UK drone attack in Syria: legal questions

In August 2015 a targeted UK drone attack killed three ISIS fighters in Syria, two of whom were British.

The UK Government’s legal advice apparently said the attack was permitted under international law because the UK was defending itself – and Iraq – against an armed attack. International law on resorting to armed force allows states to use force in other states in self-defence against a current or imminent armed attack, as long as the force to be used is necessary and proportionate to the threat faced. The Government has mentioned some specific recent threats against the UK but has disclosed little evidence of imminent attacks by those targeted. The context is the its political commitment to seeking the consent of the House of Commons before carrying out air strikes in Syria, except in an emergency. Critics have described the August strike as ‘targeted killing’ or ‘summary execution’, and questioned the need for urgency.

But even in situations where states can lawfully resort to force, two other bodies of international law can apply: the laws of war (International Humanitarian Law, IHL) and human rights law. For example, IHL sets out rules on when people may be directly targeted with intentional lethal force; and human rights law prohibits arbitrary killing except in closely-defined circumstances.

The drone attack in Syria raises many legal questions, including:

• Was the drone attack an act of (individual or collective) self-defence?
• Was it in response to an actual or imminent armed attack?
• Was the response necessary and proportionate?
• Was Syria unable and unwilling to prevent the threat – and is that relevant?
• Do the laws of war apply to any act of self-defence?
• What do those laws say about targeted killing and assassination?
• Does human rights law apply, even to UK actions in Syria?

The implications of the targeted killing are potentially huge, when a large number of people are allegedly planning attacks against the UK, and other countries or organisations might in future use drone attacks and see UK actions as a precedent. However, many aspects of law in this area are unclear, and/or depend on evidence which is unlikely to be made public. There have been calls for the government to be clearer and more transparent about what appears to be a change in policy direction, not just on Syria but on when, where, and who the UK will attack overseas.