Post SDSR - The SDSR Numbers

 

(Ministry of Deficits? Not quite an anagram, but there you are...)

Prof. Malcolm Chalmers of the Royal United Services Institute (RUSI, MoD's favourite thinktank) published a new paper this week on UK Defence spending, and it makes interesting reading. In this post, we'll look at what was said about the numbers and the Strategic Defence and Security Review (SDSR); in the next one, we'll look at implementation through Planning Round 2011 (PR11). 

Labour's Legacy
The first (and most important) point is that the the out-going Brown Administration left the MoD in a terrible positon. Depending on how you ask the question, the scale of the 10-year budget shortfall between 2010-11 and 2020-21 was either £27bn (a difficult £2.7bn p.a. - or roughly 8% of the MoD's baseline budget) if you allowed for 1.1% real growth, or a terrifying £51bn (an impossible £5.1bn p.a. or more than 14% of the annual budget) if the budget had been maintained at 2010-11 in real terms.  And these were estimates which assumed that this programmes in the budget would (for the first time) run on time and to budget. (Ah. Ish?)

(Bob Ainsworth MP, Labour's last Defence Secretary - "ineffective" might be the politest word.)

In fact, despite Labour's recent attacks on the Government over the cuts, for Labour to close this funding gap, spending would have had to increase at at least 2.2% per annum for the next decade. Ignoring austerity and the fiscal realities that go with this, this is a level of increase unknown since 1985, and more than twice the 1.1% growth that they actually invested over the course of their 13 years in power. As Chalmers notes, 

"... as a result, the MoD found it increasingly difficult to fit an ambitious forward programme within a much less ambitious – albeit still slowly growing – budget."

Indeed. Worse, Labour in general and Bob Ainsworth in particular made a number of pledges to purchase equipment late in the Brown Administration that sounded good - e.g. another 22 Chinook helicopters - when they must have known that there was no money to pay for them. This was either breathtakingly cynical politics of the worst kind, (with the results measured in the dead and maimed), or it demonstrated a criminally complete lack of knowledge, competence, control and responsibility. Either should have been a resigning - or sacking - matter.

So not only should Labour apologise for their past record, they should also probably shut up about the whole thing for a decent period, until they've actually got a grip on the big questions (e.g. UK's role in the world, Trident, funding this defence business).

May 2010 - A new dawn. (Or at least a Defence Review)

(We're on the same side. Honest.)

SDSR was the long overdue defence review that built on the hodgepodge of the period since the 1998 Strategic Defence Review (SDR 98) and 2002's New Chapter. And the £51bn hole in the budget over the next decade needed to be addressed at a time of an unprecedented fiscal squeeze. Enter Liam Fox, stage right.
 
But austerity isn't fun, as the current Government is finding out. Liam Fox successfully fought for a smaller cut than the Treasury wanted, but was only partially successful. Defence did do comparatively well - it had an 8.5% real terms cut by 2014-15 rather than the 10-15% that most external observers were expecting; at some level this is a comparative triumph. However, this was on top of the £51bn that MoD was already in hole over the next decde, and led to two problems.

First, due to the 8.5% cut that the MoD received in the austerity budget of the 2010 Comprehensive Spending Review, the 10-year deficit increased to an eye-watering £74bn.

Second, the Treasury (very sensibly, in my view) got the funding of Trident replacement back into the defence budget, rather than being a freebie provided by the Treasury. This added between £25bn and £50bn to the Departmental deficit through to 2030 - and as the majority of these costs come after 2020-21, they are not included in the £74bn figure. It can be inferred that HMT was trying to achieve two things - first, not to pay for it, and second to make Trident compete against other defence priorities. The first worked beautifully, but the second failed, as Liam Fox moved Trident into the untouchable box, significantly decreasing the flexibility of the overall budge - by at least £7bn over the years to 2020.

Clearly something had to give. Actually, quite a lot of somethings had to give; here's a flavour.

