The Morality Of The War Against ISIS

The Morality Of The War Against ISIS

Can Targeted Killing Be Justified?

By Professor Christopher J Finlay (University of Birmingham)

November 05, 2016         Picture: Hamad I Mohammed/Reuters.

This article is part of The Critique’s November/December 2016 Issue “The Great War Series (Part III): Defeating ISIS”.

Can the targeted killing of ISIS figures be justified? Although some have very strong convictions about this question and they might think answering it to be quite simple, I believe that offering any adequate response is a rather complicated matter. My aim in this piece is first to show why and then to offer at least a sketch of what an adequate answer might look like.

To begin with, the first order of complexity is found in the fact that the issue of whether such killings are justified breaks down into at least four different questions. The first (1) is about whether a practice of this sort could ever be justified at all: might it be justifiable in principle or hypothetically, in some imaginable circumstances? Second and more concretely (2) could a practice such as this be justified in response to ISIS and, if so, what form should it take? The answer to the first two questions might be a qualified ‘yes’ and yet we might still think the current policy (or rather policies, since they don’t necessarily agree) of the US and UK are unjustified because they don’t match what a justifiable practice should look like: so (3) are the current policies and practices justifiable according to such a model? And finally (4) we will still need to ask about whether any particular killing is or is not justifiable.

Any later question can only be answered with a ‘yes’ if we can give a positive answer to all the prior questions. But saying ‘yes’ to an earlier question doesn’t guarantee a ‘yes’ to a later one. So, in other words, we might find that (1) the policy is justifiable hypothetically and (2) it is potentially applicable to ISIS. Answering (2) might lead us to describe a model of how the policy ought to be applied in practice and (3) we might (or might not) then find that the current UK or US practice generally compares quite well with this model. And yet even if we did, (4) we might still find that some particular cases were not justifiable because they diverged from what the model permits.

My focus will chiefly be on questions (1) and (2). I will leave it to readers to apply the theory and to decide for themselves what its implications are for current practices and particular cases.


Red herrings

Before turning to what I think is the right way to think about the ethics of targeted killing, let’s spend a moment on some objections that I think are often raised in a misleading or misconceived way.

The practice of targeted killing is frequently denounced by invoking one of two off-the-peg arguments, both implying that it is immoral, illegal and politically dangerous. Cries of ‘extra-judicial killing’ imply that it enacts a death sentence against suspects who are thereby denied an opportunity to defend themselves in a court of law against criminal charges. Accusations of actual or virtual terrorism, secondly, point out the innocent civilians killed either by mistake, when drones have picked out the wrong targets (sometimes due to the use of unreliable selection criteria, especially in so-called ‘signature strikes’) or as the foreseeable ‘collateral’ casualties of otherwise successful attacks.

These denunciations are sometimes merited and indicate two things we ought to challenge when they occur in certain particular cases or campaigns of killing. When the President of the USA, for instance, declares ‘justice has been done’ after his country’s most wanted terror suspect is killed by US Navy Seals in Pakistan, it demonstrates that the extra-judicial accusation has merit at least sometimes. Even had it been justifiable on some other grounds, the killing of Bin Laden seems to have been intended as an execution and must be evaluated (and probably condemned) accordingly. Likewise, the injury and death of innocent persons demands close attention and accountability in any circumstances, especially when it is foreseeable as a by-product of any action or practice. Without some very special justification indeed, it will inevitably invite comparisons with the practices of terrorists, especially given the likelihood that the omnipresence of lethal drones in the regions where these attacks are carried out will generate a sustained atmosphere of fear and vulnerability among the wider population.

But I don’t think these approaches equip us to evaluate the practice across all its variations. Obama’s apparent endorsement of lethal retribution is relatively unusual. Much more frequent in public speech is a more measured claim to the effect that ‘killing terrorists is necessary to defend innocent people from attack’ or that it is aimed more broadly at national defence. And political leaders often argue that individual cases should be interpreted not in isolation but as parts of a more general war justified by an urgent need to fight against (less plausibly) terror as such or (more credibly) such-and-such a terrorist organization. This sort of justification, in turn, invokes the millennia-long tradition of ‘just war theory.’ Proponents of this theory long-ago reconciled those who followed it to the expectation that some degree of foreseeable ‘collateral’ harm to bystanders might be justifiable provided that it was unintended, proportionate to the intended aims of war, and unavoidable.

