By Peter Carter QC
On 11th January this year, the UK Attorney-General, the Right Honourable Jeremy Wright QC, MP, delivered a speech at the International Institute for Strategic Studies in London in which he set out the UK government’s arguments for why its policy of targeted assassinations is justified in law. This article considers whether that justification is sound, what issues arise from it and how far it applies to the actions of other states, especially our allies.
The use of force by one state against the citizens of another (whether civilians or members of the armed forces) is the subject of the Geneva Conventions, the laws of war and the Rome Statute. The question of when one state can use armed or lethal force in the absence of explicit UN Security Council authorisation, and so acting as vigilante for the international community or in its own perceived interests, has been a matter of dispute. Examples abound – the Vietnam War (France, then the USA), Namibia (South Africa, the two Gulf wars, Afghanistan (Russia, then the USA and UK), Libya, the Ukraine (Russia) and most recently Syria. This article is concerned with a far narrower issue, namely the targeting of an identified individual or individuals for extra-judicial killing.
At common law murder is the unlawful killing of another person with intent to kill or inflict really serious harm. This includes accidentally killing an innocent third person when intending to kill another. Section 9 of the Offences Against the Person Act 1861 provides that any act committed overseas by a British subject which would amount to murder if committed in England amounts to the offence of murder and is triable in England. Only if targeted killing is lawful does it avoid being murder.
The Attorney-General presents a well-reasoned justification for the use by the state of lethal force against an identified individual who poses a threat of an imminent armed attack on the UK or its allies. His justification does not seek to rely on any special immunity such as act of state (which would be difficult in the light of the Belhaj case as it will not be the act of a foreign state, or if it is, the UK’s participation in what would otherwise amount to murder at common law would not provide immunity) nor combat immunity in the “war” on terrorism, nor diplomatic or sovereign immunity. Nor does he seek to invoke some prerogative power to justify extra-judicial execution of UK nationals or non-nationals on foreign soil. His justification, founded in the UK’s respect for the international Rule of Law, is based on the established right to use reasonable force, including lethal force, in self-defence. This is a sensible and principled basis for the use of such exceptional measures. Yet it does give rise to some questions as to the circumstances of its application, and whether it requires ex post facto investigation, as is the case when a police officer in England kills a person in the course of arrest.
The use of force by one state against or on the territory of another is prohibited by Art. 2(4) of the UN Charter. Chapter VII of the UN Charter empowers the UN Security Council to authorise the use of all necessary measures (including armed force when specified by the UNSC) to combat a threat to international or regional security. It is not Security Council authorisation under Chapter VII which the Attorney-General uses as his justification for the UK’s action in targeting individuals for extra-judicial killing. He relies on Art. 51 which provides –
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
It is noticeable that Art.51 protects the right of collective self-defence, which includes the UK’s use of such force when any of our NATO allies are under a threat of imminent attack.
The element of imminence is identified by the Attorney-General as an essential element. He says, and I agree, that an attack need not be under way. He says, and I agree, that the principle he describes is not the same as using pre-emptive force against a threat which is more remote. He is reassuring when he states –
I am certainly not suggesting we adopt an analysis which amounts to a Global War on Terror paradigm. It is absolutely not the position of the UK Government that armed force may be used to prevent a threat from materialising in the first place.
No doubt the Attorney-General will agree that the Rule of Law requires such a constant scrutiny both by the Security Council and also by the UK Parliament and public and courts over the government’s employment of a right to kill. A claim that the cause is just will not suffice, the government must show that the action was necessary and that the risk was imminent. The imminence of a risk does not mean that the action is necessary. They are two independent pre-conditions before lethal force can be used.
There are four critical issues which I consider arise in the legitimate use of this right to national self-defence.