(Nimrod MRA4: all 11 scrapped to save £200m p.a. after spending £4bn. Would have been quite useful, too.)

(Type 22/3 frigate HMS CUMBERLAND - first UK ship to Libya, scrapped on return.* The other three 22/3s went too, taking the surface fleet to 19 FF/DD - compared to 35 in 1998, and 65 in 1982's Falklands War.)

 

(Harrier GR9 - more mourned by RN rather than RAF, as it ended UK carrier ops until 2022(ish). (Maybe).) 

 

(CVS HMS ARK ROYAL - scrapped, along with her jets.)

 (Sentinel R1 - brand new, now permanently deployed to Afghanistan, to be scrapped in 2015)

The eagle-eyed amongst you will note that there is not heavy on land forces - the Army and Royal Marines were largely left alone until after the withdrawal from Afghanistan that has been pencilled in for 2014. This will move the subsequent pain for them until the defence review after the 2015 election. And this ignore the 40,000 MoD civil servants and 22,000 servicemen and women who will lose their jobs in the next three years, along with a slew of new programmes.

(Truth is stranger than fiction...)

SDSR Process
So how did this happen? And why were such apparently random choices made, such that the RN will have one and a spare aircraft carrier, (with no aircraft - cunning, huh?), and the RAF has so many PFI-funding air refuelling tankers that they will have nearly two per fast-jet squadron? Some of the answer will be in the process.

It was long suspected, but Chalmers' paper is the first time that I've seen it (semi-officially) confirmed that the MoD was deeply engaged in Op OSTRICH, ignoring the HM Treasury's (HMT) request that all Departments study the impact of 10% and 20% cuts in their budgets. Until the last three weeks of the Review, MoD appears to have had a single case of 3% cut, and MoD

"believed – or at least hoped – that the Treasury was bluffing, and presented no detailed plan for how to make steeper reductions."**

Ah. Taking on HMT in a game of chicken is always a cunning plan. They will blink! Until they don't. Oh. The effect was predictable... Chalmers again:

"... [this] had the effect of increasing total ten-year required savings by £17 billion. This not only required much deeper savings in 2013/14 and 2014/15, a challenge which the MoD has still not fully been able to meet. As importantly, it reduced the baseline for spending levels for the rest of the decade."***

The MoD may cry foul and grumble about mixed political messages, but the reality is that probably didn't believe things could get this bad, and the culture in the MoD meant that the level of prioritisation that would've been required simply didn't exist, as the subsequent Levene Review into Defence management found. This set the stage for the final stages of the SDSR debacle.

(They have to agree as well, you know....) 

SDSR Endgame

Chalmers recounts the MoD's long term plan to meet the Treasury's numbers was intertwined with the repatriation of the Army units from Germany. This would've seen the Army reduced by 20,000 to 82,000 by 2020 primarily by withdrawing from Germany without replacing those numbers - the point being that building a significantly increased infrastructure for the returning Army units would have been prohibitively expensive, which is the primary reason that it hasn't happened since the end of the Cold War. An elegant administrative solution.

Except that Number 10 didn't buy it.

Essentially, No 10 wouldn't go for cuts in the Army whilst there was a war on in Afghanistan. In fact, there were some cuts - 7% of the Army's regular strength to 95,000 by 2015 - but the weight of the cuts went on the RN (14% personnel cuts) and the RAF (17%). It was also in this end game that Nimrod / LRMPA and Carrier Strike (HMS ARK ROYAL and the Harrier GR9s) were binned without replacement. There is reportage that this was all a last minute fix to save the Tornado GR4 strike aircraft instead of the Harrier GR9s achieved by an RAF end-run, but even if true, in operational terms it was probably the correct decision.

All that was left was for the senior leadership to trumpet the strategic nature of the SDSR. But the façade cracked under the internal contradictions - aircraft carrier minus aircraft, doing the same or more with less.  

