In the Times today Lord Pannick QC discusses the recently announced RAF drone strike that killed Reyaad Khan and another British “Islamic State” fighter.

He agrees with me that article 51 of the UN Charter permits defence against an imminent attack from a non-state organisation. A state, he writes

does not have to wait for the attack before taking action. The legality of pre-emptive self-defence, where necessary and proportionate, is recognised by international law.

On whether this strike was in fact necessary and proportionate, he says that depends on the nature and imminence of the threat; and seems to accept that there are limits on what detail the government can disclose. He says:

On the publicly available information, it is impossible to dispute the advice given by the attorney-general that, in substantive terms, the drone strike was a lawful response to a grave terrorist threat.

He suggests two safeguards, though. First,

The rule of law requires, as a minimum, a public statement of the general criteria to be applied in deciding on drone strikes, and the procedure to be followed in making such decisions. The government needs to publish such guidelines without further delay …

This seems to be a reasonable idea, though I’m not sure drone strikes per se are really what need to be covered. The issue here, surely, is the targeting of lethal force on a specific individual by any means, where this is thought necessary for British self-defence outside an existing theatre of armed conflict. Not all drone strikes (since they may not involve the targeting of individuals at all), and not just drone strikes.

I’m more doubtful about Pannick’s second proposal. He writes—

There is a strong argument that the rule of law requires that before a drone strike designed to kill a terrorist target takes place, the necessity and proportionality must be approved not just by politicians and generals, but also by an independent judicial authority, albeit that such a review may need to occur in very urgent circumstances and so only limited scrutiny is possible.

First, I wonder why he thinks this applies in this sort of case and not to every choice of target by British forces, where people are likely to die—including civilians. Second, I wonder if it’s realistic. Whether a strike is proportionate depends on the extent of the risk to civilians, which is something that might have to be judged in a matter of a very few minutes.

Third, I wonder whether his idea would satisfy anyone, really. If people find it hard to trust the government on this without seeing all the Attorney General’s advice, why should they trust this judge without seeing his or her full on-the-spot ruling? Finally, I wonder if it’s even appropriate. Aren’t judgements like this—if and when military force should be used to defend us—what we have ministers and Prime Ministers for, rather than judges?

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Photo published with permission of Inner Temple LibraryThe last time Inner Temple’s library was wrecked, it was Hitler’s bombs that did it. On the night of the 10th—11th of May 1941, London faced the most devastating attack of the Blitz. That night, the House of Commons chamber was left a smoking shell. St Clement’s Dane’s, on the Strand, was gutted. Much of Fleet Street was on fire. And according to Clare Rider,

Temple Church and almost everything in it, including stained glass, altar, reredos, organ, pews, books and pulpit, were devastated … fires raged through the Hall, Library, Master’s House, Crown Office Row and what remained of Harcourt Buildings.

… fires continued to burn throughout the following day. Only when they were finally extinguished could the extent of the damage to the Inner Temple buildings be assessed. It must have been a depressing sight.

After Hitler was dead, our civilisation and the rule of law saved, it was decided to build a new library

worthy of the site and the historical importance of the Inn

as Inner Temple put it in 1947. The new library, like all the reconstruction work, was funded mainly by the public through the War Damage Commission. Clare Rider tells us that

The Library was opened by the Treasurer, Sir Patrick Spence, in a formal ceremony on 21st April 1958 attended by the Lord Chancellor [David Maxwell Fyfe, Viscount Kilmuir—Carl]. The Law Times of 2nd May recorded that ‘those who were present on the occasion cannot fail to be impressed both with its general design and with the workmanship which has been bestowed on its furnishings and equipment’ …

Nor can anyone fail to be impressed by the library today. It allows barristers and students to do legal research work of the highest standard, and provides services to barristers outside London. I was there only last week, doing international law research I could do nowhere else. It’s also a fine interior that deserves to be left alone.

Yet now, fifty-seven years after it was built, Inner Temple library faces a new threat—this time, shockingly, from Inner Temple itself. The plan is to spend £16 million and close the library for 18 months in order to get rid of five of its rooms, together with its fine gallery; to install a depressing plaster ceiling to lour over what remains; to take away half the spaces for readers to sit and work, and to remove 25,000 books.

