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A Must Read Speech: UK Attorney General on Use of Force, Imminence, and International Law

In an important speech today (available here), the UK Attorney General, Jeremy Wright, MP, lays out the UK’s views on the use of force against non-state actors, the grounds for acting in self-defense against such groups, and the abiding importance of international law.   The entire speech is well worth a read. Here are seven key points that are made:

First, law is not static; it evolves to fit the world we live in now, and in particular the rise of non-state actors that pose grave threats to the nation. But the fundamental legal principles stay the same.

Second, the UK remains committed to respond to threats posed by non-state actors with a criminal justice response first. As the Attorney General put it, self-defense is only permitted when necessary. And it is not necessary if law enforcement measures are sufficient.

Third, the UK government will only use self-defense when necessary and proportionate. One key component of necessity is imminence.  But it is not the only component.

Fourth, in assessing imminence, the UK government will consider the following questions (based on criteria laid out  by Sir Danial Bethelhem, former Legal Adviser to the Foreign and Commonwealth Office in a 2012 article in the American Journal of International Law):

[H]ow 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?

This is akin to the standards laid out by the State Department’s Legal Adviser, Brian Egan, in his April 1, 2016 speech.

Fifth, there need not be evidence of a specific planned attack or knowledge about the precise nature of a likely attack. But at the same time, pre-emptive self-defense in response to remote threats or threats that have not yet materialized is not permitted. Rather, states “need to be able to take necessary and proportionate action where there is clear evidence that armed attacks are being planned and directed against them, and where it is the only feasible means to effectively disrupt those attacks” (emphasis added).

Sixth, while not explicitly stated, the analysis seems to require that the non-state target a demonstrated capacity to inspire, enable, and direct attacks and a “proven track record of doing so.” A group that has attacked and continues to seek to do so can pose an imminent threat, even if specific details about the next attack are unclear.  Conversely, a group that has not yet attacked would seem to fall within the category of “threats that have not yet materialized.” Thus, the use of force in self-defense would not be permitted against such a group, absent clear evidence about a specific, planned, and imminent attack.

Seventh, and critically, the speech is rife with reminders that such uses of force are to be used sparingly,   The UK Attorney General explicitly rejects the “Global War on Terror” paradigm,  disavows the doctrine of “pre-emptive self-defense” against more remote threats, repeatedly reaffirms that armed force cannot be used to prevent a threat from materializing, and limits the acceptable use of force to those situations in which it is the “only feasible means to effectively disrupt those attacks.”

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Associate Professor at American University Washington College of Law Follow her on Twitter (@jendaskal).