The bigger problem was that all of this pain still didn't close the £74bn gap. This would be the job of PR11, of which more shortly.


*I'm told it is possible to take a phot of a ship without it wiggling about at high speed, but as I was repeatedly told, (as your author is a slow learner) "Tobbes, what's the point of that?"

** Chalmers, p. 7
*** Chalmers, p. 7

SDSR - Post Libya, more questions

(6 Sqn RAF Typhoon* from RAF Leuchars: low, fast, agile. MoD budget: low.)

Against a backdrop of the Royal Navy's redundancies last week, there's been some interesting work coming out of the Royal United Services Institute (RUSI, MoD's favourite thinktank) this week from the estimable Malcolm Chalmers on defence spending. Prof. Chalmers' paper is here, and I'll comment on it in detail over the next few days.

The real questions remain around whether the budget is under control, and whether the reduced capability of the UK forces has been matched with a reduced level of political intent to use military force. (Oops. More complex, that.)

*Copyright: Andy Sheppard

안녕하세요, 한국

Blogging can be rather narcissistic. After all, it gives me as the author the opportunity to expound on my electronic soapbox, and to generally rant at the world about stuff I think is interesting and to bore my friends with it. You also can then generate lots of statistics about what is being read, and where your readers are coming from.

Hence, imagine my surprise and delight to find that South Korea is now the third largest source of traffic after the US and the UK. This is slightly weird, as I've never been to South Korea, and know very few South Koreans. Anyway, it's delightful to have you here, and please do contribute to the Comments.

안녕하세요, 한국!

Does nationality matter in drone strikes?

 (Should owning one of these exempt you from a CIA drone strike?)

It appears that as well as Anwar al-Awlaki, the drone strike that killed him also killed Samir Khan, a US citizen who was responsible for producing Al Qaeda in the Arabian Peninsula (AQAP) Inspire magazine. It is also reported that Ibrahim Hassan al-Asiri, AQAP's master bomb-maker was also killed in the same attack. Does it make any difference that al-Asiri was a Saudi, rather than a United States national?

As a matter of international law - and I am not in a position to comment on the position under US domestic law - I can't see that nationality is the problem, (or indeed, even relevant) to the question of the legality of the attack. The key element point of LOAC is either is one of combatant status in an International Armed Conflict* (IAC), or either having a "Continuous Combat Function" or Directly Participating in Hostilities in an Non-International Armed Conflict** (NIAC). Discrimination between combatants and non-combatants has is customary international law binding on all States. If there is no armed conflict taking place, then LOAC does not apply, and the use of force must be justified under International Human Rights Law (IHRL).

So to answer the first question, in international law, the nationality of the targets is immaterial: what matters is their status as combatants, or if this is a law enforcement situation, then their nationality is irrelevant to the crimes. Hence, US nationality is not per se a bar to being killed by a CIA drone strike.

Therefore, the legal basis of the attack that killed al-Awlaki, Khan and (reportedly) al-Asiri has two hurdles to cross. First, what was their combatant status or otherwise? Second, did the attack itself meet the proportionality, discrimination and military benefit requirements under the jus in bello tests. (In policy terms, there should also be a third test: "Is this a good idea?", but that's not explicitly a legal question.)

(A very interesting study, though one not without controversy)

What was the combatant status of al-Awlaki, Khan and al-Asiri?

The analysis of the combatant status (or not) of these three men begins with the characterisation of the conflict. Three are possible:

- There is an IAC underway between Al Qaeda and the United States, and that AQAP is an active constituent of this IAC in the ungoverned spaces of Yemen.  

- There is a NIAC underway in Yemen, in which AQAP is in rebellion against the legitimate Government, and that the US was acting in collective self-defence at the request of the Yemeni Government. 

- There is no armed conflict in Yemen, but that AQAP are operating as a terrorist group, and that this was a law enforcement operation in which there was no other way to defeat an immediate threat to life other than by killing al-Awlaki, Khan and al-Asiri. 

