Attorney general says not knowing the target, type or time of a terrorist attack should not prevent military action.
“Specific” advance evidence of a terror plot threatening UK interests is not legally necessary before launching pre-emptive drone strikes against suspects overseas, according to the the attorney general.
In a speech to the International Institute for Strategic Studies, Jeremy Wright QC denied that the threshold for self-defence was being “watered down” but said not knowing the target, type or time of a terrorist attack should not prevent military action.
“In a world where a small number of committed plotters may be seeking to inspire, enable and direct attacks around the world, and indeed have a proven track record of doing so, we will not always know where and when an attack will take place, or the precise nature of the attack,” Wright said.
“But where the evidence supports an assessment that an attack is imminent it cannot be right that a state is prevented from meeting its first duty of protecting its citizens without nailing down the specific target and timing of an attack. Apart from anything else, our enemies will not always have fixed plans. They are often opportunists.”
Wright’s speech was aimed at redefining and clarifying the legal basis for future RAF drone strikes intended to counter terrorist threats from jihadists or other “non-state actors”.
Any threat, however, must be deemed to be “imminent”. He said he was adopting a series of tests (pdf) devised in 2012 by Sir Daniel Bethlehem, a former foreign office legal adviser, to justify strikes.
Bethlehem’s factors include assessing the nature and immediacy of the threat; the probability of an attack; whether it is part of a concerted pattern of continuing activity; the likely scale of any threat, and the injury, loss or damage likely to result; and the likelihood that there will be other opportunities to undertake effective action in self-defence that may be expected to cause less serious collateral injury, loss or damage.
Wright congratulated the US for having already adopted Bethlehem’s “appreciation of imminence” tests but insisted he was not supporting a legal doctrine which “amounts to a global war on terror”.
The UK’s support for international law “is undimmed”, the attorney general said. “The UK should and will only use armed force, and will only act in self-defence, where it is consistent with international law to do so.”
Self-defence is legal under article 51 of the United Nations charter, which states that “nothing shall impair the inherent right of individual or collective self-defence if an armed attack occurs” against a UN member.
Any action must be “both necessary and proportionate to the threat,” Wright said. Where an attack has not yet taken place it must be “imminent” to justify states taking action.
Wright said: “Now, an individual so inclined can watch a video on YouTube, source an instruction manual on homemade explosives on the darkweb, and act on whatever misconceived ideology they have absorbed, all in a short space of time, without travelling abroad and without direct communication with any established organisational leadership. The world is changing fast and we must be sure the law is keeping up.
“Lethal action will always be a last resort, when there is no other option to defend ourselves against an attack and no other means to detain, disrupt or otherwise prevent those plotting acts of terror.”
The attorney general’s speech follows calls from both parliament’s joint committee on human rights and senior military figures for greater clarification of the concept of imminence and the circumstances under which drone attacks abroad are legally justified.
Wright’s praise for the approach taken by the US, which critics believe involves a lower legal threshold, sounded alarm bells for many human rights groups.
The CIA and other US agencies have carried out as many as 700 covert attacks on al-Qaida and Islamic State suspects on the grounds of pre-emptive self-defence in Pakistan, Yemen and Somalia, according to the human rights organisation Reprieve. The US is not at war with those countries.
As attorney general, Wright sits on the UK’s National Security Council along with the prime minister, foreign secretary, defence secretary and other senior ministers. The NSC has several subcommittees including one that deals with “countering terrorism”.
Philippe Sands QC, professor of international law at University College London, said Wright’s speech “generally mirrors the approach taken by Lord [Peter] Goldsmith, [Labour’s attorney general in 2004] with which I clearly agreed, but there are tweaks in the precise formulations which suggest the possibility that the door to the use of force may have been opened slightly wider.”
Sands said: “The crucial point is that everything turns on the facts, … That necessarily means that the system works where there’s real public trust in the decision-taker … It’s a tiny tweaking in the language and who knows whether that is intended to effect a change or not.”
Chris Cole, the founder of Drone Wars UK, which monitors military use of unmanned aircraft, said: “We are likely to see a small group of people from the National Security Council decide behind closed doors whether a particular individual on a potential kill list has sufficiently met the test to be targeted by a drone strike.
“There will be no advocate for the defendant but there will be enormous pressure to greenlight a strike as there will always be the fear of what may happen if permission is denied and an attack subsequently does take place. There are undoubtedly terrorist threats to the UK from those who fundamentally disagree with western liberal values but our response simply cannot be to jettison those very values and adopt wholesale a policy of extra-judicial killing.”
Jennifer Gibson of Reprieve, who works with civilian victims of strikes, said: “Throughout the discredited ‘war on terror’, the US has tried to redefine language to avoid liability for human rights abuses. Mr Wright has adopted the same strategy today. The British government cannot unilaterally change international law because they want to assassinate people, any more than Donald Trump can bring back waterboarding.
“Britain is meant to be a leader when it comes to human rights. Yet Mr Wright is attempting to redefine the law to provide cover for the UK’s previous illegal actions. In doing so, he is taking the UK down the slippery slope of a failed US drone programme – one that has killed countless civilians, and done nothing to make us safer.”
Research by Reprieve in 2014 alleged that for 41 named targets of US attacks, covert strikes killed 1,147 men, women and children who were not targets. “The intelligence behind the strikes was so poor that individuals had been targeted as many as 10 times without success,” according to Reprieve.