January 5, 2016 Leave a comment
Targeted killing and signature strikes have become the preferred counter-terrorism method, facilitated by drone warfare and increasing in numbers from 2009 onwards. We are far from a legal consensus, however: article 51 does not provide enough for states to rely upon as a clear interpretation. The fight against terrorism and the role of the Security Council in providing support to states taking the fight where terrorists are, in response to an ever expanding threat, has turned from a relative ban on the use of force to restraint being the exception. Professor Christian Tams, writing on self-defense for the European Journal of International Law in 2009, claims:
More controversially, the international community during the last two decades has increasingly recognized a right of states to use unilateral force against terrorists. This new practice is justified under an expanded doctrine of self-defence. It can be explained as part of a strong international policy against terrorism and is part of an overall tendency to view exceptions to the ban on force more favourably than 20 years ago. Conversely, it has led to a normative drift affecting key limitations of the traditional doctrine of self-defence, and increases the risk of abuse.
The danger here is for states to use Article 51 loosely. To simply consider it as a obligation to inform the Security Council that a strike had been launched, that had resulted in casualties, and that internal reports had deemed lawful. While targeted killing has long been a preferred counter-terrorism method, Philip Alston, the UN Special Rapporteur on extrajudicial executions, mentions it involves “the displacement of clear legal standards with a vaguely defined licence to kill, and the creation of a major accountability vacuum.”
On August 21st, an attack carried out by a Reaper drone taking off and controlled from unknown location(s) launched a missile on a vehicle in Raqqa, Syria. Two British citizens were killed, Reyaad Khan and Ruhul Amin. It is said that the target of the strike was Khan himself, not Amin, and that the UK acted on intelligence that “required a quick response”. In a letter to the UN Security Council dated September 8th, the UK informs the UN that it is invoking individual self-defence under article 51 of the UN Charter for this strike. Cameron, a week later, defended the position: “We took this action because they was no alternative. In this area, there is no government we can work with.”
On September 27th, six jets, five of which being French Rafale, bombed a fenced building near Deir Ezzor in Syria. The camp in Deir Ezzor was completely destroyed, and, according the Syrian Observatory for Human Rights, resulted in 50 casualties, including foreign fighters from the Maghreb, but also 12 child soldiers. On October 8th, France carried out a second strike, near Raqqa. The target would be French citizen Salim Benghalem, though the claim was not confirmed by the French government. According to reports, the recruitment leader would still be alive. No information has been publicly released by the French government on the intelligence leading up to the strike or the identities of those who were killed. Still, France invoked Article 51 of the UN Charter under collective self-defense.
The issue here is who the target of those strikes are; they are foreign fighters, supposedly one day coming home to bring the jihad to European soil. Whether the targets are who states say they are, whether their activities constitute what states say they do, and whether those camps are hosting what states say they do is a matter that no one can entirely verify. The letter from the UK to the UN reads as follows (emphasis mine):
On 21 August 2015, armed forces of the United Kingdom… carried out a precision strike against an ISIL vehicle in which a target known to be actively engaged in planning and directing imminent armed attacks against the United Kingdom was travelling. This air strike was a necessary and proportionate exercise of the individual right of self-defence of the United Kingdom.
The worrisome trend is that states participating in this makeshift coalition against ISIS terrorism all act in self-defense, everywhere, all the time. The issue of foreign fighter recruitment has terrorized both France and the UK, the latter constantly repeating that the island has never faced a greater threat in its entire history –that encompasses three decades of IRA bombings. This is pre-emptive self-defense, the most ubiquitous yet legally dubious concept used in the war on terror.