 (Chatham House, centre of much common sense and good work.)

What sort of conflict is actually going on?

The characterisation of the conflict is a key element in the legality of the strike. And this is why Chatham House's forthcoming study on the characterisation of conflict is so important - it's central to the targeting decisions of what / who can you hit, and when can you do it? Let's look at the three options in turn.   

(Aftermath of an armed attack: USS COLE towed from Aden)

International Armed Conflict?

The US could note that it had been attacked by AQ in Yemen in the attack on the USS COLE on 12 Oct 2000 (nearly a full year before the US 9/11 attacks), and that since that time, AQ, in the form of AQAP has been engaged in an IAC against the US from bases in Yemen, which Yemen has been unwilling or unable to suppress, and therefore the US has the right to self-defence against these attacks. 

This argument is considerably strengthened if it counts AQAP as an element of AQ, as a number of small scale terrorist attacks would not meet the threshold for armed conflict themselves, though a larger number of such attacks can. In recent years AQAP has been one of the most dangerous AQ elements, with the "Underwear Bomber" Umar Farouk Abdulmutallab's failed attack on 25 Dec 2009, and the Toner Cartridge Bomb Plot discovered and disrupted in October 2010. Moreover AQAP's leading ideologue - Anwar al-Awlaki was also cited by Roshonara Choudry (jailed in London in 2010 for attempting to kill the British MP Stephen Timms) as a key influence. 

However, the legal impact of declaring that the US in engaged in an IAC with AQ/AQAP would be that the US would have to accept that AQAP was a belligerent, meaning that any AQAP prisoners would have to have POW status until such time as an Article 5 Tribunal (so-named because it comes from Article 5, Third Geneva Convention 1949) has determined whether or not they were entitled to it. And in any event, even if such a Tribunal were to deem that AQAP prisoners were not POWs (e.g. they were mercenaries), then they are still covered by the basic guarantees of Art 75 of AP I as detailed in Art 45(3) of AP I. This is not something that the US has, to date, accepted (see: Guantanamo Bay).

Non-International Armed Conflict?

Under Art 1(1) of AP II, NIAC occurs between the:

... armed forces [of a High Contracting Party] and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.

Per the ICRC Commentary the insurgent group needs sufficient control of territory in order to be able to implement the Protocol's requirements. It is possible that in south eastern Yemen AQAP does indeed control the required territory, and that in the process it could do so. Under this characterisation, Yemen could request US assistance, and provided that there was sufficient evidence to conclude that these individuals were "direct[ly] participating in hoslities" then they could be attacked, subject to the usual jus in bello tests. But it is hard to see this as the best characterisation of the conflict, not least because of the explicitly international - and, indeed, US-specific - orientation of many of AQAP's operations.

  

(Others who have had trouble differentiating between law enforcement and the use of force...)

Criminals subject to a Law Enforcement Operation?

There are significant policy attractions to characterising AQAP as a criminal gang, and addressing the problem as a law enforcement problem, and not a military one - and not the least of which is that criminals are criminals, and that the US would deny AQAP the kudos of having a legitimate military struggle. Kevin Jon Heller of the University of Melbourne over on Opinio Juris thinks that what is going on against AQAP is "not an armed conflict at all".

It is certainly true that AQAP members and affiliates have committed acts that US and UK governments have classed as criminal, as the life sentence handed down to Roshonara Choudry in 2010 for attempting to kill the British MP Stephen Timms after reportedly being radicalised by Awlaki's video sermons, and the forthcoming trial of Umar Farouk Abdulmutallab demonstrate. But this glosses over a problem: in trying them as criminals tied to AQAP, the US and UK Governments are explicitly making the case that this is not a conflict, because if it was, these individuals would either be combatants, or the Governments involved would have to show why they were not - and why they should therefore be facing criminal trials. As combatants, let us be clear, they could still face war crimes trials for attempted murder - it's difficult to see either Northwest Airlines Flight 253 or Stephen Timms MP as legitimate targets.