I’m going to set aside the extra-judicial killing argument against targeted killing and the argument from collateral damage for now in favour of a different approach. To succeed in defeating the arguments offered in favour of any practice and to condemn it in a principled and persuasive way demands that we apply what philosophers call a principle of ‘charity.’ This is a methodological term which means that any argument we try to defeat should be the strongest one available. To put this into practice, we should seek the best possible case in defence of targeted killing (in general; against ISIS; as practiced) before trying to direct criticism at the practice, whether in its current, practical form or in the abstract. To do anything less will leave the best defence still standing and therefore fail to pose the strongest possible challenge.


In principle or hypothetical justifications for targeted killing

The most charitable way to assess the practice, I think, is to measure it according to the standards invoked by public statements about (a) the rights of innocent civilians threatened by terrorists to defence against wrongful attacks against them and (b) the notion of justified war. Although (a) and (b) might be coupled together as a combined justification – ‘just war to defend the innocent from terrorist attack’ – I want to show that they sometimes respond quite differently to the same cases: in particular, a case that might not be justifiable as an isolated case of defensive force might be justifiable as part of a defensive war.

I’ll begin with the logic of individual defensive rights. Discussion along these lines in the UK context refers to the European Convention on Human Rights (ECHR) article 2 as the grounds for armed defence where it states that, ‘Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.’ The potential of this right to justify even lethal force where necessary to defend it is implicit in clause 2.2.a, according to which, ‘Deprivation of life’ does not violate the right to life if it arises from a ‘use of force which is no more than absolutely necessary [to defend] any person from unlawful violence’.[1]

So one way in which the use of targeted killing might be justified is as an enforcement of the Human Right to Life against personal threats. In the case of ISIS, the innocent persons who might be regarded as claimants on this rightful use of defensive force fall into a variety of categories: Iraqis and Syrians, Shia, Yazidis, and Kurds, Sunnis subjected to the violent rule of the ISIS ‘caliphate,’ and Europeans, Americans, and any other citizens globally whom ISIS might threaten.

However, whereas a right of self-defence is generally understood to arise only in response to an imminent threat, it is likely that targeted killing is being directed against targets with a less direct relationship with the risk of harm.[2] Rather than presenting a threat that is literally imminent, these are individuals who participate in an organization that intends to launch some such attacks when the opportunities arise. But the individuals in question may or may not presently be at an advanced stage in devising or implementing specific plans. So even if some such attacks were virtually inevitable at some point, it is as yet unclear when they will occur, in what form, and involving precisely which individuals.[3]

Three ethical problems arise when the right of individual defence against literally imminent attack is cited as a model for justifying drone strikes in a practical context against those associated with attacks that are not in an immediate and literal sense imminent. They arise from factors we might call uncertainty, over-determination, and under-determination. Any one of these factors brings into question the claim that killing is, strictly speaking, ‘necessary’ to uphold ECHR art. 2.

To clarify what I mean by uncertainty, compare the scenario set out by the recent movie Eye in the Sky (2016) in which clear and incontrovertible evidence appears before UK decision-makers that terrorists are preparing to launch an attack within the next few minutes. They can literally see the belts being fitted onto the suicide bombers. In these circumstances and in the absence of any credible alternative means of prevention, a drone strike might meet a strict standard of necessity on the grounds that the terrorist outrage will certainly take place. By contrast, imagine as an alternative that intelligence services identify and locate an individual who is thought to desire that such attacks take place and who has been involved in setting them up in the past. Killing this person might be necessary to eliminate the risk that they will contribute to further attacks but not to save specific persons from a particular attack. This is a very different understanding of ‘necessity’, one that would clearly be permissive of a much wider range of attacks than the stricter one I mentioned before.

