The Joint Committee's Drones Report: Far-Reaching Conclusions on Self-Defence Based on a Dubious Reading of Resolution 2249
Journal on the Use of Force and International Law, 2016(4).
13 Pages Posted: 15 Oct 2016
Date Written: August 25, 2016
This article focuses on an important aspect of the Report on “The Government’s Policy on the Use of Drones For Targeted Killing” published on 10 May 2016 by the Joint Committee on Human Rights of the UK’s Parliament. This report highlights on several occasions that ‘compliance with international law in the fight against terrorism is of the utmost importance’. However, the treatment by the Committee of the legal framework of the permissibility of the use of force in international law sometimes gives the impression that the Committee, while wisely stressing the need to respect the prohibition of the use of force, interpreted one of the key exceptions to this prohibition, namely self-defence, in such an extensive and permissive way that it undermined its own plea for caution. The main authority used in order to support the far-reaching conclusions of the Report on self-defence is resolution 2249 (2015) of the UNSC adopted on 20 November 2015 after the Paris attacks. A closer analysis, however, does not seem to confirm that resolution 2249 says what the Committee claims that it says. The text of the resolution clearly does not refer to self-defence, even less so to any ‘new’ and expansive interpretation of this exception. There is a sharp contrast between resolution 2249 and other similar resolutions in the past and especially resolutions 1368 (2001) and 1373 (2001) adopted after the 9/11 attacks where there were express references to self-defence. The context of adoption of resolution 2249 also clearly shows that there was no agreement between UNSC members to refer to self-defence. Only a small minority of the 15 members of the UNSC mentioned self-defence in the UNSC debates and the analysis of their respective positions makes it almost impossible to conclude that these states adhere to all the far-reaching conclusions of the Committee. France for instance did not invoke the theory of pre-emptive or preventive self-defence against ISIL and did not seem to share the theory of the ‘unwilling or unable test’ used by the US and few other coalition states. More generally, the vast majority of UN members did not seem to endorse the idea that resolution 2249 is a “Grotian moment’ of change for the law of self-defence – as claimed by one scholar. The article ends by making a comparison between the expansive interpretation of self-defence proposed by the Committee and the ‘Plea against the Abusive Invocation of Self-Defence as a Response to Terrorism’ signed by more than 240 international lawyers and professors from 36 countries just a few weeks after the publication of the Report.
Keywords: Self-Defence, Use of force, Terrorism, Drones, UN Security Council, Intervention, Jus ad Bellum, ISIL, ISIS, UK
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