Is the UK drone strike in Syria “legal”?

London, United Kingdom (openDemocracy) – The Prime Minister announced yesterday that the targeted killing of Reyaad Khan by a UK drone flying over Syria was legal on the grounds of ‘self-defence’. Never mind the fact that parliament has voted twice to explicitly exclude Syria as a target for UK military action and that the Prime Minister has assured parliament on several occasions that no military action in Syria would take place without parliamentary approval. Never mind the fact the UK is not ‘at war’ with Syria and has no authorisation to invade Syrian airspace or to launch attacks on Syrian soil. Never mind the fact that the deliberate killing of a UK citizen is defined in English law as ‘murder’. Even withstanding all of that, does the UN Charter authorise targeted killing in ‘self-defence’ under article 51, as claimed by David Cameron and the Attorney General, Jeremy Wright?

Article 51 of the UN Charter is part of Chapter VII, which is entitled ‘Action With Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression’. Everything in this chapter, and indeed virtually every statement in the whole of the UN Charter, refers to the action of states, not of individuals. However, even if the action of an individual were considered to be a threat to (world) peace, that would be up to the UN Security Council to determine, not up to an individual state like the UK.

Article 39, which opens Chapter VII of the UN Charter, states categorically that “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” It is then up to the UN Security Council to take military action to remedy that situation, if any is deemed appropriate. Article 51 merely affirms that in the case of an actual attack – ie not ‘imminent’ or ‘planned’ but an actual, physical military attack on the UK, a member state such as the UK is entitled to respond in self-defence until such time as the Security Council has taken measures necessary to maintain international peace and security.

Any state claiming that they are acting in ‘self-defence’ under Article 51 of the UN Security Council is required by that article to report such measures ‘immediately’ to the Security Council so that the Security Council can take appropriate action to restore international peace and security. Did the Prime Minister report the drone attack which killed Reyaad Khan and two others immediately to the Security Council on 21st August?

Had they done so, what would have been their case that the UK was acting in ‘self-defence’ by assassinating a UK citizen on the territory of another sovereign nation? We are told by the Prime Minister that Reyaad Khan was ‘planning to attack’ the VE Day commemorations in London on 10th May and the Armed Forces Day ceremony in Guilford on 27th June. Since those events were already in the past by the time of the killing and since no armed attacks took place at either of those events, it can hardly be claimed that Khan was an imminent threat, let alone that they had to act in ‘self-defence’ to prevent a future attack.

However there is another aspect to this particular incident that might have been raised by other countries had the UK taken this matter to the Security Council as required under Article 51 of the UN Charter. If UK intelligence agencies knew who Reyaad Khan was, were monitoring what he was plotting with others on the internet, knew his exact whereabouts with sufficient detail to assassinate him as he travelled in his car in Raqqa, Syria, then why would they not have been able to catch him and bring him to trial if he ever attempted to re-enter the UK?

Internationally, the targeted killing by the state of a suspect who has not been brought to court and convicted of a capital offence is known as ‘extrajudicial killing’. It has been a practice adopted in the past by Central American dictatorships and continues to be practiced in failed and war-torn states like Iraq, but the practice of extrajudicial killing is universally condemned as unethical (and by definition ‘illegal’) because it bypasses the due process of law and a fundamental principle of modern civilisation that every person is innocent until proven guilty.

In the US and many other countries, where extreme crimes are punishable by death, there is perhaps less of an argument against extrajudicial killings in cases where the person being targeted would almost certainly get the death penalty if they were ever caught and tried. In the UK, however, and in other countries which have abolished the death penalty as an inhumane and unacceptable form of punishment, there is no offence which would call for capital punishment, or death. The most severe punishment someone like Khan would get for being proven to be involved in acts or threats to commit murder would be life in prison.

The killing of Reyaad Khan on 21 August by an armed drone flying over Syria cannot under any circumstances be considered ‘legal’ under UK or under international law. It was an extrajudicial killing carried out by direct instruction of the Prime Minister and he, like President Obama who has authorised many such killings in Pakistan and elsewhere, was acting outside his authority and should be investigated by the Crown Prosecution Service like any other criminal who violates the law in this country. If the Attorney General did indeed advise that such a killing would be legal, this should also require the setting up of a Committee of Inquiry to investigate and report to parliament, as did Tony Blair’s decision to invade Iraq in 2003 and the claim that this was also ‘legal’.

Image Source: Facebook.

Image Source: Facebook.

Written by TIMMON WALLIS for openDemocracy.