Missing the Mark: Reprieve, ‘Kill Lists’ and Human Rights Advocacy

Deception, lies, murder, conspiracy. This is the stuff of crime novels. It is also the story spun in a report published earlier this year by Reprieve, a human rights charity active in the UK and the US. In its report, entitled ‘Britain’s Kill List’, Reprieve claims to reveal shocking proof that exposes the involvement of the British Government in a global assassination project:

On September 7th, 2015, Prime Minister David Cameron came to Parliament and announced a “new departure” for Britain, a policy of killing individuals the Security Services and the military do not like, people placed on a list of individuals who the UK (acting along with the US and others) have identified and systematically plan to kill. The mere admission that there is a Kill List certainly should, indeed, have been a “departure” for a country that prides itself on decency. Unfortunately, it was not a “new departure” at all, as we had been doing it secretly for more than a decade.

Reprieve alleges that the British Government has been complicit in preparing and executing a ‘kill list’ for years, that such a ‘kill list’ is incompatible with the rule of law and that the Prime Minister has deceived the public about Britain’s involvement in this ‘disturbing’ practice. These are serious allegations, which merit a response, even a belated one. All the more so, since on closer inspection they reveal an astonishing appetite for sensationalism and disregard for accuracy.

Who is deceiving Parliament and the public?

On 7 September 2015, former Prime Minister David Cameron announced to the House of Commons that the Royal Air Force carried out a drone strike on 21 August 2015 inside Syria against Reyaad Khan, a British national and member of ISIL. The strike killed Khan and two other members of ISIL. By declaring that the operation was a ‘new departure’ for Britain, Reprieve claims that the Prime Minister has deceived Parliament and the people (pp. 5 and 7), given that this was not the first occasion the UK has acted upon a ‘kill list’. Indeed, much of Reprieve’s report is preoccupied with demonstrating that the UK has contributed to a ‘kill list’ well before the Prime Minister made his announcement to Parliament.

Reprieve’s accusations are wide of the mark. When David Cameron referred to a ‘new departure’ in the House of Commons, he did so in response to a question posed by the then leader of the opposition. The question asked the Prime Minister to confirm whether or not the strike on Reyaad Khan was the first occasion in modern times that ‘the Government have authorised the targeting and killing of a man—a British citizen—in Syria, a country where our military force is not authorised’ (Hansard, 7 Sept 2015, col 28). The former Prime Minister confirmed that this was indeed the case:

‘[o]f course, Britain has used remotely piloted aircraft in Iraq and Afghanistan, but this is a new departure, and that is why I thought it was important to come to the House and explain why I think it is necessary and justified’ (Hansard, 7 Sept 2015, col 30).

At no point in this exchange did David Cameron or anyone else mention the phrase ‘kill list’ or seek to conceal that the UK had engaged in pre-planned lethal operations before 21 August 2015. It is disingenuous to suggest that the reference to a ‘new departure’ was meant to deny that the UK has carried out such operations in the past.

Missing in action: the law

To support its arguments, Reprieve relies on an inquiry on the use of drones launched by the UK Parliament’s Joint Committee on Human Rights in October 2015. The inquiry’s terms of reference acknowledge that Britain has previously used drones to conduct lethal strikes in Afghanistan and Iraq, but goes on to state that ‘the Government’s policy was to do so only in countries where the UK was involved in an international armed conflict’. Reprieve points to these terms of reference to suggest that the Prime Minister has misled the Joint Committee and the general public (pp. 7–8), given that, according to Reprieve, the UK has contributed to a ‘kill list’ involving targets in Pakistan, a country that ‘is not, and never has been, a part of any war zone’ (p. 17).

Reprieve conflates the legal questions at hand. The idea that it is the British Government’s policy to carry out drone strikes only in countries in or against which the UK is involved in an international armed conflict is wrong. As a matter of fact, Britain has carried out lethal strikes in the context of the non-international armed conflicts raging in the territory of Afghanistan and Iraq for years (the British Government even acknowledged the non-international nature of the conflict in Afghanistan: see GS (Existence of internal armed conflict) Afghanistan CG [2009] UKAIT 10). The Joint Committee’s terms of reference are therefore based on a misunderstanding. Why Reprieve sees fit to hold the former Prime Minister responsible for these shortcomings in the Committee’s grasp of the law is difficult to comprehend. Rather than clearing them up, Reprieve perpetuates these misunderstandings. By referring to Pakistan as a country that has never been ‘part of any war zone’, the report uses woolly language that masks the complexity of the legal issues. It seems to imply that no armed conflict could have been in existence in Pakistan in recent years (‘no arguable war’, p. 35) and that offensive lethal targeting is only permissible in the context of an international armed conflict or in the immediate zone of combat operations. None of this reflects the law or the debates surrounding its application, for instance on the legal geography of non-international armed conflict (see Schmitt and Pejic).

The fantasy world of ‘assassination lists’

Following a brief history of what Reprieve calls the ‘sordid practice of assassination lists’ (pp. 9–12), the report turns its attention to a document leaked among the Edward Snowden files. The document in question is an iteration of a Joint Prioritised Effects List (JPEL) drawn up by NATO’s International Security Assistance Force (ISAF) in early August 2010. Branding it the UK’s ‘kill list’, Reprieve attempts to portray the file as evidence of Britain’s secret involvement in an illegal and shambolic process of modern-day ‘executions’ (p. 14).

