Britain's top lawyer clarifies the laws on preemptive strikes and self defence, stating no specific evidence is needed on a target to launch an attack.
Image: MoD/Crown copyright 2011
The United Kingdom has sought to clarify its position on drone strikes in an unprecedented speech held by the UK government's attorney general Jeremy Wright QC.
Speaking at the International Institute for Strategic Studies (IISS) on Wednesday, Wright described how, "it cannot be right that a state is prevented from meeting its first duty of protecting its citizens without nailing down the specific target and timing of an attack." In other words, the UK government sees it not necessary to conclude a tangible victim, location, or time of terror attack against its citizens before launching an anticipatory attack by drones or crewed aircraft against the perpetrators.
To that end, the British government appears to be preemptively widening its remit for Royal Air Force strikes against jihadis and other non-state actors, allowing itself to legally hit targets that are further down the chain of posing an imminent threat to UK citizens.
The United Kingdom continued to launch Reaper drone strikes against ISIS throughout 2016, and according to drone watchdog Drone Wars UK, has conducted more than 1,000 Reaper missions over Iraq and Syria since September 2014. In December 2016, Britain's defence secretary Michael Fallon announced the UK would be doubling its Reaper drone fleet from ten to 20 aircraft by 2021 with a $127 million deal with General Atomics. Test flights are expected to begin in 2019, and the RAF will call the drone Protector rather than Reaper.
Lucy Powell, an MP and member of the All Party Parliamentary Group on Drones, a political party-neutral group established to examine the use of drones by governments, told Motherboard in an email today that the attorney general's speech is a "welcome step" towards transparency regarding the legal basis for UK drone strikes.
"However, in claiming that specific evidence of an attack is not required before lethal force may be used, the Government risks lowering the threshold for military action, and appears to be paving the way for more drone strikes abroad without the prior consent of Parliament," she said.
But Wright insisted the government has not "watered down" the threshold for military force. "I am certainly not suggesting we adopt an analysis which amounts to a Global War on Terror paradigm," said Wright. "It is absolutely not the position of the UK government that armed force may be used to prevent a threat from materialising in the first place."
Chris Cole, who runs Drone Wars UK, told Motherboard in an email that Wright's speech was not marking a specific policy change, but it was "setting out [a] legal case as [the] government sees it on [a] particular aspect of the debate—around how imminent a threat needs to be before preemptive action can take place."
Jack Serle, a journalist working on the Bureau of Investigative Journalism's Covert Drone War team, told Motherboard in an email today that while the obvious conclusion from Wright's speech is an increase in UK drone operations, the UK doesn't have the capacity currently for more operations. "The Reaper force is working hard in Iraq and Syria; the new Reapers - renamed Protectors for the RAF - won't be in action for years yet," he said.
According to Serle, while the UK policy outlined by Wright does share some similarities with US policy, it is much more to do with "the UK trying to articulate, in law, how it intends to respond with force to the threat of such brutal attacks that have hit European cities in recent years."
"The 'inherent right'...to use force in self-defence against an 'imminent' armed attack,"
The UK currently abides by the concept of threat imminence when it comes to launching drone strikes. "Like many other states, the long-standing UK view is that Article 51 of the UN Charter does not require a state passively to await an attack, but includes the 'inherent right' – as it's described in Article 51 – to use force in self-defence against an 'imminent' armed attack, referring back to customary international law," said Wright.
As such, the nature and immediacy of a threat to UK citizens helps build the case for a drone strike. But Wright argued that in the era of evolving terror threats, mixed with the use of social media and technology, the government "must be sure the law is keeping up."
"Now, an individual so inclined can watch a video on YouTube, source an instruction manual on homemade explosives on the Dark Web, and act on whatever misconceived ideology they have absorbed, all in a short space of time, without travelling abroad and without direct communication with any established organisational leadership," said Wright. This, as the UK government sees it, is changing the game when it comes to deciding when an attack against the UK may be imminent.
Wright referred to a 2012 report by Sir Daniel Bethlehem, a former legal adviser to the Foreign and Commonwealth Office. The report, published in the American Journal of International Law, proposed a list of factors that discussed:
(a) The nature and immediacy of the threat;
(b) The probability of an attack;
(c) Whether the anticipated attack is part of a concerted pattern of continuing armed activity;
(d) The likely scale of the attack and the injury, loss or damage likely to result therefrom in the absence of mitigating action; and
(e) The likelihood that there will be other opportunities to undertake effective action in self-defense that may be expected to cause less serious collateral injury, loss or damage.
"It is my view, and that of the UK Government, that these are the right factors to consider in asking whether or not an armed attack by non-state actors is imminent and the UK Government follows and endorses that approach," said Wright.
In adopting this revised definition of imminence, Wright has subtly revealed the UK will assume a slightly more US-like approach to targeted killing, as well as giving a green light to increased drone operations, even in theatres where military operations might previously not have been given the go ahead. "A number of states have also confirmed their view that self-defence is available as a legal basis where the state from whose territory the actual or imminent armed attack emanates is unable or unwilling to prevent the attack or is not in effective control of the relevant part of its territory," illustrated Wright.
This, with the addition of Wright's statement that "specific" evidence is not necessary for a preemptive strike, in line with Bethlehem's Principle 8 regarding imminence of attack, makes it clear that drone strikes are not only going to continue, but will indeed be allowed to happen under a wider set of laws than was previously adhered to.
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