Drone Strikes, The Law of War and the Changing Nature of Imminence

The name Reyaad Khan will likely mean nothing to most people. He was a British-born jihadi who, in August of 2015, found himself the target of a British drone strike. Despite being amongst many to have died in connection with the UK’s ongoing engagement in Iraq and Syria, if it were not for his death the government would not now be compelled to clarify its legal position on the use of lethal force, in parts of the world it is not actually at war.

The conduct of our armed services is governed by two separate legal frameworks: the law of war and international human rights law. In situations of armed conflict, the former takes precedence over the latter; the UK can dispense with certain responsibilities under the human rights treaties in times of war. But because the UK must be legally engaged in a war, and since Reyaad Khan died prior to the UK’s vote on military action in Syria, it cannot be said he died governed by the law of war.  

The Joint Committee on Human Rights’ recent Report on Drones for Targeted Killing makes clear, the law of war only applies where a ‘non-international armed conflict’ or an ‘international armed conflict’ can be defined. Under international law, ISIS would not form a legitimate party to either. According to the committee, the only instance where they would form a legitimate target is in situations where the UK government had been invited by the Iraqi or Syrian governments to participate in internal hostilities. Yet Khan’s death cannot be regarded as being with regard to Iraq’s right of self-defence: intelligence puported to indicate a possible attack in Britain. It cannot be argued that Reyaad Khan was killed in defence of Iraq - which would have placed his death under the law of war - when British self-defence is cited as the reason for the drone killing.

For the strike to have been legal, the UK government would have to be acting legitimately in its own self-defence, in response to an imminent threat.

The government argues that the nature of imminence is changing

Article 51 of the UN Charter says that every state has the right to self-defence, at all times, against an ‘armed attack.’ This right applies regardless of the UK’s engagement in Syria. It is an inherent right that is assessed on a case by case basis. Where in the case of Reyaad Khan, the government thinks it is on the right side of customary international law, the joint committee thinks it may not.

The government’s case hangs on the legal interpretation of ‘imminence’: the need to use force must be ‘instant, overwhelming, leaving not a choice of means and no moment of deliberation.’ Only when each of these requirements is met, does an anticipatory strike become legal. In the Reyaad case, a litany of circumstantial evidence would suggest that this threshold wasn’t met.

The government painstakingly ironed out all the operational creases prior to its strike on Reyaad. According to the Joint Committee on Human Rights, the ‘authorisation for the use of force against Reyaad Khan had been given months before his death.’ Therefore any threat against which there was a need to use lethal force cannot have been imminent. Not to the extent that the government had no moment for deliberation. No additional casualties were sustained as you may imagine might have been if the strike had been a more kneejerk response. On the contrary, the government had planned the operation in detail.

The government argues that the nature of imminence is changing. Since 9/11 and the War on Terror, the ‘rules of the game are changing.’ Global telecommunications being as they are today, the geographical location of particular terrorists bears less of an importance when deciding how proximate a threat they are. The Attorney General, speaking before the Justice Select Committee in September 2015, made clear that he believes the test for imminence should be judged with more modern eyes. And the Defence Secretary, speaking in front of the Joint Committee on Human Rights, said that ‘an imminent threat can presumably grow in immediacy. It may grow in seriousness. It may grow in likelihood. It may exist for some period of time, absolutely.’ Imminence need not be interpreted so strictly. It need not be an instance leaving little room for deliberation any longer, according to Michael Fallon.    

Fallon’s interpretation of the legal doctrine of immediacy pushes the boundary too far. The joint committee’s recent inquiry accepted a broader interpretation of the test but the committee warned that an overly expansive interpretation could have legal consequences for ministers. For the test of imminence to be satisfied threats should be ‘genuine’, they said. And whilst acknowledging several post-9/11 UN resolutions that support the government’s position, the committee reinforced the test for necessity stating, there must be ‘the sense that there was both an intention to attack and the capability to do so; and that the attack could happen at any moment and without warning.’

at the very least the government has questions to answer

If this is not the nature of the incident under consideration, it cannot be considered proportionate or necessary under international law. The insight offered to the committee on the intelligence surrounding Reyaad Kahn was minimal. Suffice to say that, intelligence matters will likely remain secret and escape the appropriate scrutiny.

The government’s view on imminence is something very flexibly understood in light of post-9/11 hyper-terrorism. Reyaad Khan’s killing was meticulously planned. How great could his level of influence over any strike on British soil have possibly been? Yet the UK’s policy regarding the use of drones outside of armed conflict, as a legal expression of its right to self-defence, tends toward the American policy of targeted killing, a policy of kill-lists of the World’s most wanted.

Following the joint committee’s report, at the very least the government has questions to answer. So far it has yet to respond but any reponse can only be found wanting. The joint committee felt that the Secretary of State, and by extension the Government, misunderstood the ‘legal frameworks that apply’ to armed conflict. What reply is there except disagreement?

The British public urgently need to have a conversation about the nature of war in the 21st Century. At the very least the government needs to be more frank about the threats we face and its response to them. Are targeted drone strikes the best way to further the West’s cause? And is its policy to strike pre-emptively all who are involved in terrorism, wherever they are and however proximate or legitimate a threat they pose? And if so, does it wish to do so with impunity by way of its right of self-defence, on the basis that imminence does not actually mean imminence at all?

More about the author

About the author

Leon Zadok writes on politics with a focus on opinion and analysis, and tea. Being a recent graduate in law from Leeds Beckett and having written for the local press and online, Leon is sure he has got it all figured out. Previously contributing to Column F, The York Press, The Wakefield Express, and The Yorkshire Post, to name a few, Leon works on a freelance basis and writes regularly for Disclaimer.

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