In the absence of clear, declared identities of the targets – let alone any information about their activities – the legal justification for preemptive action starts to unravel. If it has become customarily accepted that the war on terror is more than political rhetoric, but actually provides a war paradigm for action, the distinction between combatants and non-combatants still applies under international humanitarian law. ISIS fighters, if clearly identified as such, do constitute combatants, but their immediate or imminent threat to the state carrying the strike under self-defense is not clear. In 2003, a policy paper authored by Lt. Col. Westphal for the US Army War College warned that the policy would place the US at risk of seeing its retaliation delegitimized, and placed under scrutiny:
Although preemption is a legitimate use of military power, it may not be in the best interests of the United States to establish preemption as the universal principle of all nations. There must be a clear and unacceptable threat to a nation and the world prior to conducting preemptive strikes. Anticipatory military attacks to forestall or prevent hostile acts by our adversaries will come under greater scrutiny, review and challenge to ensure that the preemptive strike was necessary. Any unjustified use of preemption will lead to world condemnation, sanctions and response within United Nations and world capability.
Later, assessing preemptive strikes as a security measure with great power of deterrence – as it takes the enemy “by surprise” – the concept of legitimacy as its source of support from the international community, as opposed to the legality of targeting combatants without due process or judicial review – Westphal urges restraint:
If preemptive strikes are not measured, or if the policy of preemption is not protracted, then U.S. credibility and the use of preemptive strikes as a deterrent will be minimized. The principle of legitimacy focuses on internationally sanctioned standards, as well as the perception that authority of a government to govern is genuine and effective and uses proper agencies for reasonable purposes. If the international community believes that the reason for conducting preemptive strikes is legitimate then the international community and the world will be generally supportive of preemptive strike use.
Le Monde’s article recalls a previous statement from French Foreign Minister Laurent Fabius claiming that strikes in Syria would have no legal basis. The french paper of record then asks the French government to be transparent, and prove the strike was conducted against a target that constituted an imminent threat. Across the Channel, legal NGO Rights Watch UK has launched a legal challenge against the UK government to obtain the legal opinion that had authorized the strike against Reyaad Khan. The skepticism is welcome, and should be permeating every branch of politics – from a rarely consulted Parliament to justifiably adversarial lawyers. But this level of scrutiny should extend to all uses of Article 51 strikes or else risk never to yield anything worth suspending the policy until further investigation.
It is easy to flout legal obligations to justify the entire basis for the action when it relies on information that is inherently classified. Unless a legal challenge to the government is launched, it is impossible to know whether the executive has engaged in a justifiable use of force. Even under judicial review, the intelligence shared and submitted may not be accessible. In matters of counter-terrorism, we are required to trust that the action is necessary and proportionate – but proportionate to a risk we can not see, a threat we can not evaluate. The fact that states can, in the name of self-defence, kill their own citizens abroad in non-declared battlefields in which they are not expressively authorized to intervene should be more unnerving. On November 12, the US launched a drone strike near Raqqa aimed at killing Mohammed Emwazi, also known as ‘Jihadi John’. Emwazi is not yet confirmed as dead, and whether the strike will pose a significant blow to ISIS operations in Syria is yet to be known. There is no question that, for the extreme distress posed by ISIS execution videos, knowing Emwazi is no longer in position of killing is a relief. The question of whether it would be legally preferable to capture him and try him on UK soil has been solved: the context of the conflict against ISIS is a paradigm of war, in which Emwazi’s actions – and his participation in the execution of two other British citizens – have made him a legitimate target.
But for all the easily identifiable targets, those whose role within ISIS is clear and documented, there are countless others: nameless and often without bodies left to recover, who traveled with them. If legality and legitimacy only appear together in an ideal world of constant compliance, lack of the former yields the disappearance of the latter. Without judicial review for drone strikes conducted outside of the battlefield and on identified citizens, the precision of those strikes and their degree of accuracy, as well as the full picture of the intelligence that guided the lethal hand of the executive’s inherent right to the use of force, we may keep moving. But it remains uncertain that we’re moving forward.
 The article from Le Monde, authored by Jacques Foullorou, precises that the information on the intended target comes from his own sources ; later, questions posed to French Prime Minister Manuel Valls on the question of the target of the strike are not returned : « the Prime Minister refused, just like the Defense Minister did, to answer any questions. »