Drones: International Law
(4 years, 11 months ago)
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Lord Hodgson of Astley Abbotts
To ask Her Majesty’s Government what assessment they have made of the implications of the use of drones to assassinate Qasem Soleimani for existing agreements on the use of drones.
Lord Hodgson of Astley Abbotts (Con)
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.
Lord Janvrin (CB)
My Lords, I thank the noble Lord, Lord Hodgson, for introducing this timely short debate. I will speak briefly about the importance of Parliament being able to scrutinise government decisions on the use of drones. I do so as a member of the Intelligence and Security Committee in the last Parliament, and its predecessor, which issued the 2016 report entitled UK Lethal Drone Strikes in Syria.
The international political ramifications of the United States’ decision to kill Qasem Soleimani will continue to be debated for months, if not years. But, as the noble Lord, Lord Hodgson, made quite clear, his Question is about issues of legality and policy raised by the assassination. The 2016 ISC report into the targeted killing of Reyaad Khan, a British member of ISIL in Syria, is instructive in examining some of these issues.
That report drew attention to the Government’s position that, when it comes to international law, the policy on the use of remotely piloted aircraft is the same as that for manned aircraft; namely, that pilots operate under the same legal constraints and rules of engagement. In accordance with Article 51 of the UN charter, a Government have the right to use force in self-defence where an armed attack is under way or judged to be imminent and where the response is both necessary and proportionate.
Thus far we are on familiar ground, but with the recent use of drones we soon get into more challenging territory. I pay tribute to the work of the APPG on Drones in looking at some of these more difficult issues—around the interpretation of the right to self-defence, what constitutes an imminent attack, and the strain imposed on these legal concepts by technological change relating to the use of robotics, data analytics and information technology.
My point is altogether simpler; it concerns the importance of being able to assess the intelligence. The 2016 ISC report made it clear that, in order to examine the legality of a lethal drone attack, it is obviously necessary to assess the secret intelligence underlying the judgments on the severity of the threat, imminence, necessity and proportionality. In the case of the UK’s decision to kill Reyaad Khan in August 2015, the ISC was able to take evidence in secret and to publish an important, if limited, report commenting on the intelligence supporting the decision to go for a lethal drone attack.
The significant point here is that Parliament had the ability to scrutinise the legality of a lethal drone attack because the parliamentary Intelligence and Security Committee, under the Justice and Security Act 2013, can examine the secret intelligence. For me, this is a very significant implication of the US drone attack. It is a reminder to Parliament of the importance of the Intelligence and Security Committee in providing that scrutiny and oversight of the UK’s intelligence agencies. This scrutiny is part of the licence given to the agencies to go about their secret business in an open and democratic society. It is about ensuring public trust—so vital to the effectiveness of these services, which make such a key contribution to our security and well-being.
The Intelligence and Security Committee is not a conventional parliamentary Select Committee. Under the 2013 Act, members are nominated by the Prime Minister in consultation with the leader of the Opposition, then Parliament makes the appointments, with each House voting on the nominations of its own Members. After the 2017 election there was an unfortunate delay of some five months before the new committee was appointed. I realise that there are many competing priorities after the recent election, but it is surely in the interests of the public, Parliament and the intelligence community to have the new committee up and running sooner rather than later. There are a number of ISC reports waiting to be published, and major issues—such as Huawei and the 5G network—on which the ISC will have a unique oversight responsibility.
Does the Minister have any information on the nomination process for this committee in this new Parliament? I realise that this may be outside her direct ministerial responsibilities, but I hope that she will at least be able to pass on that there is parliamentary interest in the appointment of a new committee without undue delay.
Lord Judd (Lab)
My Lords, my interests and experience relevant to my position on this are on the record.
We all owe a great debt to the noble Lord, Lord Hodgson, for introducing this debate on a crucial issue. I underline the word “crucial”, with all its significance. The work that he consistently does on drones is to be congratulated.
Agnès Callamard, the UN special rapporteur on extrajudicial killings, said that the test for so-called anticipatory self-defence is very narrow. It must be a necessity that is instant, overwhelming and leaving no choice of means and no moment of deliberation. Frankly, those requirements are unlikely to be met in the circumstances of the US-targeted drone attack on the Iranian general Qasem Soleimani.