The first issue is – how is the requirement of imminence to be assessed? This assessment will inevitably be the responsibility of the security services. What information is used to determine where and when? What information is used to determine whether any persons who are not legitimate targets are at risk of being killed or injured in the strike? What control is there over the deployment of force, e.g. if intelligence or visual imagery from a drone identifies an unacceptable risk to third parties of to religious or cultural objects, can it be abandoned? This kind of action is expressly not subject to the laws of war, and so a balance between civilian casualties or the destruction of cultural and the legitimate objective of the use of armed force is arguably not justified, and only absolute necessity will suffice. What consideration will be given to a likely retaliation which may exceed in effect the initial threat? Who within government will give the authorisation for a lethal strike?
Will the UK government act on an assessment provided by our allies without carrying out an independent check? If it does not, how can it be said that the government is satisfied it is acting in accordance with the twin requirements of necessity and imminence which the Attorney-General has correctly identified? If the UK engages in a strike which violates international law due to the failure of the ally to conduct a sufficiently rigorous scrutiny of the intelligence, what effect will this have on the liability of the UK? If information is relied upon which does not come from our allies, what steps will be taken to verify such information? A threatened attack on a friendly state with whom the UK government has no mutual defence agreement and which is not strictly an “ally” may not give rise to a justification in the terms of Art. 51.
The second issue is - What process leads to the identification of an individual or individuals to be targeted? What intelligence is used to ensure that the person targeted is the person who poses an imminent risk requiring immediate action? We should all be alert to the inadequate or misinterpreted intelligence which has led us to war, led to the incarceration in Bagram and Guantanamo of people who were not engaged in terrorist acts, and to deaths of people who were not targets such as the recent failed attack by the US in Yemen. The CJEU decided in European Commission and Others v Yassin Abdullah Kadi that an individual could not be condemned to restrictive sanctions, even by a process endorsed by the UN Security Council, without a judicial determination. I appreciate that such a procedure of judicial authorisation is not readily applicable to this kind of situation. It would create the absurd conundrum that if there is time to seek judicial authorisation the risk cannot be sufficiently imminent. It is a matter for debate whether the process of judicial authorisation of covert intercepts under the Investigatory Powers Act 2016 offers a possible template. On the other hand I would be surprised in many judges are willing to give advance authorisation to a targeted killing. In very different circumstances the Court of Appeal had to struggle through acute ethical and legal issues when it determined that conjoined children could be severed, putting at risk the life of one to prevent the death of both.
The third issue is – will the UK be held accountable for a violation of Art.2 of the ECHR? That will depend on the degree of control the UK has over the territory on which the strike takes place. In most cases it is unlikely that the actions will fall within the jurisdiction of the ECtHR. In those cases where the victims are within the protection of the ECHR, any difference between the Art. 2 test of absolute necessity and the common law defence of reasonable and necessary self-defence will become an issue.
The fourth issue is – will the UK government seek to justify such use of force within the UK? This will give rise to grave difficulties and has not been proposed by the Attorney-General as a possibility. But it must be considered. As a matter of proportionality, if the government does not justify the use of lethal force within the UK, it must explain how it does so overseas. One obvious answer is that within the UK the primary means of preventing a terrorist attack which is believed to be imminent is arrest and disruption. The numerous prosecutions under the Terrorism Act 2000, and the reports by David Anderson, QC, the Independent Reviewer of Terrorism Legislation, are testament to the success that the arrest and disrupt strategy has had in recent years in preventing those who pose serious threats to public security from carrying out substantial terrorist acts. Lawyers, politicians, the security services and those advising them need to be alert to the threat to the Rule of Law if extrajudicial killing becomes state policy, rather than an exceptional and necessary response to an imminent and resinous threat to this country or its citizens.
Finally, whenever armed force is used to counter a terrorist or other threat, states must have regard to UNSC Resolution 1456 of 20th January 2003 which called for action by states to combat terrorism. However, it emphasises in Art.6 that
“6. States must ensure that any measure taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular under international human rights, refugee and humanitarian law.”
It is reassuring that the Attorney-General has endorsed the international Rule of Law. It is important that the UK government is not ensnared by any of its allies into forgetting those essential conditions in Art. 6 of UNSC Res. 1456.