Last week, I was invited onto BBC Newsnight to discuss the recent comments of Defence Secretary Gavin Williamson in which he suggested that the UK should kill suspected terrorists.
It was quite frustrating trying to explain the laws of war in the space of just three minutes but that is the nature of live TV.
A more detailed analysis for those who are interested is below.
But rather than engage in these intricacies in such a short space of time and risk losing viewers, I thought it was better to go back to some basic principles.
The Laws of War
Essentially if Britain is officially at war, which requires parliament to vote on it, the Laws of War apply.
If the Laws of War apply, then active combatants can generally be killed.
It is war after all.
However, Parliament has not voted to go to war.
Furthermore, the then Defence Secretary Michael Fallon last year gave evidence to the Joint Committee on Human Rights that the Government did not consider the UK to be in a non-international armed conflict with ISIL/Da’esh wherever it may be found
If Britain is not officially at war, then carrying out drone strikes against suspected terrorists must be considered as either
(a) an action in self-defence under international law, or
(b) a counter-terrorism measure, in which case it would be governed by international human rights law.
Self-Defence under International Law
In order to be legal under international law, any such drone strike must be to avert an armed attack that is imminent.
It is therefore important to clarify whether someone suspected of planning terrorist attacks against the UK is considered to pose an imminent threat?
Is it necessary for such plans to go beyond the preparatory stage before the threat becomes imminent?
This is not clear at all.
As the Joint Committee on Human rights concluded in its own inquiry into the government’s policy of using drones for targeted killings,
Too flexible an interpretation of imminence risks leading to an overbroad policy, which could be used to justify any member of ISIL/Da’esh anywhere being considered a legitimate target, which in our view would begin to resemble a targeted killing policy.
It is difficult to square up the government possessing ‘kill lists’ with the concept of using lethal force to prevent an imminent threat.
Counter-terrorism measure
If the strike is not taken in self-defence under international law but as a counter-terrorism measure, then the government would need to show that it was absolutely necessary to avert an immediate threat of unlawful violence against any person.
The action must be proportionate.
Furthermore, there must be an effective independent investigation capable of leading to accountability for any unlawful deprivation of life.
To date there has been no independent investigation into the assassinations of two British citizens in Syria in 2015 which sets a dangerous precedent whereby there are no check and balances or accountability.
While the government will no doubt rely heavily on ‘intelligence’ to defend its position, as the Iraq War debacle proved, intelligence can be both faulty and manipulated to achieve political objectives.
It is not clear which of the above positions best matches the government’s own but it needs to be clarified immediately.
What it currently looks like is an attempt to bring back the death penalty for certain undesirables through the back door.
Actually, it’s worse.
Someone sentenced to death after a jury trial will at least have had the opportunity for a fair trial with legal representations.
Those targeted in drone strikes are deprived of such basic rights.
Not to mention the nameless faceless others who are murdered alongside them as ‘collateral damage’.
Should we take Gavin Williamson’s comments seriously?
When Gavin Williamson was recently appointed as Secretary for Defence, not many people outside of Westminster had heard of him.
What better way then to become a household name and show voters that you are a tough man who means business then to make incendiary Trump-like comments to the Daily Mail about executing suspected terrorists without any recourse to due process or the rule of law.
Of course, we have been here before. When 12 year old Gavin was busy preparing to support England in that year’s European Football Championships, the SAS assassinated three unarmed members of the IRA in Gibraltar based on faulty intelligence that they were armed at the time.
The European Court of Human Rights found that the UK had acted unlawfully in murdering the three individuals.
But almost 30 years on, Gavin wants to turn the clocks back again.
Or is he just making inflammatory comments to establish his name and credentials for future promotions?
It is worth noting that Gavin owns a pet tarantula named Cronus, after the Greek god who is reported to have castrated his own father and eaten his newborn children, all to protect his position.
There is nothing unlawful about having a tarantula as a pet or naming it after such a character but it does give you a bit of insight into the type of minister we are dealing with.
Visadreams.com, Diary of an Immigration Lawyer, is a blog run by Fahad Ansari, the director and principal solicitor of Riverway Law, a niche UK immigration and nationality law practice based in London. If you would like any advice or assistance in relation to your immigration matter, please do not hesitate to email me at fahad@riverwaylaw.com or submit your details here.
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