Yesterday David Cameron played a political blinder: “We’re here to talk about refugees, but enough of criticising my terrible response on that, I had a British citizen killed two weeks ago.” Understandably, this blindsided most, and the fact that the UK government has committed to sheltering a paltry 4000 Syrian refugees per year, as opposed to larger numbers in Germany and elsewhere has fallen quickly off the front pages. These numbers are an abdication of moral responsibility towards refugees. Nonetheless, the use of a targeted killing against a UK citizen (by the UK government, not our American friends after we revoke their passport) is the topic du jour. Understandably, this has been called our ‘Anwar al-Awlaki moment’ – the first time the government crosses the proverbial rubicon of intentionally and openly killing a citizen that has run off to a foreign country to (supposedly) organise terrorist campaigns against their home state. The UK, of course, has much more recent experience of the moral and legal quandaries of using force against our own citizens due to the Troubles in Northern Ireland. Over at Lawfare, Robert Chesney pointed out that this is actually a test of a particular scenario and legal interpretation – the American interpretation of the concept of self defence as it applies to terrorists that has developed since 9/11.
The legal justification, as presented was that this was an act of self defence, broadly in line with American interpretations of self defence versus individuals and terrorist organisations:
As part of this counter-terrorism strategy, as I have said before, if there is a direct threat to the British people and we are able to stop it by taking immediate action, then as Prime Minister, I will always be prepared to take that action and that’s the case whether the threat is emanating from Libya, Syria or from anywhere else….
We should be under no illusion. Their intention was the murder of British citizens. So on this occasion we ourselves took action. Today I can inform the House that in an act of self-defence and after meticulous planning Reyaad Khan was killed in a precision air strike carried out on 21 August by an RAF remotely piloted aircraft while he was travelling in a vehicle in the area of Raqqah in Syria…
Mr Speaker, we took this action because there was no alternative. In this area, there is no government we can work with. We have no military on the ground to detain those preparing plots. And there was nothing to suggest that Reyaad Khan would ever leave Syria or desist from his desire to murder us at home. So we had no way of preventing his planned attacks on our country without taking direct action…
First, I am clear that the action we took was entirely lawful. The Attorney General was consulted and was clear there would be a clear legal basis for action in international law. 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.
And in the prevailing circumstances in Syria, the airstrike was the only feasible means of effectively disrupting the attacks planned and directed by this individual. So it was necessary and proportionate for the individual self-defence of the UK.
There are, however, significant differences between the UK and the US in both legal opinion and the jurisdiction of international courts.
- Armed conflict: The US claims to be in an armed conflict with al-Qaeda and associated forces, the UK doesn’t. Therefore while the UK talks about IHL and military rules of engagement, this is ‘icing on the cake’ so-to-speak – we’re not at war (proverbially) or engaged in an armed conflict (legally). This aspect of Cameron’s statement is effectively saying that when UK armed forces kill outside an armed conflict, they still consider themselves constrained by the rules developed within it.
- The extraterritorial applicability of human rights treaties: A bit of a mouthful for non-lawyers. Unlike America, the UK considers its obligations as extending beyond the territory of the UK, which means that outside armed conflict human rights law definitely applies, and furthermore UK cases have applied human rights standards to matters in the context of armed conflict (much to the chagrin of many people, but that doesn’t matter so much here).
- The European Convention on Human Rights: Unlike the US, we have the ECHR, and we are also subject to the jurisdiction of the European Court of Human Rights, meaning that judges beyond our immediate political system can pass judgement on the actions of the state (like, err, Article 2, protecting the right to life – expect to see arguments about 2.a. where “Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: a. in defence of any person from unlawful violence”). This is a key difference from the al-Awlaki case as there is no international court with jurisdiction that America accepts that can pass judgement on the American state for his death.
- No constitution: Unlike America, we don’t have a written constitution. This means that whereas the American debate on the domestic legality of killing citizens has plenty of plain text hooks and principles to work from, as well as the separation of powers, the UK debate will likely be more nebulous, involving the royal prerogative, and so on. I’d expect some British anti-monarchists to come out of the woodwork at some point to state that it’s a bit bloody odd that the Queen is technically the one in charge of all of this, and David Cameron ordered a citizen dead based on inherited authority. For American readers worried about the ‘Imperial Presidents’ of Bush and Obama, at least you have the Authorization for the Use of Military Force to complain about, as well as requirements for intelligence oversight, Presidential findings etc etc.
