Attorney General’s Speech at International Institute for Strategic Studies: The modern law of self-defence

Here, we discuss a speech on the UK interpretation of the law on self-defence by UK Attorney General, Jeremey Wright QC MP. It discusses many issues, but most notable are the UK’s acceptance of an expanded concept of ‘imminent’ attack by terrorists, and his discussion on unwilling/unable doctrine.

The speech is available here.


Here are some of the toughts we had at our reading group:

  • Incitement for terrorist attacks through social media could create difficulties for the current legal framework on imminence. Should somebody encourage a potential terrorist to perform attacks through social media, could they also be subject to a drone strike? Anwar Al-Awlaki was killed by targeted killing for providing knowledge and encouragement to terrorists, but he was directly involved in providing them with information to carry out attacks. What if he offered only encouragement? The scope of impact is much larger from a radical violent encourager posting YouTube videos, than individualised encouragement via e-mail. If videos are re-uploaded, and their content could not be contained, would this create scope for a drone strike? Even if there was no attack? The AG’s speech leaves the door open for this possibility.
  • The evolving framework on self-defence is lowering the threshold for the use of force in order to deal with terrorists abroad. A non-state actor who receives a military response from a state could result in an interstate war if they are under the effective control of another state. Potentially a single terrorist attack could launch an inter-state war. A lower standard for use of force creates a larger margin for error.
  • The AG uses the rhetoric of international law being in a new era, despite the current paradigm being in place or a while. He also suggests that the UK interpretation is needed to keep the UK safe. Perhaps this is also a call for support from other government lawyers. We have recently seen speeches by the AG of Australia. Perhaps Jeremy Wright’s reference to the ‘Quintet’ was a ‘call to arms’.
  • The difference between pre-emptive and imminent could be blurred and exploited for political expediency. How long before an attack is confirmed to be taking place is required before a response and can be to an imminent threat?
  • Shadowy legal changes performed by government lawyers has eroded trust with international lawyers outside government. This removes the flexibility that states could get where international lawyers could support various positions. This does not seem to happen much anymore.
  • Terrorists are more powerful than in recent times, holding territory, and performing state-like acts in spaces deemed ‘ungoverned’ by the actual territorial state. Perhaps this has a parallel with police ‘no-go’ areas.
  • Sovereignty can be seen as an act, where states fail to exert control over their entire territory they can be seen as losing sovereignty. Therefore, could a non-sate actor in control of territory ‘earn’ sovereignty over it? Can another state with greater military prowess exert control over the territory without breaching the sovereignty of the proper territorial state?
  • If a state attacks a non-state actor extraterritorially in a space which is not controlled by the territorial state, sovereignty of the territorial state I still violated, but could be seen as a lesser form of violation. This relates to the quality of the state control exercised.

Here’s what we thought individually:

One of the most interesting things to come out of this speech, for me, was the concept of imminence, and how we can define the imminence of threat in our modern age. In the past perhaps (pre-Cold War), military self-defence was typically a passive reactionary measure, but in the world of nuclear weapons and suicide bombers, such a reactionary approach simply cannot work. After all, how can you not act proactively against a target who themselves may no longer exist after they have committed their terrorist act.

Another interesting distinction to be drawn in this speech relates back to some of our previous discussions between TTAC members about the justification for drone (and other) actions against targets located outside of the borders of the State. Here, the Attorney General is very clear in defining these actions as legitimate ‘when attacks [are] planned from outside our territory and where the host state is unable or unwilling to act’ (10). The point about the cooperation of the host state is important here I believe, and while drone operations may seem barbaric to some extent, this has to be balanced against the fact that quite simply, the host states for many of these terrorist actors are simply unable or unwilling to cooperate. More then perhaps needs to be done to persuade these States that without their help, such operations will continue.

 

Mike Ryder, Lancaster University

 


This speech is interesting, and as Jeremy Wright notes himself quite unusual for an Attorney-General to speak in public about matters on which they advise (p.4). Indeed, the lack of publicly available legal advice received by the government has resulted in some strange letters from parliamentarians in relation to drone strikes. Along with some hilariously blunt replies. The fact is that despite calls for open and transparent government, they are under no obligation to publish any legal advice they receive (or even the fact that they have received it). So, getting a chance to hear what the AG really thinks can be very illuminating.