The books really matter, and the space really matters, as David Allen Green explains in his very good piece about this plan. To think none of it’s important in the digital age is wrong, and glib.

The idea’s to make way for education and training rooms and a 120-seat “auditorium” to be hired out at a profit. Private Eye (No. 1400) said about the plan—

In a rush to monetise their prime slice of City real estate, scheming elders at the Honourable Society of the Inner Temple are pushing ahead with plans to create a lucrative commercial training complex – even if it means taking the sledgehammer to one of the oldest libraries in London.

Astonishingly, according to a submission drafted by the Inn’s Library Committee this summer, this proposal hasn’t even been the subject of a proper business plan assessing the likely income from the new facilities. How can Inner Temple’s governing benchers even think of doing it?

How could anyone do it? On a speculative punt, it would spoil a permanent professional and educational asset and a true centre of excellence—and instead assemble something that’ll be “state of the art” only on the day it opens. That a library might be intentionally damaged in the interests of “education and training” makes “education and training” a sinister phrase. The library is the best education and training resource the Inn will ever have, and should not be cut down at all. It should be enhanced and preserved.

Is it even intended that any revenue the auditorium might earn should be paid to the public purse? It ought to be, since any profit would be made from the destruction of an asset public money bought for Inner Temple.

This goes beyond the interests of the Inner Temple, or of the Bar. To wreck this outstanding library would not merely be deliberate vandalism. Nor would it just be anti-professional, anti-intellectual and anti-educational. It would insult the people, who built it, and this country’s history. What Hitler destroyed and the public rebuilt should endure.

If you’re not a barrister, you can visit the library this weekend from 11 am to 4.30. It may be your last chance to see it as it was meant to be. Please read about the campaign to save the library, please sign the petition against this horrible plan—and if you have any other influence, please exert it.

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How many articles and blogposts have referred to Orwell’s classic essay Politics and the English Language? Well, here’s another. I’m put in mind of it by recent use of the sinister phrase “extrajudicial killing” to describe the lethal RAF strike on British “Islamic State” fighters. Bad writers, according to Orwell

and especially scientific, political, and sociological writers, are nearly always haunted by the notion that Latin or Greek words are grander than Saxon ones, and unnecessary words like expedite, ameliorate, predict, extraneous, deracinated, clandestine, subaqueous, and hundreds of others constantly gain ground …

Notice that one of his examples begins with extra.

Kate Hudson of CND has been quoted in the Telegraph as saying of the RAF drone strike—

This is extrajudicial killing: A British Prime Minister now claims the right to kill British citizens when they travel abroad.

Lord West, quoted in the Guardian, said the RAF’s apparent new policy

could very easily creep into an issue of extrajudicial killing.

The Morning Star used the phrase in a headline while according to the Herald the SNP’s Humza Yousaf talked somewhat tautologically of

the extra-judicial killing without trial of British citizens

and the subheading to a Guardian piece by Gary Younge said

extrajudicial killings can never be justified.

It is often easier, Orwell wrote

to make up words of this kind (deregionalize, impermissible, extramarital, non-fragmentary and so forth) than to think up the English words that will cover one’s meaning.

Notice again that one of his examples begins with extra. People who write badly, he went on

usually have a general emotional meaning—they dislike one thing and want to express solidarity with another—but they are not interested in the detail of what they are saying.

Indeed, critics of the recent RAF drone strike do dislike it in a general way. But what is meant by “extrajudicial killing”? Why is an extrajudicial killing especially bad? Does it even mean anything?

It may help to consider whether judicial killing would be better. It makes a sort of sense to complain that Reyaad Khan’s death was an extrajudicial execution if you’re David Davis, since he has backed the death penalty which should indeed be judicial if it happens at all. Why do others avoid the word execution? Perhaps, ironically, it seems too strong given its common and quite wrong use for the atrocious murders committed by “Islamic State”. Or perhaps they remain dimly aware through the fog of verbal war that pre-emptive defence is not punishment.

