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Drone Strikes, ISIS and the Right to Self-Defence

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About The Author

Alexander Barbour (Former Criminal & Environmental Law Editor)

Alex has recently graduated from the University of Birmingham, achieving a First Class Honours degree in Law. His main interests lie in issues concerning human rights, criminal justice and the environment. Alex recently received the Albion Richardson Award from Gray’s Inn to fund the BPTC, which he is currently undertaking at the University of Law, Birmingham.

On Monday 7th September, David Cameron confirmed that a targeted RAF drone strike in Syria had killed two British citizens, Reyaad Khan and Ruhul Amin. The unprecedented airstrike also killed another Islamic State militant, with another Briton, Junaid Hussain, killed by a separate airstrike undertaken by the US military acting upon British intelligence.

The prime minister told MPs that the drone strike was legally justifiable as it was in self-defence, in order to address the imminent threat to British national security posed by the individuals killed. Despite this, the legality of the airstrike has been questioned by a number of leading human rights organisations, including Rights Watch, which has issued legal proceedings in an attempt to uncover the details of the legal advice given to the government by the attorney general, Jeremy Wright QC. With the defence secretary Michael Fallon promising that the government ‘wouldn’t hesitate to take similar action again’, a number of fundamental questions must be answered.

Was the Drone Strike Legal?

The relevant legal principle used to justify the recent drone strike is Article 51 of the UN Charter, which relates to the use of force by a state in self-defence. Article 51 guarantees ‘the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations’. David Cameron invoked this inherent right for reasons, as he put it, of ‘self-protection’. For a comprehensive discussion of the international law relating to drone strikes, see Alex Hitchcock’s article for Keep Calm Talk Law.

The self-defence justification in this case has been contested by many human rights organisations, and has split both public and professional opinion. The Reverend Nicholas Mercer, a former lieutenant colonel and army legal adviser, believes that ‘the grounds of national self-defence seem highly improbable given the age and background of this young man [Reyaad Khan] barely out of his teens. Only if he represented a threat to international peace and security by the scale of his proposed attacks could this attack begin to be justified’.

Alternatively, the liberal democrat peer and former director of public prosecutions, Lord McDonald QC, thinks it appropriate to invoke the principle of self-defence in circumstances such as this, as in his view it is ‘lawful and proportionate to target a British citizen who has travelled abroad to join an armed group which is targeting Britain and British citizens and is on record himself as having that purpose’.

Philippe Sands QC, professor of international law at University College London, said:

[T]he prime minister has given us an insufficient basis to know whether what he authorised was legal or not … Under the right of self-defence, any armed attack [against the UK] would have to be imminent or actual. The word ‘planning’ [used in the PM’s statement] suggests it’s not imminent; the word ‘directing’, however, suggests it might have been.

It would appear then, that until further information relating to the background of the decision is disclosed, we are as likely to get a conclusive answer explaining whether the strike was lawful as we are enquiring as to the length of a piece of string.

Does the strike mark a change in counter-terrorist military strategy?

The use of secret, targeted drone strikes abroad is not new to the US military, but such use of drones is unprecedented by the UK armed forces. This has prompted criticism from numerous human rights organisations and other commentators that the UK is adopting a US-style global military war on terror. Kat Craig, legal director of Reprieve’s abuses in counter-terrorism team, said:

What we are seeing is the failed US model of secret strikes being copied wholesale by the British government. Ministers repeatedly promised parliament and the public that there would be no military operations in Syria without parliamentary approval. The fact that David Cameron has bypassed parliament to commit these covert strikes is deeply worrying – as is his refusal to share what legal advice he was given.

Amnesty International has condemned the killings, saying that ‘in following the United States down a lawless road of remote-controlled summary killings from the sky, the RAF has crossed a line’. Indeed, the apparent joint involvement of the US and UK armed forces does call into question any assurances that the UK is not adopting an approach of equal heavy-handedness.

The future

As time progresses, full disclosure by the government looks increasingly unlikely, meaning an application for judicial review by Rights Watch will surely follow. The purpose of judicial review proceedings will be to force the government to publish details of the advice it received, which will allow the courts to assess the legality of the decision to use drone strikes in Syria. Yasmine Ahmed, director of Rights Watch UK, said:

These strikes set a dangerous precedent for UK government activity. The UK government can now kill at will with no oversight. If the only oversight for these actions is internal confidential government legal advice, which the British public never gets to see, that is no oversight at all. To take military action in the name of the British public and not fully inform the public about the legal basis for doing so is undemocratic. 

Legal or otherwise, one question remains: are we safer? If the justification for the drone strike was to protect British citizens, one would expect the answer to be yes. However, that would be to give an unsatisfactorily simple answer to an extraordinarily difficult question. It is argued by some that ISIS only exists due to the extensive involvement of the US and UK military in some of the countries in which ISIS now exercise significant influence.

The philosopher George Santayana famously said: ‘Those who cannot learn from history are doomed to repeat it’. Unfortunately, if the use of secret drone strikes in Syria continues, we may see that with the use of military force in a distant territory involving the abandonment of some of the human rights principles advocated by the government at home, comes a repetition of previous mistakes that will only serve to escalate the current difficulties.

The UK government will certainly consider the military action necessary to combat extreme terrorism and violence. However, if the UK’s recent military history is to convey any lesson for the future, it is that perhaps that more regard should be given to future consequences when considering the appeal of immediate lethal action.

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Tagged: Anti-Terror, Armed Conflict, Drones, Human Rights

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