When can the state kill?: Questions and issues in the case of Reyaad Khan

The Prime Minister announced in the House of Commons on Monday that our armed forces used a remotely controlled aircraft (or drone) to kill Reyaad Khan in “a targeted strike to deal with a clear, credible and specific terrorist threat to our country at home”. This action was authorised by the Defence Secretary following discussions by the National Security Council and with the Attorney General’s assurance of a legal basis.

The taking of human life is always a tragedy and when an intentional act, particularly by political authority, needs to be given both legal and moral justification. What follows does not address the legal arguments but looks at the moral questions, drawing on the Christian tradition’s understanding of the role of political authority and just war. Part of the difficulty in this case is the limited number of details in the public domain but there is also a lack of clarity about the form of justification being advanced and a focus on interesting but morally less important aspects of the action (eg the use of drones, the fact the target is British).

Justified state killing

Broadly speaking, the Christian tradition has understood that the “use of the sword” (Romans 13) authorises the state to use lethal force in certain circumstances. These are to be acts of judgment which are marked by discrimination (ie those punished are distinguished on the basis of desert due to their wrongdoing) and proportion (ie the wrong was so heinous and there were no lesser forms of effective punitive action available).

Three broad situations can be distinguished within which such lethal action may legitimately be intended.

1. Against an individual following due legal process in which they can defend themselves but a judgment of guilt renders liable to capital punishment (though our rejection of capital punishment shows our desire to avoid taking human life even in response to the most serious offences)
2. Against an individual as an act of necessity to prevent their serious wrongdoing eg shooting a gunman running amok in a school or a terrorist holding hostages.
3. As a justified act of war when those we intend to kill are participating in the organised wrongdoing of a declared enemy ie combatants

Broadly speaking the first two are responses to criminal acts while the third responds to an act of war, an important different category in which different, but analogous, moral rules apply as to the use of lethal force.

How do we interpret the killing of Reyaad Khan ?

The problem in this case is that it is not totally clear which of these three frameworks the killing of Khan is being placed within, or is best placed within, and important moral questions arise in relation to all of them.

1. Extra-judicial process of judgment & execution?

There was clearly no formal legal process to ascertain guilt in this case and nor, it seems, have there been any contemporaneous or subsequent arrests or charges of others in relation to any of the activities in which Khan was allegedly involved. However, this was a carefully planned operation with decisions being taken by politicians in London, on the basis of legal advice and intelligence, apparently unconditionally (it was not “if he does X then we have to act to stop him” but, to quote the Prime Minister, “Our intelligence agencies identified the direct threat to the UK from this individual and informed me and other senior Ministers of that threat. At a meeting of the most senior members of the National Security Council, we agreed that should the right opportunity arise, military action should be taken”).

This gives the appearance of a secret quasi-judicial process against one specific individual, a process for which there is no apparent precedent or agreed procedure (in response to Harriet Harman, the Prime Minister said “She asked: is this the first time in modern times that a British asset has been used to conduct a strike in a country where we are not involved in a war? The answer to that is yes….this is a new departure….”). The danger is that, in this framework, the action can look like an extra-judicial determination of an individual’s guilt and likely future danger by certain agents of the state who then decide to execute him.

2. Necessary self-defence?

Khan’s physical location means he was not himself obviously a direct and immediate threat in the active process of wrongdoing and so needing to be stopped by all necessary means (although others conspiring with him and based in the UK may be). In defending the action the Prime Minister explained that “We were exercising the UK’s inherent right to self-defence. There was clear evidence of these individuals planning and directing armed attacks against the UK. These were part of a series of actual and foiled attempts to attack the UK and our allies, and given the prevailing circumstances in Syria, the airstrike was the only feasible means of effectively disrupting the attacks that had been planned and directed. It was therefore necessary and proportionate for the individual self-defence of the United Kingdom”.

It is difficult, given the lack of details, to ascertain whether the action was genuinely discriminating (What wrong had he done?) or proportionate (How serious was it? Was this the only way to stop it? Given he was planning and directing rather than enacting attacks, was targeting him proportionate, especially if nothing was done against others involved?). In the past there have been similar covert actions against terrorists such as those against unarmed IRA members planning to plant a bomb in Gibraltar in 1988 and evidence of even more secret intelligence operations as part of a “dirty war” against paramilitaries. These similarly and rightly caused controversy but this, as an acknowledged planned military operation involving government ministers, aimed at killing a specific individual, outside of a declared state of war, has, I believe, no obvious precedent.

3. An act of war?

Given the problems with the above options, the framework of an “act of war” may appear to be better. In appealing to Article 51 of the UN Charter and reporting the action to the Secretary General this appears to be a significant part of the legal defence.   There are a number of serious moral and possibly legal problems here. It appears to be a defence of ius ad bellum ­– justice in going to war - given there was no existing state of war. That “war”, however, was a single action against a specified individual which seemingly ended with his death so that we are no longer at war (although we may find ourselves at war in a similar way again given the Prime Minister said, “She asked if we would repeat this. If it is necessary to safeguard the United Kingdom and to act in self-defence, and there are no other ways of doing that, then yes, would”).

