Drone strike summary executions – the managing of legal advice

The recent killing of two British Jihadis by UK remote controlled targeted drone strikes has raised a storm of concerns of all kinds.

These concerns have drawn upon a wide spectrum of issues whose nature and whose interrelationships confound as much as they clarify. They include law, politics, ethics, human rights and self defence.

There may be, in the end, no realistic likelihood of the emergence of anything resembling a template to guide such action in the complexity of  today’s conflicts, with their increasingly informal and multi-site modes of engagement.

Engaging in the issues concerned though, makes for a better informed and more considerative judgment which will tend to be retrospective but ought progressively to bring influence upon the process of forward decision taking.

The increasing pattern of economic and political migration means that few countries today can see the world in terms of ‘us’ and ‘them’. Every nation’s population now demonstrates that what was once ‘them’ is now also ‘us’.

This increases local accountability for both government and individuals in the exercise of their responsibilities to far more complex states and intra-national relationships.

The outcomes of successful targeted drone strikes can accurately be described as ‘summary executions’ – words carrying an emotive impact which ought to be kept removed from the careful examination of the difficult issues involved.

As an introduction to these issues and the positions adopted on such incidents, For Argyll is publishing, together with this article, two related individual articles arising from discussions that have been ongoing between historian, Dr John Little and For Argyll’s editor, Lynda Henderson.

In this opening piece we focus on very recent revelations made by Craig Murray, Britain’s former ambassador to Uzbekistan and Rector of Dundee University from 2007-2010.

A compellingly rebellious Foreign Office insider, Murray, has had an erratic career but has always been worth listening to – as an iconoclastic and independent minded intellect.

On his personal website, Mr Murray has published an article entitled Exclusive: I can reveal the legal advice on drone strikes and how the establishment works.

We strongly recommend reading the full article, whose core points drive the narrative below.

 How to manage legal advice to government

From first hand authentic experience and knowledge, Mr Murray lays out exactly where the legal advice on public international law comes from –  advice which governments traditionally resist disclosing and on which they claim to relay as preceding and not succeeding their decision taking.

That advice is always said to emanate from the Attorney General. It does not – a de facto deception, the reason for which is not, in itself, dishonourable.

Governments may need to ask for in-house legal advice on a very wide range of subjects. An Attorney-General is a political appointment made from  the contemporary batch of government MPs and working peers. There is a good chance that amongst such a group there will a QC or a solicitor of sufficient experience to front up the job.

In effect, the post of Attorney General, like any other department of government, is little more than the plaque on the door of a consultancy, which happens to be internal, with civil servants who are legal experts providing advice for the Attorney General of the day to deliver.

Public international law, however, in the territorial divisions of responsibility that characterise any bureacracy and which are not necessarily unreasonable, is housed in the Foreign & Commonwealth Office. Craig Murray reports that: ‘The government employs in the FCO a dozen of the most distinguished public international lawyers in the world’; and that: ‘When the Attorney-General’s office needs an Opinion on public international law, they ask the FCO to provide it for him to sign’.

Mr Murray then cites a notable exception to this practice – one with long-stay political and judicial consequences. It is, inevitably, to do with the Iraq War.

In this case, Murray says that all twelve FCO experts unanimously advised the then Attorney General, Lord Goldsmith, that an invasion of Iraq would  be illegal.

Then Foreign Secretary, Jack Straw, responded by telling Goldsmith to sack Sir Michael Wood, Chief Legal Adviser. Goldsmith refused. Prime Minister Tony Blair’s reaction to this was, we hope, unprecedented. As Murray reports: ‘Blair sent Goldsmith to Washington where the Opinion was written for him to sign by George Bush’s lawyers. [I know this sounds incredible, but it is absolutely true]. Sir Michael Wood’s deputy, Elizabeth Wilmshurst, resigned in protest.’

This accounts for the sudden and never explained resignation of the respected Wilmshurst, in what was a period of tense and clearly unorthodox manoeuverings to find a way of appearing to legitimise this illegal war.

The next issue for the centralist Blair government was to make sure that they were never again in a position where they could not command what might be delicately described as customised legal advice.

The position of Chief Legal Adviser was clearly an unpredictable obstacle to this ambition. Murray’s note on this says: ‘Blair and Straw decided that, again for the first time ever, the FCO’s chief legal adviser had to be appointed not from within the FCO legal advisers, who had all declared the war on Iraq to be illegal, but from outside.’ And as Murray says, the problem was then where to find just such an expert who could be relied upon to be supportive, not of the nuisance that is public international law but of governmental intentions.

Their first need was to find such an expert who would declare the, already committed. war in Iraq to be legal.

Unsurprisingly perhaps, they found just the man in a state hard-wired to America and one which has fought its way to survival with, arguably inevitably, a pragmatic approach to legality. Israel – and Daniel Bethlehem.

