The international legal questions raised by drone strike on British citizens

The revelation that the British government killed two of its own citizens in Syria using a drone has major legal implications – not only for British people but for the country as a whole.

Questions have been asked about whether prime minister David Cameron had the right to take action in Syria without parliamentary approval back home but there are other issues at stake here – including the UK’s international standing.

Both the US and the UK have used armed drones to target their enemies, but the UK has quite often made a point of distancing itself from the US by asserting that it uses these weapons within a clear legal framework, guided by British and international law.

Nowhere has the distinction between the way the US and the UK use drones been starker than in the case of Pakistan. There, the US has conducted more than 388 strikes since 2004. The UK has not conducted any strikes in the country because of the lack of a clear legal basis for the action. This despite the fact that the British have launched hundreds of drone strikes in Afghanistan over the years.

The British government has always maintained that it only uses drones when there is a clear threat to British interests – especially when those interests are armed forces operating in conflict zones. According to that logic, Pakistan would have been a target. The country’s tribal areas are known havens for people who have tried to attack the UK. But the UK has tended to rely on the US to “take out” targets because of a lack of clear legal mandate to act in the area.

So the strike in Syria against Reyaad Khan, a 21-year-old from Wales, who was fighting with Islamic State, is a significant departure from this longstanding approach.

It seems the UK government has started to follow in American footsteps, acting as judge, jury and executioner in matters of national security, citing “imminent” threat as justification. And it is clearly prepared to do so again if the opportunity arises.

What is defence?

Cameron has asserted that the strike against Khan had a clear legal basis under international law, according to the advice given by the British attorney general.

The apparent reference is to Article 51 of the UN Charter. This upholds the right of states to respond when an armed attack occurs on their soil. However, this strike was not undertaken after an attack against the UK. It can be more aptly categorised as an example of preemptive self defence since the attack had not yet happened.

The US government has long argued for acting preemptively instead of waiting for an attack to occur but British officials have refrained from using that language – that is until Cameron championed the idea explicitly.

The issue of preemptive self defence itself is not that contested, and nations around the world broadly concur that in the case of an imminent threat, governments are justified in acting to defend themselves. The question, however, is related to where the British government would draw the line.

In other words, when would a threat move from the classification of “likely” to “imminent”? And who will decide how to define an imminent threat?

Liberal democracies have a system of checks and balances for overseeing government decisions. Critics of the recent strike have called for evidence of the threat posed by Khan to be presented to the British parliament or an independent reviewer. This is an absolutely critical step in determining whether the decision to act preemptively was justified.

Collateral damage?

Then there is the matter of killing British citizens as collateral damage. We have been told that the British missile was aimed at Khan, who was said to be planning an attack on the UK. But the strike also killed Ruhul Amin, a 26-year-old British citizen from Aberdeenshire, as well as another IS fighter.

Amin might have been fighting for IS, but he was not a target in this strike. He was killed because he happened to be travelling in the same car as Khan.

If one were to accept the logic that Khan was a legitimate target because he posed an imminent threat, we have to wonder if the new approach means the British government is willing to accept the loss of British lives as collateral damage.

If yes, then how many British lives would be too many for the government to stop a strike from going ahead? How would that line be drawn? The US has, in the past, often called off strikes against terrorists on its watch list if there were others in the area that were not wanted.

Uncertainty ahead

The strike that killed Khan and the others has opened the possibility of such strikes happening in the future. It is now clear that the British government has decided to target its enemies directly instead of going to the US to take action against those who might be threatening British interests (as happened in the case of Rashid Rauf, killed in Pakistan in 2008 by American drones).

There might be a number of reasons why the UK has chosen this approach despite reservations at home and abroad. The government may be seeking to reassert UK’s position as a world player at a time when Russia, China and the US are returning to an era of great-power competition.

Such preemptive actions do send clear signals to those plotting against the UK to refrain from doing so, but the policy shift has significant implications for the UK’s international status.

In a rush to tackle imminent threats and to be counted as a major player in global politics once more, Cameron would be well advised not to endanger the country’s standing as a responsible great power that abides by international law, both in letter and in spirit.

Wali Aslam has received funding from the Remote Control Project in the past.