International law can, and does, keep pace with the threat posed by terrorism, Attorney General Jeremy Wright QC said in a speech last night.
Speaking to the International Institute for Strategic Studies in London, Mr Wright set out the UK Government's view of the legal basis for pre-emptive military strikes against overseas terror targets.
"One of the real-world legal questions we face today is not so much who threatens an armed attack, but the standards by which we judge whether such an attack is imminent, allowing a lawful response by way of self-defence", he stated.
Referring to the "Caroline Incident" of 1837, involving action targeting US-based sympathisers with rebels against British rule in Canada, which gave rise to the first known statement of the law on anticipatory self-defence, he continued: “It is obvious that much has changed since 1837. We are a long way from being able to see troops massing on the horizon."
Technology had made it easier for terrorists to evade enforcement and to plan and carry out attacks, and the law had to keep up with the changing world.
"Where there is an identified direct and imminent threat to the UK or British interests abroad, the UK has always maintained it will take action to counter that threat. Lethal action will always be a last resort, when there is no other option to defend ourselves against an attack and no other means to detain, disrupt or otherwise prevent those plotting acts of terror.
"When we take such action, we must do so in accordance with international law including international humanitarian law. And that means having a clear understanding of when the threshold is met to justify such action."
Setting out the UK Government's view on what "imminence" meant in the context of the current and evolving terrorist threat, he said it endorsed the view of Sir Daniel Bethlehem, former legal adviser to the Foreign & Commonwealth Office, who set out in 2012 a non-exhaustive series of factors to be taken into account:
- the nature and immediacy of the threat;
- the probability of an attack;
- whether the anticipated attack was part of a concerted pattern of continuing armed activity;
- the likely scale of the attack and the injury, loss or damage likely to result in the absence of mitigating action; and
- the likelihood that there would be other opportunities to undertake effective action in self-defence that might be expected to cause less serious collateral injury, loss or damage.
He added: "In each exercise of the use of force in self-defence, the UK asks itself the questions that flow from that articulation. Questions like: how certain is it that an attack will come? How soon do we believe that attack could be? What scale of attack is it likely to be? Could this be our last clear opportunity to take action? And crucially – is there anything else we could credibly do to prevent that attack?
"In answering those questions, we are of course guided by our diplomats, military analysts and intelligence agencies in analysing and verifying the basis for our judgment. Where appropriate, the National Security Council takes the decision on the UK’s approach, with the benefit of legal advice where necessary from the Attorney General."
He concluded with a declaration that "that however far outside the law our attackers may go, we must defend ourselves and defeat them within the law".
