|A View from the North|
It is common knowledge that the United Kingdom government (and its allies such as the USA) have extensive intelligence and surveillance capabilities including the ability to monitor the activities of individuals.
On 21st August, Reyaad Khan (a British national from Cardiff) was driving (along with two others) near Raqqah (Syria) when he was killed by an air strike from a Reaper drone operated by the Royal Air Force. There is no doubt that this killing was deliberate and carefully planned. Mr Cameron made a statement about it to the House of Commons - Syria: Refugees and Counter-Terrorism - 7th September 2015.
Mr Cameron told Parliament that Khan was - " actively recruiting ISIL sympathisers and seeking to orchestrate specific and barbaric attacks against the West, including directing a number of planned terrorist attacks right here in Britain, such as plots to attack high profile public commemorations, including those taking place this summer." Cameron added that Khan was intent on the murder of British citizens.
Few other factual details were given to Parliament and any conclusions we draw must be necessarily tentative. Cameron claimed that international law justified the killing.
Many will think that this death was entirely justifiable not only morally but legally. A serious event in the U.K. may have been prevented and, if so, for that we should be thankful. There is little sympathy among the vast majority of the British people for jihadists operating under the banner of the hideously brutal Islamic State (IS or ISIS or ISIL). There is even less sympathy for Britons who choose to side with IS. For months now the media has fed us a diet of their appalling crimes. "Pay back time" was how one individual put it to me last evening. Nevertheless, was the killing of Khan justifiable in international law?
Any conclusions we draw on the question must of necessity be tentative because we simply do not know all the facts and they are known only to government.
The international law texts spend much time discussing the extent of any right in international law of self-defence. Traditionally, customary international law recognised a right of self-defence where there was a "necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation." Those conditions had to be met before self-defence became legitimate and action taken in pursuit of it must not be unreasonable or excessive. This is known as the Caroline principle.
The United Nations Charter Article 51 states:
"Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security."
The Charter was intended to bring measures to secure peace and security within the remit of the U.N. and, in particular, the Security Council. Nevertheless, Article 51 recognises the right of a State to act "if an armed attack occurs" and it does not appear from the wording of the article that it is limited to an attack by a State on another State. Islamic State is not a State within the meaning of international law but Article 51 would enable self-defence against attacks by such entities.
Self-defence action has to be reported "immediately" to the Security Council. It appears that in Khan's case there has been some delay in reporting to the U.N. [See the Letter to the United Nations dated 7th September which claims not only action to protect the UK but also to protect Iraq].
In the Nicaragua case (1986) the International Court of Justice established that "armed attack" covered the sending by or on behalf of a State of armed bands or groups which carry out acts of armed force of such gravity as to amount to an actual armed attack conducted by regular armed forces.
A clear problem with Article 51 and the Nicaragua case is that they are posited on cases where there has been an attack. What is the position where the attack is feared but has not yet occurred? States have employed pre-emptive strikes in self-defence - for example, Israel in 1967.
Yet again, much has been written on the extent of any right to act when an attack is considered by a State to be imminent. One issue here is that it is the State that perceives itself to be under threat which judges the necessity for action. An alternative to that is perhaps impossible to find.
It is safe to say that international law permits a response to an attack that is reasonably and evidentially perceived to be imminent and the Caroline criteria (such as reasonable response etc) remain.
What if the attack is not imminent but merely possible? Here the international law ground is less certain. The United States of America has asserted that pre-emption plays a role in its security strategy.
A good article on this topic is by Sir Daniel Bethlehem QC (Legal Adviser to the Foreign and Commonwealth Office May 2006 to May 2011) - Principles relevant to the scope of a State's right of self-defence against an imminent or actual armed attack by non-State actors
This article, with which I respectfully agree, concludes that - "Armed action in self-defence may be directed against those actively planning, threatening, or perpetuating armed attacks. It may also be directed against those in respect of whom there is a strong, reasonable, and objective basis for concluding that they are taking part in those attacks through the provision of material support essential to the attacks."
Bethlehem also argues that the word "imminent" has to be assessed by all the relevant circumstances. The absence of specific evidence of where an attack will take place or of the precise nature of an attack does not preclude a conclusion that an armed attack is imminent.
It might be sensibly added that knowledge of the exact timing would also appear to be unnecessary and that an overly restrictive view of the meaning of "imminence" should not be adopted.
Necessity and proportionality:
Any response to a threat must be necessary and proportionate (see International Court of Justice Advisory Opinion on Nuclear Weapons 1996 and the Oil Platforms case 2003).
What is necessary and proportionate depends on ALL the facts. We are not in a position to assess these aspects in the Khan case because we do not have all the facts.
