18 Oct 16. The Joint Committee on Human Rights has commented on the Government’s response to its Report on the Government’s policy on the use of drones for targeted killing. The Committee welcomes some clarifications of the Government’s position, but is disappointed that the Government has refused to clarify its position in relation to the use of lethal force outside armed conflict on the basis that this is “hypothetical.” What law applies to such uses of lethal force is one of the most important questions raised by the Committee’s inquiry and Report, and the Committee expected the Government to make its position clear on this central issue. The Government’s response provides some clarification in certain areas. It has explained its understanding of the thresholds that need to be met for a threat to considered “imminent” and use of force justified. But uncertainty remains about what the Government considers to be the relevance of when a threatened attack might take place. There are also some important questions about human rights law that remain unanswered.
Key areas where further explanation is needed:
• Is the Government applying the Laws of War where operations are being carried out in areas outside of armed conflict
• What degree of physical power and control over a person who is killed by a drone strike is enough to bring that person within the UK’s jurisdiction so that the right to life in the ECHR applies?
• Does the Government maintain its position that the use of drones outside of armed conflict must be in accordance with international human rights law
• What does the Government consider Article 2 of ECHR to require? Is an “impossibility of capture” test applied?
• How does the Government ensures that UK support of other states using lethal drone strikes does not contravene international human rights law, protecting UK personnel from future criminal prosecution?
• What importance does the Government place on the timing of a potential attack when deciding its response?
The Government’s response also misinterprets the recommendation of the Committee that the Government should take a lead in developing an international consensus. The Committee did not advocate the development of a special legal regime for the use of drones. Its Report recommended that there should be an international consensus in how existing legal frameworks should be interpreted and applied. In any future response the Government must recognise this and show its determination to lead the international community in achieving this goal.
Committee Chair, Harriet Harman commented: “The Government has stated that it follows “detailed and developed thinking” when applying the law to its use of lethal drone strikes but this has not been fully demonstrated in its response to our report. Greater insight has been provided into the broad approach the Government takes in establishing what terrorist threats merit the use of force. However the Government has chosen not to answer the most important questions raised by our Report concerning its understanding of the legal framework which governs the use of lethal drone strikes outside armed conflict. It is simply not good enough for the Government to refuse to answer this on the grounds that it is a hypothetical question, when in the course of our inquiry it stated that it would be prepared to resort to such use of lethal force for counter-terrorism purposes even outside of armed conflict. Parliament is entitled to expect an explanation of the Government’s view of the legal justification for such a use of force before it happens, rather than wait until it does”.
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