Law and the killing of Reyaad Khan

by Carl Gardner on 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 several issues, but I agree with what the PM said the Attorney General advised — that this operation was lawful.

The Attorney General’s advice

The normal convention is that ministers do not refer publicly either to the fact that the Law Officers have been consulted, or to the content of their advice. But David Cameron departed from this convention, saying the Attorney General had been consulted and had given positive advice.

In a sense this was inevitable: once the PM had given MPs his view of the legal basis for the attack, it would have been politically impossible to leave in any doubt whether or not the Attorney had been asked, or had agreed. It’s not clear at all that the usual non-disclosure can be maintained at all in future in cases involveing the use of force abroad (something I expect the Chilcot inquiry to make recommendations on).

International law

The PM said Khan was plotting terror attacks in the UK, so the strike was an act of self-defence under article 51 of the UN Charter. It 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 …

Mr Cameron made clear that the government will be writing to the UN Secretary General today to report this as an act of self-defence. But is it?

The first question is whether anything planned by “IS” against Britain would have been an “armed attack”. In the Nicaragua case, the International Court of Justice held that not every incident involving force will amount to an “armed attack” justifying self-defence: but said (para. 195)

The Court sees no reason to deny that, in customary law, the prohibition of armed attacks may apply to the sending by a State of armed bands to the territory of another State, if such an operation, because of its scale and effects, would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces.

The ICJ’s point here is to make clear that not every minor border incident justifies the use of serious retaliatory force.

But of course the bombing of civilians in a British city would, if carried out by (say) French forces, be classified as an armed attack because of its scale and effects. So, while there’s room for critics of the RAF strike to quibble about this and ask for more details about what intelligence there was and what Khan was planning, it seems to me that any substantial terrorist plan would easily meet the threshold.

Some would argue that an armed attack has to be by a State, or attributable to one, before the UK can defend itself. Here, the RAF’s attack violated Syrian sovereignty but Khan’s plans, whatever they were, can’t obviously be blamed on the Syrian regime. But I don’t think this is a strong argument against the UK .

If the inteference with Syrian sovereignty involved in this attack must be justified by the attribution of some Syrian blame for Khan’s plans, then the fact that Syria was “unwilling or unable” to stop him provides that justification. As I argued last year,

international law must permit a state under attack to respond to and defeat its nonstate enemy, even on the territory of another state, if that state is unable or unwilling to help it.

In any event, the insistence that self-defence can only be invoked against sovereign states seems to me unreal after 9/11. Either international law on the use of force is an ass, unfit for purpose in the 21st century; or its principles must be capable of application to today’s real threats to peace and security. I think the latter.

There’s an interesting discussion of both the “scale” and “state” issues by Karl Zemanek at the Max Planck Encyclopedia of Public International Law.

Finally, it may have occurred to you that none of Khan’s plans seem to have been implemented — so where’s the “armed attack”? A fair point, but customary international law has long recognised that pre-emptive self-defence can be lawful under the “Caroline” principles, where the

necessity of self-defense was instant, overwhelming, leaving no choice of means, and no moment of deliberation

words which again allow room for quibbles, if applied in a literal way. Was there an instant, overwhelming need to kill Khan at that moment? Could his plans not be averted by police action in the UK? Surely there was a moment of deliberation if the Attorney General could advise? I think these would be pretty weak attempts at hair-splitting.

If there was intelligence that Khan was involved in substantial “IS” terror plots, then it’s reasonable to see stopping him (rather than just stopping his plans individually, “downstream”) as an overwhelming necessity. No other means of stopping him is available to Britain in lawless Syria. And once he was located, the necessity to act became instant, since another chance to stop him might not come.

Of course the use of any force must be proportionate; and this was. No civilians were killed in the attack, so it’s impossible to argue that civilian casualties were disproportionate to the military advantage gained.

Human rights law

International law isn’t the only thing to consider, though. There’s also European human rights law, and our own domestic law.

The European Convention on Human Rights does not apply to this killing. Applying the principles laid down in Al Skeini v UK (see para. 130-142), Britain did not exercise control and authority over Khan, or effective control over the area he was in. The article 2 Convention right to life does not, therefore, apply. It’s not even necessary for the UK to rely on article 2.2(a), which permits killing in defence of others, either in the European Court of Human Rights or in our own courts under the Human Rights Act.

Domestic criminal law

Finally, the Attorney General’s advice would have considered the law of England and Wales if the drone that killed Khan was operated from within this jurisdiction; or if some commander based here gave the order or participated in the decision.

It’s an offence in this country to murder a British citizen abroad, under section 9 of the Offences Against the Person Act 1861; and this was, obviously, an intentional killing. It was however lawful on the basis of the principle we refer to as “self-defence”, but which is actually wider: you can use reasonable force in defence or yourself, or another person or property.

It was also lawful because of the statutory defence in section 3(1) of the Criminal Law Act 1967, which says—

A person may use such force as is reasonable in the circumstances in the prevention of crime …

There can be no doubt any terror plans Khan was working on would have involved crime. The only remaining question is whether killing him by a drone strike was reasonable in the circumstances.

