Targeted killing in Syria: a dangerous precedent

Selective air strikes by Russia outside ISIS-controlled territory in Syria – and the rapid development of a 5-ton Russian Reaper-class drone Altus M – are likely to broaden concern about the Prime Minister’s statement of 7 September, as Members consider the risks and consequences of forging an uncertain precedent. With Russia claiming their airstrikes against ‘terrorists‘ in Syria are ‘pre-emptive‘ and ‘absolutely in line with international law,‘ a growing call on the Defence Secretary to clarify the UK position on targeted killing in Syria is anticipated.

In his ‘Statement on Syria: refugees and counter terrorism’, the PM told the House that Defence Secretary Michael Fallon had authorised an RAF drone strike in Raqqa, Syria, killing 2 British and 1 Belgian citizen on 21 August. The drone strike appears to have been approved at a National Security Council meeting in about May 2015, before the parliamentary recess. This was a surprise: Tom Watson had been told that ‘no authority has been granted for the discharge of weapons from Reaper aircraft operating in Syrian airspace.’ The strike was carried out by the RAF unilaterally, outside the agreed remit of the coalition mission, by 13 Squadron.

Significantly, the PM indicated a willingness to strike again ‘in Syria, Libya or anywhere else’ as part of this ‘counter-terrorism strategy’. This turn of events marks, as the PM said, a ‘new departure’ for the UK.

The Government has referred to two possible bases for the strike. First, the PM informed the House that the UK was exercising its ‘inherent right to self-defence‘ under Article 51 UN Charter against individuals ‘planning and directing armed attacks against the UK‘ as part of ‘a series of actual and foiled attempts‘ amounting to a ‘direct threat.’ Second, the self-referral letter to the UN Security Council, obtained from the Foreign Office by the APPG on 8 September, asserts both self-defence of the UK and collective self-defence of Iraq. This conflicts with the statement to the House.

On 8 September the Defence Secretary appeared to moderate the statement by telling reporters that the targets ‘had been planning‘ attacks. Unlike the PM, Fallon referred, more than once, to ‘potential‘ rather than actual threats.

Response to recent events is coalescing around five main themes. Each raises urgent questions for HM Government: these are likely to be pursued by MPs from all parties. Each must be untangled from the firestorm on the ground in Syria, and the broader debate on the merits of military intervention:

1. the timing and process for authorisation of the strike outside the agreed battlefield of Iraq;
2. the legal framework and threshold tests applied by newly appointed Attorney General Jeremy Wright;
3. the degree of transparency and forums for accountability;
4. implications for the future use of drones and targeted killing by the UK where no written policy circumscribing the strategic and lawful use of drones has been disclosed; and
5. implications for the future use of drones and targeted killing by other states who may look to the UK for a precedent.

After Harriet Harman, RUSI’s Professor Michael Clarke was first to highlight the enormity of this ‘high risk’ switch of policy buried in a statement on the current refugee crisis. He points out that the PM’s surprise statement on drone strikes outside the operational theatre of war for UK forces might have been intended to ‘jump the parliamentary gun’ and create unstoppable momentum to action in Syria.

Former Foreign office legal advisor Harriet Moynihan at Chatham House argues that both clarity and greater transparency are in the Government’s best interests, given the importance of public and parliamentary confidence in use of drones. In the short-term, this could strengthen the Government’s hand in any vote on military intervention in Syria.

Professor Noam Lubell analyses the statements and known facts from an international law perspective. Fallon’s analogy with armed police suggests that a law enforcement framework, rather than the law of armed conflict, was applied. Here, there is a much higher bar for lethal intervention, demanding ‘very close scrutiny’ of the requirements for necessity, proportionality and ‘imminence’ from MPs. Embarrassingly, Ruth Martin draws a sharp, adverse comparison with the US.

Meanwhile in Westminster, Jeremy Corbyn promptly described the Raqqa strike as ‘legally questionable’. Tom Watson wrote to the Prime Minister on 8 September asking for disclosure of the Government’s interpretation of key definitions in international law ‘distinguishing the UK position from that of the US’. He asked the Government to carry out a ‘cross-department assessment of the strategic implications of targeted killing outside declared war zones’; and to ‘devise and disclose a distinct UK drones and targeted killing policy as part of the Strategic Defence and Security Review.’ Only the PM’s response to these questions would ‘enable informed debate and clarify the position of HM Government,’ the letter states. Watson’s questions are more pertinent following the Defence Secretary’s SDSR speech to RUSI on 22 September which focused on multi-lateral efforts, efficiency, innovation and ‘risk-taking’. A first raft of oral and written questions have pressed the Cabinet Office, Attorney General and MOD further.

Richard Burgon and members of the Justice Committee questioned the Attorney General on 15^th September about the need to publish his advice, his interpretation of the requirement for ‘imminence’ in self-defence and the relevance of the Caroline principles.

At an emergency APPG meeting on 16^th September, chaired by David Davis, (‘Is there a UK Kill List’?) ex-Director of Public Prosecutions Sir Keir Starmer called for transparency and independent scrutiny, describing the current accountability vacuum as ‘unacceptable.’ Publication of the legal rationale and underlying policy was necessary to understand and circumscribe the journey from criminal suspect to target, as ACPO have done in the Police Authorised Practice Rules on the use of force. This can be done without disclosing the facts of the operation. Starmer expressed concern that the Attorney General might be rethinking the definition of ‘imminence,’ and seemed to conflate the tests for lethal action under domestic and international law.

Professor Dapo Akande drew MPs’ attention to Fallon’s failure to confirm that the strike related to an actual, planned attack that had become an irreversible emergency, rather than punishment for past, planned attacks; and the ‘legal black hole’ that would exist if the Government was ‘right’ and neither international humanitarian law nor international human rights law applied to the strike. Philippe Sands QC reminded MPs that this was the first time the UK had given itself the right to kill its own citizens. He stressed the disconnect between the PM’s statement and referral to the UN Security Council, and the Attorney General’s lack of relevant expertise. Sands suggested the authorisation was made ‘on the hoof.’ David Davis pointed out that there had been no arrests in the UK: this ‘drives a coach and horses’ through the argument that the strike was in response to a genuinely imminent threat.

Lord Pannick has expressed concern that ‘very high standards of procedural protection’ must be followed when a state interferes with fundamental rights. This extends to independent judicial assessment before action is taken. However, Lord Pannick noted, it was not possible to dispute the legality of this specific strike on the basis of publically available information.

Referring to a US second drone strike on 24^th August, specifically authorised by the UK according to Col Patrick Ryder, former Labour counter-terrorism minister Admiral Lord West re-iterated the need for a distinct UK policy to avoid the risk UK-US collaboration that could ‘very easily creep into an issue of extrajudicial killing.’

Caroline Lucas and Baroness Jenny Jones, assisted by Reprieve, have commenced legal proceedings, drawing attention to the lack of parliamentary approval and inconsistent justifications provided the Government. They seek a ‘published Targeted Killing Policy which ensures transparency, clarity and accountability for such use of lethal force.’ The case will be watched with interest.

Andrew Murrison has secured a short debate ‘Drones in Conflict’ on 13^th October (7pm). This should get the ball rolling after recess and offers the Defence Secretary his first opportunity to respond to the questions raised by Members and others. The Raqqa strike may have been a tactical gambit but it has opened a can of worms. Clarification is needed, and urgently.