The Attorney General, Jeremy Wright, presented the United Kingdom’s legal position on the use of force in self-defence in a speech at the Institute for Strategic Studies on 11th January 2017. The position set out by the Attorney General is unsubstantiated under international law and dangerously eroding established legal limits on the use of force, says Rights Watch (UK).
Under international law, for a state to use force in self-defence an armed attack must be imminent, meaning a specific attack in the foreseeable future. Two widely accepted elements of imminence are the immediacy of the threat and the requirement that the threat be specific and identifiable. The Attorney General maintained that the absence of specific evidence of where or when an attack will take place, or the nature of an attack, the imminence test can still be satisfied.
Yasmine Ahmed, executive director of Rights Watch (UK), commented:
“It is grossly disingenuous for the Attorney General to frame this statement as an enunciation of existing international law. He stretches ‘imminence’ beyond recognition, such that it no longer functions as a meaningful limitation on the use of force.”
Ahmed continued, “In one breath, the Attorney General rejects a Bush era doctrine of pre-emptive self-defensive and in another he adopts it, all but in name.”
Further expanding the circumstances in which force can be used, the Attorney General also appeared to endorse the controversial “unwilling or unable” test carved out by Israel and the United States – whereby a state can use force against a terrorist group on the territory of another country, if they unilaterally deem that country to be “unwilling or unable” to deal with the threat.
“Whether an “unwilling or unable” test exists under international law, and what the contours of it might be, is hotly contested. It risks undermining the linchpin of the international system – the principle of sovereignty – and escalating the use of force. Moreover, it is highly subjective and ripe for abuse: authorising a government to use lethal force abroad on the basis of a unilateral determination that another state is ineffectively dealing with a terrorist threat”, said Ahmed.
The government fails to demonstrate how these substantial departures are lawful. International law requires consistent or uniform state practice for a new law to develop. To support his position on imminence, the Attorney General has relied on one academic article authored by a former government legal advisor Daniel Bethlehem, and the position of one other government – the United States.
“As a matter of law, the view of a single practitioner and one state is simply not sufficient. The government is arguing that international law needs to take a “big leap” forward, by definition conceding that their position is unlawful under international law as it stands’’ said Ahmed.
Beyond questions of whether this interpretation is lawful, Rights Watch (UK) noted that chipping away at long-standing legal constraints on the use of force has deeply worrying consequences that the Government has not addressed.
Ahmed commented “International law is universal. The UK’s position sets a disturbing precedent for future action – whether by the UK, allies or rogue states- permitting a claim to a near unfettered right to use force, whether by lethal drones or other means, whenever there is a perceived danger that might be realised at some point in the future.
Ahmed continued “Constraints on the use of force exist for a reason: the Government are unpicking limits crystallised in the shadow of World War II and in the memory of consequences of unrestricted force.”
For further information please contact Yasmine Ahmed, Executive Director of Rights Watch (UK) at firstname.lastname@example.org