The problem with interpreting necessity in the looser way is that it leaves greater discretion in the hands of decision-makers and provides no obvious and clear limit to permissibility for such an extreme measure as targeted killing. In effect, it redefines the Human Right set out in ECHR art. 2, converting it from a right not to be killed wrongfully to a right not to face any risk of being killed wrongfully. Whereas the former permits lethal defensive force only against those clearly intent on a credible attempt to violate the right, the latter could licence attacks on anyone with inclinations thought to point towards such attacks sometime in the future. In particular, it might even permit attacks on people who had not (yet) done anything wrong: they might only have to have the wrong sorts of belief or be associated with the wrong sorts of people in order to be considered a credible ‘risk’.[4] The UK House of Lords and House of Commons Joint Committee on Human Rights rejects just this sort of reinterpretation of necessity in its report on drones: ‘while international law permits the use of force in self-defence against an imminent attack,’ it states, ‘it does not extend more widely to authorize the use of force pre-emptively against a threat which is more remote, such as plans which have been merely discussed but which lack the necessary intent or capability to make them imminent.’[5]

The problems of under- and over-determination occur when the target is, as it were, just a cog in the machine. Under-determination refers to cases where the target is part of a conspiracy to cause the deaths of innocent people but in a role that is not pivotal. Killing her might slow the attack or reduce in some small measure the chance that it will succeed or it might impose heavier burdens on co-conspirators before they can raise the chance of succeeding to the same level as before. But it cannot be described as ‘necessary to eliminate (or significantly diminish) the threat to innocent lives.’

Over-determination arises when the threat to innocent lives is posed by a wider organization in which the drone target is just a foot soldier, so to speak. It might be that, while she is not presently engaged in an attack that will imminently threaten lives, she is nevertheless performing a role in the organization that means she inevitably will at some point in the future. Killing civilians is more than just a fantasy or an aspiration for this person. But killing a foot-soldier based on her role could fall foul of the necessity principle for another reason, which is that if she doesn’t commit the atrocity, someone else will instead, someone equally competent and determined. If so and if we contemplate the targeted killing of our terrorist as an isolated exercise of the right of self-defence identified in ECHR art. 2, then we cannot really say that killing her is necessary to save lives. This is because, killing her alone will not save any lives or, at least, it won’t necessarily do so. If there are enough substitute terrorists, then the terrorist organization will simply send out one of the others when the time comes for an attack.


Drone warfare

Perhaps scenarios like the one depicted in Eye in the Sky actually do occur from time to time – probably not with quite the same degree of certainty, but close enough. And if they do, then the right of individual defence against imminent, culpable threats could, I think, be invoked to justify a discriminate drone strike. It would be justified provided no less injurious alternative was available, and as long as the collateral risks to bystanders were not disproportionate to the risks that the operation was designed to defend against. So this models a possible answer to questions (1) and (2).

But I think it highly likely that the majority – perhaps the vast majority – of real cases involve attacks on targets who are not (known to be) engaged in an attack that will take place imminently and, hence, that satisfies the necessity principle as it would apply iteratively to individual strikes viewed as isolated acts of individual defence. They will therefore fall foul of one or more of the three problems I identified: uncertainty, under-determination or over-determination. If such attacks might be justifiable, whether in principle (to return to question (1)) or as part of a defensible policy against ISIS (question (2)), then I think it must be on a different footing. For targeted killing against ISIS terrorists who are not presently engaged in an attack to be justified, it would have to be as a form of warfare. And for warfare to be justified, it must be justifiable to engage in war in quite a precise sense of the word.

Warfare here refers to that array of action-types that are available to a soldier fighting in a just war. Imagine it’s late in World War II and you are a soldier in the British army, advancing against the retreating Wehrmacht. Are you permitted to try to kill German soldiers only if they are presently engaged in attacks imminently threatening you, your comrades or other bystanders? Not according to conventional wisdom and in this respect I think conventional wisdom is correct: as long as they are not making clear signs of surrender, you may attack enemy soldiers at any time, whether they are attacking, retreating, or standing still. Even if your war is rightfully described (and justified) as a defensive one taken as a whole, you are permitted actions as an individual contributor to that war that are offensive in their tactical or strategic nature. In this respect, just war differs sharply from individual rights of defence. But how can just defensive war licence offensive forms of attack that can’t be justified directly as applications of a Right to Life and an associated right of self- or other-defence?