Targeted assassinations, using drones or otherwise, are likely to be highly counterproductive, especially in the longer term, because the law protects everyone, including the people of the US. Other countries are likely to follow the practice and example set by the States, ourselves or anybody else.
Finally, and perhaps most directly relevant to this debate, the growing trend of armed UAV proliferation among state and non-state actors, and its increased use, as illustrated by this instance, gives rise to the need for a clearer legal framework, whether by strengthening or more fully implementing other control regimes, or by formulating distinct measures, to help eliminate any confusion about different applicable standards and rules and to protect the rule of law and international stability, which should incorporate appropriate levels of accountability, transparency and oversight.
Do the Government accept and put on record that they are legally responsible for what happens at the bases on our territory, for our partners’ use of intelligence and assets, and for the UK personnel embedded with partner forces, no matter which state commands? Will they clarify what safeguards and oversight mechanisms currently exist beyond assurances from partners? Is there an oversight mechanism? What is the line of oversight? Are they prepared to give an undertaking to establish and implement a mechanism to ensure that US operations involving UK intelligence and support are lawful, and develop policy safeguards to address areas of risk? These should surely include a robust assessment of the facts, taking into account information provided by the partner and the UK’s own intelligence and civil society sources of information, establishing a mechanism to ensure adherence to international human rights law when strikes are taken outside armed conflict, and establishing a framework to instate conditions on a partnership in the face of concerns, exiting the partnership if no improvement is made.
Currently, and disturbingly, the only options available are to assist or not to assist. Will the Government ask the US Government what is happening at the bases on UK territory? Specifically, is any element of the US drone programme, including but not limited to intelligence gathering, analysis and target development, facilitated through UK bases such as RAF Menwith Hill? In line with Section 17 of the Chilcot report, will the Government carry out standard continuous assessment of civilian casualties and harm resulting from UN drone strikes in places such as Yemen, where UK assistance is pivotal to the outcome of conflict? Will they inform Parliament, or a specific body in Parliament, of any assistance arrangements so that the requisite information is available for informed decision-making?
We are drifting into a new age of great challenge. Technological warfare, particularly when so few current politicians have experience of warfare, can too easily become just another management option, pressing buttons for things to happen remotely. War is a horrible business. Civilians get maimed, hurt and bereaved in warfare. We need to take what is happening extremely seriously. I again thank the noble Lord, Lord Hodgson, for having brought this issue to our attention.
Baroness Stern (CB)
My Lords, I thank the noble Lord, Lord Hodgson, for arranging this timely debate. He has done the House a great service with his balanced and probing contribution.
Your Lordships’ House has shown an interest in the development of drone warfare since 2012, when the All-Party Group on Drones was established. I declare an interest, having been a member of that group since it was set up. When it was established, its central concern was to ensure that as drones became an intrinsic part of conflict operations everywhere, they were operated by the United Kingdom at all times within a framework of humanitarian and international human rights law, overseen by and accountable to Parliament.
As the noble Lord, Lord Judd, has pointed out, a weapon that can inflict damage from thousands of miles away, and target more precisely than any other weapons system so far in use, requires new thinking. This was a new element in warfare that was developing fast, and a framework was needed to ensure that the use of this new weaponry would follow the obligation to protect civilians in conflict and operate under international law.
During the previous Parliament, the all-party group carried out an extensive inquiry entitled The UK’s Use of Armed Drones: Working with Partners. The inquiry had the involvement of distinguished experts. It was chaired by Professor Michael Clarke, former director-general of the Royal United Services Institute, and advised by Professor Dapo Akande, co-director of the Oxford University Institute for Ethics, Law and Armed Conflict. Evidence for the inquiry was taken from senior military figures, among others.
The inquiry report stated:
“In general, the United Kingdom has had a good story to tell on the deployment of drones for a range of military purposes. Over the last two decades, the UK’s use of military drones has been highly constrained and was widely regarded by other countries, and by the United Nations, as a model of responsible and ethical use. It was also regarded as different in some significant respects to the way lethal drones were used by the United States.”
However, it also concluded that
“without clear policy and sound legal basis, UK armed drones are flying into political and operational danger, risking both harm to innocent civilians and opening up personnel to criminal prosecution. The UK’s use of lethal force by drone without parliamentary approval, and its assistance to partners’ lethal use of drones risks violating national and international law.”
