26 June 1945, UN: Charter of the United Nations
Right of self-defence central to legal debate over Syria drone strike
Some lawyers say use of article 51 of UN charter to justify attack appears to be a departure from established practice
Owen Bowcott, Alice Ross and Vikram Dodd
7 September 2015
The killing of British jihadis in a UK drone strike on the Syrian city of Raqqa was justified by David Cameron as an act of self-defence under article 51 of the United Nations charter.
While that legal principle was the basis of armed action in both the Falklands war in 1982 and the invasion of Afghanistan in 2001, human rights groups say its deployment in a targeted killing marks a significant shift in military practice.
Article 51  guarantees "the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations".
Without further detail of the intelligence briefings or legal advice provided to Downing Street, senior lawyers  said they were unable to make a precise judgment on the legality of the killings of Reyaad Khan and Ruhul Amin  on 21 August.
Philippe Sands QC, professor of international law at University College London, questioned whether the killing was lawful. "Who knows? The prime minister has given us an insufficient basis to know whether what he authorised was legal or not," he said.
"Under the right of self-defence, any armed attack [against the UK] would have to be imminent or actual. The word 'planning' [used in the PM's statement] suggests it's not imminent; the word 'directing', however, suggests it might have been.
"It appears that the UK is adopting a broader and more expansive vision of what the right of self-defence means -- which connects to the approach taken by the US in its 'global war on terror'. It appears to be a departure from established British practice  in the use of force in self-defence."
The attorney general, Jeremy Wright QC, was consulted about whether it would be legal to carry out the attack. His office referred all questions to No 10. The prime minister's spokesman said the legal advice would not be published. The Foreign Office declined to comment on whether its legal advisers had been consulted.
Dominic Grieve QC, who was previously attorney general, told the Guardian: "I was not privy to the intelligence information or the factual basis on which the action was taken, but if the question was could there be a legal basis in self-defence under article 51 of the UN charter against someone who presents a real threat and could not be dealt with in any other way, then the answer is yes.
"The fact that [Khan] was British does not make any difference. Clearly this is a case where he could not be brought to justice in the UK. Article 51 allows you to take military action. You should notify the secretary general of the UN afterwards."
Grieve said the attack did not mean the UK government was adopting the US strategy of a global war on terror.
But Kat Craig, legal director of Reprieve's abuses in counter-terrorism team, said: "What we are seeing is the failed US model of secret strikes being copied wholesale by the British government. Ministers repeatedly promised parliament and the public that there would be no military operations in Syria without parliamentary approval. The fact that David Cameron has bypassed parliament to commit these covert strikes is deeply worrying -- as is his refusal to share what legal advice he was given."
Lord McDonald QC, the former director of public prosecutions, said the killing of Reyaad Khan was legal and justified. The Liberal Democrat peer, who was in charge of the Crown Prosecution Service in England and Wales in 2003-08 and oversaw numerous convictions of terrorists in the courts, said: "I think it is lawful and proportionate to target a British citizen who has travelled abroad to join an armed group which is targeting Britain and British citizens and is on record himself as having that purpose. I think it is appropriate to invoke the principle of self-defence and to target him."
The Rev Nicholas Mercer, a former lieutenant colonel and army legal adviser, was not convinced. He said: "The strike by a UAV [unmanned aerial vehicle] against a target in Syria is problematic legally. The strike took place in the airspace of a sovereign territory and the UK did not have permission to violate that airspace. Secondly, as this conflict is not an international armed conflict, the rules of war regarding combatants or civilians do not apply.
"Although not party to the specific intelligence, the grounds of national self-defence seem highly improbable given the age and background of this young man barely out of his teens. Only if he represented a threat to international peace and security by the scale of his proposed attacks could this attack begin to be justified. The fact that this matter reached the attorney general and the prime minister may suggest that other government lawyers were not prepared to sanction this strike."