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Drones: International Law - Question for Short Debate

Part of the debate – in the House of Lords at 1:27 pm on 16th January 2020.

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Photo of Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts Chair, Secondary Legislation Scrutiny Committee, Chair, Secondary Legislation Scrutiny Committee 1:27 pm, 16th January 2020

My Lords, I begin by drawing the House’s attention to two of my interests. I am an officer of both the All-Party Parliamentary Group on Drones and the All-Party Parliamentary Group on Extraordinary Rendition.

The expanding use of drones and its implication for the legal framework that covers their operation raises a series of serious policy issues. Before I come to the substance of my remarks, I need to make one point of principle clear: the first duty of a state is to protect its citizens. We live in a difficult, complex and dangerous world where many issues are not as black and white as we might wish them to be. I therefore accept that forming policies to deal with shades of grey will always be challenging. However, the fact that it is challenging cannot mean that we do not strive to achieve the appropriate level of democratic accountability and control. Accordingly, the standard government answer that is used too often to close down discussion on these points—“We never comment on intelligence matters”—cannot always be allowed to pass unchallenged.

My purpose in initiating the debate is to enable the House to discuss: first, the effectiveness of the legal and operational framework that covers the UK’s drone programme; secondly, the extent of safeguards built into our arrangements with our allies as regards drone operations to ensure that the UK remains in compliance with its international legal obligations; and finally, whether the present arrangements provide a proper degree of public scrutiny and accountability.

We must begin by accepting that, in recent years, drone operations have experienced a high degree of what is known as mission creep. First, the United States has dramatically expanded its drone use by unilaterally declaring certain countries as containing what is described as an “area of active hostilities”. That definition gives local commanders the latitude to act without having to believe that targets threaten the United States itself. Secondly, the use of a Reaper drone to assassinate Qasem Soleimani, the head of the Iranian revolutionary guard, while on a visit to Baghdad in Iraq earlier this month raised the pressure still further. This was the first time the US had used drone technology to kill another country’s senior military commander on foreign soil.

What is the legal framework that covers the use of force on foreign soil? There are three elements: first, that it has been authorised by the United Nations; secondly, that it has the consent of the state in which the force is to be used; and finally, that it is used in self-defence. This right of self-defence depends on the imminence of any threat. The US interpretation of imminence has to date been a good deal more expansive than this country’s, but in recent years there appears to have been a series of subtle shifts taking us closer to the US position. As an example, the then Attorney-General, in evidence to the House of Commons Justice Select Committee in 2015, said:

“One of the things we … need to think about … is what imminence means in the context of a terrorist threat”.

It would be most helpful if, when my noble friend winds up, she could shed some light on the detail of the Government’s current thinking on the definition of imminence.

Even if we were to stick with the narrower definition we have used hitherto, there are still other issues we have to consider. First, there is our supply of information. The United Kingdom operates an outstation of GCHQ in Cyprus to record and analyse messages, information and traffic in the Middle East. It is clear that this information is shared with the US and our other allies, notably through certain RAF stations used by the CIA in the UK: RAF Menwith Hill, RAF Molesworth and RAF Croughton. UK staff based on these stations are said to have what is called a red card, which can be used if they believe the information provided is likely to be used for purposes that would be illegal under UK law. My second request to my noble friend is that she shed a little light on the frequency and extent of the use of red cards. I make it clear that I am not asking her to explain the location or nature, merely the extent of their use.

In addition to the supply of intelligence, there is our commitment of personnel. There is now a high degree of interoperability between US and UK forces operating drones in the Middle East, and how the red card system works there—if at all—is not clear.

Finally and most importantly, there is the role of UK personnel in target selection. A former CIA official has underlined how effective UK forces have been:

“The British have been in Gulf states for decades. They have a reservoir of knowledge, contacts, and expertise that is very important … If you look at what capabilities each side has, that starts to tell you something about precisely where the actionable intelligence is coming from.”

I think my noble friend could usefully comment on the accuracy of that statement when she winds up.

Before I conclude, I will say a word about the wider implications of the increased use of drones and drone technology. From the safety of this House, it is easy to assume that drone warfare affects only the combatants—sadly not. Civilians are nearly always on the front line. One of our excellent researchers at the APPG recently spent time in Yemen. She explained that although drones fly at around 10,000 feet, they can be heard on the ground. Imagine the psychological strain of hearing a drone, from which death and destruction can be rained down at any moment, loitering above your town or village maybe for days at a time; the drones can fly for 17 or 18 hours at a time. How do you go about your daily life? For example, do you allow your children to play outside? Drones’ use may appear to be risk-free to us, but it is far from risk-free to those on the ground.