The report made a number of recommendations, and at the time of a new Government it seems appropriate to bring some of these to the attention of the Minister, in the hope that the Government will be prepared to consider them afresh. Some of the recommendations address the role the UK plays in drone strikes when it is working with other state partners and suggest ways to ensure that humanitarian and international laws are respected. For example, the Government should publish their policy on targeted killings: they should at least explain the legal basis; the criteria used and the precautions applied in the selection of targeted individuals; the decision-making process; and, in particular, the process of making sure that every alternative method of neutralising the threat posed by the targeted person has been exhausted.
Transparency is another important area, including the involvement of and accountability to Parliament. The provision of information by the Government is inadequate, and I am grateful to the noble Lord, Lord Janvrin, for his detailed contribution on this. The Defence Committee, the Intelligence and Security Committee, and the Joint Committee on Human Rights can look at certain aspects of drone use that fall within their mandates, but no parliamentary committee has the mandate to conduct comprehensive investigations into a drone strike. The report by our all-party group concluded that parliamentarians should demand greater transparency in the way the UK operates drones. A number of suggestions were proposed for consideration —for example, that the Government should create the post of an independent reviewer of drone operations, in the manner of the successful Independent Reviewer of Terrorism Legislation.
In closing, perhaps I may ask the Minister three questions. First, can she tell the House whether the Government have any plans, or any work in progress, that would put more information on UK drone warfare into the public domain? Secondly, is there any plan to strengthen the accountability to Parliament in respect of drone warfare? Thirdly, if the answer to both these questions is negative—and it would be reasonable for the Minister to say that it is a bit soon in the life of this Parliament to ask such questions—is she prepared to meet some Members of your Lordships’ House, to hear their concerns and take this matter further?
Baroness Smith of Newnham (LD)
My Lords, like other Members in the Chamber, I thank the noble Lord, Lord Hodgson, for bringing forward this timely debate today. It is flagged on the annunciator as “Drones: International Law” but the Order Paper and the original documents suggest a slightly different title.
I would like to raise two key themes with the Minister: international law and the UK’s use of drones, and how our relationship with the United States fits into questions associated with the impact of the strike on 3 January; and further questions about the nature of our alliance with the United States and how far Her Majesty’s Government are able to rest on the assurances of the United States Government.
The APPG on Drones, of which I am not a member but whose meetings I occasionally attend, provided a useful briefing. It pointed out that a German court has said that the German airbase of Ramstein cannot be used for drones precisely because there is a concern about the Americans acting illegally in some of their attacks on Yemen—a concern that the collateral damage and some of the deaths there have gone beyond what is acceptable under international law.
In a letter to my noble friend Lady Northover regarding the drone strike on 3 January, the noble Lord, Lord Ahmad, said:
“It is well established that states have the right to use force in self-defence. The United States have said that Soleimani was plotting imminent attacks on American diplomats and military personnel. I do not doubt what they have said.”
I am not here to question whether what the United States said about that attack was correct or to query the integrity of the noble Lord, Lord Ahmad, in accepting those assurances, but how far are Her Majesty’s Government able to interrogate United States actions ahead of time? How far are Her Majesty’s Government able to accept the assurances of the United States Government? How far are we able to be reassured? How far can the Minister reassure your Lordships’ House that when we work with the United States through our existing legal arrangements on its drone programmes, on any activity that involves UK drones, UK intelligence and our bases in Cyprus and elsewhere, as the noble Lord said, any activity undertaken by the United States is within the framework of international law?
There are clear challenges in international law. Your Lordships’ International Relations and Defence Committee, on which I serve, in a report last year raised concerns that the international law-based order is already under threat. We are used to it being challenged by countries we see as, perhaps, our opponents in the international order; it is more of a problem when those threats come from our closest ally, the United States.
In our report we said that there were some challenges from the United States with Donald Trump as President, and that some of those challenges were likely to be much exacerbated in the event that a Trump Administration lasts not four years but eight years. So, as we look to the next American elections, are Her Majesty’s Government assured that the United States, as our closest ally, is acting within the framework of international law? Can we be assured that Ministers are acting, at least in private, to ensure that the United States is aware that we will not be complicit in illegal activities? Obviously I do not expect the Minister to suggest today anything that has been said. I assume that any conversations are in private, but I would like to be reassured that such conversations are happening.