That, of course, is a question of judgement. But assuming the RAF thought Khan’s plans involved killing a number of civilians it seems hard to say otherwise — especially since under section 78(3) of the Criminal Justice and Immigration Act 2008

The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be

and since under section 78(4) an honest belief is ultimately enough on which to base the defence, even if it is mistaken or unreasonable.

The law is, in short, that it’s lawful to use force proportionate to a threat you honestly believe someone presents. And it’s lawful to do so pre-emptively because, as Lord Griffiths explained in the Privy Council’s judgment in 1987 in Beckford

a man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike.

There seems to me no question but that this was a lawful killing in terms of domestic criminal law.

The emerging convention on approval of military action

The final legal point raised by this incident is one of constitutional law, and the emerging constitutional convention that the government does not order the use of military force abroad without the approval of the House of Commons. The PM has previously argued that

you should consult the House of Commons as regularly as you can and the House of Commons should have an opportunity to vote. The point I always make, though, and this is not to run away from the right hon. Gentleman’s particular scenario in any way, is that it is important that a Prime Minister and a Government reserve the right to act swiftly without consulting the Commons in advance in some specific circumstances—for instance, if we had to prevent an immediate humanitarian catastrophe or, indeed, secure a really important, unique British interest. But other than that I believe it is right, as he said, to consult the House of Commons.

and today he relied on this flexibility, in circumstances where it obviously wasn’t possible to ask for a vote before making the strike.

{ 17 comments… read them below or add one }

1 Tacitus September 7, 2015 at 20:53

This all seems to hinge on the assertion that the man was at very least directly involved in the planning of viable attacks on the UK. I haven’t seen any evidence of this.

2 Andy J September 8, 2015 at 08:30

@Tacitus.
I agree with your first statement. However your second sentence is irrelevant in the context which Carl is analysing this.
I suspect that the RAF commander who ordered the strike is unlikely to face a court of law, but if he did and you were fortunate enough to be on the jury then his defence team would clearly have to convince you that he held the honest belief Carl spoke about. This might or might not lead to the actual intelligence which prompted this action being revealed in court, although I very much doubt this would occur.
Let’s hope that some fool doesn’t press for another Chilcot to determine the facts leading up to this incident.

3 SpinningHugo September 8, 2015 at 09:57

I think it is easier to justify this based upon Iraq’s right to self defence as you did in an earlier piece.

Iraq has the right to defend itself against attack.

The UK is acting on Iraq’s behalf and with its authorisation. The UK has when so acting the same freedom of action as Iraq does.

Syria has proven unable to stop Daesh attacks from Syria on Iraq, making it lawful to attack Daesh targets in Syria.

This individual was there operating for Daesh. A legitimate target on that basis.

That he may have planned UK terrorist attacks (in furtherance of Daesh’s campaign in Iraq and Syria) and that in killing him that prospect was averted is an incidental benefit, but not the direct legal basis.

4 OC September 8, 2015 at 09:59

You’re wrong on state attribution to syria. That would require control the threshold for which is high, per Nicaragua, which is lacking. And it’s common consensus that Art 51 doesn’t cover anticipatory or pre-emptive self defence. And ‘justification’ is a long way from legality.

5 Blah September 8, 2015 at 10:20

This is pretty weak. On the one hand you admit that the Attorney General had time to deliberate, but call questioning this “hair-splitting”, but then tell us that there was no time to consult the House of Commons! So which is it? Was there time for deliberation or not?

6 Gary Weatherhead September 8, 2015 at 11:34

Fairly persuasive piece, but perhaps you have over stated your case ? Surely it’s impossible to judge the legality issue without having access to all (or at least significantly more of) the evidence upon which the decision was made? The imminency & proportionality hurdles in particular can not be overcome on the smattering of information provided.

7 SOS September 8, 2015 at 13:05

“Was there an instant, overwhelming need to kill Khan at that moment? Could his plans not be averted by police action in the UK? Surely there was a moment of deliberation if the Attorney General could advise? I think these would be pretty weak attempts at hair-splitting.”

This is a weak point in your argument. Hair Splitting is what the law is all about! You seem to make two very good points about the problems that the govt have with justification and then simply sweep those good points aside without any reasoning except to say that they amount to “hair-splitting”.

It seems to me that the two points you make against your argument are pretty fatal to your point.

But the biggest problem that we all have, as Gary says above, is that none of us know the complete facts, and it is therefore very hard for any of us to come to a judgment on this.

8 Colin September 8, 2015 at 15:06

I can imagine a situation where someone in Syria had in his hand a remote-control device (which could simply be a mobile phone) with which he could at any moment set off a bomb already planted somewhere in the UK. If that were the case, striking him first (with reasonable and proportionate force) might be justified under the “Caroline” test as the “necessity of self-defense was instant, overwhelming, leaving no choice of means, and no moment of deliberation.”

If that were the case here, I expect we’d have been told, as it would make a great story for the papers.

If, however, all that’s alleged is that this man was involved in a conspiracy to commit acts of terrorism in the UK, it’s hard to see how blowing him to smithereens without charge or trial is a reasonable or proportionate response. Surely if we have the information to know about the conspiracy, we have the information to interrupt it by normal police methods? Moreover, how does blowing up one member of the conspiracy prevent the others carrying it out?

