- The UK is protected against attack by many different means. The bedrock of our national security lies in Article 51 of the United Nations charter which together with customary law guarantees our right to self-defence. This is reinforced by our membership of NATO, and in particular by Article 5. It is further supported by our membership of other international organisations, notably the United Nations, which have been active in the campaign against international terrorism. The Foreign Affairs Committee in its recent report sets out in some detail the action taken by the United Nations, NATO and the EU in the period since the attacks of 11 September.
- The European Union, for example, has taken a lead role in respect of measures to control the movements of potential terrorists from east and central Europe into Western Europe. These measures have built on earlier counter-terrorist co-operation across Europe. Nonetheless there is clearly room for further developments. Assistant Commissioner David Veness pointed to the example of Europol which had been established principally to tackle organised crime. It had led to a significant improvement in the levels of co-operation between the agencies of EU member states. Although EU co-operation on counter-terrorist issues was well ahead of the levels which had prevailed in respect of organised crime before Europol's establishment, there was, in the Assistant Commissioner's view, still further work to be done. The challenge, he said, will be 'to link the endeavours of law enforcement and equally importantly to link those with the endeavours of the prosecuting authorities'.
- Additionally, membership of a whole array of other international organisations can also contribute to our security either by the setting of common standards (for example in the field of aviation security) or by establishing arrangements for sharing information (for example, Interpol).
- Just as there are many different threads to the international aspects of the UK's defence and security so there are to the national measures. In some areas measures designed for quite different purposes will contribute to defence and security. For example, immigration controls can play an important role in preventing the entry to the UK of potential terrorists. In this section we examine some of the key areas in which measures are taken to prevent terrorist attack. First we look at those areas for which the MoD has a lead responsibility: 'protecting the integrity of UK airspace and territorial waters'.
- The nature of the attacks of 11 September inevitably focussed attention on air defence issues. UK air defence is undertaken as part of the NATO Integrated Air Defence System (known as NATINADS). NATINADS was designed to counter the Soviet threat. Within NATO, the airspace is divided into two regions: north and south. The UK falls within the northern part. Within each there are five Combined Air Operations Centres (CAOC). The UK region is controlled by CAOC No.9 (also known as UK CAOC) which is co-located with HQ Strike Command at RAF High Wycombe. The system involves continuous surveillance of the airspace, detection of unusual activity and active policing and response through the use of interception aircraft.
- On the afternoon of 11 September an air exclusion zone was set up around London. The restrictions which it imposed were gradually lifted over the following days, the last one at midnight on 15/16 September. The Government also recognised that existing defensive measures and guidance for handling hijacked or suspected hijacked aircraft 'were not geared in the right direction' to deal with what have been termed 'rogue' civilian aircraft. Arrangements were put in place to address this perceived deficiency. Much of the detail of those arrangements is classified, but the outline of them can be described.
- A suspect aircraft may be identified in a number of ways. It may have deviated unaccountably from its planned course. There may have been communication from the aircraft itself. All commercial aircraft have an instrument, known as a transponder, to send electronic signals to indicate that they are in trouble (including that they have been hijacked). Some of the earliest warnings of the attacks of 11 September were mobile phone calls from passengers on board the hijacked planes. Once such an aircraft has been identified, by whatever means, it will be tracked. Quick Reaction Alert (QRA) aircraft may be launched to intercept and shadow the aircraft. If it has originated outside UK airspace, it may already be under surveillance, in which case it would be handed over to UK authorities at the Flight Information Region boundary. The decision to scramble QRA aircraft would be taken by the duty controller at UK CAOC. The presumption is that if there is any doubt over whether an aeroplane should be intercepted, QRA aircraft are launched
If there is any doubt about whether we need to get airborne to intercept these, then there is no doubt: we launch ... We launch, we intercept, we identify, then we can worry whether it was the right decision later on.
QRA aircraft were scrambled in this way on three occasions between 11 September and when we took evidence from MoD officials in early March.
Military Action: justification and decision
- In the last resort, it might be necessary to shoot down the civilian aircraft. MoD officials assured us in March that they had properly examined the legal aspects of any such decision
... we have satisfied ourselves with lawyers that there is a proper basis for doing this, one being the Criminal Law Act 1967 where there is provision for use of reasonable force to prevent a crime being perpetrated ... The other is Article 51 of the UN Charter, in self defence, in terms of international law.
- The MoD set out its understanding of the legal position in more detail in supplementary evidence
The use of lethal force is justified in English law when used in self defence, defence of others, or in the prevention of crime where there is an imminent threat to life and the force used is reasonable (ie necessary and proportionate), having regard to all of the circumstances.
"The test to be applied is that the act will be necessary and proportionate if:
(1) the act is needed to avoid inevitable and irreparable evil;
(2) no more should be done than is reasonably necessary for the purpose to be achieved; and
(3) the evil inflicted must not be disproportionate to the evil avoided."
For these purposes, a "rogue civilian aircraft" is a civilian aircraft, in flight, which has been hijacked and which has been declared "hostile".
The use of lethal force against a rogue civilian aircraft will only be justified where it has been declared hostile.
A rogue civilian aircraft may be declared hostile where hostile intent is established. For these purposes, hostile intent can be expressed as a demonstration of an intention imminently to use the aircraft as a weapon and in a matter that will lead to a loss of life.