The drone strike on 3 January raised a set of precedents that we need to be reassured are not likely to recur. The attack was on a state individual, not a non-state actor. It was undertaken without the permission of the host state—Iraq—and the President of the United States seemed to suggest that perhaps part of the motivation could be retaliation. Can the Minister assure us that the United Kingdom does not accept that we should in any case act without the permission of the host state, that we should not act outside a mandate from the United Nations and that we would not attack state individuals?
Can the Minister also give us a little more clarity on the UK’s understanding of “self-defence”? Clearly it is a concept understood in international law, yet in the US’s attempt to say that the attack on 3 January was in self-defence and in the light of an imminent threat, that word can sometimes seem in danger of mission creep, as the noble Lord, Lord Hodgson, said. Is the Minister reassured that the threat was imminent? Can she tell us how the United Kingdom Government define “imminent”? Perhaps it is not quite as finite a concept as it might appear.
There is clearly a danger of escalation, and escalation affects not just the United States and Iran but UK troops in Iraq. The attack on 3 January raised threats to international law and to the United Kingdom. What are the UK Government doing to ensure that our links with our allies will improve our security, not undermine it?
Lord Tunnicliffe (Lab)
My Lords, I thank the noble Lord, Lord Hodgson, for securing today’s important debate. I have been watching developments between the US and Iran with great concern, as we all have. First, I stress the need for de-escalation, the restoration of relations between countries and for international institutions to be the primary mechanism for defusing the situation. Diplomacy not drones must be the priority when it comes to the Middle East, but the US strike assassinating Qasem Soleimani marks a new chapter. Despite the use of drones increasing, this was the first time the US had used the technology to kill another country’s senior military commander on foreign soil.
I fear that we are moving toward a dangerous world where drones are believed to be a quick and easy solution to complex problems—but, as the assassination demonstrates, any use of military force has serious knock-on consequences. These have ranged from retaliatory strikes on two Iraqi bases housing US troops to at least 400 UK troops in Iraq being placed in immediate danger and a commercial plane being shot down by Iran, killing 176 people. While shooting down a passenger jet is a despicable act, the incident illustrates the impact that escalating tensions can have on totally innocent civilians. I will take this opportunity to express my condolences to the families and friends affected.
The use of drones outside armed conflict often rests on the legal argument for self-defence under international law. Indeed, the US initially stated that the drone strike was justified as a self-defence measure. However, this shifted in the days after the strike, with Secretary of State Mike Pompeo pointing to previous actions of Soleimani as justification. Since the UN’s special rapporteur on extrajudicial killings said that the attack “most likely” violated international law, can the Minister confirm whether the Government consider that the use of drones must be in accordance with international law? The Joint Human Rights Committee has called for the UK to take the lead in building a consensus on how legal frameworks are applied, and I reiterate this today.
Despite legal questions, drones and other autonomous weapons will continue to reshape warfare. Jane’s Information Group estimates that more than 80,000 surveillance drones and almost 2,000 attack drones will be purchased around the world in the next 10 years. The country that invests the earliest and most aggressively may end up in a position of military supremacy. People have argued that we should welcome such weapons systems because of their increased accuracy and the removal of harm for not only military personnel but civilians. While this can be the case, civilian casualties can never be ruled out, and autonomous weapons will continue to raise numerous concerns around oversight, accountability and human rights. In the short term, a definition of autonomous weapons would help lead to the creation of norms, even in the absence of the clear application of legal frameworks. Can the Minister explain why the UK Government are yet to adopt any internationally recognised definition of autonomous weapons? We should also use parliamentary committees to increase scrutiny of the MoD’s use of drones and emerging technology.
The long-term question is whether humans will be removed from the loop, allowing AI-powered drones to select and kill targets with no human oversight. While the UN Secretary-General has described such machines as “morally repugnant”, the UK spoke forcefully against regulation on lethal autonomous weapons at UN talks last year. Can the Minister explain why the Government are so against regulation? The UK should be taking a lead on this issue internationally and considering how arms treaties can be upgraded to stop the development of fully autonomous weapons.