I expect we’ll never know the truth, as the powers that be will as usual adopt the “I could tell you, but then I’d have to kill you” defence.

I strongly suspect, however, that HMG has simply now decided to adopt the policy of extrajudicial assassination pioneered by Israel and enthusiastically adopted by the USA – because they can, no one can stop them, and international law be damned. Anyone who doesn’t like it is obviously on the side of the terrorists, will nobody think of the children, etc, etc… There’s a political market for that, as long as you don’t mind killing (unpopular, brown) people and you can news-manage the collateral damage.

As SpinningHugo suggests above, it would be easier to justify this as a military strike against ISIS in support of Iraqi forces, except of course that that would be in open defiance of the express will of Parliament, which declined to authorise military action in Syria. But hey, we’re living in the post-democratic age, aren’t we?

As for the AG’s advice, well, Cameron sacked Dominic Grieve for doing his job and appointed an AG he could rely on to tell him what he wanted to hear. I may have my rose-tinted specs on, but I can’t imagine Michael Havers or Patrick Mayhew approving this, can you?

9 SpinningHugo September 8, 2015 at 15:25

“except of course that that would be in open defiance of the express will of Parliament, which declined to authorise military action in Syria. But hey, we’re living in the post-democratic age, aren’t we?”

This is a political point, not one of legality under international law, but I don’t think it is correct.

The government sought Parliamentary sanction for strikes against Assad’s Syrian government. That was the vote which was lost.

These are strikes against Daesh forces fighting againt the government of Iraq (who are also fighting Assad).

10 Carl Gardner September 9, 2015 at 09:06

Spinning Hugo,

I think it is easier to justify this based upon Iraq’s right to self defence as you did in an earlier piece.

I see your argument. 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.

But the government has not used that legal argument, and embarrassment may not be the only reason. I say that particularly becausr the PM has always made clear he reserves the right to act without consulting the Commons in advance in some specific circumstances. He could have relied on that get-out.

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.

11 Carl Gardner September 9, 2015 at 09:10

OC,

it’s common consensus that Art 51 doesn’t cover anticipatory or pre-emptive self defence.

I don’t think that’s right.

12 Robert Sharp September 9, 2015 at 09:26

All of this surely relies on the fact that the intelligence regarding Khan was accurate… And has been reported as accurate.

But surely recent history has shown that neither the accuracy of intelligence or the honesty of the government in reporting that intelligence can be assumed. If Khan was not a member of IS with any influence, and instead a pathetic boaster on Twitter and YouTube with delusions of his own inportance, would the decision to kill him with a drive hold up. If the PM knew he was all-mouth-no-trousers, then surely not. But what if the intelligence was reported incorrectly to the PM? Such extreme maladministration that caused the death of a British citizen would surely be unlawful, no?

13 Carl Gardner September 9, 2015 at 09:36

Blah,

Was there time for deliberation or not?

This is a serious point, and would present a real problem for my argument—if these were the words of an Act of Parliament, to be applied literally in every situation. It’s telling, I think, that most people choose not to do that but instead to focus on what you might call the conceptual core of the Caroline test, i.e. that anticipatory self-defence is only lawful when necessary and proportionate in response to an imminent threat.

How could the “moment of deliberation” test seriously be applied literally in any situation like this, in the sense that the existence of even one moment to think renders action unlawful? On that approach, no matter how clear the intelligence and no matter how central Khan was to the coordination of a terror attack, it would be unlawful for the RAF to attack him until, at least, they were lucky enough to see him with his finger hovering over a fatal button—a scenario only likely to occur in fiction. And even in that scenario, an extreme Caroline literalist might say “You knew about him before, so you had a moment of deliberation, so even killing him at buttonpress moment was unlawful”.

I think the reality is that this aspect of the Caroline principles is simply not applicable in the real world of the 21st century in such a very literalist way. If you’re required to wait until there is literally “no moment of deliberation” then your citizens die, avoidably.

And the idea that MPs should have authorised this in advance is with respect absurd. Either authorisation would have been sought on the day, which would have alerted “IS” and wrecked the operation; or authorisation would have been sought in principle, and rightly rejected by MPs on the basis that they couldn’t know the location or circumstances of the attack and so could not know it’d be proportionate in terms of risk to civilians.

14 SpinningHugo September 10, 2015 at 16:57

Hate to say I told you so, but ….

http://www.un.org/en/ga/search/view_doc.asp?symbol=S/2015/688

See third paragraph of UK’s letter to the UNSC.

15 Carl Gardner September 10, 2015 at 20:02

SpinningHugo,

Hate to say I told you so, but ….

Yes, you did tell me so! And as I said when you did—

I agree that may be a perfectly good legal defence here

16 Ben September 13, 2015 at 18:20

Criminal Law Act 1967 not Criminal Justice Act.
http://www.legislation.gov.uk/ukpga/1967/58/section/3

17 Carl Gardner September 14, 2015 at 17:01

Ben,

Quite right! I’ve corrected the reference. Thanks.

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