In Britain, in any case, we abandoned capital punishment some time ago. Now, the idea that someone might be killed judicially is particularly repellent. I doubt critics of “extrajudicial killing” prefer to have anyone put to death by due process of law, but the phrase implies just that. Orwell was right: it must be that they’re not interested in the detail of what they’re saying.

But if thought corrupts language, language can also corrupt thought. A bad usage can spread by tradition and imitation even among people who should and do know better.

The phrase extrajudicial killing is indeed spreading and corrupting thought. Judicial killing not being fine, “extrajudicial” adds nothing and means nothing. All that these critics are actually saying is that killing’s to be feared, or always wrong: something that’s either banal or plain inaccurate, since killing can be justified in self-defence or war, or even out of compassion. But what are they trying to say?

The convenience of extrajudicial killing is that it implies wickeness vaguely connected with the law, without accusing anyone of breaking it; and its repetition suggests to the mind unspecified wrong by sending thought to sleep. Here’s Orwell again:

This invasion of one’s mind by ready-made phrases … can only be prevented if one is constantly on guard against them, and every such phrase anaesthetizes a portion of one’s brain.

Orwell also gave us the remedy, however.

If you simplify your English … when you make a stupid remark its stupidity will be obvious, even to yourself.

It is stupid to complain of “extrajudicial” killing by the RAF, when warfare has always been extrajudicial. If instead you simply oppose killing by British forces, your stupidity should indeed be obvious. Unless you think Britain should never use force, then obviously you agree its armed services may legitimately kill. When they do so intentionally and illegally it is indeed wrong, but the plain English word for that is murder.

The most famous sentence in Orwell’s essay runs like this:

Political language … is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind.

You may think the RAF murdered Reyaad Khan, and that any defence of this drone strike reflects an Orwellian design to make murder respectable. If you do think so, have the courage to use the word.


A row has broken out since the publication of the letter from the UK to the UN, in which the British permanent representative reports the drone strike that killed Reyaad Khan to the UN Security Council as required by article 51 of the UN Charter. The letter says—

the United Kingdom … has undertaken military action in Syria against the so-called Islamic State in Iraq and the Levant (ISIL) in exercise of the inherent right of individual and collective self-defence.

On 21 August 2015, armed forces of the United Kingdom … carried out a precision air strike against an ISIL vehicle in which a target known  to  be  actively  engaged  in  planning and  directing  imminent  armed attacks against the United Kingdom was travelling. This air strike was a necessary and  proportionate  exercise  of  the  individual  right  of  self-defence  of  the  United Kingdom.

As reported in our letter of 25 November 2014, ISIL is engaged in an ongoing armed attack against Iraq, and therefore action against ISIL in Syria is lawful in the collective self-defence of Iraq.

In his statement to the Commons on Monday David Cameron gave only the defence of Britain as the international law justification for the attack, and some are using the discrepancy to suggest the legality of the strike is in doubt.

The Guardian quotes Jennifer Gibson of Reprieve as saying—

David Cameron needs urgently to answer questions about whether there was genuinely an imminent threat to the UK or is this an expansion of the war against Isis without parliamentary approval? This argument was never raised in parliament. It can’t be both explanations

and Professor Philippe Sands QC as saying the letter—

appears to posit two alternative justifications. The first is the self-defence of the United Kingdom, the second is collective self-defence in support of Iraq. The latter is an entirely different justification as a legal matter …

Reprieve have also released a statement saying

The Prime Minister’s supposed reasons for carrying out this unprecedented drone attack seem to be changing by the day.

On Twitter, David Allen Green has said—

But is the letter actually a reason to think the drone strike was illegal? No.

The UN letter relies on British self-defence just as the Prime Minister did in the Commons: that argument has not changed since Monday, or been resiled from in any respect. Nor is it a new suggestion that force against “IS” in Syria would be lawful. The government must already have thought so, or it wouldn’t be considering asking MPs to vote on extending British action into Syria, something it’s been talking about at least since July and that the Defence Secretary mentioned again today. So why’s anyone surprised that the argument’s raised now?