Drones, machine learning and AI have already started an arms race between nations that will reshape geopolitics in the years to come. While I welcome the Prime Minister calling on parties to “dial this thing down” to de-escalate tensions in the Middle East, the oversight and accountability of drones must be dialled up.
The Minister of State, Ministry of Defence (Baroness Goldie) (Con)
My Lords, I congratulate my noble friend Lord Hodgson on securing this debate. I thank other noble Lords for their contributions. I pay tribute to my noble friend and the noble Baroness, Lady Stern, for their excellent work on the APPG on drones.
Following the killing of General Qasem Soleimani by a US drone strike, I know that some concerns have been raised in this place and elsewhere. In particular, my noble friend questions what implications such actions may have for the future use of unmanned aerial systems and their proliferation more generally. So I welcome the opportunity afforded by this debate to clarify Her Majesty’s Government’s position.
Let me start by reiterating a point about the strike on Qasem Soleimani. It is important to be clear that the choice of air platform selected to deliver the strike has no bearing in determining whether the strike was lawful. Article 51 of the UN charter recognises that all states have an inherent right of self-defence, and it is for the United States to say how the criteria for self-defence are met. The UK will always defend the right of countries to defend themselves.
The US case was set out in a letter to the UN Security Council on 8 January. The noble Baroness, Lady Smith, raised the issue of the UK’s relationship with the United States. The United States is a valued ally but, as has been observed in the past, that does not mean that we have to agree on everything. Good friends can reserve the right to disagree on certain things. We are united in our fight against terrorism but, in respect of individual acts, it is for the United States to be responsible for its own actions.
The United States asserted that Soleimani organised the strikes by militia group Kata’ib Hezbollah on 27 December 2019 that targeted a US military base in Kirkuk in Iraq and killed a US civilian contractor. The US is confident that Soleimani came to Baghdad to co-ordinate imminent attacks on American diplomats and military personnel. As one of the commanders of the Quds force of Iran’s Islamic Revolutionary Guard Corps, General Qasem Soleimani certainly had blood on his hands and was behind the murder of numerous United States and British troops.
Before I turn to the use of UAVs and UK practice, I shall deal briefly with the somewhat overlooked but important matter of terminology. The acronym “UAV”, not to mention the popular contraction to “drone”, can lead to an unhelpful and disturbing confusion that struck me when I was preparing for this debate. It is important that we make a distinction. The term “unmanned aerial vehicle” denotes a piece of equipment that, for aeronautical purposes, is flown remotely and with varying degrees of automation and simple functions. However, within the UK Armed Forces, where such a system is armed—as, for example, with the Reaper—the strike function will always be under remote human control and subject to strict operational rules and protocols. It is very important to separate that reality from what is becoming the current fictional lexicon of the video-game mentality. That distinction matters.
Regarding the use of armed unmanned aerial systems and UK practice, respect for international law that governs the use of force is of paramount importance. My noble friend Lord Hodgson referred to mission creep and the noble Lord, Lord Judd, also expressed concerns. I make it clear that our Armed Forces have always known that they are answerable for their conduct on the battlefield. That accountability is not least to Parliament—a matter that the noble Lord, Lord Janvrin, very properly raised. Our Armed Forces have always known that they must conform to the highest standards of personal behaviour and conduct. They have also known that they are bound by the criminal law of England and Wales, and they will always operate in accordance with the laws of war.
The noble Baroness, Lady Stern, raised the issue of accountability. My department is currently in the process of updating the UK Manual of the Law of Armed Conflict —a programme that will consult widely to ensure that our manual remains one of the most authoritative and continues to influence our international partners. At the same time, updating the manual reinforces Her Majesty’s Government’s commitment to the rules-based international system and international humanitarian law.
I will turn briefly to these vital rules under international humanitarian law. I am proud to say that the UK is a leader in that field and continues to uphold the rules-based international system. The Geneva conventions are a cornerstone of international humanitarian law and remain relevant to this day. I know that the noble Baroness, Lady Smith, was particularly concerned about this. I make it clear that the UK encourages all states to apply them in conflict. However, it is not just about ensuring responsibility in the conduct of warfare; there is also a need to ensure that weapons systems such as UAS do not proliferate into the hands of those who would use them unlawfully. That is why the UK applies strict criteria before issuing a licence to export arms, and works with partners, striving to ensure that the rules and regulations remain fit for purpose.
