Impact case study database

Hill-Cawthorne’s research at Reading has clarified the most contested legal rules applicable to military operations overseas. It has been adopted in judicial and parliamentary processes scrutinising the UK’s conflict-related detention and drone policies. It has also informed an emerging international consensus on the law applicable to lethal drone strikes. This has produced important impact, not only in terms of benefiting war victims, but also in upholding the values of the rule of law, which benefits the UK and international society more widely.

Hill-Cawthorne’s research on detention adopted in decisions by Court of Appeal of England & Wales (CA) and UK Supreme Court (UKSC) against the UK government’s argument for broader detention powers

Detention has been a major feature of recent conflicts involving the UK. In Iraq, at its highest in 2007, the number of detainees held by coalition forces was 26,000. Yet there has been a considerable lack of clarity over the applicable legal framework, with the UK government altering its position over time. Without a clear regulatory framework, the risk of unnecessary detentions increases, as does the risk of detainee mistreatment, as seen, for example, in the UK’s 2011 Baha Mousa Inquiry. Hill-Cawthorne’s research at Reading has changed this by clarifying the law and influencing court decisions that have rejected the broad detention powers claimed by government. It has also fed into developments on the international scene that seek to clarify the law here.

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In the CA, these two blog posts were cited in the Serdar Mohammed/Rahmatullah judgment (2015) [Section 5, source 3] as authority for rejecting the government’s core legal position that the law of armed conflict gives States broad detention powers in conflicts with armed groups that displace detainees’ rights under the European Convention on Human Rights (ECHR) [241]. They were also cited by a number of Non-Governmental Organisations in their intervention in the case before the UK Supreme Court [source 2].

Similarly, in the UKSC, Lord Reed cited and relied on Hill-Cawthorne’s book [Section 3, ref 1] throughout his judgment in the Al-Waheed (2017) case [Section 5, source 1] as authority, for the following, with which the majority agreed: first, that the law of armed conflict does not grant a legal basis to detain in conflicts with armed groups, requiring such a basis to be found elsewhere (e.g. domestic law) [225, 262–3]; second, that detentions in overseas conflicts remain regulated by the ECHR [311]. This was, again, in contrast to the government’s core legal position and the basis of its entire detention operations in Afghanistan and Iraq. The result is that detentions must now have a clear legal basis, ensuring that detainees in future conflicts understand the grounds of their detention, enabling them to challenge it where appropriate.

On the international scene, there remain major disagreements between States over the applicability of international law rules on detention to conflict. Over several years, including since joining Reading, Hill-Cawthorne worked with and advised the UN Working Group on Arbitrary Detention (UNWGAD) in order to disseminate his research and assist UNWGAD in its development of universal rules governing detention.

Hill-Cawthorne’s research on the regulation of drone strikes adopted by the Parliamentary Joint Committee on Human Rights (JCHR), leading to significant policy clarifications by the government

The rise in the use of armed drones for targeted killings by States has led to confusion over the international law rules that regulate them. Some States have taken a very broad view of their right to use drones. This is especially important as the number of States using armed drones for targeted killings quadrupled between 2013 and 2018, with more States and non-State actors continuing to acquire the technology. The UK alone has carried out 3,500 drone missions in Iraq and Syria since 2014. Hill-Cawthorne’s research at Reading has been adopted in the recommendations of the JCHR to the UK government on its use of lethal drones, in which the JCHR calls on the government to clarify its legal positions and ensure all drone strikes comply with international law. This research has also informed some of the key international developments here.

Hill-Cawthorne co-authored an academic article [Section 3, ref 5] with the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (Christof Heyns) and two others (Akande and Chengeta) in which they clarify the complex legal framework applicable to drone strikes. Based on the draft of that article, Hill-Cawthorne and his co-authors submitted written evidence [Section 5, source 4] to the JCHR during its 2016 hearings scrutinising the UK government’s drone programme. These hearings were the result of the government’s 2015 targeted killing of Reyaad Khan, a British citizen who appeared in an ISIS recruitment video. This strike was carried out without parliamentary approval, leading the JCHR to investigate. Hill-Cawthorne et al.’s evidence was cited and relied upon throughout the JCHR’s report and recommendations [Section 5, source 5] (for example, for the proposition that existing legal frameworks are sufficient to regulate drone use; on the need for the UK to clarify its views on the scope of its right to self-defence; on the risks associated with flexible interpretations of the international law on the use of armed force; and for the argument that international human rights law represents the default legal regime).

The JCHR recommendations represent a major shift towards accountability by confirming the rules applicable to armed drones (thus pushing back against permissive legal positions that some States have adopted) and by calling on government to clarify its drone policy. Indeed, the government was forced to respond with certain clarifications of its policy, including with respect to some of those issues flagged in the JCHR report that specifically drew on Hill-Cawthorne et al.’s written evidence (e.g. the scope of the right to self-defence against armed groups) [Section 5, source 6].

On the international scene, Hill-Cawthorne was appointed by Human Rights Institute (HRI) of the International Bar Association (IBA) to a seven-person international task force (comprising academics, the Red Cross, and Open Society Foundation) on armed drones. The aim was to publish an authoritative IBA HRI resolution and background paper clearly setting out the legal framework regulating drones in response to significant disagreements amongst States. These were published in 2017 [source 7], and they rely in part on Hill-Cawthorne’s co-authored article [Section 3, ref 3], notably for the core argument that the legality of drone strikes is to be tested against multiple legal rules. The IBA is the global organisation of law societies. A resolution from the IBA HRI thus carries weight as reflecting the consensus of lawyers worldwide. As more States and armed groups acquire drones, it is hoped that the resolution will promote a universal regulatory framework constraining their use.

Addressing the lack of clarity in the protection of individual rights and the rule of law in military operations, Hill-Cawthorne’s research has been relied upon in judicial and parliamentary accountability processes for UK detention operations and armed drone use. It has underpinned the UK courts’ refusal to uphold the UK government’s core legal position on detention in military operations and prompted clarifications by the government of its policy on armed drones. It has also contributed to the emergence of an international consensus on the legal regulation of armed drones. These are significant developments that improve the protection of individual rights and the rule of law in military operations.