While it is well worth reading the opinion in full, a summary at para 1.5 states
In brief, we conclude that in the absence of international agreements, armed drones themselves are unlikely to be illegal per se, but that fully automated drones would breach international law. As to whether the UK’s use of drones in Afghanistan breaches international law: we have evaluated the available evidence of the UK’s prolific use of drones in Afghanistan in light of the onerous restrictions which international humanitarian law (IHL) and international human rights law (IHRL) place upon their use. We conclude that it is highly likely that the UK’s current use of drones is unlawful. There is a strong probability that the UK has misdirected itself as to the requirements of the IHL principles of proportionality, distinction and humanity and as to its human rights obligation to protect human life and to investigate all deaths (civilians and combatants alike) arguably caused in breach of that obligation. We conclude that the European Court of Human Rights (ECHR) is capable of application to the UK’s use of drones and that human rights accountability and the rule of law require its application. We call for urgent accountability for the UK’s drones programme.
More broadly, to date substantive attention has been focused on the use of drones by the US, outside formally declared armed conflicts, but the UK’s drone use in Afghanistan, appears, from the media coverage, to be broadly considered acceptable. UK Parliamentarians have however sought to more clearly establish the terms of this use and to understand the impact of this weapon on the ground.
Recent Parliamentary Questions have examined the legal framework used by the UK and its broader relationship with the other states on these legal questions. A response, to a question by Nicholas Soames MP, on external legal advice sought to ensure compliance with international humanitarian law brought a reassertion of the Government’s commitment to this legal framework. Indeed, a response to an earlier question from the APPG Chair, Tom Watson MP, noted that
All UK forces in Afghanistan operate in accordance with international humanitarian law and UK rules of engagement, under the command of the NATO International Security and Assistance Forces (ISAF), under the legal authority of UN Security Council resolutions and with the consent of the Government of Afghanistan.
In contrast, when it comes to the UK’s relationship with other states on drone use, the responses are more nuanced. For example, Annette Brooke MP (LD) asked “ the Secretary of State for Defence what steps he is taking in liaison with his international counterparts to regulate the use of armed drones; and who is responsible for the legality of their use.” In response, Andrew Robathan stated
No steps are being taken to regulate the use of armed drones, or remotely piloted air systems (RPAS), as the framework for their use is clear. The rules of engagement applied are identical to those used by crews of manned combat aircraft. The selection and prosecution of all targets is based on rigorous scrutiny which is compliant with international humanitarian law, rules of engagement and targeting policy. Targets are always positively identified as legitimate military objectives. Every effort is made to ensure that harm to civilians or damage to civilian property is minimised; this may include deciding not to use a weapon at all. The use of any of the weapons depends upon commands from the flight crew.
In contrast, a question on the sharing of locational intelligence, for the purposes of drone strikes drew only the short reply that the Government “didn’t comment on intelligence matters”. Further, and more perhaps of greater concern, is the Government’s response that it does not hold discussions with international defence counterparts on the legal framework for attacks by unmanned aerial vehicles targeted at particular individuals.
The lack of clarity on the UK’s drone policy and subsequent concerns about the lawfulness of the UK Government’s use of armed drones highlight the importance of this PILS legal opinion. The onus is on Parliamentarians to continue to hold the Government to account to increase the transparency and accountability around UK drone use and ensure that the Government is complying fully with its domestic and international legal obligations.