I think there is something interesting in his mention of ‘The Quintet’, meaning Australia, Canada, New Zealand, the United States and the United Kingdom. Recently, George Brandis (the AG of Australia) stated in his own speech on ‘The Right of Self-Defence Against Imminent Armed Attack In International Law’ that: “The observations I am making tonight complement, and reflect, a similar approach to that of the Attorney-General of the United Kingdom, the Rt Hon Jeremy Wright QC MP, … The Australian Government agrees with the position stated by my United Kingdom counterpart; the remarks that follow address similar issues and build upon what Mr Wright had to say on that occasion.” Both of these remarks follow a similar position presented in a number of speeches by US General Counsels and Legal Advisers, most recently Brian Egan. Furthermore, meetings of the top legal advisers for each of the Quintet countries might indicate that along with being some of the closest allies in the world politically (particularly in intelligence sharing), that their legal positions on the Use of Force might be coming together as a generally shared position.

What this could mean for international law is that these 5 powerful countries, along with other allies taking part in the fight against Daesh, could impact quite significantly on international law to make the very contentious unwilling/unable doctrine an accepted part of international law. This could result in the creation of a legal framework potentially allowing for any state to use force in another state when the territorial state is uncooperative. What would this mean for a political refugee, or dissidents-in-exile?

This type of thing has gone on occasionally before, most prominently are the exfiltration of Adolf Eichmann, and the murder of Alexander Litvinenko (I’ve written about this previously here). Both of these actions were completely unlawful (although the Eichmann case has a begrudging acceptance that this was for the common good). But what if a country could spin this type of action as being not only lawful, but also legitimate? Would refugees even be safe? Would Hobbes state Leviathan begin to engage and entangle all others? What if state agents resort to terror tactics?

None of these issues ask questions of a desirable future for anyone, and the legitimisation of unwilling/unable doctrine is an enormously slippery slope – the unintended consequences of it could have massive repercussions for all of us.

 

Joshua Hughes, Lancaster University


 

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4 thoughts on “Attorney General’s Speech at International Institute for Strategic Studies: The modern law of self-defence

  1. @Josh. I’m particularly interested by your last two paragraphs. Agamben argues that the ‘State of Exception’ is already commonplace since 9/11, what with the ‘war on terror’ we are in effect in a permanent state of emergency that can be used to justify actions outside the bounds of what might be called ‘normal’ law. For Agamben, this very act in itself reveals something of the origin of sovereign power. He would argue that the ability to create exceptions to the law was there all along, it’s just it’s more prominent now, and we exist in a world where the exception is fast becoming (if it is not already) the norm.

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  2. Hi Mike,

    I think it is the nature of customary international law that creates issues here. As we know, the state of exception can legitimise actions outside of ‘normal’ law, but doesn’t necessarily allow actions that are explicitly unlawful. In relation to actions under unwilling/Unable doctrine, it is not an exceptional part of the law, but is in fact prima facie unlawful. However, customary international law can be seen as evolving through breaches. So, potentially, the breaching of international law can be seen as un-exceptional. But, a new inrepretation of law, or a new legal rule is only really created once a critical mass of states agree (or at least don’t disagree). With Western action in the War on Terror we have hugely controversial and largely criticised actions and legal reasoning. These actions therefore don’t really become part of customary international law. So here, we can kind of see a retrospective exception once that particular breach of international law has been denounced and not accepted as a new part of the law.

    Josh

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  3. Well Agamben’s SoE doesn’t address the international as such, but the suggestion is that as it’s a void in the law, in effect, ‘anything goes’ (until someone with bigger guns and more soldiers says otherwise…). I believe there is an important point to be made here in terms of ‘who decides’ what is legal or illegal. Yes there is ‘international law’, but such law ultimately requires enforcement, and who is willing to enforce it other than the biggest parties, the ones who are flouting the law in the first place?

    As you suggest, international law seems to be evolving through breaches, to the point where it seems as though the law exists only to be enforced by the strong, as and when they so deem it politically expedient to do so. In this sense (as I have said elsewhere), the law becomes war by other means.

    In a roundabout way , I think you do seem to agree with Agemben in that by describing breaches of law as ‘un-exceptional’ you are saying (as Agamben does) that the exception in itself becomes the norm (i.e. un-exceptional).

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  4. Yes, I think I probably do agree with Agamben that international law does evolve through making breaches unexceptional. But, it also progresses through states determining that they don’t want to do something, like use biological weapons. However, the use of chemical weapons by Syria recently doesn’t make that actual lawful, as all other states have denounced it. This is fascinating stuff, and I’ll have to look into it more.

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