MPs are pressing the Prime Minister further following testing questions last week from Andrew Tyrie, Chair of the Liaison Committee and Harriet Harman, Chair of the Joint Committee of Human Rights about the Government’s policy and accountability for their use of drones for targeted killing.
The Prime Minister’s response to Harman’s probes on the need for a clear legal basis, operational framework and written policy has raised more questions than it answers. Contrasting with the Defence Secretary’s evidence on 16 December (‘there is no policy on targeted killing..’), the PM said: ‘I feel there is a clear policy there.’ For the second time, the PM avoided thorny issues concerning the threshold test for action in self-defence, claiming only ‘the principle is simple: that we would take this action only in the most extreme circumstances where there are no other options are available’. He added ‘I am not inclined to try and write out some policy statement along the lines that you suggest. I think that would be quite difficult to do.’ The PM is right that this would be difficult; this is unlikely to deter Harman.
To his credit, the PM indicated he would at least consider a written policy. This could come in several forms. The principles underpinning the RAF’s use of Reapers could be incorporated into this year’s Air Power Doctrine, as the Minister for Armed Forces flagged in David Davis’ December’s debate on Drones and Rules of Engagement. Another option – other than a bespoke document or detailed Minister’s statement addressing the issues raised by Harman – is the anticipated policy on the development and use of (all) unmanned systems.
The Defence Secretary stated in December that the Khan drone strike was ‘the first time we acted in an area in which we were not previously involved in an armed conflict.’ This raises key questions about how and when the Defence Secretary considers that the UK became party to an armed conflict in Syria. It also contrasts with the Government’s written evidence to the JCHR, UNSC referral and letter to Leigh Day in which the strike was said to have taken place ‘in the context of an armed conflict.’
On the standard for action under Article 51, the Defence Secretary boldly said: ‘I do not think it is possible to have a hard and fast rule about how you would define ‘imminent.’ This needs swift clarification. The rule of law demands fixed standards – and the standard for action under Article 5o is already defined (‘Caroline‘ test).
Both the PM (‘I am responsible for this: it was my decision’) and Defence Secretary (‘it is only the Defence Secretary – not the PM or AG or anyone else – who can authorisei military force) have claimed they made the decision for the strike which took place before the Syria vote. The Defence Secretary’s comment that ‘authorisation is then passed down the chain of command’ invites a detailed explanation about how the standards (however defined) and authorisation was applied in practice.
Tyrie’s questioning of the PM on the ISC’s remit to review the Khan strike exposed a worrying lack of independent oversight. The Intelligence and Security Committee stated in October that the Khan strike was a priority. S2(2) Justice and Security Act permits the ISC to examine ‘other such activities of HM Government in relation to intelligence and security matters.’ But both the ISC Work Priorities Statement and Memorandum of Understanding dated 25 November limit the ISC to review of military operational matters that deal with intelligence. Other operational matters are excluded.
The Khan drone strike would have included a series of intelligence, operational and legal decisions. The actual decision to target Khan at a particular time and location (with 2 others in the vicinity) was probably an ‘other’ operational military decision. Documents withheld are therefore likely to include the rules of engagement and legal advice on the principles of necessity and proportionality. Anything deemed part of a ‘series’ of operations will be excluded too.
This means that – unless a new remit for the ISC is agreed and reflected in an amendment to the Memorandum of Understanding dated 25 November – the ISC review will be incomplete. There will be no ‘independent line of sight with all relevant materials’ to review the decision, as former DPP Keir Starmer has explained is necessary.
These questions are central to the JCHR inquiry. Unless the Prime Minister and Defence Secretary are able to provide answers – and the assurances sought by its members – their report is likely to be highly critical.
Meanwhile, Brendan O’Hara and Graham Allen – working with Airwars – have obtained an assurance from the Defence Secretary that he will ‘look at any evidence [on alleged civilian casualties] brought forward in open source reporting by other organisations in the assessment we make of each of the strikes in which are aircraft are involved.’ This is a welcome first step in work towards a civilian compensation scheme for any casualties caused by strikes in Iraq and Syria. The next question is: what procedure should the monitoring bodies use to submit their reports – and how will the MOD respond.