So who are they, the urbane, sophisticated sharp-suited types with a licence to kill, drafted in to the front line in the battle against Islamic terror? They are – the government lawyers. The drone killing of Reyaad Khan and Ruhul Amin, far from being a spur-of-the-moment use of pre-emptive force to ward off an imminent attack, was actually weeks in the planning – with lawyers crawling all over it.
But there’s a paradox. If so much thought and work went into the killings, (and the latest US attack on “Jihadi John” – Mohammed Emwazi) how can it be justified as a self-defence response – “instant, overwhelming, and leaving no choice of means, and no moment for deliberation”, according to the “Caroline” test legal pundits are talking about? Were the killings an act of “instant and overwhelming necessity” against an “imminent threat” with no other means of defending Britain from them?
Clearly not. In fact, given the killings post-dated the planned attacks ascribed to Khan (VE day and a Lee Rigby commemoration), we know Britain has successfully been defended from them by good intelligence and decisive action in the UK. And given drones were wandering the skies albatross-like looking for a good opportunity to strike, there is no sense that the process was instant or urgent. The issue becomes: can we legally pre-empt a possible new attack by killing someone we believe capable of planning another one.
Defenders of the action point to Article 51 of the UN Charter, which accepts an “inherent right” for individual or collective self-defence if an armed attack occurs “until the Security Council has taken measures necessary to maintain international peace and security” ie an attack in circumstances when the UN is involved or likely to be involved in peace-making but has so far failed to make peace. This envisages an illegal attack by one state against another rather than prevention of crime – which is what bombs or shooting or machete attacks are.
The UK Prime Minister, David Cameron, may have been referencing Article 51 when he said in his statement on the drone attack: “We were exercising the UK’s inherent right to self-defence. There was clear evidence of the individuals in question planning and directing armed attacks against the UK. These were part of a series of actual and foiled attempts to attack the UK and our allies.”
On this reading Article 51 is treated as almost open-ended permission saying simply that a nation has a right to self-defence, rather than being presented as what it is: a qualification on the more general set of restrictions or behaviours in the common interest that UN members sign up to.
Article 51 says: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence …”. It is a saving clause, not a carte blanche for any action in the name of self defence. If anything were legal in self-defence (defined on a country’s own estimation) then there wouldn’t be much point in the UN’s requirements. As David Allen Green put it in a reply attached to his FT piece on the drone attacks: “if things are so easily self-defence there would be no need for the rest of the UN framework”.
It may be the UK Government’s lawyers have realised this and tried to bring the drone action within a “collective” ambit in its letter to the UN (pdf) notifying it of the action. This, as the Guardian points out, adds a new rationale for the drone strikes, beyond UK self-defence: “Action against ISIL [Islamic State] in Syria is lawful in the collective self-defence of Iraq”.
The fact is that the aforesaid government lawyers are going to try every defence they can think of for the drone attack should the matter come before a court. Nobody actually knows if it was lawful (though the prima facie arguments suggest it is not). Article 51 was posited on a particular set-up with the UN maintaining some sort of role in relations between states. Islamic “State” has intruduced a level of anarchy into those relations so we are in new territory. The UK Government is almost inviting legal action to establish the legal basis for further similar attacks. What it wants or needs is something that amounts to new law, but argued out in court rather than through a fractious Parliament that might not give it a majority.
Another clue as to the way government lawyers may argue it comes from Dr William Boothby, retired RAF air commodore and the lawyer once responsible for ensuring new weapons conformed to international legal obligations. He told the Guardian he believed the drone killings were legal under Article 51 “but arguably article 51 is not the last word on the matter – there is an inherent right of states to act in self defence that may go wider than article 51”. So the “inherent right” is not necessarily founded in Article 51 but is some more fundamental and unimpeachable right that all nations have (perhaps even Iraq in 2003?).
For Britain, handily, we have this right expressed in the Royal Prerogative, residual powers of the Monarch channelled through her ministers. Among these is the prerogative of making war (albeit prime ministers have deferred to Parliament for the last couple of times as explained here: The PM’s prerogative). The “inherent right” would seem to be more than a right – it is rather a duty for the Government to look after the common weal of the people of the United Kingdom – and a duty with very uncertain restrictions as to methods. The end justifies the means.
In a scattergun defence of the drone attacks lawyers could argue on the basis of the prerogative; or demand the courts exercise deference to the executive since Syrian attacks are, in Lord Bingham’s words, of an “esoteric or security-based nature”; or claim that the courts cannot look into it because that would require breach of security regarding intelligence gathering; or that it would affect relations with foreign powers. They might argue it is in effect non-justiciable for any of these reasons.
Whatever the arguments, the Government needs a legal sanction and its legal James Bonds are preparing to shoot it out in the courts.
Note: The parliamentary Intelligence and Security Committee chaired by Dominic Grieve MP is looking into the drone strikes from an intelligence perspective. In a letter (pdf) to Harriet Harman MP (January 2016) he says the issues include: “How serious and imminent was the threat and what would have been the consequences of inaction? What intelligence was their regarding the viability or otherwise of alternative actions, including possible arrest and other disruption options?” The letter includes a useful memorandum of understanding with the Prime Minister from 2014 regarding disclosures to the committee. However the 2013 Justice and Security Act Section 2 places this limitation on its work:
(3)The ISC may, by virtue of subsection (1) or (2), consider any particular operational matter but only so far as—
(a) the ISC and the Prime Minister are satisfied that the matter—
(i) is not part of any ongoing intelligence or security operation, and
(ii) is of significant national interest,
(b)the Prime Minister has asked the ISC to consider the matter …
Here Carl Gardner on Head of Legal defends the legality of the drone attack
Here is David Allen Green’s view in the FT (sign in necessary). He is sceptical of the arguments that the killings were legal.
ObiterJ looks at the legal issues one by one here.
Also of interest
Judicial deference is examined here in the context of Liversidge v Anderson AC 206 (1942) along with Lord Hoffman’s view of it: They come to bury the ECHR.
Here is David Kretzmer on the inherent right.
Chatham House: Principles of International Law on the Use of Force.
Article 51 of the UN Charter
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.
This is the report from the UK government of the action required by Article 51 (sent a couple of weeks after the event on 8 September rather than “immediately”):
Letter dated 7 September 2015 from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations addressed to the President of the Security Council
In accordance with Article 51 of the Charter of the United Nations, and further to our letter of 25 November 2014 (S/2014/851), I am writing to report to the Security Council that the United Kingdom of Great Britain and Northern Ireland has undertaken military action in Syria against the so-called Islamic State in Iraq and the Levant (ISIL) in exercise of the inherent right of individual and collective self- defence.
On 21 August 2015, armed forces of the United Kingdom of Great Britain and Northern Ireland carried out a precision air strike against an ISIL vehicle in which a target known to be actively engaged in planning and directing imminent armed attacks against the United Kingdom was travelling. This air strike was a necessary and proportionate exercise of the individual right of self-defence of the United Kingdom.
As reported in our letter of 25 November 2014, ISIL is engaged in an ongoing armed attack against Iraq, and therefore action against ISIL in Syria is lawful in the collective self-defence of Iraq.
I request that you circulate the present letter as a document of the Security Council.