The announcement by David Cameron that the UK is now engaged in drone strikes against targets, including British citizens abroad, is deeply worrying on a number of levels.
First, the government seems to be ignoring the vote in Parliament in August 2013, which explicitly refused permission to engage in armed conflict in Syria. Second, it is very unclear on what legal basis the government believes the drone strikes were justified. And finally, these events represent a very significant shift in UK government policy on the use of force, without consultation with either Parliament or the wider public.
The decision to go to war or to use armed force is constitutionally a Crown Prerogative power. In other words the UK government, acting in the name of the Monarch has more or less absolute discretion over such decisions. However, a new convention has begun to emerge, one which muddies the waters in our largely un-codified constitution.
Since Tony Blair’s request that Parliament authorise an armed attack on Iraq in March 2003, followed by Cameron’s similar vote over Syria a decade later, a precedent appears to have developed which now demands that Parliament be consulted on such questions. Although, the Prime Minister went out of his way on Monday to say that the drone strikes did not constitute the launching of a war or any armed conflict in Syria, the difference may not be as clear as he pretends. The fact is that according to the Geneva Conventions the use of any kind of armed force against another state can be considered as an armed conflict even if the states involved deny it. Furthermore, Article 2(4) of the UN Charter prohibits the use of force against sovereign states.
The UK government suggests that because ISIS is in effective control of the territory that was targeted by the strikes the sovereign rights of Syria were not infringed. But still, in international law, it is not for individual governments to make such determinations, and decisions about any armed force used against other states and territories are only permissible with a vote in the UN Security Council.
There is of course an exception to these rules, and that is in the case of self-defence. But here again certain criteria must be met if states are to use it as a justification for an armed attack. Article 51 of the UN Charter is quite clear that the use of force in self-defence is only allowable once an armed attack has occurred. So far there has been no attack on the UK by ISIS or the individuals targeted by the drone strikes. Customary law does also allow for the use of force where an attack is imminent.
This is taken to mean that an attack is literally about to take place; typical examples are where armed forces are massing on the border or there is information that missiles are about to be launched against one’s territory. In other words, the attack must be expected in hours, or possibly days, but not weeks or months. The UK government has so far only alluded vaguely to threats posed by the targets in the drone strikes on public commemorative events.
News reports are suggesting that these might have been the VE Day anniversary celebrations in May or other events over the summer. But all these passed off without incident before the drone strikes took place on 21 August. If the government is indeed relying on such threats, then the drone strikes were clearly illegal. Moreover, international law insists that for armed force to be used in self-defence there must be no other alternatives possible to prevent an attack. But again, if there was clear intelligence about an imminent attack, then could not the government have disrupted communications with accomplices in the UK, prevented the suspects entering the country or arrested individuals already here?
But what is perhaps most persuasive about the government’s case is that ISIS are a brutal organisation, which has declared its aim to attack the UK and other states, and that undoubtedly British members of ISIS are likely to be used to facilitate such attacks. In the crude language of the tabloid reporting of the strikes, ‘they had it coming’.
But a very dangerous precedent is being set here. Are UK forces now to begin roaming the world killing individuals deemed to be a threat to UK interests? How big a threat would it need to be to justify such actions? What about when targets are missed, or the intelligence is faulty and innocent people get killed instead? These are not academic questions.
The extensive program of drone strikes by the US over recent years has resulted in civilian casualties of up to 35%, although exact figures are difficult to ascertain largely due to the lack of information gathered in the aftermath of the attacks. And tough questions have to be asked about what qualifies one for ending up on the ‘kill list’, for there is no jurisdictional oversight for this. In short, drone strikes look a lot more like extra-judicial killings rather than the legitimate use of armed force.
Finally, there must be some unease about the government’s decision not to reveal the substance of the Attorney-General’s legal advice about the strikes. Claims about protecting sensitive intelligence won’t wash.
Why are we not being told what the specific legal grounds were for the advice? Such information could be given without compromising classified information. My suspicion is that the government is hiding a major shift in policy, which is that they are now relying on the legal doctrine of pre-emptive self-defence. This has been deployed most notably by the US since 9/11.
Essentially this extends the right to use force against threats that may not be imminent, but which are against individuals and groups that are planning attacks. Nothing in the UN Charter or other recognised authorities of international law supports such a doctrine. Instead, proponents of the doctrine can only fall back on an obscure ‘case’ from the 1830s. The so-called Caroline Case is not even really a case, but rather an exchange of letters between the US and UK governments concerning the sinking of a ship. On such shaky ground, the US has sought to justify many of its military operations across the globe over the past decade and half. In the process the US has compromised its moral authority and thumbed its nose at international law. It looks like the UK is now following an equally treacherous path.
Simon is a lecturer at the school of law, University of East Anglia on public international law. He co-ordinates a joint project with the British Red Cross that provides education resources to schools about international humanitarian and refugee law