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:
- ‘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.’
- ‘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.’
- ‘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’.