Drones: International Law

Lord Hodgson of Astley Abbotts Excerpts

Thursday 16th January 2020 Lords Chamber

Asked by

[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.

--- Later in debate ---

[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.