In characterising these as criminal acts, and hence a law enforcement problem, the UK and US Governments raise a significant problem for the use of force, inasmuch as it significantly raises the bar for the use of force, as LOAC does not apply, leaving any use of force governed by IHRL rules. Though the right to life is clearly central to the exercise of the other rights, IHRL does not make the use of lethal force illegal in policing operations as some argue, but in all cases it will require the minimum use of force possible at all times, and that lethal force only be used in circumstances where there is no other method of preventing an immediate threat to life. In practical terms, this is given as the legal basis for killing suicide bombers (or suspected ones: this was the case in the case of Jean Charles de Menezes in London in 2005). Thus, though lethal force is allowed in some cases under IHRL, it demands a high evidential bar to be cleared of the imminence of the threat to life posed by those who are about to be killed.  

What was the applicable law in the view of the US in this case?
We don't know yet, as this hasn't been released (and if it has please let me know). It should be, for transparency's sake. However, with that large caveat in place, the operationally easiest thing would be for the US to decide that the correct characterisation of the conflict is that it is an IAC, such that they could target Awlaki et al as combatants at any time or place - which is where Jack L. Goldsmith (a former assistant attorney general in the George W. Bush) comes in.

But if true, what is troubling is the notion that there are two characterisations of the conflict - one for the leadership as an IAC or a NIAC - and one for the footsoldiers like Abdulmutallab, both of which would work in our favour. This feels like a legal nonsense, and it needs to be cleared up.

 (NB: Reapers don't just carry missiles - this one has 2 x GBU-12 Paveway II 500lb LGBs, too.)

So what?
At one level, many - indeed most westerners - may shrug their collective shoulders and conclude that Awlaki et al:

- These were bad guys;
- Thought that they were fighting a war and got killed by their opponents,
- Everyone who didn't agree with their worldview is safer (and probably better off)
- Besides, frankly these guys had it coming to them

This makes legal arguments at once irrelevant, and, to the extent that they constrain similar action in future, arguably dangerous. Therefore, there is not a particular problem in killing them, and we should be good with that. From a strictly realist / utlitarian viewpoint, there may be something to this position.

But as an international legal proposition, it is very dangerous, and for (at least) two reasons. 

First, knowingly creating a legal black hole to get around the law is a flagrant violation of the central tenets of the rule of law, and is always fraught with the opportunities for abuse -  see Guantanamo, CIA black sites - precisely because it makes the accountability of the State that the rule of law is based on virtually impossible. 

Second, being able to vary the legal characterisation of a conflict depending on who you're targeting is nonsense; unless there is a clear difference between the types of conflict that Awlaki and Abdulmutallab were involved in, it is nonsensical to use radically different legal characterisations of the conflict in order to make the use of force easier, whilst retaining the criminal option when you want to use it. 

For those who doubt either proposition, remember that international law is fundamentally about reciprocity. How would we feel about these propositions being applied to us by another power?

And for the record, I think the conflict with AQAP could be an IAC (though this raises interesting questions about POW status), could be a NIAC (though this raises difficulties about the relationship with Yemen, and whether AQAP actually controls any territory) or (my personal preference) it could be criminality below the level of a NIAC that requires police action - which raises all sorts of other questions over the legality of killing Awlaki et al. 

But what it can't be is more than one at once.

* See Article 4 A (1), (2), (3) and (6) of the Third Geneva Convention and in Article 43 of the First Additional Protocol of 1977 (AP I) for the definition of a combatant in an IAC. Article 50 of AP I defines a civilian, and Article 48 of AP I restates the rule that military authorities shall direct their operations only against military objectives. 

**  See Article 13(3) of the Second Additional Protocol to the Geneva Conventions 1977.