Attorney General speaks on legality of UK pre-emptive drone strikes By Chris Cole
12 January 2017 — Drone Wars
UK Attorney General Jeremy Wright’s speech at the IISS on Wednesday evening, “The modern law of self-defence“, trailed by advanced PR as “setting out the legal basis for British military strikes against terror targets overseas”, gained a flurry of advance media coverage. I’m sure others far more qualified will comment in detail on the legal content of the speech. However, as it undoubtedly relates to the operation of the UK’s drone fleet, it’s important to look at what the speech reveals.
The Wright Position
Wright started out by rehearsing the basis in international law on which States resort to the use of force in self-defence against other States, and more recently, against non-state actors. He then turned to what in truth was the real the focus of the speech, the issue of imminence in self-defence.
“Like many other states, the long-standing UK view is that Article 51 of the UN Charter does not require a state passively to await an attack, but includes the ‘inherent right’ – as it’s described in Article 51 – to use force in self-defence against an ‘imminent’ armed attack, referring back to customary international law.”
Current customary law around imminence argues that the necessity for resorting to pre-emptive force in self-defence must be expectation that an attack is to be “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” The form of words, called the Caroline Test, takes its name from the Caroline affair of 1837.
Wright argues however that much has changed since 1837, not least the ability to use social media to communicate. While in the past, Wright argues, authorities would have been able to “see troops massing on the horizon” modern technology means that individuals can “inspire, enable and direct attacks” from distance.
“In a world where a small number of committed plotters may be seeking to inspire, enable and direct attacks around the world, and indeed have a proven track record of doing so, we will not always know where and when an attack will take place, or the precise nature of the attack.”
Wright argues that the Caroline Test is no longer sufficient and asks “When do we now say a threat of an armed attack is sufficiently imminent to trigger a state’s right to use force in self-defence? A question which implies, he goes on to say, “having a clear understanding of when the threshold is met to justify such action.”
Wright then goes on to highlight a list of factors proposed by forcer FCO Legal Advicer Sir Daniel Bethlehem in 2012 which he suggests enables “a clear understanding of when the threshold is met to justify such action”:
“It is my view, and that of the UK Government, that these are the right factors to consider in asking whether or not an armed attack by non-state actors is imminent and the UK Government follows and endorses that approach.”
From those factors, Wright argues, questions flow which the UK government asks itself:
“Questions like – how certain is it that an attack will come? How soon do we believe that attack could be? What scale of attack is it likely to be? Could this be our last clear opportunity to take action? And crucially – is there anything else we could credibly do to prevent that attack?
Wright also refers to Bethlehem’s observation that:
‘[t]he 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 for purposes of the exercise of a right of self-defence, provided that there is a reasonable and objective basis for concluding that an armed attack is imminent
and baldly states that this “has been the “settled position of successive British Governments”
Finally, Wright insists that in adopting this novel view of imminence he is “not suggesting that the threshold for military force be watered down” and is “certainly not suggesting we adopt an analysis which amounts to a Global War on Terror paradigm.”
There are many important points to made (and will likely be made over the coming weeks and months) in response to the UK clearly following the lead of the US in attempting to re-define the understanding of ‘imminent’ to enable the expansion of the ability to undertake pre-emptive armed attacks.
What is clear, both from the speech itself as well as the drone strikes on Reyaad Khan and separately Junaid Hussein, is that the UK believes it has the right, as a last resort, to use lethal force against those who, as Wright puts it “inspire, enable or direct attacks” from overseas.
But it is very important to note that each of those three elements are very different and would need a great deal of careful unpacking legally and evidentially. Alongside this, the notion that evidence of an actual and specific attack is not necessary is extremely unsettling. Certainly in a court, lawyers would argue long and hard about the precise meaning of those three elements and whether their client had in fact ‘inspired’, ‘enabled’ or ‘directed’ an actual attack. However there will of course be no court hearing, no judge, and no jury weighing evidence and testing legal argument before deciding a verdict.
Instead a small group of individuals from the UK’s National Security Council will make a decision behind closed doors. Those individuals will be under enormous pressure to greenlight an attack as they will no doubt fear the risk of not doing so. In our current climate there is little political risk in undertaking an air strike on suspected terrorists, while there is a large political risk in not doing so in case a terrorist attacks does take place. Armed remote technology together with this change in political risk, really is lowering the threshold for the use of force despite what Mr Wright may say.
The Attorney General repeatedly spoke of the UK’s adherence to international law and respect for a rules based system. We know from past history and from very recent experience that the measure of such respect and adherence is not in fine words delivered in speeches, but in proper public accountability and greater transparency. Mr Wright should publish a summary or jist of his advice to the government on the targeted killing of Reyaad Khan and ensure that the government commits to greater transparency on the use of armed drones.