If, however, we were and remain at war and the action is thus one to be judged in terms of ius in bello, then the act of killing is to be justified as an act within war. It is therefore not ultimately justified as a killing of a specific individual because of an assessment of their personal guilt and direct threat through initiating wrongdoing but simply as the killing of them as an enemy combatant engaging in wrongdoing within a body against whom we are waging war. As O’Donovan comments in discussing guilt and innocence in war, “the notion of guilt applicable to combatants in war is not the same as that applicable to a criminal gang. The latter is a voluntary association of individuals who have conspired to commit a crime; the former are designated military representatives of their political community” (The Just War Revisited, 36). Khan would thus be one of a class of people who are now to be legitimate targets as part of a wider state of war and the moral question is not primarily about why we targetted him (a tactical decision as part of a wider military strategy) but whether that war is justified, and whether he is thereby one of a number of legitimate targets.

On the basis of Monday’s statement and reactions to it, inasmuch as there is a coherent defence at the moment it appears to be that we judged Khan as an individual to be waging war against us and, by appealing to the law of war, acted in national self-defence against him out of necessity.  Our success thus brought the state of war to an end. This raises the very serious issue of applying the rules of war against individuals due to their own alleged actions (even in terms of encouraging, conspiring with or directing others rather than direct violence) rather than against a collective, organised body and its agents against whom we have entered a state of justified war. It makes it difficult to fit the action into a just war framework and appears to be using the appeal to war to justify using lethal force against people identified as part of specific criminal conspiracies

An alternative and better approach is perhaps now being developed in the light of the news that the report to the United Nations adds a justification based on the fact that "ISIL is engaged in an ongoing armed attack against Iraq, and therefore action against ISIL in Syria is lawful in the collective self-defence of Iraq". Whatever the legal status of this claim (and there are major questions in terms of international law and parliamentary authorisation), morally it is probably pointing to the best defence available. It would amount to arguing that we are already formally at war with IS/ISIL, that we have in the past limited our engagement with its combatants to within the territory of Iraq where we act with the consent of the government, but have, out of necessity, now had to act because an enemy combatant in Syria posed an immediate and serious threat to our national security. This, of course, does not remove all the problems noted above. It also raises further questions including the legitimacy within just war thinking of targeting specific selected individuals associated with IS while failing to act militarily against very serious wrongdoing by IS as a whole.

Why is this so complicated?

A variety of factors have contributed to the complexity and confusion of this case:

1. The lack of clarity about what it means to be at war and how this is different from combatting organised crime which arguably dates back to the “war on terror”.
2. The nature of the enemy and its organisation (IS is, in fact, much more of a state than other terrorist groups but is not recognised as such and it operates as a quasi-state across recognised state boundaries).
3. The real threat of terrorist actions in this country being organised from abroad in war zones which lack effective police and judicial structures.
4. The technological ability to target individuals through drone strikes opening up new options against specific threats to our security (an important moral question – though not the most important one here - on which see this report of various churches).
5. The dependence on secret intelligence making accountability very difficult.
6. The meaning of “national self-defence” as justification for military action in relation to a state seeking to protect its citizens against acts of terrorism compared to other serious crimes.
7. The desire to be seen to do something against IS and to protect our country but within the legal and political constraints against engaging in more traditional acts of war.

Some serious questions we must not avoid

While all of these merit further analysis, it is vital that we recognise that this action and the justifications of it announced on Monday raise important moral and legal questions. If not critically assessed, they set potentially very serious precedents which we need to consider carefully. Without in any way condoning the actions of Khan or presuming the government’s response is unjustifiable, the church and wider society urgently need to carefully consider and ask probing questions about

• how such decisions to target individuals are made and subject to review and the respective roles of the executive, the judiciary and the legislature in these different tasks
• how such actions are able to be shown to be discriminate and proportionate acts of good judgment, particularly given the need to protect intelligence sources
• which of the above frameworks (or some other) we best interpret such actions within and whether our other actions and justifications are consistent with this
• whether we are, in fact, already formally and legally at war with IS and if so how we justly prosecute that war
• whether the category of “war”, and within that “justified war”, is being dangerously extended into new areas and so legitimising state killing of those effectively judged outlaws for the very understandable (but not in itself morally sufficient) reason that political leaders are, in the Prime Minister’s words on Monday, “not prepared to stand here in the aftermath of a terrorist attack on our streets and have to explain to the House why I did not take the chance to prevent it when I could have done”.

Andrew Goddard

Andrew Goddard served on the Leadership Team of Fulcrum from its launch in 2003 until 2020. He currently teaches Christian ethics at Westminster Theological Centre and Ridley Hall, Cambridge and is Assistant Minister at St James the Less, Pimlico where his wife, Lis, is Vicar. He has previously taught at Wycliffe Hall, Oxford and Trinity College, Bristol and been an Adjunct Professor at Fuller Theological Seminary, Pasadena, California. He has served for a number of years on the Church of England Evangelical Council (CEEC) and was on the Co-Ordinating Group of the Living in Love and Faith project. He is author of a number of books, including Rowan Williams: His Legacy (Lion, 2013) and co-editor with Andrew Atherstone of Good Disagreeement? Grace and Truth in a Divided Church (Lion, 2015).