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.”
Implications
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.
Thanks for this summary, Chris. We should welcome the Attorney General’s effort to provide more detail about the UK’s position on the use of force in self-defence. Incidentally, in this respect Jeremy Wright is following the lead of Brian Egan, the US State Department Legal Adviser (see https://www.state.gov/s/l/releases/remarks/255493.htm). That said, I agree that a number of the points he made require further discussion and scrutiny.
But let’s be precise.
The Attorney General did not say that ‘evidence of an actual and specific attack is not necessary’. Rather, his point was about the nature of the evidence required to prove the existence of an imminent armed attack. He said that ‘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’. In other words, use of force may only be used on the basis of sufficient evidence to prove that an armed attack is imminent. However, this proof can be established even if the nature of the attack (how many attackers, what means, what precise targets) and the precise location are unknown. This is a perfectly reasonable position to take. If it is clear that a State or non-State actor is committed to carrying out an attack, but has a range of means and possible targets at its disposal, the fact that we are unaware of the specific means and specific target should not mean that we have failed to obtain the requisite level of proof about the existence of an imminent attck.
Also, the Attorney General did not say state that the ‘UK believes it has the right, as a last resort, to use lethal force against those who … “inspire, enable or direct attacks” from overseas’. What he said is this: ‘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. But where the evidence supports an assessment that an attack is imminent it cannot be right that a state is prevented from meeting its first duty of protecting its citizens without nailing down the specific target and timing of an attack. Apart from anything else, our enemies will not always have fixed plans. They are often opportunists.’
This paragraph does not explicitly declare that those who ‘inspire, enable or direct attacks’ are open to targeting. Nor does it imply this. The paragraph is about the nature of the evidence, not about the potential targets of self-defence. What the Attorney General is saying here is that the specific target and timing of an attack may not be known to the security services because it may not even be known to the attackers themselves, who are often opportunistic. This then leads him to conclude that the fact that these details, namely the specific target, specific timing or specific location of the attack, are not known does not preclude the conclusion that an armed attack is imminent, provided there is sufficient other evidence to establish this point.
On a final note, I never understood what is to be gained by asking the Attorney General to ‘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.’ David Cameron offered a lot of detail about the legal justification behind that strike in his announcement to Parliament. Even without going into greater depth, the legal reasoning (anticipatory self-defence; unable or unwilling; context of a pre-existing non-international armed conflict etc) was clear for anyone willing to fill in the blanks (eg see http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/human-rights-committee/the-uk-governments-policy-on-the-use-of-drones-for-targeted-killing/written/24475.html). It is not as if the Government relied on some totally novel justification. In fact, Jeremy Wright filled in some of those blanks yesterday. As others have noted, what he said was hardly a surprise. Of course, it would be interesting to learn how the Attorney General applied this legal reasoning to the facts of the case. That would indeed allow a much closer scrutiny of the legal justification. However, it would require the Government to release into the public domain the specific intelligence on which its decision to use force rested. Is it really appropriate and reasonable to expect it to do so?
Aurel,
Thanks for the comments but I don’t accept that I have mischaracterized what Wright said in the speech. I’m summarising what he said as well as analysing and commenting. I don’t think there is any point in a ‘you said, he said’ on this – I’ve linked directly to the text of the speech and the video of him delivering it so people can make up their own minds.
I do want to take issue with a couple of things you say however.
You argue that it can be clear that a non-state actor is committed to carrying out an attack without knowing the specific target or specific means of an attack. This may be so. It may be clear that ISIS as a non-state actor wants to undertake attacks in the UK. But that knowledge is not enough to warrant the targeted killing of a specific individual – particularly of course outside the context of an I/NIAC in which we are not involved. There has to be concrete evidence of that specific individual’s involvement in a specific attack – and more than that, killing that specific individual is absolutely necessary (and I would continue to argue that killing must take place at the last possible moment) to prevent the attack taking place. If killing that individual does not prevent the specific attack taking place, that killing must surely be unnecessary and therefore unlawful.
You argue that Wright is not saying (or even implying!) that the UK has a right to target those who ‘inspire, enable or direct attacks’. I think you are wrong here, I think that is exactly what he is arguing.
Reyaad Khan and Junaid Hussein for example were individuals who, according to reports, were calling for attacks and were (again reportedly) in contact with people in the UK, seeking apparently (again according to reports) to inspire ‘lone-wolf’ type attacks. I think that is why they were killed and that is why both the US and the UK want to expand the definition of ‘imminence’ to enable those undertaking that function to be considered targetable. (I would say as an aside here – as I tried to make clear in my piece – that there is a vast difference between ‘inspiring’ and ‘directing’ an attack. Directing an attack, depending of course on the facts, makes one much more targetable. Blurring the lines between that function and the other two activities is mischievous to say the least).
Both Khan and Hussein were young men in their 20s (Khan was 21!). It is hard to see how these men were senior figures controlling or directing attacks. As you will no doubt say, we have not seen the evidence. And that is correct. And it is absolutely about the facts of the case and the quality of the intelligence. We have seen in recent year both from the Chilcot Inquiry and the also the debacle of Guantanamo that intelligence in this sphere cannot be relied on. It must, I would argue, be subjected to proper judicial test.
On this you then go on to say that you have don’t understood what is to be gained from pushing for a summary/jist of the legal advice. Instead you argue that we should just ‘fill in the blanks’. I’m afraid we need far more accountability than that. You also suggest that such a summary/jist would require government to release specific intelligence. That simply isn’t the case. The point of a summary/jist is to omit classified or confidential information – I’ve received such documents in the past and I’d be surprised if you hadn’t.