When this problem exercised the minds of medieval and early-modern just war theorists, the answer they proposed was that just war must be interpreted as an extension of the state’s right to punish wrongdoers. As the executor of this facet of a sovereign’s authority, soldiers could therefore justify doing things to the agents of a wrongful enemy that they couldn’t claim permission to do in any private capacity. But there is a variety of reasons why just war theorists nowadays find this interpretation unattractive. Among these, viewing the maiming and killing of a target by means of military attack as an appropriate form of punishment – even assuming its target liable to punishment of some kind – is unappealing. And as I have already indicated, it is precisely the assumption that targeted killing is intended as some sort of extra-judicial punishment that bypasses due process and disregards the legal rights of its targets to a fair trial that worries many of its critics.

A better explanation for the peculiar permissiveness of war is provided if we work step-by-step from the most fundamental of the rights set out in the ECHR and think carefully about what it might be necessary to do in the face of an organization that coordinated many people to develop threats against innocent people over a sustained period of time. This, I think, is close to what is really contemplated when states like the UK and the USA attack those who (let’s assume) have correctly been identified as ISIS members but many of whom aren’t presently engaged in attack or preparing an imminent one. So it might offer a way of answering question (2) in a way that could encompass at least some of the strategic uses of targeted killing seen in the fight against ISIS.


Collective threats; collective defence

To justify any wider use of targeted killing of the sorts that are likely to have been carried out by the UK and the US against ISIS, we need a different sort of theory. We need an account of defensive ethics in which those thought to be contributing to possible (but not literally imminent) attacks can be regarded as liable to targeting. To succeed, this account has to show how doing so can meet the necessity requirement in spite of the problems of uncertainty, under-determination and over-determination.

To reiterate, uncertainty arises when we are unsure whether killing this person will prevent any future attack but we have reason to think it likely given their past form, membership of an organization, and so on. That of under-determination arises when the target is an active and willing contributor to threats but not an individually important one. Attacking that person alone mkight do little to diminish the threat; and yet the only way to defeat it might be to attack a larger number of such individually minor contributors. And the problem of over-determination occurs when we know that killing Terrorist1 will do little or nothing to diminish the probably of wrongful harm because his place will be taken by Terrorist2 (and so on). All three problems disappear, however, when we frame the problem, not in terms of isolated individuals and particular strikes, but as a collective enterprise by a large number of individuals (ISIS) and a collective response carried out over a longer period of time.

Let’s start with uncertainty. Even in cases where we’re unsure whether killing this target is necessary to diminish any particular threat, we might yet know that the organization to which he belongs intends to attack civilian targets as often as possible and as soon as possible. We might also know based on past records and its demonstrated ability to launch them that the probability of further attacks is close to 100%. This may be true even while we know little or nothing about which particular targets might be intended or, indeed, what progress has been made in the selection of sites, the preparation of attack teams, acquisition of weapons and so on. So, whereas Terrorist1 might or might not come to be involved in the next attack or the one after considered separately and therefore has an uncertain relationship with the threat, the Terrorist Organization poses a certain threat. We may therefore be in a position to know that degrading the capacity of the organization to which he belongs is necessary to eliminate an ongoing threat.

Once we can establish that it is not a question of whether an attack will occur but when and where, it may be possible to address the problems of under- and over-determination too. Killing Terrorist1 might be unlikely to diminish ISIS’s overall capacity significantly when considered as a one-off act and it is therefore hard to see it as necessary considered in isolation. But a sequence of such attacks might diminish its capacity incrementally and cumulatively. Indeed, if the only – or only proportionate – way to eliminate the certainty of further attacks over time (or beyond a certain point in time in the future once the terrorists have been defeated) was to degrade its collective capacity through eliminating individual personnel iteratively in a series of attacks, then we might say that killing Terrorist1 might satisfy a necessity requirement: it would do so provided it was part of such a sequence.