My last thoughts on this (for now) is that this appears to be the way things are going: that the ‘Caroline test‘ will apply to individuals and small scale groups, and that the American “unwilling/unable” test, discussed by Robert Cheney, will propagate. The use of straight up self defence as a justification for targeted killing (as opposed to self defence that leads to/in context of armed conflict) is discussed in a pretty accessible way by Kenneth Anderson in a 2009 paper here. What strikes me about Cameron’s decision is that the US has hewed towards the armed conflict model for justifying targeted killings and explaining their legal rationale, whereas the UK decision appears to be straight self defence. From everything I’ve read about targeted killings, the armed conflict model is better, as it is at least more explicit and requires political declarations of war. The US Congress can always call off its war with al-Qaeda, and hem in the President’s authority. The British political system has markedly fewer constraints on the exercise of power by the Prime Minister.
Was there an alternative? Oddly it appears the government has returned to Mrs Thatcher’s insistence on TINA: there is no alternative.
Legality aside and the clamour for a review, more information being released etc it is interesting to learn that the UK and presumably allies could ‘Find, Fix & Finish’ the apparent plotters amidst all the noise of ISIS activity. Presumably the UK drone had been on standby for days before releasing a missile / bomb.
Drones and much of UK CT strategy is effectively containment of those who are violent, pending optimistically a political change. Ulster is a good example of this. Just how long we can wait, let alone after a successful ISIS-inspired attack is a moot point.
While most would likely agree with David Cameron’s “act of self-defense” rationale, the view of international law is more skeptical, especially since “self-defense” is usually vague and difficult to prove, relying on subjective justification rather than objective analysis. Cameron’s assertion that there was “no alternative” has merit, insofar as it pertains to capture and detention, given that the UK government has extremely limited operational means in Syria. That aside, the fact that the UK is party to international judicial bodies and conventions such as the European Convention on Human Rights, means that Cameron has additional requirements to satisfy that America is not burdened with. The fact that the UK is not in an active conflict like the US is another hurdle. The UK may not face many legal or judicial reprisals for the action, but could, at least theoretically, from some bodies based on legal precedent. As the first comment to the original post notes “Ulster is a good example of this.” I disagree that containment has the same applicability as a CT strategy now as in the Troubles (the scenarios are not equivalent), but it is true that Northern Ireland has shaped the UK CT policy of today, especially in legal circles.
Article II of the ECHR lays out the principle of “Right to Life,” in which “no one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction.” The European Court of Human Rights has already addressed this in relation to the UK’s CT policy, per McCann v. United Kingdom. The case, which overturned a previous deliberation by the ECHR’s Commission, was filed by the families of three Provisional IRA members killed by SAS personnel in Gibraltar in 1988. The IRA active service unit had been plotting to detonate a car bomb at a changing-of-the-guard ceremony, when all three were engaged. On the whole, it would have been a clear-cut case, had UK security services not known of the plot well in advance, and had actually permitted the suspects to enter Gibraltar despite recognizing them and having cause to detain them. Rather, the SAS was dispatched at the behest of the Gibraltar police to engage in the anti-terror operation, specifically designed to catch the ASU in the act. The decision was narrowly decided in favor of the families before the European Court.
The situation in Syria is remarkably different, but the key takeaways are that no court has issued any sort of pronouncement, the executive has had sole responsibility (choosing a proactive, pragmatic direct action rather than using force of law), and that an international precedent was already established, specific to the UK. The Gibraltar case is more straightforward, as the suspects were in the act of harming UK military personnel and assets. Rayaad Khan and Ruhul Amin were operating in lands outside of Crown or even Commonwealth control, in a time of legal “peace.” While the “Caroline test” can be argued, and will be accepted, the fact that Cameron and the Ministry of Defense will not have to provide even some semblance of a burden of proof will likely draw the ire of some international bodies and humanitarian activists. International humanitarian law could provide reason for a limited intervention in Syria, but the UK must at least announce its intent for legitimacy to be established. The UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, has stated that while “imminent threat” is the bar that establishes a legitimate use of lethal force, the intent of an operation, at least from the inception of the operation, should not be to kill (Addendum: Study on Targeted Killings at 5, UN Doc A, HRC 14/24, 28 May 2010, Philip Alston).
In conclusion, while I personally support Cameron’s decision to permit the unmanned strike, I do believe that there are serious accountability questions that need to be asked, specifically regarding what constitutes “imminent threat” in the minds of policy-makers. The relationship between the UK and international bodies cannot be overlooked, and to some degree their provisions must be considered when acting on the international stage, even in matters of national security, but ultimately the UK will act as it sees fit. To quote Cicero, “silent enim legis inter arma” (during war, the laws are silent).
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