Chris,
Many thanks for the reply. We may have to disagree on the interpretation of the speech. As you say, readers will be able to make up their own mind. Let me come back briefly on your points.
Regarding the level of knowledge about the imminent attack, where do the rules governing the use of force explicitly require that a State acting in self-defence against an imminent armed attack must be aware of the specific location and specific nature of the attack? Where exactly do these rules state that in the absence of this knowledge, self-defence is precluded?
Regarding the targeting of a specific individual, at least three legal regimes may be engaged. First, the rules governing the use of force. These rules do not preclude the use of lethal force against a specific individual in the exercise of the right of self-defence where that individual is not specifically implicated in a specific attack on a known target. Put differently: once the right to self-defence exists, the State concerned may use force against specific individuals not directly engaged in the armed attack, provided that in doing so it complies with the requirements of necessity and proportionality (ad bellum). For example, State A has invaded part of State B. To degrade State A’s capability, State B uses force against specific targets in State A which are not directly involved in the invasion. Of course, the State concerned will have to comply with its other international obligations.
Second, the law of armed conflict. Where the law of armed conflict does not apply, the basis for the use of lethal force against a specific individual is less clear. This is why it would be of interest to know whether or not the Government is prepared to use force in accordance with the parameters outlined by the Attorney General outside the context of an armed conflict. His speech left that point open. Be that as it may, the strike on Reyaad Khan did not occur outside an armed conflict, but in the context of a non-international armed conflict to which the UK and ISIL were opposing parties. In so far as Khan was a member of ISIL’s armed forces, he was a lawful target, irrespective of his involvement in any specific attack. The law of armed conflict permits the offensive lethal targeting of certain individuals, including members of organised armed groups in a non-international armed conflict. The rules do not require that the lethal targeting must be absolutely necessary or undertaken as a measure of last resort. On the contrary, status-based targeting is permissible as a measure of first resort.
Third, international human rights law. Lethal force may only be used if absolutely necessary and as a measure of last resort. What is absolutely necessary depends on the context, as can be seen from the Chechen cases before the European Court of Human Rights. However, the preliminary question is whether international human rights law applies in a particular set of circumstances. On the current position of the case-law, the UK did not have jurisdiction over Reyaad Khan at the time of his targeting. Even if it did, the human rights law test of absolute necessity operates in parallel with the law of armed conflict. This is not the place to discuss their relationship in depth, so I am merely flagging up that the existence of neither set of rules can be ignored in favour of the other.
None of these three legal regimes limit the use of lethal force to individuals who are senior in age or rank. The European Convention of Human Rights permits the use of potentially lethal violence against a teenage assailant, while child soldiers are lawful targets under the law of armed conflict. A private soldier is as much an enemy combatant as his four-star general. Besides, some young men and women are surprisingly capable. Jeanne d’Arc was 19 and Alexander the Great 32 when they died. TE Lawrence achieved much in his twenties.
Regarding the use of force against individuals who ‘inspire, enable or direct attacks’, recall that all three legal regimes permit the use of lethal force against persons who commit attacks. Take the Japanese attack on Pearl Harbor. If the US had a right of anticipatory self-defence, it included the right to strike the approaching Japanese fleet or aircraft, rather than just the Japanese high command. Similarly, there is no need for Reyaad Khan and Junaid Hussein to have been involved in inspiring, enabling or directing attacks. It is sufficient that they were committed to carrying out an attack.
Finally, on the question of publishing the legal advice, I did not mean to be flippant about this. By all means, let’s question the legal reasoning on its merits and let’s request clarification. But to dismiss it all as based on misunderstandings and to call for ‘absolute clarity’, as some have done, is political grandstanding and not conducive to a more seroius debate.
Hi Aurel
Thanks for your reply. Lots could be said but very much disagree with “the strike on Reyaad Khan did not occur outside an armed conflict, but in the context of a non-international armed conflict to which the UK and ISIL were opposing parties.” The UK were party to the conflict in Iraq – asked for support by the Iraqi government. That certainly was not the case in Syria in August 15. Suggesting geography is not an issue (regardless of unwilling/unable) – particularly when at the same time there is no clear imminent reason for such a strike – is far to close the ‘global war on terror’ paradigm.
Hi Chris,
These are questions on which reasonable people may disagree! I did not say that geography was not an issue, though. To suggest that the geographical scope of application of a NIAC is not confined to the territory of one State is different from the ‘global war on terror’ idea, as it does not lump together (as proponents of ‘global war on terror’ have done) distinct armed groups into a single terrorist entity.
Yes, you are right: in August 2015, the UK engaged in hostilities in the territory of Iraq based on the Iraqi Government’s invitation. That takes care of jus ad bellum. However, the parameters of the NIAC are governed not by the Iraqi Government’s invitation, but by LOAC.
It is beyond question that in August 2015, the UK and ISIL were opposing parties to a NIAC. Members of their respective forces were not civilians, irrespective of where they were located. The status of parties to a conflict and individuals belonging to or affected by those parties is not dependent purely on international borders. Think about it: otherwise why would any NIAC-detainees enjoy the protection of LOAC should they be taken outside the territory of the State in which the active hostilities are conducted (eg Guantanamo)?
Best
Aurel
Aurel,
Well. as you say we disagree and I think its time we left it there.
Will just point readers to this for further information on the speech:
http://www.ejiltalk.org/initial-thoughts-on-the-uk-attorney-generals-self-defence-speech/