Likewise, if Terrorist1 was simply the first in the queue, so to speak, for committing future missions against civilian targets and would readily and enthusiastically be replaced by Terrorist2 if eliminated, then killing him alone would fail by the necessity test. As such, it would do nothing to prevent a possible future attack. But if we knew that the killing of Terrorist1 was going to be followed up by a series of similar strikes, each taking out a successive member of the terrorist organization’s fighting forces, then we might be able to justify it by this standard. While doing so as an isolated, single action would not achieve the necessary result, carrying it out as part of an ongoing, collectively-organized series of such actions might. Eliminating a larger number of such terrorists will eventually degrade the organization’s capacity and, hence, diminish the chance of threats being carried out.

What this amounts to, then, is the claim that whereas some violent acts may be justified purely on their own terms as isolated cases – those that resemble Eye in the Sky, for instance – others might not. And yet they might be justifiable if carried out in the knowledge that they were part of a war.


Just Defensive War

My view therefore is that, whereas it is right to imagine that a war can be justified only if the individual actions of which it is composed are (generally) permissible, it is also true that individual acts of war are permissible only if war more generally is permissible.[6] More particularly, the thought is that as an individual engaging in the use of force (e.g. as a drone operator) you can only justify your killing of an individual target if you have reasonable grounds to believe that you are doing so as part of [a] a war conducted under the leadership of your side’s government as well as being one which is [b] justified as a means of defence.

There is, of course, a big debate in contemporary just war theory about whether soldiers who doubt the cause of their side’s war commit a grave moral wrong by continuing to fight for it. I want to avoid wading into that discussion in order to focus on [a] which is the most germane to the question of targeted killing so I’ll park criterion [b] for now. But in any case, I also think it highly likely that ISIS have given just cause for war by (or on behalf of) a variety of different parties, so we can safely assume that [b] is likely to be satisfied for the purposes of discussion. (The complexity of trying to specify which war on behalf of which parties and for which cause is a matter I discuss elsewhere and to which I’ll turn again below).[7]

The point I want to make is that if the drone operator is chiefly tasked with targeting individuals who are not engaged in what is manifestly an imminent attack in a very literal sense, then she will only have reason to think her actions justified if she has reason to believe herself engaged in a just, defensive war. Prerequisites for such a belief are the following:


I. There is a collective, sustained threat rendering collectively organized defence necessary

By sustained threat, I mean that there is an enemy organization with the capacity and will to launch such attacks repeatedly over time. As Thomas Hobbes put it, ‘Warre, consisteth not in Battell onely, or the act of fighting; but in a tract of time, wherein the Will to content by Battell is sufficiently known: and therefore the notion of Time, is to be considered in the nature of Warre’ (Leviathan, 1651, ch. XIII).


II. Intelligence

If we don’t expect the targets to be engaged in an attack at the moment of the drone strike, then operators will need to be confident that their government has intelligence-gathering capacities sufficient to identify the collective threat and to specify which individuals are part of it. Only then will she have reason to expect that the figure on the targeting screen poses a risk.


III. Strategy

The drone operator needs to have a good reason to believe that the actions she is instructed to carry out are part of a sustained campaign strategically designed to secure the relevant parties against the threat posed by the terrorists, subject to conditions of necessity and proportionality.


IV. Competent, coordinating leadership

Finally, she needs to know that her instructions are coming down the chain of command from military (and ultimately, political) leaders acting in good faith and with sufficient practical competence. She needs to be confident that they are able to derive the necessary intelligence, interpret it in an authoritative way, and devise a credible and authoritative strategy to address the threat through coordinated, collective efforts.

Hence, for the drone operator to know that the strike she is instructed to execute is likely to be justified, it might not be necessary to be able to see that this target is involved in that attack which will imminently harm those civilians. Instead, it might suffice to know that she is subject to a chain of command that links her to a coordinating leadership that she has independent reasons to trust based on her knowledge of its intelligence capacity, practical competence and moral good faith. And she may be able to justify the action as a contribution to the collectively coordinated defensive response her commanders are directing against collectively organized threats posed by an enemy organization which is extended over a population’s members, over territorial space of a certain extent, and over time.

