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—
The “self-defence” legalistic pretext for the Drone attack really is dubious. The UK’s version is now changing.
— Jack of Kent (@JackofKent) September 10, 2015
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.
It is a pity that Mr Cameron did not mention defence of Iraq in his statement. However, I cannot see that this makes any difference. The case for defending the UK in this way will stand or fall on its own facts. Defence of Iraq (with their agreement) is another case which will stand or fall on ITS own facts. Logically, if one is defending many nations it would make no difference to the legality provided that at least one of the claimed justifications was right in law.
True, but, the facts needed for the UK self defence argument to work are far-fetched. The conditions you need to satisfy for pre-emptive self-defence are very narrow.
By contrast, there is no doubt that Iraq is lawfully defending itself against Daesh and these people were acting as part of Daesh. The facts you have to postulate for it not to have been lawful on that basis are unlikely.
I agree that the UK self-defence argument set out in parliament is ‘no weaker now than it was on Monday’. Perhaps though, it shows that the UK is not certain that its ‘unwilling or unable’ test (also supported by US) is correct. This is fundamental to the self-defence against non-state actors argument used by UK. Like humanitarian intervention, this interpretation of customary international law has not been explicitly endorsed by other states.
Indeed the legal basis for ‘humanitarian intervention’ following Kosovo was rejected by 130 states in 2000:
“We reject the so-called “right” of humanitarian intervention, which has no legal basis in the United Nations Charter or in the general principles of international law” [Point 54].
[…] Article 51 of the United Nations (UN) Charter requires that self-defensive actions are reported immediately to the UN. Thanks to Carl Gardner and the Head of Legal Blog for highlighting the UK’s letter to the President of the Security Council – see Head of Legal 10th September 2015. […]