The Difference Between the British and American Debates Over the Legality of Drone Strikes: The Brits Seem to Care About International Law

by Julian Ku

Earlier this week, British Prime Minister David Cameron announced that the UK had conducted a lethal drone strike against one of its own nationals (affiliated with ISIS)  in August and that the British government was confident of the strike’s legality under international law.

As an outside observer, I am fascinated at how important the drone strike’s legality under international law seems to be for UK policymakers and commentators.  The BBC’s useful analysis of “Who, What, Why: When is it legal to kill your own citizens?” is exclusively focused on the legality of the strike under international law.  So is this editorial from the UK newspaper The Independent.

To be sure, the US debate over drone strikes also dealt seriously with international law.  But the most powerful legal arguments against drone strikes were those made on the basis of the U.S. Constitution’s Due Process Clause and U.S. statutes criminalizing murder of U.S. nationals abroad. International legality has not played a big part in this litigation, nor even in its broader public debate. Senator Rand Paul of Kentucky famously filibustered for a whole day against targeted killings but his legal complaint was wholly constitutional.

But as far as I can tell, there has been little discussion of whether the UK government’s killing of a UK national abroad violates the UK Human Rights Act (incorporating the European Convention on Human Rights) or UK statutory law more generally.  I may be missing something, but it does seem a telling difference in the nature of public and legal discourse in the two countries.

 

http://opiniojuris.org/2015/09/10/the-difference-between-the-british-and-american-debates-over-the-legality-of-drone-strikes-the-brits-seem-to-care-about-international-law/

7 Responses

  1. Julian: there is not a “powerful” constitutional argument against drone-targeting of a U.S. national abroad who is lawfully targeted under international law regarding self-defense and/or the laws of war. See, e.g., http://ssrn.com/abstract=2459649 at pages 191-192 and footnotes therein.

  2. p.s. of course murder, voluntary manslaughter, and involuntary manslaughter re: 18 U.S.C. 2332 involve the unlawful killing of a human being and targetings that are lawful under international law are not unlawful. Further, federal statutes must be interpreted consistently with int’l law (e.g., Charming Betsy) and in case of an unavoidable clash, Congress must express a clear and unequivocal intent to override (e.g., U.S. v. Cook).

  3. Thanks for the post . Already in one of your previous posts ( ” U.S. Prepared to Launch Possibly Illegal Airstrikes Against Assad (But That’s OK)” ) I have insisted to some extent on that issue :

    Nationality , is not the main issue , even not the international law ( to some extent ) but rather :

    What is the nature of the threat , the target been killed , had posed to the national security .

    As explained there :

    If the subjective perception of it ,was one of being a ” ticking bomb ” and proven objectively also , then , one may argue :

    If could be legal to take him out , while on spot ,about to detonate his suicidal bomb , then :

    Why wouldn’t it be legal to take him out , five minutes before ?? why not one day before ?? why not one week ??

    This is the issue !! nationality , has hardly what to do here , even if he was in Britain , and was about to …..why would it matter that much ?? Has to do with the level of the ” Tickinesse ” , rather than his nationality . Because ,according to national intelligence , and common sense , this is the very nature of the threat .

    So , only if been proven , that , hadn’t been a threat of kind of ” ticking one ” then : legal aspects of nationality , and international law , can step it .

    Let alone, while Syria, can’t no longer act as a constructive” agent ” , in eliminating exported terror , due to lack of effective control, and lack of territorial integrity.

    Thanks

  4. Hi Julian, I certainly agree in your observation. Little wonder, though. Just the latest illustration of the underlying truth that Americans simply care less about international law than do Brits and Europeans. I have everyday proof of this, though anecdotal. When I taught in the UK, my PIL class was bursting with over a hundred students (and it was an elective at Warwick). And now at a similarly sized American school, I’m lucky to get twenty students. This year I have ten. I’m sure I’m not the only one to have experienced this difference in student interest.

  5. While the definition of jurisdiction – the term used in art. 1 ECHR – is indeed quite extensive under the ECtHR’s caselaw, the fact remains that the ECHR and the Human Rights act only apply to people within the jurisdiction of the UK. And Syria is not within the jurisdiction of the UK under any of the ECtHR’s lines of caselaw. (The law in this area is a bit murky.)

    Murder is traditionally only a crime if it violates the King’s peace. Murdering someone abroad is not a crime under UK law.

    And so, as I mentioned to you on Twitter, there is no domestic law in the UK that covers this question. The only issues are the possibility that there is a constitutional convention that requires the prime minister to consult the House of Commons before starting a war (such a convention may or may not exist, but a political rule certainly does), and the question of whether that convention has been broken here.

  6. Martin,
    Though there may be an established practice that Parliament be consulted, a convention, this is not apparently understood to be a strict requirement. Established practice on its own cannot make such an obligation one of customary law, as one cannot infer opinio juris – rather, the State’s action indicates a lack thereof.

    Until I see the legal advice sought by Downing Street, which is apparently not forthcoming, I am unpersuaded by arguments by the government that there was ‘clear evidence he was planning an imminent attack against Britain’.

    International law does not combatants to take part in hostilities directly for targeting to be permissible, but a number of issues must be considered, such as the military advantage offered to ISIS by Khan, and the military advantage gained by eliminating him.

    International Humanitarian Law (applicable here) limits operations to military objectives. Insofar as Khan was not a member of armed forces or a militia, and distinguish himself by carrying arms openly, he was, in principle, a civilian.

    To argue that he is a military objective, one must show he has a continuous combat function and direct participation. The possibility of incidental loss of civilian life and property, and whether it was proportional to the military advantage, needs to be assessed.

    Here I am not convinced Khan could be classified as a military objective at the time, at least in such a way as to justify an air strike, and I don’t believe the imminence of the impending attack meets the requirements for pre-emptive self-defence.

  7. Although if what you meant was how the original author referred to assessing the legality in the light of the Human Rights Act, quite right – this is not applicable.

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