Philippe Sands is quite right that defence of Britain and of Iraq are different legal arguments; any two legal arguments are different from each other. But he’s wrong to say they’re alternatives, if by that he implies that they’re mutually exclusive. Jennifer Gibson is wrong, too, to say

It can’t be both explanations.

It certainly can be both. If, as the Prime Minister told MPs and as is set out in the UN letter, Khan was planning and directing attacks against the UK itself, then killing him was justified in defence of Britain; and if he was part of the general “IS” armed force threatening Iraq, then killing him was justified in defence of Iraq. Each legal argument is independent of the other, and both are equally and simultaneously capable of applying to this set of facts. There is no contradiction.

On Twitter and in comments here @SpinningHugo has from the very beginning suggested that defending Iraq was sufficient (and in his view better) justification. He’s made the same argument on his blog today.

I replied to him in comments yesterday saying—

I agree that may be a perfectly good legal defence here, and you’re quite right that I do think it’s legal in terms of international law (regardless of whether MPs have authorised it) for UK forces to act against “IS” in Syria, to defend Iraq. It’s possible the government has avoided using that justification simply because of the political embarrassment involved, given that authorisation for action is limited to Iraq …

… Another possibility is that the government believes Reyaad Khan had no active or command role in “IS” operations in Iraq at all, and was simply working full time on his computer encouraging and coordinating terrorism in Britain. If you thought that, you might well feel targeting him as an individual (rather than any general “IS” base that just happened to be in or around Raqqah) could be justified in defence of the UK but not really in defence of Iraq.

It now seems from the UN letter that political embarrassment was the reason for not mentioning Iraq.

David Cameron was a fool to have mentioned only British self-defence in his Commons statement since, in the fortnight plus between August 21 (when the strike took place) and September 7 (when he spoke to the House), he must have been made aware both legal points would be put to the UN. In post-Iraq, mid-Chilcot Britain, the merest hint of “changing legal advice” is a gift to opponents of military action against “IS” in Syria. He ought not to have risked any such perception.

But the case that the strike was legal is no weaker now than it was on Monday.


Law and the killing of Reyaad Khan

September 7, 2015

This afternoon in the House of Commons the Prime Minister told MPs that Reyaad Khan, the “Islamic State” fighter from Cardiff, was killed in Syria in a targeted RAF drone strike. His death was reported some days ago but it was not clear till now that it the RAF had targeted him. The case raises […]

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Pannick on Mr Justice Peter Smith

September 3, 2015

Today’s Times has a piece by Lord Pannick QC (behind the Times paywall) on the extraordinary behaviour of Mr Justice Peter Smith in a case involving British Airways earlier this summer. The case, he says, raises serious issues about judicial conduct which need urgent consideration by the Lord Chief Justice. The case was reported on […]

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Sir John! Sir John! Are we there yet?

August 31, 2015

View image | One of the absurdities of this year’s “silly season” has been another of Britain’s periodic bouts of Chilcot-bashing. When there’s a period of slow news, it seems, journalists remember that Sir John Chilcot was tasked six years ago with inquiring into what we all call simply “Iraq”; and that his report’s […]

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The Supreme Court’s JR38 judgment
— in a few sentences

July 1, 2015

In the JR38 case, the Supreme Court today dismissed the appeal of a young man who’d argued that his article 8 Convention right to respect for private life was breached where newspapers published, on the police’s request, photos of him apparently taking part in a riot, aged 14. Here’s my legal analysis, in a few sentences, of what the Justices […]

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Supreme Court: Publication of child rioter’s photo doesn’t interfere with private life

July 1, 2015

In the JR38 case, the Supreme Court today unanimously dismissed the appeal of a young man who’d argued that his article 8 Convention right to respect for private life was breached where newspapers published, on the police’s request, photos of him apparently taking part in a riot, aged 14. But the Justices were not unanimous […]

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Could Greece take Europe to court?

July 1, 2015

Could a desperate Greece go to court over its financial dispute with Europe? The crisis is more about politics and finance than it is about law. But some reports have suggested Greece might take legal action. So let’s look at the relevant legal texts, and some ways in which – theoretically, anyway – Greece could take its case to European Court of […]

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