Categorized | UK

The UK’s Secret Drone War: Legal Basis Uncertain, Civilian Casualties Unknown

NOVANEWS

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The use of armed drones by the US in countries such as Iraq, Pakistan, Syria and Yemen is well known, but not well documented. Internal rules governing the program remain opaque, and details on individual strikes and casualty figures are lacking. However, the UK own drone warfare efforts are almost entirely hidden from the public.

As Columbia Law School’s Human Rights Clinic “Out of the Shadows” report made clear in June, the UK’s approach to drone warfare is opaque at all levels.

Officially, the country has no formal drone program equivalent to that of the US — the UK Parliament’s Joint Committee on Human Rights inquiry into targeted killing concluded drone strikes are conducted ad hoc, as but one operational tactic at the disposal of UK forces.

​Nonetheless, freedom of information requests indicate that by the end of 2016 over 1,200 airstrikes (both from conventional manned aircraft and drones) were conducted against Daesh targets in Iraq and Syria alone — although the question of whether and where else in the world UK drones have been deployed, and the civilian impact of these strikes, is scant.

Likewise, the legal basis upon which the UK relies for its use of armed drones remains unclear — for instance, does the UK assert the right of self-defense under international law? Such a claim was made after the RAF killed three people, including British citizens Reyaad Khan and Ruhul Amin, in a drone strike near Raqqa, Syria in August 2015.

The strike took place despite Parliament having explicitly voted against UK involvement in US-led airstrikes in Syria in August 2013. Without the Commons’ knowledge or consent, then-Prime Minister David Cameron authorized the strike, relying on a limited parliamentary convention allowing for immediate military action to be taken in self-defense of British national interests.

Contradictorily however, in his official legal notification to the United Nations Security Council, Cameron claimed the action was instead taken pursuant to the right of collective self-defense of any nation subject to armed attack.

In any event, there is ongoing controversy among international law experts as to the theoretical validity of the doctrine of anticipatory self-defense — the UK has long asserted the existence of such a right, but how such a doctrine properly applies in the circumstances of strikes against Daesh overseas is yet to be adequately explained.

Rights Watch UK has requested disclosure or summary of the relevant legal advice underpinning the August 2015 strike, although the request has been rejected. As of July 2017, it remains under appeal, to be heard before the UK Upper Tribunal before the end of the year.

The doctrine of anticipatory self-defense requires a threat defended against must be an imminent one, although the very phrase “imminent” is an elastic one. Moreover, in a January speech to the International Institute for Strategic Studies, UK Attorney-General Jeremy Wright called for an renewed approach to imminence, eschewing the traditional assumption of threat proximity (ie a threat near or incoming to a particular area) to a “factor-based” approach, in which proximity is no longer a necessary condition. The Attorney-General even favors action in self-defense when the UK does not know where and when an attack will take place, or the precise nature of an attack.

In addition to the absence of transparency around the UK’s use of drones, the government is also yet to set out the nature and degree of its involvement in facilitating and supporting the use of armed drones by the US — and depending on the nature of this involvement, the country may be liable under international law for US government actions.

There are a number of legal means by which a state may be held internationally responsible for the actions of another it assists.

For instance, Article 16 of the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts makes clear a state which aids another in the commission of any wrongful act is responsible if the abetting state does “so with knowledge of the circumstances of the internationally wrongful act” — and the act “would be internationally wrongful if committed” by the assisting state.

Articles 40 and 41 provide a narrower rule — where one state is guilty of a serious breach of international law, other states are prohibited from rendering any assistance in maintaining the situation before or after the event. On notice of a serious breach of international law by a state, other states are obliged not to provide further trade in arms or continue intelligence sharing, for example

Further, the United Nations Charter makes clear a state must not allow its own territory to be used as a launching pad for acts of aggression by other states, even if it is not directly involved itself. Such use of territory could include provision of landing rights for drone strikes, or even allowing partner intelligence agencies to operate out of a state’s military installations.

In February, Rights Watch UK was involved in litigation in the English High Court, arguing the UK government was obliged to consider the UK’s potential liability for aiding and assisting breaches of international law by the Saudi Arabia-led coalition in Yemen through its arms exports to Saudi Arabia.

Far from confirming the UK’s international liability was being seriously interrogated, the government argued the question of liability for aiding and assisting Riyadh’s potentially criminal actions were irrelevant.

As drone use proliferates internationally, the need for transparency and oversight also increases. The failure of the US and UK to provide regular, reliable, transparent information on their participation in drone warfare, or explain whether their actions conform with international legal obligations means neither constituent public can have any confidence their government is acting lawfully.

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