Legality of Drone Strikes

David Pannick QC writes in The Times

The Sunday Times reported last weekend that military commanders who planned the RAF drone strike that killed two British Isis fighters in Syria insisted that lawyers were present during every stage of the planning process. And understandably so. Such an operation poses difficult legal questions.

The prime minister told the House of Commons on September 7 that the drone strike was targeted at Reyaad Khan who was seeking to orchestrate terrorist attacks in Britain, and there was “no way of preventing his planned attacks on our country without taking direct action”. Two of Khan’s Isis associates were also killed, including another British national, Ruhul Amin. The prime minister stated that the defence secretary authorised the operation only after the attorney-general confirmed the legal basis for it.

There is indeed legal support for such a drone strike. Article 51 of the United Nations Charter recognises “the inherent right of individual or collective self-defence if an armed attack occurs” against a country. As stated by the International Court of Justice in the Nicaragua case in 1986, the legality of such measures is governed by two criteria: necessity for action and the proportionality of the response.

That case also establishes that the concept of an “armed attack” is to be broadly interpreted. It covers not just action by regular armed forces but also a state sending “armed bands to the territory of another state”. A state 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.

The question, then, is whether the drone strike on Reyaad Khan and his associates (there were no civilian casualties) was necessary and proportionate. That depends on the nature and imminence of the threat posed by them, and any alternative means of addressing it. The prime minister understandably told the House of Commons that in this national security context, “there are limits on the detail I can provide”. 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.

But the rule of law also requires a proper procedure to be followed when a state interferes with fundamental rights. The drone strike effectively imposed a death sentence on the target, and so very high standards of procedural protection are required. The courts, both in this country and the European Court of Human Rights in Strasbourg, have repeatedly stated that when the state has a discretion to take action that interferes with fundamental rights, the power must be regulated by publicly stated rules or guidelines that indicate the manner in which the discretion is to be exercised. The level of precision in the guidelines depends on the context.

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, both because the public has an interest in knowing what is being done on its behalf and because those involved in decision-making should be left in no doubt as to the applicable standards and procedures.

The rule of law imposes a further requirement in contexts where fundamental rights are adversely affected: an independent judicial assessment before action is taken. The Grand Chamber of the European Court of Human Rights so stated in 2010 in Sanoma Uitgevers BV v the Netherlands in relation to a requirement that, to help identify a criminal, a magazine publisher should disclose material that would reveal journalistic sources. The court said that before such an interference with press freedom is imposed, there must be an assessment by an independent judicial body, separate from the executive, of whether this is necessary in the public interest. The court added that, in the context of journalistic confidentiality, a subsequent review is insufficient to meet the requirements of the rule of law.

The right to life is as deserving of strict procedural protection as journalistic sources. 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.

The attorney-general is not separate from the executive. A retired senior judge needs to be appointed as part of the process. If parliament does not impose such controls, the courts may well do so.

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