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We Asked an Expert Whether Britain’s Secret Drone Strike in Syria Was Legal

Is the UK following America's lead when it comes to bombing countries it's technically not at war with?

by Michael Segalov
08 September 2015, 3:35pm

A reaper drone

Yesterday UK Prime Minister David Cameron confirmed that the RAF had engaged in previously unannounced drone strikes in Syria, killing two British men believed to be fighting with the Islamic State, as well as another Islamic State "associate."

The PM told Parliament that the strikes were justified on the grounds that Reyaad Khan, a 21-year-old from Cardiff, was a "clear and present danger" to Britain. Khan was featured in an Islamic State recruiting video last year, and is said to have been planning on attacking a "major event" on UK territory. Cameron said nobody killed was a civilian.

It's throwing up some complicated legal and moral questions. Can you just bomb another country's territory without telling anyone, because you think it's a good idea? Didn't Parliament vote against bombing Syria a while ago? Was the strike technically an act of war?

Dr. Michael Kearney is an expert in International law based at the University of Sussex, with a particular focus on the laws of war and state jurisdiction. This morning, VICE caught up with him to find out what this all means for the UK government and international law.

VICE: Is this a first for the British government?
Dr. Michael Kearney: Yes, this is the first time that they've declared they've used drones in attacking a target in a country which they're not at war with.

So we're not officially at war then?
It's difficult to know; this is where international law gets complicated. [Defence Secretary] Michael Fallon was on the radio saying "we undertook this strike on the target in Syria as an act of self-defense," that they were preventing an armed attack that was planned against the UK. The Syrian government didn't do anything to address the threat, so they say it was necessary.

Defence Secretary Michael Fallon. Photo via Policy Exchange

Fallon used the notion of self-defense in the same way that British police can use force to protect people or respond to a threat. The problem here is that we're talking in Syria, which is a sovereign state, so no other state has authority to use force there without the Syrian Government's permission.

But we've been targeting Iraq for a long time in the same way?
Yeah, The UK is certainly engaged in similar strikes in Iraq against ISIS, but the UK government was requested to do this by the Iraqi government.

So, are we at war? Well, look at the war on terror, look at the mesh of policing and military, and the way the distinction between war and peace has disappeared. We're in a military-policing permanent state of conflict, it's the position the US has been pushing the whole time.

Since the resignation of [former PM Tony] Blair, the UK government has publicly avoided endorsing this approach. But as an international lawyer, it doesn't look like we're at war with Syria.

The US and Jordan, some Gulf states, and Israel have all been sporadically bombing targets in Syria in recent years. Now the UK is as well, so it's not a novel event, rather a new player.

Cameron has said that UK forces "would repeat Syria drone strike." What do you make of that?
What's significant is the indication for the future, it suggests a shift towards the US doctrine of a seemingly permanent war on terror which selectively disregards state sovereignty.

We know British troops have been flying US planes in Syria, and that British intelligence agencies have supported various rebel groups in Syria through training and logistics for the last few years. So rather than being a novel military intervention in Syria, this seems more a stepping up of scale and visibility.

Would it have been different if those killed hadn't been British citizens?
The nationality of the subjects of an attack, from an international law perspective, isn't significant in the first instance. What is important is the breach of Syrian sovereignty.

We need to understand the rights and responsibilities of a state when it's acting outside its jurisdiction; does it have the right to act in Syria? The answer—excepting that you can justify it on the basis of self-defense—is no. Think about it: the UK can't send police to Holland to arrest British people smoking weed in a coffee shop, they can't go without permission.

Do the British laws of self-defense apply abroad then?
You can use self-defense if necessary to respond to an imminent armed attack. How large scale? Can said attack emanate from a terrorist or does it have to come from a state? These questions are unresolved.

When it comes to the war on terror, starting with Afghanistan, were we fighting the state? The Taliban? Al Qaeda? It was al Qaeda who attacked the US on 9/11, it's unclear whether international law gives them the capacity to carry out an armed attack as if acting as a state.

We resolved it by saying the Afghan government failed to deal with it, they consented to al Qaeda presence, so that's our justification—they take responsibility.

But there is an increasing fragmentation of the political system, where states and non-state actors exist among each other. If we say ISIS is capable of launching armed attacks, we begin to recognize them as having the characteristics of a state.

We end up implying that Isis are so significant, through the seizure of territory to the exclusion of the formal government, and through their capacity to engage in warfare and terrorism, that we are in practice treating them like a state.

What's the legal process that allowed these strikes?
Under the UN charter, if you need to take urgent action in self-defense in response to an imminent threat, which is the UK position here, and you don't have time to go to the UN Security Council to get authorization, then you go ahead anyway but immediately report to the UN Secretary General to explain what you did and why.

Under British law, however, the practice now—which is a policy rather than a binding constitutional arrangement—would see the decision taken in Parliament. Cameron says, understandably, that this would have jeopardized their plans.

Cameron says it was a "perfectly legal act of self-defense." Can this ever really be tested?
Not really, no. As with the invasion of Iraq, we have the [long delayed] Chilcot Enquiry, and there's very little you can do. For the most part the response will be political and diplomatic, though revolving around legal arguments and principles.

However, because two of the subjects of the attack are British citizens, their families will have jurisdiction to challenge their deaths before British courts, it's a right to life case. This happened with the "shoot to kill" policy in Northern Ireland—families could challenge police actions on the basis of whether force was lawful in the circumstances.

Syria, as the nation state, would also have standing to complain to the UN or International Court of Justice; it seems pretty unlikely given the circumstances.

Why did this happen? Is it a surprise?
It would be useful if the UK government were to provide the legal advice they received as to this incident, since as things stand, the explanation seems to be based on "common sense" principles, i.e. that we needed to act in self-defense, so we did. That might be entirely appropriate in this instance, but what we've seen time and again as the nature of the war on terror continues to mutate, is that political notions of necessity and defense are advanced to the exclusion of legal oversight and regulation.

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