19 May 2016

The law needs to catch up in the fight against ISIS

By Tom Simpson

There are some deaths that few people mourn. Here are two. On 21 Aug 2015, a British citizen from Cardiff, Reyaad Khan, was killed by an RAF drone strike in Raqqa, Syria. He was fighting for ISIS, and was believed to be planning terrorist attacks in the UK. Mohammed Emwazi— ‘Jihadi John’—was killed in November by a drone strike, this time in a US operation, but with active UK intelligence cooperation. According to David Cameron, the UK worked ‘hand in glove’ with the US to kill him.

The problem is that both of these strikes took place before Parliament had voted to extend UK military action against ISIS into Syria. They happened outside of a declared armed conflict. They were publicly announced by the Government, and there has been a stated willingness to do similar in future. Until now, it is pretty much only the USA that has been willing to use drones for killing outside of war. It looks very much like the UK sees itself as having the same permission, and will do so, just a bit less intensively.

But what rules govern this policy? The Government’s view is that the Law of War governs it, and not human rights law. However the view of Parliament’s Joint Committee of Human Rights is that human rights law applies, and not the Laws of War – no surprise there.

A lot hangs on this. One implication of the latter view is that judges rule, and be required to rule automatically, on every strike by the UK abroad. In effect, the details of intelligence and military operations should be judged by civilian courts. Another is that RAF personnel may be personally liable for murder, one of the few crimes that you can be tried for in Britain even if the act happened abroad. The effect of applying human rights law will, almost certainly, be to ensure that Britain must stand by and let the Jihadi Johns of the future carry on beheading.

The Government is wrong about the current law, but right about what the law should be. Like most lists of human rights, the European Convention on Human Rights allows countries to stop applying it in times of war or other emergency. The reason is not that human rights stop existing in war. Rather, it is that the best way of securing human rights means using unusual amounts of force against people who pose imminent threats, and that regulating this force poses special challenges. The legal procedures that have been developed in times of peace for holding states to account for the misuse of force just break down during war. Instead, the Laws of War, including the Geneva Conventions, have evolved to reconcile concern for humanity with military necessity. The military holds itself to those standards, preserving the principle of being tried by one’s peers. Here, this is other soldiers who understand the demands of combat.

Applying the human rights law to war-like conditions, such as those in Syria, and parts of Libya, gets things the wrong way round. The ECHR almost certainly applies to drone strikes outside of war because, by hypothesis, you are not at war and so the exemption clause cannot be activated. But it is highly dubious that it is the right body of law to apply. Countering terrorism and radical extremism in these ungoverned spaces is a decidedly different task to policing at home, however feisty West Ham fans may get.

The problem is, in this sense, a new one. The division between human rights law and the Laws of War enforces a strict legal distinction between war and peace. The trouble is, the world we live in now does not respect that division. The breakdown of effective governance across swathes of the Middle East, and the emergence of quasi-governance in the hands of ISIS and other radicals and political entrepreneurs, challenges the old order.

If the UK is going to use drone strikes, it should do so with a clear legal framework. That much is common ground. Further, though, the framework should be that of the Laws of War, suitably modified for conflict with non-state actors. This is the body of law that has evolved for these sorts of circumstances, and is capable of best evolving to meet the distinctive challenges we now face.

There is a separate discussion about whether drone strikes are effective ways of countering terrorism. Not only has the USA’s use of drones been controversial, it has probably also been counter-productive. But suppose that, in at least some instances, drone strikes do prevent and deter terrorism. What we still urgently need is a clear-minded, international discussion of how to regulate counter-terrorism operations and quasi-war in the proliferating numbers of failed states. The price of applying human rights law will be to preserve that strict separation between war and peace, which some may view as a price worth paying, but the cost will be measured in civilian lives lost to terrorism.

Tom Simpson is a former Royal Marines Commando, and Associate Professor of Philosophy and Public Policy at the Blavatnik School of Government, University of Oxford.