So whereas isolated, individual cases of defensive force against particular terrorist targets might sometimes be justifiable with direct reference to ECHR, art. 2, I think it likely that many cases are justifiable with reference to human rights (if they are justifiable at all) only indirectly insofar as they contribute to an ongoing defensive war.


Which Defensive War?

So I have suggested answers to the first question on the list I outlined at the beginning. Hypothetically (1) targeted killings could be justified even taken in isolation but only where they are aimed at those directly involved in a clearly identifiable, present threat to innocent people. More often, however, it is likely that they could be justified only if there were grounds justifying a wider war and the offensive tactics – ‘warfare’ – that waging one requires. This sets the bar for justification quite high for the reasons I set out in the previous section. I now turn to question (2). We have to ask whether warfare in this sense of the word might be justifiable against ISIS and, if so, what sort of ‘war’ it would be part of.

As I have argued elsewhere, when you try to use the principles of just war theory to evaluate armed actions in a context like Syria at the present time, then you have to start with the question of which of the various wars now taking place there it might be intended to contribute to.[8] Within the wider conflict in Syria, there are many different parties and some, like the USA and the UK, might be interpreted as being engaged in a variety of different wars.

To take the British case, the government has framed the justification for the killing of ISIS targets in at least two contrasting ways. On the one hand, it has sometimes presented specific attacks as part of a ‘collective self-defence of Iraq’ in which they should be interpreted as ‘a conventional use of force abroad by the UK in an armed conflict in which the UK was already involved’.[9] But David Cameron has also sometimes attempted to frame killings – such as the targeting of British national Reyaad Khan – as ‘part of the Government’s comprehensive counter-terrorism strategy that seeks to prevent and disrupt plots against the UK at every stage, as part of the stepped-up responses to the acute threat from Islamist extremist violence’.[10] These accounts refer to quite different conceptions of British involvement and, in that sense, to different wars.

The ambiguity this creates could have significant implications for whether and how particular actions might be judged. In particular, if attempts are made to justify targeted killing chiefly as a means of saving innocent civilians in the UK and the EU from terrorist outrages by degrading and ultimately defeating ISIS as a collective threat, then they face a paradox. The problem is that if the threat from ISIS-led or ISIS-inspired terrorism in the US and EU has arisen largely in reaction to western attempts to defeat the group in Iraq and Syria, then it’s hard to see how killing individual members of ISIS can be interpreted as a means of reducing the risk to people outside the regions that the group has occupied. It seems that the more involved the west becomes in Iraq and Syria in fighting ISIS, the greater the threat is to western civilian targets.[11] If this is correct, then it is doubtful that defending citizens in the US, the UK, and the EU can be a primary justification for war. It’s not, I think, entirely irrelevant, but its role in justifying force against ISIS has to be seen as more complex.

My view is that, at most, the defence of innocent civilians in the west against ISIS attacks can contribute to the permissibility of targeted strikes chiefly as a secondary justification. It is relevant, that is, only if there is another, independent, primary justification (call this ‘J1’). So, if terrorism against, say, European targets by ISIS occurs chiefly as a reaction to European attempts to defeat ISIS, then the attempt to defeat ISIS can be justified in the first instance only if there is some other, independent reason for fighting it. The counter-terrorism justification for war against ISIS then arises only as a secondary cause (J2) once the group retaliates against European states, seeking vengeance and perhaps to deter further attempts to secure the primary cause (J1).

If there is a primary cause for war against ISIS, then I would suggest it is the other one cited by Cameron: collective defence on behalf of the Iraqi state and the people it is responsible for against a vicious, human-rights-violating movement that is attempting to subvert the former and colonize and violate the latter. Fighting ISIS on these grounds is arguably not only the right of the international community, but also at least a prima facie duty. If ISIS militants then launch terror attacks against the population of coalition members in order to try to deter them from intervening on behalf of the people ISIS threatens in the region, then it ought to be recognized, in the first instance, as one of the costs of trying to discharge that duty. Degrading the capacity of ISIS to inflict such costs then presents a secondary cause for targeting its members.

