Kill list

IssueOctober 2015 - November 2015
News by Chris Cole

The British defence secretary has given up on ‘innocent until proven guilty by a jury of peers’, and introduced a new legal principle: ‘innocent until the government believes you are likely to commit a crime’.

In an interview on Radio 4’s Today programme on 8 September 2015, Michael Fallon justified the killing by a British drone of two British citizens (Reyaad Khan and Ruhul Amin), and another unidentified man, by referring three times to the risk of a ‘likely’ terrorist attack:
l ‘Imagine the outcry if we’d known an attack like this was likely, if it then took place, and it transpired we’d done absolutely nothing to prevent it.’
l ‘If we know there’s an armed attack that is likely, if we know who’s involved in it, then we have to do something about it.’

l ‘If we have no other way of preventing an armed attack that is likely to take place in our streets, other than using a military strike to prevent it, then that is what we’ll do.’

The legal justification of pre-emptive self-defence that Fallon was invoking requires that the ‘necessity of self-defense was instant, overwhelming, leaving no choice of means, and no moment of deliberation’.

These are known as the Caroline principles, after an incident in 1837 when British forces set fire to a US ship of that name (which was carrying arms to Canadian rebels), and sent it over Niagara Falls. Quite apart from the other legal problems with the killing of Khan and Amin, the Caroline principles, reaffirmed by the Nuremburg Tribunal, require certainty of an imminent armed attack, rather than its being ‘likely’.

On 7 September, British prime minister David Cameron announced that a British drone had targeted and killed a 21-year-old British citizen, Reyaad Khan, outside a situation of armed conflict, after he had been put on what amounts to a kill list months earlier. This is shocking.

Time and again, in response to questions about the UK’s drone programme, British ministers, defence officials and military officers have distanced themselves from the type of targeted killing undertaken by US drones outside a situation of formal conflict. ‘It’s something we wouldn’t do’, has been the mantra.

Nevertheless, almost a year after British drones were re-deployed from Afghanistan to the Middle East, and parliament authorised the use of force only in Iraq, the British government has carried out the assassination of one of its citizens by drone across the border in Syria.

Killed alongside Khan in the strike on 21 August was another British man, Ruhul Amin (26) and another unknown man. A few days later, another British 21-year-old man, Junaid Hussain, appears to have been targeted, this time in a joint US-British operation in which US aircraft launched the strike.

While details remain unclear, it appears that Khan, Hussain and several others were put on a ‘kill list’ in the early summer after intelligence that they were involved in potential terrorist attacks. David Cameron told the house of commons: ‘Both Junaid Hussain and Reyaad Khan were British nationals based in Syria who were involved in actively recruiting ISIL [more commonly known as ‘ISIS’] sympathisers, and seeking to orchestrate specific and barbaric attacks against the west, including directing a number of planned terrorist attacks right here in Britain, such as plots to attack high-profile public commemorations, including those taking place this summer. We should be under no illusion. Their intention was the murder of British citizens.”

We know that an undercover Sun newspaper reporter passed details of conversations with Reyaad Khan to police and intelligence services.

If these conversations were the basis for the targeted killing then the legality of the strikes are in great doubt. Firstly, as the conversations were with an undercover reporter there was no viable threat – the reporter was never going to carry out an attack. While the conversations likely constituted a crime, this was not sufficient to justify the strike.

Secondly at the time of the strike on 21 August, there does not appear to have been any imminent threat, a vital element of the self-defence argument.

David Cameron and his ministers will no doubt continue to insist that the targeted killing was legal. However there will be much argument, discussion and no doubt legal action over the coming weeks, months and perhaps years.

A lower threshold

As we have argued time and time again the problem with drone technology is not just that it is enabling a wholesale expansion of the use of targeted killing, primarily by the US and Israel, but now also by the UK. It is also that drones seemingly enable a lowering of the threshold for the use of lethal force in general.

Through the option of using drones, the US, Israel and the UK seem to believe that they can breach national sovereignty with impunity. It is hard to imagine that the US would have used ‘piloted’ aircraft to carry out such strikes in Pakistan and in this case it is impossible to imagine that Cameron would have ordered UK Tornadoes to cross the border into Syria and carry out such a strike without first going to parliament.

Remotely-controlled drones are enabling military intervention. Without the option of using armed drones it is highly likely that the US strikes in Pakistan and this British strike inside Syria would not have been carried out.

What will be interesting to see now is if any of those British officials who have privately been appalled by the US targeted killings in Pakistan break ranks and publicly question the UK following along on the coat-tails of the US on this. While it is early days at least one senior ex-military official described the drone attacks as ‘wrong’ because they had not had parliamentary approval. (General Richard Dannatt told Sky News that ‘by the letter of what parliament has authorised that may well not be right.... Put it like that, then that is wrong.’).