Reprieve’s analysis of the JPEL betrays a serious misunderstanding of military doctrine and ISAF’s operating procedures. Targeting is an iterative and methodical process. Western armed forces rely on lists in order to identify, develop and prosecute targets in their area of operations. The JPEL is one such list produced by ISAF. It contains a set of targets which has been legally scrutinised, prioritised, allocated proposed means of attack and, finally, approved by the Commander of ISAF Joint Command. While the JPEL was reserved for kinetic engagements (ISAF maintained a separate list, the Joint Prioritized Shaping and Influence List or JPSIL, for non-kinetic engagements: see Brady, pp. 17–18), Reprieve is wrong to label it a ‘kill list’. The JPEL was not restricted to lethal targeting, but covered all kinetic effects, including non-lethal ones, in particular capture. Indeed, some ISAF contributing nations only ever nominated targets onto the JPEL for non-lethal engagements (eg Drucksache 18/4196, p. 4), although at certain points in the mission the overall number of lethal targets substantially outweighed those approved for capture. As far as lethal effects are concerned, it should be recalled that in a non-international armed conflict, members of organised armed groups may be targeted lethally as a matter of first resort even if at the time they are not engaged in combat and pose no direct threat to government forces (to this effect, see the German Government’s position in Drucksache 17/2884, p. 11). Reprieve misconstrues the law and military doctrine when it suggests that lethal force may be employed against military objectives only if they constitute high value targets (p. 13) and pose an imminent threat (p. 14). Citing undisclosed sources, Reprieve also claims that certain targets on the JPEL were designated as ‘kill only’ (p. 13). Even if this were true, the report offers no evidence to suggest that ISAF conducted hostilities on the basis of denying quarter. Its claim that the JPEL is in ‘patent violation of International Humanitarian Law’ (p. 14) is unfounded, even when viewed from the perspective of the capture v. kill debate (see Goodman and Schmitt). In its effort to discredit the targeting process, Reprieve goes as far as to regard the removal of targets from the JPEL as an admission of error and evidence that the process is flawed (p. 16), rather than as confirmation that ISAF kept its targeting decisions under constant review.

Reprieve should know better. A great deal of information on the law and practice of targeting is available in the public domain. This includes the US Joint Chiefs of Staff’s JP 3-60, Joint Targeting, which the report cites, and JDP 3-46, Legal Support to Joint Operations, which describes the targeting procedures followed by British armed forces. On the academic front, Reprieve could have consulted Bill Boothby’s The Law of Targeting, the excellent chapter on military doctrine and the law in Agnieszka Jachec-Neale’s The Concept of Military Objectives in International Law and Targeting Practice and the volume on Targeting: The Challenges of Modern Warfare edited by Paul Ducheine, Michael Schmitt and Frans Osinga. Even a cursory engagement with these materials reveals that several distinct target list are in use in modern practice, that these are mission specific documents and that they are cover the whole spectrum of effects, lethal and non-lethal. The JPEL on which Reprieve relies so prominently was one among several target lists employed by ISAF and has become obsolete with the termination of that mission in 2014. The idea that a single, global ‘kill list’ exists at the heart of some worldwide assassination conspiracy is pure fiction.

Undermining the principle of distinction

It would be easy to dismiss Reprieve’s report as an example of advocacy getting the better of accuracy – and move on. That would be a mistake for two reasons.

First, Reprieve’s assault on targeting lists undermines the principle of distinction. To protect the civilian population in times of war, the parties to an armed conflict must at all times distinguish between civilians and civilian objects on the one side and military objectives on the other, and direct their operations only against the latter (Article 48, AP I). In its advisory opinion in the Nuclear Weapons case, the International Court of Justice declared this as one of the ‘cardinal principles’ of international humanitarian law and one of the ‘intransgressible principles of international customary law’ (paras 78 and 79). Commensurate with its importance, the International Committee of the Red Cross presents the principle of distinction as the very first among the 161 rules it identified in its study on customary international humanitarian law. Target lists play a fundamental role in putting the principle of distinction into practice. They sit at the centre of a process designed to ensure that any targets to be prosecuted are properly identified, reviewed and validated. Without such lists, targeting would be far less systematic, verifiable and rigorous. The point is illustrated by the attack carried out by a US aircraft on a Médecins Sans Frontières hospital in Kunduz on 3 October 2015. As the US military investigation into the incident found, failure by the personnel involved to consult the applicable ‘no strike list’ was one of the factors that contributed to the misidentification of the hospital (Investigation Report, pp. 46–47). Vilifying the targeting process by denouncing instruments such as the JPEL as ‘kill lists’ erodes the ability of States to comply with the principle of distinction. This is undermines the law itself and is detrimental to the protection of civilians and civilian objects.

Second, Reprieve’s relentless advocacy is counterproductive and damaging. It should not be too much to expect an organisation that sets itself the mission to ‘advocate in the court of law and of public opinion’ to demonstrate greater understanding of the law and greater respect for accuracy. Unfortunately, the report all too often misconstrues the law and military doctrine in its zeal to discredit the targeting process. This leads Reprieve to construct a narrative that bears little resemblance to reality. For instance, the report seems to imply that pre-planned, offensive lethal targeting is not permissible in times of armed conflict and cites, among other points, the McCann case, a decision dealing with a counter-terrorism operation conducted outside an armed conflict, in support (p. 12). Whether motivated by misunderstanding or missionary zeal, such passages convey the impression that the primary goal was to engage in legal propaganda rather than credible argument on the finer points of the law, such as the interaction between international human rights law and international humanitarian law. This is unfortunate. It falls below the ‘highest standards’ to which Reprieve seeks to hold the US and its European allies accountable and as such lowers the quality of public discourse. It also diverts attention from legitimate legal concerns and erodes trust in the valuable work that organisations such as Reprieve carry out in other areas.