Bethlehem, as Murray notes, was the perfect fit for the needs of Blair and Straw in their Iraq initiative. In his work for the Israeli government he had developed what Murray describes as: ‘an extremist doctrine of the right of States to use pre-emptive self-defence – a doctrine which would not be accepted by the vast majority of public international lawyers’.

That doctrine, regardless of  its widespread unacceptability by fellow experts in the field, was just the ticket as an apparent defence of the excursion to war in Iraq – which presented no threat to the UK whatsoever. Today, although Bethlehem himself left the FCO in 2011, his legacy in this doctrine it a great convenience for the current government in the issue of the targeted drone strikes.

Murray identifies as a key statement in the Bethlehem doctrine of preemptive national self-defence: ‘It must be right that states are able to act in self-defence in circumstances where there is evidence of further imminent attacks by terrorist groups, even if there is no specific evidence of where such an attack will take place or of the precise nature of the attack.’

One issue here, as Murray highlights, is the definition and justification of imminence. Another is the ever-present issue of the validity of what is claimed to be evidence.

Self-defence is a serious issue which has its problems in defining what constitutes a wholly acceptable circumstance in which its preemptive use is incontrovertible. It is also open to being abused by governments intent on pursuing a strategy which may be driven by national security or, not impossibly, by political need.

Today’s Attorney General for England and Wales – not for Scotland –  is Jeremy Wright MP, whose, according to Craig Murray: ‘legal knowledge comes from an undistinguished first degree from Exeter and a short career as a criminal defence barrister in Birmingham’. As Murray also points out: ‘His knowledge of public international law is virtually nil’, seeing him completely reliant on advice from the FCO’s expert team.

After the precedent experienced by the FCO’s public international law team, of seeing Sir Michael Wood replaced by Daniel Bethlehem on the specific issue of providing a legal defence of preemptive national self defence, they have seen the consequences of not delivering what is clearly required of them in this matter.

Murray says: ‘I can guarantee you that Wright’s Legal Opinion states precisely the same argument that David Bethlehem stated in his 2004 memorandum. Knowing how these things work, I am prepared to wager every penny I own that much of the language is identical.’

He also provides an acidly accurate reason why the Labour opposition may find it uncomfortable to press the current government to reveal the Legal Opinion they have received to support the drone strikes. Here, writing on 9th September, Mr Murray was not in a position to anticipate the arrival of Jeremy Corbyn MP as Leader of the Labour Party and of the Opposition.

Mr Corbyn – who opposed the war in Iraq and is no aficionado of the modus operandi of Tony Blair, is personally untarnished by anything to do with that regime and so may well take this issue as his own and pursue it as few in the Labour opposition today could do.

The revelation of Legal Advice is always resisted by governments – with the reality being that, in law, there is almost always precedent of some kind to support what you want to advance, so publishing specific advice to government would, in contentious issues like this, inevitably bring about a flurry of contrary expert views. In the end this is too much a matter of each side preferring the opinion of their own legal adviser.

What, in this instance of the targeted drone strikes, is arguably much more important than the legal advice, is the evidence the government says it received that the two Jihadis who were killed were planning attacks on the UK and its citizens.

While there may be arguments that disclosing this evidence might also betray the particular intelligence gathering measures deployed in getting it, if our intelligence services are not capable of presenting the evidence itself in such a way as to protect what needs to be protected, we are, as a nation, already inadequately protected.

The two articles which present specific arguments on the issue of preemptive self defence in the context of the conflict situation in which the disputed summary executions by drone strike have been carried out are linked below; with each linking to the other and to this opening piece.

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Related Articles & Comments

  • The issues surrounding the use of drones to kill people in Syria remind me strongly of the furore in years gone by when the SAS killed IRA people in Gibralter.
    I don’t think that the legal and moral questions raised then were ever satisfactorily resolved, and this is surely likely to always be the case where the government is convinced that people are engaged in terrorist activities (although I think that one of the issues in Gibralter was why they couldn’t be arrested rather than killed).
    The tragic case of the killing of Jean Charles de Menezes in a London tube train shows the risks of this sort of policy if the ‘human intelligence’ is wrong, but I must admit to thinking that any citizens of this country who identify themselves with the aims and methods of ISIS, and ‘join up’, have taken themselves completely outside any concern for human rights.
    Having said that, I hate the idea of being dragged down to their level of savagery in order to defend ourselves – but I see no viable alternative, faced with murderous fanatics justifying their atrocities as God’s will.

    Like or Dislike: Thumb up 5 Thumb down 1

    Robert Wakeham September 21, 2015 12:19 am Reply
    • Anyone going to Syria to fight with ISIS is a justified target. It has been very clear in lots of warnings to those travelling there.

      Like or Dislike: Thumb up 4 Thumb down 1

      Lundavra September 21, 2015 8:39 am Reply

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