European Convention on Human Rights?
What about Article 2 Right to Life? It may be arguable that Khan had lost the protection of the European Convention since he was in territory where the United Kingdom has no control. Such an argument would be based on the case of Al Skeini v UK
Update 14th September. The Eurorights blog has considered whether the drone attack might engage the European Convention. They conclude that it does not but also argue that the Strasbourg jurisprudence is changing with regard to the applicability of the convention. See their post.
What about English law?
It may be (we do not know) that the killing of Khan was directed and controlled by personnel operating from a location within the U.K. It is an offence in the UK to murder a British citizen abroad - see section 9 of the Offences Against the Person Act 1861. Reasonable force may be used in defence of oneself or of others or of property or in the prevention of crime. (On prevention of crime see Criminal Law Act 1967 section 3). Whether a drone strike on Khan was reasonable must again depend on ALL the facts but it is likely that his plans would have entailed the killing of people in the U.K. in the near future. It is also worth noting that what is reasonable in the circumstances has to be decided by reference to the circumstances which the defendant honestly believed them to be even if that belief is mistaken or unreasonable.
As I say, it depends on all the facts but, on what we know, it seems that the killing would be lawful in English law.
The Attorney-General's Opinion:
The Prime Minister said that the Attorney-General's opinion had been taken and that the view was that the attack on Khan was lawful. It is a pity that this opinion is not published though, by convention, they are not published. An exception eventually came with the publication of Lord Goldsmith QC opinion on the legality of the Iraq War. It may be that the Chilcot (Iraq Inquiry) Report will make recommendations in this area.
Military operations in Syria:
Air strikes against ISIS have been confined to Iraq. However, that may alter in the near future if the matter comes before Parliament. Up to now the UK has respected the sovereignty of Syrian territory though a right to act in Syria in an emergency was reserved and does not require a specific authorisation from Parliament - The Guardian 8th September - "Cameron faces scrutiny over drone strikes against Britons in Syria.
We are in an area of international law that is riddled with uncertainty. Also, no matter what the exact law, everything will depend on the full and precise facts. Any view must therefore be a tentative one.
The killing of Khan seems justifiable in international law as an act of anticipatory self-defence provided that on all the facts it can be properly viewed as necessary, reasonable and proportionate. It is essential to keep stressing "on all the facts" - that is important.
Article 2 of the European Convention probably did not protect Khan. Whether this also enables the government to avoid an Article 2 Inquest (or Inquiry) is a point that may have to be tested in the courts. It is seriously arguable that an independent examination of the particular case ought to take place.
English law would, depending on all the facts, offer a defence to a charge of murder.
I have little doubt that contrary views will emerge in the near future. The use of drones has come under serious criticism with some arguing that drone attacks threaten 50 years of international law - The Guardian 21st June 2012. See also The Guardian 18th October 2013 - Drone strikes by US may violate international law My companion blog - Watching the Law - has a number of posts about "drones".
Two notable legal commentators consider the killing to be lawful - see Head of Legal blog 7th September 2015 and Joshua Rozenberg in The Guardian 7th September. For an expression of some doubts see David Allen Green - When does the government have a licence to kill?
For a further view in opposition to this action see Brian Barder's blog - An RAF Execution in Syria.
1. In preparing this post I have relied on the law as set out in Malcolm N. Shaw QC - International Law 7th edition 2014. I have also taken into account Sir Daniel Bethlehem's article which appeared in the American Journal of International Law Volume 106.
2. The Guardian - Right of Self Defence central to legal debate over Syria drone strike
3. 21st Century challenges to Article 51
Telegraph - Syria drone strike: how execution of British citizens in Raqqa was carried out from Lincolnshire hangar
Daily Mail 8th September - Families of ISIS fanatics could now sue Britain for millions over RAF drone strike seen by some as extra-judicial execution.
The Guardian 8th September - Human Rights group brings legal action against government over drone strike. I appears that Rights UK are threatening legal action in the High Court unless the government publishes the legal advice it received from the Attorney-General. This is interesting. The legal advice in relation to a particular case should be related to the known facts. As indicated in this post, the detailed facts are required to properly assess the lawfulness of this action.
The Guardian 8th September - Keir Starmer QC MP - Drone strikes in Syria must have independent Scrutiny and Transparency
The "Unwilling or Unable" standard for self-defence - Kevin Jon Heller in Opinion Juris 17th September 2011
Nonsense self-defence theory used by UK to kill Brit is same as Bush's in discredited worldwide War On/Of Terror http://t.co/Xh3PQ061jp— Clive Stafford Smith (@CliveSSmith) September 8, 2015