- As this illustrates, establishing hostile intent would not be straightforward. It would also be necessary to weigh the consequences of shooting down a civilian aircraft, in terms of loss of life both to passengers and potentially to those on the ground, against the likely consequences of allowing it to proceed. That is, the action would have to be 'proportionate'. The MoD's view is
If the following exceptional circumstances can be established, the use of force against a rogue civilian aircraft and the consequent risks to innocent lives could be considered proportionate;
that it is impossible to preserve the lives of those on the ground without bringing about the death of innocent persons on board the aircraft;
that continued existence of the aircraft will inevitably bring about the death of those innocent people on board in a very short time, and;
having regard to all of the circumstances, the loss of life which will result from the shooting down of the aircraft is not disproportionate to the consequences which are expected from not doing so.
Together the requirements to establish hostile intent and to assess whether the action would be proportionate in terms of its likely consequences place a high hurdle in the way of any decision to shoot down a 'rogue' civilian aircraft. We support this and believe that the MoD's approach to this very difficult issue has been the right one.
We have also noted the comments of British Airways
In the immediate aftermath of 11 September, we were concerned about possible precipitate military action in the event of an aircraft momentarily losing contact with ATC or temporarily deviating from flight path, both of which are not uncommon occurrences or an aircraft inadvertently communicating the transponder code for hijack, a less common occurrence. However, as time has passed, we have been reassured that our concerns appear to have been unfounded in respect of UK airspace.
But if a genuine rogue civilian aircraft incident did occur, whether to shoot it down would be a terrible decision to have to take. And there would be very little time in which to take it. In the United States the arrangements are that, if there was time, such a decision would be taken by the President, but, if time did not permit, it would be possible for authority to be given by the two-star military commander level, ie by a Major-General.
- We were reassured by confirmation from MoD officials that no such procedures are in place in the UK. Although we would normally have concerns about politicians becoming involved in individual operational decisions, this case is an exception. It would involve a military attack on a civilian target and it would very probably be within UK airspace. It would not, in any conventional sense, be part of a military operation. We firmly believe that a decision of this magnitude should not be delegated to officials, whether civilian or military, and that any decision to shoot down a suspected rogue civilian aircraft must be taken by Ministers.
46. There are also significant doubts over whether there would actually be sufficient time for QRA aircraft to be able to respond to any perceived threat from a rogue civilian aircraft. In the United States on 11 September according to reports from the North American Air Defence Command, within six minutes of Federal Aviation Administration (FAA) notification of the first hijackingjust as the first aircraft was reaching the south tower of the World Trade Centertwo Air National Guard F-15 air defence interceptors at Otis Air National Guard Base in Falmouth, Massachusetts, received their scramble order. These two F-15s were about 70 miles from Manhattanapproximately eight minutes flying timewhen the second aircraft struck the north tower. Some thirteen minutes after NORAD's notification of a third aircraft hijacking, the Pentagon was struck. Two Air Force F-16s were scrambled from Langley Air Force Base in Hampton, Virginia. They were approximately 105 miles (12 minutes flying time) from the Pentagon when it was hit. These F-16s were in position over Washington when they were redirected to intercept United Airways Flight 93, and were about 100 miles away when it crashed in western Pennsylvania.
- This account graphically demonstrates the extent to which QRA aircraft response times depend on geographical location. After 11 September, the RAF repositioned its QRA aircraft. The MoD was continuing to examine potential sites closer to London at which QRA aircraft could be stationed, but officials were not optimistic that they would find a suitable airbase. We believe that they should pursue their search, bearing in mind that the full panoply of support and protection provided by the aircrafts' current bases would not be necessary for this deployment.
- There are, however, scenarios under which the current arrangements could be effective
First of all if we get prior intelligence warning. Second, if we remember back to the events of 11 September, there was an informal warning, the mobile phone calls which started to activate a process and it could be we get something out of that. Third it is possible that through squawking or whatever we could know from air traffic control authorities some way away if these aircraft are hijacked overseas and then become in-bound to the UK; we could have warning there. Finally, there could be a second or third or fourth aircraft in which case we need to have arrangements to put aircraft up ready to respond.
Deployment of Missiles
- Since there will always be circumstances in which QRA aircraft, wherever stationed, would have insufficient time to intercept a rogue aircraft, some have suggested that one possible answer would be the deployment of ground-based weapons systems. The Americans reportedly deployed Patriot missiles around the White House and the Pentagon after 11 September. The French Government deployed Crotale surface-to-air missiles to protect their nuclear installation at Cape de Hague. The UK's Armed Forces do not have Patriot, but they do have the Rapier missile which is a short range tactical weapons system designed to engage enemy aircraft and cruise missiles.
- There are, however, some very serious drawbacks with such a deployment. The principal of these is to do with the requirement to establish hostile intent. An intercepting aircraft can interrogate the suspect aeroplane, either through radio contact, or directly by signalling the cockpit. As we were told, 'At least with an aircraft you have some human contact who can relay to you, as the decision maker, what he thinks is going on'. By contrast the rules of engagement for a ground-based missile system are that 'they declare a killbox and anything which comes into it, they knock it out of the sky'. Air Commodore Cook told us
To use the Rapier system on its own, given the short range nature of it, you have to create an Air Exclusion Zone around the target to guarantee sufficient time to engage that aeroplane. That does not allow for mistakes which may happen.
Thus the rules of engagement provide no leeway for navigational mistakes or accidental entry into the 'kill box'. Neither do they provide sufficient information to justify a decision to shoot down a civilian aircraft with the loss of maybe scores of innocent lives.
- It is arguable that the deployment of missiles around particularly vulnerable or high profile targets might act as a deterrent. But such deployments would be only practicable in locations where an air exclusion zone would not interfere with civilian flights and in circumstances where the boundaries could be exactly established and consistently policed. Even then it would be a fragile form of deterrence, capable of being undermined by any accidental intrusion which was not shot down. We do not believe that the use of ground-based missiles against civilian aircraft can be justified. Neither do we believe that they can be an effective deterrent.