Today, the APPG Chair and several members will participate in the Chilcot debate. The Chilcot report into the Iraq war contains valuable lessons for shaping UK policy on the use of armed drones. A summary of the APPG briefing for MPs is available here.
In particular, the debate should provide members with an opportunity to press for the principle of disclosure of legal advice whenever the government uses or proposes to use lethal force. The Chilcot report highlights the perfunctory and unrecorded circumstances in which it was decided that there was a legal basis for UK military action in Iraq, and the failure to share the Attorney General’s full advice with the Cabinet or Parliament.
Following the Khan drone strike last year, the government has continued to refuse disclosure of the Attorney General’s legal advice or even a summary of that advice. The advice has remained a closely guarded secret, not seen by the Chief of Air Staff or Commander responsible for authorising the strike, or the Joint Committee on Human Rights. It is not known whether the Intelligence and Security Committee have seen the advice or part of the advice. Members will remember that the important JCHR report requested urgent clarification after finding that the government’s policy to use lethal force abroad outside armed conflict appeared to be ‘based on a misunderstanding of the legal frameworks that apply’, potentially leaving ministers and service personnel exposed to the risk of criminal prosecution. The government’s response to the JCHR report is expected in September.
Second, the Chilcot report throws the use and oversight of intelligence by Members of Parliament into sharp relief. The Chilcot report made biting criticism that ‘policy on Iraq was made on the basis of flawed intelligence and assessments’ that were ‘not challenged and they should have been.’ Members may remember the key role intelligence plays in drone strikes in terms of target identification, tracking and ‘fixing’ and, specifically, that PM David Cameron said of the Khan drone strike: ‘our intelligence agencies identified the direct threat.’ It is hoped that the Chilcot debate will provide an opportunity to press for further information about the decision-making process and independent forums to robustly challenge intelligence assessments that may lead to placing a person on a ‘kill list.’ Members may wish to consider the introduction of new, express Ministerial duties with regard to the public use of intelligence for partisan goals.
Third, the Chilcot report stresses that greater efforts should have been made to determine the number of civilian casualties, and recommends that the current government should be ready to work with NGOs to develop estimates. This chimes with APPG members’ efforts to introduce statutory or other reporting obligations and indeed the recent Obama Executive Order on annual reporting of combatant and non-combatant deaths caused by US drone strikes. Members may wish to press for follow up to the second Lords debate on a civilian casualty reporting obligation and Penny Mordaunt’s indication that the UK is developing joint policy with allies in this area.
Fourth, Chilcot concludes that the UK was unduly concerned with US approval whereas the relationship was ‘strong enough to bear the weight of honest disapproval’. The government and our new PM may wish to reflect on this assessment when considering any support for the US targeted killing programme. The APPG’s FOI litigation sought transparency on this by requesting disclosure of the ‘Guidance to Intelligence Officers and Service Personnel applicable to the passing of intelligence relating to individuals who are at risk of targeted lethal strikes outside traditional battlefields.’ The Information Commissioner has recently decided that the FCO was entitled to refuse disclosure of this information, despite recognising that confirmation by the FCO that the Guidance exists ‘could significantly increase the government’s commitment to transparency’. Members may now wish to pursue disclosure of the Guidance in Parliament, perhaps in parallel to the disclosure of the Defence Policy on the use of RPAS which is expected this year.
Finally, the report provides an opportunity to reflect on the scope and application of the parliamentary war powers convention. It is hoped that members may seek a renewed commitment to the convention and press for a clear and generous interpretation of how the convention is to apply to new and emerging forms of warfare, including drones and Special Forces, as highlighted by the Shadow Foreign Secretary and the Chair of the Foreign Affairs Commitee.