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?
Various “safeguards” have been set out by UN Rapporteurs – notably, Philip Alston, Ben Emmerson QC and Professor Christof Heyns. None of them suggest involving a judge in the decision-making and I think it would be an impracticable idea. The Rapporteurs do however recommend some form of review process after the event. These reports are of considerable value in their discussion of international law and its application to contemporary situations. The extent to which the British government has implemented the reports is not clear.