Ministers 'could face murder prosecution' under current drone strike laws

The rapid pace of change in conflicts and technology has left areas of operations which are not subject to law, according to a parliamentary committee 

Graffiti in Sana, Yemen, where drones have been used in the ongoing conflict, in addition to be used in Iraq and Syria
Graffiti in Sana, Yemen, where drones have been used in the ongoing conflict, in addition to be used in Iraq and Syria

Western Governments must urgently draw up a new international legal consensus on when it is acceptable for countries to take a life outside of war or face potential prosecution for murder, a committee of senior MPs are set to warn.

The Joint Committee on Human Rights (JCHR) said that current rules of engagement were “confused and confusing” and recommended that the UK should take the lead in establishing internationally-recognised rules for when the use of deadly force should be authorised.

“As the world faces the grey area between terrorism and war, there needs to be a new international consensus on when it is acceptable for a state to take a life outside of armed conflict, the committee concluded.

“The UK Government should lead in the establishment of that consensus and thereby ensure that states are able to take the action which is necessary to protect their citizens without breaching the rule of law.”

It added that the Government’s current policy “may expose…ministers to the risk of criminal prosecution for murder.”

It said: "Clarification of the legal basis is essential in order for Parliamentand the public to be satisfied that the Government is complying with the rule of law and to provide absolute clarity for all those involved in the chain of command for such actions (intelligence personnel, armed forces, officials, Ministers et al) so they have a legal defence against any possible future criminal prosecution for murder from within or outside of the UK. The need for clarification is urgent in view of the increasing use of lethal force in Libya."

The recommendation comes following an investigation into a drone strike which killed British jihadi Reyaad Khan in August 2015. The committee concluded this attack was part of the armed conflict against IS in Iraq and Syria and therefore covered by the Law of War.

But chairwoman Harriet Harman said the Government had not been "crystal clear" about the legal basis for the killing of Khan in Syria and the committee raised wider concerns about the potential use of drones in other parts of the world where Isis is active.

"We find ourselves today in a new situation for which our long established legal frameworks were not designed,” she said.

"The line between war in the traditional sense and countering the crime of terrorism has been blurred by two developments: rapid technological advance, including drone technology, has transformed the nature of the threat from terrorism and the capacity to counter it; and the nature of armed conflict has changed, with the steady rise of non-state armed groups such as Isil/Da'esh with the intent and capability to carry out terrorist attacks globally and aspirations without territorial limit.

"When dealing with an issue of such grave importance, taking a life in order to protect lives, the Government should have been crystal clear about the legal basis for this action from the outset. They were not. The statements of the Prime Minister, the Permanent Representative to the UN and the Defence Secretary in the aftermath of this military action were confused and confusing.

"When the government orders our military to take a life outside of armed conflict, there should be proper accountability. Those making and carrying out the order to take a life need to know that there will be independent scrutiny to ensure that the highest standards have been adhered to.”

The MPs and peers said that "while international law permits the use of force in self-defence against an imminent attack, it does not extend more widely to authorise the use of force pre-emptively against a threat which is more remote, such as plans which have been merely discussed but which lack the necessary intent or capability to make them imminent".

They also suggested that human rights laws could apply if force was used outside a conflict zone, but stressed this would not necessarily prevent a strike taking place.

The European Convention on Human Rights "imposes a positive obligation on the State to protect life, including by taking effective preventive measures against a real and immediate risk to life from a terrorist attack".

The report called for more accountability and proposed giving the Intelligence and Security Committee a more prominent role in oversight.

Jennifer Gibson, a staff attorney at international human rights NGO Reprieve who gave evidence to the Committee, said: “This report is a wake-up call. Not only does the committee raise troubling questions about whether the Government ‘misunderstood’ the legal frameworks that apply, but it warns they may be at risk of prosecution for murder as a result.

“The UK’s silence in the face of repeated questioning by the committee only further reinforces the very real danger that the UK is following the US down the slippery slope of kill lists and targeted killings. This is alarming, given the CIA’s secret drone war has killed hundreds of civilians and been described as a ‘failed strategy’ by Obama’s own former head of defence intelligence.”

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