LEGAL OPINION: ADVOCATE S.G WALTHER
Practising Advocate (Barrister) of the High Court of South Africa since August 1999, former Attorney of the High Court of South Africa 1993-1999, former Military Law Officer & Member of the Cape Bar 1999-2015
Questions have been raised in some quarters about the lawfulness of the Order given by British Prime Minister +David Cameron which resulted in the execution of two British born citizens by means of a drone strike in Syria.
A senior British General claimed that the order was unlawful given the vote by Britain's Parliament two years ago which denied David Cameron the right to become involved in the Syrian civil war or to use military force against President's Assad's regime.
The Assad regime, it will be recalled, stood accessed of war crimes - the use of chemical weapons in against the rebel groups fighting against the regime.
In hindsight, the decision turned out to be a good one. Even then, it was known that some rebels groups were Al Qaida linked. The argument then was that, as had been the case in Iraq, any British or US involvement in the Syrian conflict to remove one dilatator could end up paving the way for Assad to be replaced by something even worse. Alternatively, it could simply all contribute to a long and complicated civil war in Syria. The Russians agreed. The Americans did not.
For once, the Russians, and dare I say, Labour, Britain's opposition, were quite right. The subsequent appearance and conduct of ISIS, (Islamic State) in Syria and Iraq reveals that the entire situation in both countries is extremely complicated. At the root of it all, seems to be the Sunni Shia divide/mistrust which goes back over centuries.
In the light of that order, the General claimed that the British Prime Minister was obliged to seek leave of Parliament before allowing British forces to effectively become involved in the Syrian conflict.
The General's view is incorrect. David Cameron did not order British forces to become involved in the Syrian civil war. He ordered targeted air strikes against a terrorist group which was involved with or had at least sponsored attacks on British citizens (in Tunisia) and which, were clearly planning further such attacks in Britain itself. One of the targets was Her Majesty, the Queen.
I don't need to say much about ISIS which has not already been said. The first I heard of them was that Al Qaida apparently wanted nothing to do with them since they were considered too extreme. That virtually says it all. The extreme barbarism which pervades almost all aspects of their activities should leave no-one in doubt that this terrorist group represents no idle threat to Britain, the West, and indeed, even to any other Muslim group which fails to adhere to its extreme and barbaric version of Islam.
David Cameron did not issue an Order for his forces to become involved in the Syrian conflict. Thus, there can be no question of the Order he issued being unlawful and contrary to the Will of Parliament.
Instead, David Cameron ordered a targeted air-strike against a terrorist group which were declared enemies of the UK, which were involved in the recruitment of UK citizens to join this terrorist movement, and which was planning terrorist attacks on UK targets including on UK soil.
No-one can deny that the British government has the legal right to take all appropriate steps to defend itself against such a terrorist grouping no matter where in the world they are based. If the government of a country harbours terrorist bases or provides sanctuary to them, then it must expect not only that the countries which the terrorist groups are targeting have the right to attack such terrorists in such country, but such government may itself become a legitimate target.
In failed States, or in States where for some or other reason, such as a civil war, the foreign government is unable or unwilling to bring an end to the activities of the terrorists they are harbouring, then the targeted States have the right to intervene and to do so themselves. The extent to which the targeted State can operate without authority from Parliament or the UN will depend on the circumstances of the case.
The fact that ISIS were based in Syria is irrelevant. The fact that attacking ISIS targets might operate to the benefit of a party the Civil War in Syria is also neither here nor there.
If there is credible information on hand that a terrorist attack is likely or immanent then the British government is entitled to take action to defend against such an attack. In fact, any failure to take such decisive action to defend against the attack or to eliminate or reduce the terrorist's ability to do so would be a serious breach of the Government's duty to protect its people.
For what it is worth, the Article 51 of the UN Charter also recognizes this right, although the full extent of that right is probably not fully set out in the Article.
Article 51 Of the UN Charter
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
That leaves only one question. Can the British Prime Minister in effect order what is in effect the summary execution without trial of British citizens who operate as terrorists abroad. In my view, if there is sufficient and credible evidence / to prove the terrorist group's agenda included attacks on Britain or British citizens, AND to prove that the persons concerned were indeed members of the terrorist group, then the Prime Minister's actions in ordering such executions would be lawful, as indeed they are.
In the instant case, ISIS has been brazen in its publicity campaign in all forms of media about its agenda and intentions. The two individuals concerned have appeared in video footage confirming their membership of ISIS and in which they appear to be encouraging other British people to come to Syria to join them. Sky news and other British reporters have uncovered even more disturbing information showing that one individual concerned was playing a leading role in planning attacks against the UK in the UK.
That which is public seems to be more than enough, in all the circumstances. No doubt British Intelligence has much more evidence it could add.
There may of course be circumstances where the Prime Minister might instead be advised to seek the authority of Parliament or a UN resolution prior to ordering such strikes. In most cases, however, seeking the requisite Parliamentary authority or UN mandate would be too slow, cumbersome or impractical, or it would risk defeating the object of the strike by giving notice to the targets of the impending strike.
Let there be no doubt, the issuing an order to effectively execute a UK citizen abroad without trial is not one which must be issued lightly. The Prime Minister needs to be convinced of the necessity of the said strike, the need for security, that the agenda and intentions of the terrorist group represents a clear and present danger to the UK or its citizens, that the citizens are active members of this terrorist group, and that their elimination /execution overseas by executive order (without oversight) is reasonably necessary to eliminate or reduce such threat.
In the instant case, ISIS, and the individuals concerned have left no-one in any serious doubt that all the above requirements have been met.
Perhaps, there is room in the above system for consultation with the leader of the opposition and the other main parties, or at the very least for such order to be preceded by some form of judicial oversight before the order is issued ( where time permits) and certainly, and in all cases, to a process of judicial review afterwards. This would go some way to ensuring that the power to issue such an executive order, which indeed equates to execution without a trial, has limitations and is subject to judicial oversight.
Siegfried Walther 8 September 2015, Cape Town
+David Cameron
No comments:
Post a Comment