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UK faces legal challenge to detail policy on lethal drone strikes

The UK government is facing a legal challenge from human rights campaigners after refusing to publish its full policy on lethal drone strikes, arguing the document is so sensitive that revealing the contents would jeopardise security ties with the US.

Concerns about strikes being deployed outside the boundaries of formal armed conflict were first sparked six years ago, when British citizen Reyaad Khan was killed in Syria by an RAF drone. Since then — and in the wake of further drone killings — MPs and parliamentary committees have repeatedly requested access to the Ministry of Defence’s targeting guidelines, but been refused.

The MoD finally released a highly redacted version of its targeting policy, known as JSP 900, seven months ago in response to freedom of information requests from the activist Ceri Gibbons, supported by legal charity Reprieve. The campaigners are now seeking full disclosure of the policy to ensure British military personnel are not complicit in human rights abuses while working with partners such as the US which have differing interpretations of international law.

Ulrike Franke, an expert in drone technology at the European Council on Foreign Relations, said questions over UK-US drone operations “matter not only for historical reasons but also for the future, because the co-operation between the US and the UK on drones is still ongoing, and in fact, the UK is due to receive more American-built systems”.

The UK was the first country given permission to buy armed Reaper drones from the US. The RAF’s inaugural Reaper squadron operated from Creech air force base in Nevada. Britain has nine Reapers and has ordered 16 Protector drones; the first eight are scheduled for delivery in late 2023.

Such is the level of interoperability that UK Reaper operations use intelligence provided by US satellite networks and US drone operations will also benefit from UK intelligence gathering. 

When the US killed British Isis militant Mohammed Emwazi with a drone strike in Syria in 2015, then-prime minister David Cameron said Britain had worked “hand in glove” with US allies to carry out the operation and had been “essential” to its success. 

During a hearing at a freedom of information tribunal last week, the MoD released a directive, which is separate from its targeting policy. According to Reprieve, this document suggests UK pilots embedded with US forces “could potentially be engaged in strike operations in areas beyond those approved by parliament, and areas such as Pakistan and Yemen, where the US drone programme has come under significant criticism for being unlawful.” 

However, the MoD has refused to publish an unredacted version of JSP 900 because the withheld sections contain information provided by the US. 

“A senior official from the US has requested that this particular information not be disclosed,” the MoD’s skeleton argument reads, quoting a witness from the department. It adds that publishing the policy would directly impact on defence because “it would harm future opportunities for information and tactical sharing because we could not be trusted to adequately protect that information”.

This would have “serious consequences for our defence, security and co-operation”, the MoD submission reads.

Justin Bronk, an expert in air power at the Royal United Services Institute, said that even if the tribunal rules against Reprieve, the charity’s efforts to release the entire targeting document could prove “embarrassing” for Britain. The UK has unusually close access to the US air force, and for instance has exchange officers operating high-security aircraft such as the B-2 Spirit stealth bomber, which forms one arm of America’s nuclear triad.

“It’s a very close relationship, military to military, and a unique one even compared to other close allies of the US such as France or the Five Eyes [intelligence-sharing] nations,” Bronk said. “It’s something that’s incredibly valuable, not often talked about in public, and which the UK will be very keen to defend.”

Drone strikes form one part of a group of covert operations — including special forces deployments, interrogations and rendition — which have traditionally been exempt from parliamentary scrutiny. 

David Davis, a former Conservative cabinet minister, said the UK had a history of “stepping over the line” of what is legal by using technicalities involving US partners, and urged the MoD to publish the unredacted JSP 900.

“We know from the post-9/11 period that the government said one thing on torture but did another thing in the field . . . in particular facilitating American rendition, by doing things like embedding American troops in British units, and vice versa,” he said. “The temptation must also be there with drone strikes.”

The MoD said UK service personnel are regularly embedded with allied forces and operate within UK law and applicable international law “at all times” during deployments. 

“There is a strict governance process in place which ensures that a UK member of the armed forces would not support an operation that contravenes the law of armed conflict or any other relevant legal principles,” a spokesman said.

The tribunal judgment is expected in the next few months.

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