A number of specific points were raised and I will try to deal with them if I can. My noble friend Lord Hodgson and the noble Lord, Lord Judd, raised the issue of embedded personnel. This long-standing practice gives UK personnel valuable experience by operating alongside our allies. However, I reassure your Lordships that our personnel remain subject to UK law and to any policy restrictions placed on them by the MoD. If they are asked to take part in any unagreed operation, they must revert to the MoD for permission.
The noble Lord, Lord Janvrin, raised the important issue of the new scrutiny committee in this new Parliament. I am not being evasive, but that is outside my ministerial responsibilities, and indeed it is outwith the remit of the MoD. However, I will ensure that the sentiments that the noble Lord expressed are indeed passed on.
The noble Lords, Lord Janvrin and Lord Judd, raised the matter of imminence. The legal test of an actual or imminent armed attack must be satisfied, and any action must be necessary and proportionate. The Attorney-General explained the Government’s understanding of the meaning of “imminent” in a speech on 11 January 2017. Consideration will be given to the immediacy of the threat, its seriousness and the likelihood of an attack taking place, among other things.
The noble Lord, Lord Janvrin, and the noble Baronesses, Lady Stern and Lady Smith, also raised the issue of targeting and red cards. A robust system to authorise air strikes is in place and is well proven and tested. This process enables all relevant legal and policy requirements, including international humanitarian law, to be considered and applied. Expert legal advice is integral to decision-making, and all military targeting is governed by strict laws of engagement that are in accordance with UK law and international law, as well as any policy restrictions that the Defence Secretary might specify.
Lord Hodgson of Astley Abbotts
I know that my noble friend is doing a valiant job, but one of the problems that we have is: yes, we are getting assurances, but is the red card ever used? Has it ever been used? I am not asking where it has been used or in what circumstances, but whether it has been used.
Baroness Goldie
I was just about to observe that the process applies to both UK strikes and those conducted by another nation. However, I am not sure whether it has been used. I shall have to take that back and write to my noble friend.
The noble Baroness, Lady Smith, also raised the issue of target selection. Decisions on, and the necessity of proportionality in, the use of force are complex and highly sensitive. They require policy and national security input, including military, intelligence and legal, but the decision-making process enables all aspects to be considered and ensures that they will.
The noble Baroness, Lady Stern, raised a number of issues from her report. I was able to look at it before coming into the debate, particularly the sections on transparency and accountability. These are important issues and the Government would never seek to evade or dodge them, but she will understand that there are mechanisms to ensure accountability, not least the role of Parliament, the role of committees within Parliament, and the right of parliamentarians to ask questions, hold debates and require Statements from Ministers. However, everything that we do has to be under the umbrella of acting in the best interests of the security of the United Kingdom, our citizens and our personnel if they are engaged in service in different parts of the globe. The MoD has a record of respecting parliamentary accountability and, subject to security constraints, of doing its best to co-operate in that regard.
The noble Baroness also raised the issue of an independent reviewer. With the other processes and mechanisms in place, that might be premature, but, as with everything, the MoD will keep an open mind because, as one contributor observed, the whole process is evolving. As with others, we will certainly always assess what is happening and what we think might be necessary or might improve the situation.
The noble Lord, Lord Janvrin, and the noble Baroness, Lady Smith, also raised important issues relating to the operational use of UAS. One question concerned the use of force outside an armed conflict. As the Government have stated previously, there is no policy on the use of force outside an armed conflict: rather, they have a policy to defend the UK and its citizens against both armed attacks and imminent threats of armed attack.
The noble Lord, Lord Tunnicliffe, raised a number of important points. On the matter of a definition of “autonomous weapons”, there is an ongoing international discussion and the technology is developing fast. The debate is insufficiently mature to conclude a definition. We therefore rely on the clear parameters of international humanitarian law to ensure legality, whatever weapon or weapons system is used.
I have run out of time. The noble Lord, Lord Tunnicliffe, raised a number of other points and I undertake to respond to him in writing. I thank your Lordships for what I consider to have been a very important and useful debate. The UK will continue to support a nation’s right to self-defence and we will continue to uphold international law.