In an article on this website a few days ago, Bryan Blears questioned the legality and legitimacy of the drone strike carried out by the Royal Air Force over Syria that resulted in the death of two British citizens, Reyaad Khan and Ruhul Amin. While Blears made some interesting points of principle regarding the wide-range of powers afforded to the British executive, his conclusions were in error.
The use of RAF drones in Syria was legal, proportionate and right.
In the article, alleging that there are legal questions regarding intervention in Syria, the author unfortunately portrayed international law as a set and unchanging set of principles by which something is clearly legal or illegal. While such circumstances do exist, it is simply not accurate to state that the United Nations Security Council has expressed a view prohibiting action in Syria simply by articulating broad support for Syrian sovereignty (which has not in fact been violated).
The British government has asserted since August 2013 that it has the right to act in Syria based on the principle of ‘Responsibility to Protect’ (R2P) and has at no point withdrawn this reading of customary international law. The ongoing humanitarian disaster in Syria, the collapse of the Syrian state, and the immediate threat to civilian life are all strong bases for the United Kingdom to act.
Furthermore, it is absolutely essential to realise that while intervention in Syria could be legally defensible, this particular drone attack is simply not subject to any of the possible caveats that the current legal situation relies upon. This is because the strikes on Khan and Amin were undertaken under the Article 51 inherent right to self-defence enshrined in the UN charter, and extended to preemptive strikes by customary international law. The UK registered with the UN Security Council notice of its strike, and publicised it subsequently (something it was not obliged to do) so as to remove any semblance of doubt. The British government asserts (and has persuaded its own legal advisors) that Khan and Amin posed a continuing threat to the UK, and on that basis acted to neutralize that threat.
This act of self-defence was not a breach of Syrian sovereignty for four reasons. First, to defend oneself from attack does not constitute a breach of another state’s sovereignty as it is a lawful act. Second, the collapse of the Syrian state means that the claim to sovereignty of the Assad government (particularly in the areas controlled by IS) is weak and unconvincing. Third, Britain has since November 2012 recognised the Syrian National Coalition (not the Assad government) as the sole legitimate representative of the Syrian people, and thus coordination with the SNC could easily be claimed to be sufficient. Fourth, Britain is currently acting in Iraq at the request of the Iraqi state. Even if one (for baffling reasons) rejected the right of the UK to act in self-defence against IS, the attack could then be characterized as Britain acting in consort with Iraq to fulfil its rights of self-defence. Whichever one of these arguments one accepts (and they are all broadly persuasive), the sovereignty of Syria was not breached in contravention to the UN Charter.
It is an absurdity to posit that the Prime Minister should have sought Parliamentary permission for a single act of self-defence. Such an action has never been taken before, is not required legally, and would have quite obviously given considerable warning to the targets that Britain was pursuing them. The UK Parliament may express broad views on British military action (assuming the government chooses to consult) but has never, cannot now, and should never be able to express a view on tactical questions regarding acts of self-defence. To take such a position would be to catastrophically limit the ability of the British military to respond to direct threats in a way that is unfeasible, illogical, and betrays a distinct lack of understanding of either law or military affairs.
The threat posed by Khan and Amin is something that only those with access to the relevant intelligence could possibly comment on. The term ‘imminent’ outside of domestic criminal law has an exceptionally broad interpretation, and it is categorically wrong to say that the British government was not acting to address such a threat. The test was satisfied according to the Attorney General and to the British military itself (duty bound to disobey illegal orders), which is the only proper test applicable to the actions of the British government.
Blears further describes the attacks as unreasonable considering the threat risk. This is absolutely false. The use of a targeted strike against a combatant who is planning a potential attack against your forces/civilians is a fully proportionate and appropriate response. No civilians were killed. No excessive force was used. No realistic non-lethal force could have achieved what was required. The attack was brilliantly planned, carried out without error, and utterly successful. Few military actions in the history of the British military could be considered so effective, proportionate or generally well executed.
They key lesson to be drawn from Blears’ piece – and our one point of genuine agreement – is that international law operates absolutely nothing like domestic law. If someone steals a mobile phone then everyone understands the crime is either theft or robbery (depending on circumstances) and what the penalties are. With very broad exceptions, international law does not work in the same way. There is great uncertainty regarding many areas of international relations, particularly armed conflict. That there should be greater effort to set out clarity and accountability is somewhere that Blear and I agree.
Until such a time, it is self-evident that the British government has operated from a defensible legal position. In doing so they protected this country from untold dangers. We should unapologetically back the government in this regard.