Drone strikes and Britain’s new interpretation of international lawon 15 September 2015
By Chris Fuller
By authorising the targeted killing of Reyaad Khan and Ruhul Amin by drone strike in Syria on 21 August 2015, the British government has revealed its late adoption of the same modern interpretation of International Humanitarian Law which the United States has employed since the launching of its War on Terror 14 years ago. Whilst never having openly opposed the American decision to regard acts of terrorism through a war paradigm following 9/11, the UK government had, up until this point, treated terrorism as a criminal activity, with responsibility for counterterrorism operations being the domain of the civilian security services. But in deploying the Royal Air Force to eliminate a terror suspect (Kahn was the specific target), Britain has set a new precedent for the conduct of its counterterrorism operations.
The role of the drone
The Reaper drone itself was doubtless a key component in the government’s decision to adopt such an approach. The unmanned aircraft’s ability to loiter for hours, observing its target and waiting for an opportunity to strike when the risks of collateral damage can be minimised, has long been seen as the weapon’s most significant tactical advantage in hunting terrorists. So too is the fact that the drone enables its users to operate over hostile territory without personal risk – a benefit cruelly highlighted by the burning to death of a Jordanian pilot, captured by the Islamic State in December 2014 following the downing of his F-16 over Syria. Yet other observers have warned of the seductive nature of this unique technology, tempting policy makers with an apparently cost-free solution to complex problems. The ratio of civilian casualties caught up in America’s drone campaign suggest such attacks are not as clean as they may first appear, whilst the role of such attacks in stoking anti-Americanism challenges whether they are as effective a tool as their proponents believe.
Article 51 and self-defence
Equally as important as the technology which enables the strikes is the judicial process which underwrites it. The US drone campaign is backed by a complex legal architecture which has evolved over the past four decades, with the first authorisations to use lethal force against specific terrorists dating back to the Reagan administration. It was Stanley Sporkin, the CIA’s Chief Counsel under the Agency’s counterterrorist hardliner director, William Casey, who first argued that strikes against terrorists would be legal under Article 51 of the UN Charter, which justified the use of force in self-defence against an armed attack. Following the September 11 attacks the United States employed this legal logic, supported by a UN Security Council Resolution, Congress’s expansive Aurthorization to Use Military force Against Terrorists, and a Finding from President Bush to legally authorise America’s ongoing drone campaign.
The Cameron government has now, more than a decade later, adopted a similar legal positon, citing Article 51 and justifying the strike as an act of self-defence against a member of a known terrorist group, whom intelligence reportedly indicated was involved in the ongoing organisation of terror threats against the British public. Yet whilst Cameron’s legal case may be similar to that employed by the United States, the Prime Minister has considerably less domestic legal authority to execute such strikes than the American President. First, although the CIA’s drone campaign enjoys broad bi-partisan support, the British Parliament voted in August 2013 not to authorise air strikes in Syria. Second, whilst Obama’s administration has faced frequent criticism over the lack of transparency of its use of drones, each strike is briefed to the relevant Senate Oversight Committees, providing - in theory at least - the important judgement of an authoritative external entity which can validate the fact that the government’s target is legitimate.
This oversight was not always in place. It has taken a decade of legal debate and action by political campaigners, non-governmental organisations and legal bodies to force more aspects of the highly secretive operations into the light. Although a certain degree of secrecy will remain necessary to avoid exposing intelligence sources and methods, the UK government will do well to learn from the American experience, and provide more transparency and oversight by choice, before such details are eventually forced out by legal challenges and possible information leaks. Any future British drone strikes would benefit from the credibility of a trusted external body confirming the decision to employ lethal force is right and proper under the law. Since greater scrutiny has been placed upon the CIA’s drone campaign, the ratio of civilians killed in strikes has dramatically decreased, showing the wider benefits of a more transparent approach.
The doctrine of imminence
Critics of Britain’s targeted killing have taken particular issue with the use of the term “imminent” with regard to the threat posed by Khan, arguing that the government has presented no evidence to justify the necessity of self-defence, citing the legal precedent from the Caroline case which defined an imminent threat as “instant, overwhelming, leaving no choice of means, and no moment of deliberation.” Imminence doctrine classically depended upon timing. Only when an attack was certain to occur, could a nation employ force in preemptive self-defence. Yet, as the former Bush administration lawyer John Yoo argued, this traditional concept did not address cases in which an attack was likely to happen, but its timing was unpredictable – the sort of surprise that terrorists rely upon to create maximum shock value.
Furthermore, the original legal definition of imminence failed to deal with covert activity, where, according to Yoo, “the best defense will be available only during a small window of opportunity when terrorist[s] become visible.” Thus, haunted by the government’s failure to take decisive action against Osama bin Laden prior to 9/11, the United States challenged that the rules of self-defence needed to adapt to meet the evolving terrorist threat. Terrorists came to represent a continuous and ongoing threat of unlawful aggression. As Professor of Law, Russell Christopher, explains, under America’s post-9/11 definition it does not matter whether or not the terrorist is actually being aggressive at the time of the strike; “it is their very status as a terrorist which qualifies as the conduct of posing an imminent threat.” The philosopher, Jeff McMahan, has explained this position further, arguing that “even while terrorists are sleeping or eating dinner or doing some other innocuous activity, they do not lose their status as terrorists and thus are continuously and invariably constituting imminent threats.” Thus those looking to apply the traditional legal definition are missing the point that the British government has now adopted America’s post-9/11 definition of the term.
Targeted killing is seductive, and the unmanned nature of drones makes it even more so. The only two other countries in the world who have adopted the same legal positon Britain now has (the US and Israel) have gone on to undertake hundreds of such strikes. Whether Britain can avoid getting dragged into such a cycle of violence remains to be seen, but ensuring that any future decision to undertake a strike has a transparent review process will be vital to keeping Britain’s new bloodhounds on a tight leash.
Paradoxically, it is quite possible that as the British government rightly accepts a greater humanitarian role through accepting more refugees from the very war torn territories its drones patrol, these lethal strikes will become more common. The Islamic State has made clear its desire to strike British targets by infiltrating the flow of desperate refugees with trained jihadists. The tragic events of 7/7 and the Charlie Hebdo assault have provided stark evidence of the danger posed by motivated citizens able to attend training camps then return home to utilise their lethal skills. In order to disrupt such possible infiltration, the intelligence services may call upon more drone strikes to ensure hostile Britains do not return, or to disrupt efforts to generate plots. Given the large numbers of British citizens it is believed have travelled to Iraq and Syria, this could mean a worryingly long kill list is being drawn up.
Chris Fuller is Lecturer in Modern US History at the University of Southampton. He tweets @DrChrisFuller.
Image: Defence Images: CC BY-NC