanamo and drones all but impossible. This, in turn, has created more secrecy, and allowed the Government to act with impunity far from the watchful gaze of either Congress or the American public. The result has not been to make America safer. In fact, quite the contrary. It is imperative that Parliament does not allow the same to happen here in the UK.

C.                   Would you advocate the use of closed material procedures to enable the courts to adjudicate on the legality of particular targeted killings?

  1. Any use of CMPs in a criminal context is incompatible with any standard of justice. CMPs were only ever intended for use in civil litigation and while civil litigation can serve as some form of accountability, it cannot bring someone back to life.
  2. More generally, Reprieve opposed CMPs were they were first proposed and continues to do so. They were an unnecessary introduction into the British court system, as there are other measures available that serve the same purpose, e.g. PII applications or certificates.

D.                  What do we still not know?

  1. One of the most troubling elements of the Government’s response to date has been its complete lack of transparency around key questions it has been asked. Answers to even simple questions, such as the existence of a policy or the legal framework employed, have been met with silence – the same silence that in the US has allowed a counterproductive drone programme to grow and flourish far from oversight.

 

  1. Citizens in a democracy have a right to know what actions their Government is taking on their behalf and what the law is surrounding those decisions. That is how democracies work. They do not flourish in shadows.

 

  1. Given the Government’s complete lack of transparency thus far, Reprieve believes strongly that the greatest role the JCHR can play is in raising concerns and demanding more public information, by way of a published, unambiguous and comprehensive policy. It is the Government’s role to develop a policy that is detailed and lawful. It is one that it should have done before taking the August 2015 strike. It is also one that only the Government currently has enough information to write.

 

  1. Until the Government publishes a policy, Parliament and the public will be left in the dark, unable to ensure proper accountability exists. This is simply unacceptable when the policy in question is one that allows the Government to take away that most fundamental of all rights – the right to life.

 

January 2016