As I say, this analysis offers an answer to question (2): could a policy of targeted attack be justified in response to ISIS and, if so, what form should it take? My suggestion is that such a justification is possible. But whether the UK or the US presently satisfy the conditions for such a justification – whether in terms of isolated acts of defence against imminent threats or of a war against the threat of ISIS taken as a whole – would require access to comprehensive and detailed information that has not been made publicly available. We would need to know not only the identity and status of the actual targets, but also the nature of the operations undertaken against them, the intelligence that led them, the way it was interpreted and the manner in which decisions were reached about attacking them.

Footnotes & References

[1] For discussion of the legal issues raised by drones in particular, including those connected with ECHR, art. 2, see the report of the Birmingham Policy Commission: the Security Impact of Drones: Challenges and Opportunities for the UK, October 2014, chapter 3:

[2] On imminence, see Jeremy Waldron, ‘Civilians, Terrorism, and Deadly Serious Conventions,’ in his Torture, Terror and Trade-Offs: Philosophy for the Whitehouse, Oxford: Oxford University Press, 2010, p. 107. See also the Joint Committee of the UK House of Commons and House of Lords on Human Rights, ‘The Government’s Policy on the Use of Drones for Targeted Killing (Second Report of Session 2015-16)’, p. 8. For Common Law understanding of self-defence as it arises between individuals within a state and under rule of law, see Crown Prosecution Service (UK) legal guidance on ‘Self-Defence and the Prevention of Crime’ {} (accessed 23 April 2016). On the strains that recent cases where ISIS members have been targeted by the UK put on the common understanding of imminence, see Arabella Lang, ‘UK drone attack in Syria: legal questions,’ House of Commons Briefing Paper, no. 7332, 20th October 2015, especially pp. 10-11.

[3] For instance, the US Department of Justice White Paper on the lawfulness of ‘a lethal operation’ against US citizens in a senior position in al Qaeda (p. 8) argues that defining imminence has to take into account the fact that ‘certain members of al-Qa-idea (including any potential target of lethal force) are continually plotting attacks against the United States; that al-Qa’idea would engage in such attacks regularly to the extent that it were able to do so; that the U.S. government may not be aware of all al-Qa’ida plots as they are developing and thus cannot be confident that none is about to occur; and that, in light of these predicates, the nation may have a limited window of opportunity within which to strike in a manner that both has a high likelihood of success and reduces the probability of American casualties.’ To claim a threat was imminent, it is enough, the paper argues, that the target be known to have contributed to such threats in the past to presume, in the absence of any evidence to the contrary, that they’re probably still intent on such actions at present. For the White Paper, see:

But the word ‘imminence’ has clearly taken on a different meaning from the one we would use in a peacetime context or in a scenario such as that dramatized in Eye in the Sky. For criticism of the use of self-defence arguments in justification of US drone strikes, see Philip Alston’s remarks that, ‘if other states were to claim the broad-based authority that the United States does, to kill people anywhere, anytime, the result would be chaos’ (cited in Jonathan Masters, ‘Targeted Killings,’ Council on Foreign Relations, May 23, 2013 (at, viewed on October 1st, 2016).

[4] See the Statement of U.N. Special Rapporteur on U.S. Targeted Killings Without Due Process:

[5] Might a theory of liability to defensive attack be grounded in a theory of liability to punishment by arguing that someone is liable to the former only if they have acted wrongfully in such a way that in other circumstances they might rightfully be punished? This could help explain imminence: someone already engaged in an attack, albeit one that hasn’t yet done the intended damage, has already wronged the target and is therefore already culpable. Someone merely contemplating an attack or similar has not yet wronged anyone (or if they have, it has only been in a more abstract or less determinate or severe way that is less likely to merit severe punishment).

[6] See Christopher J. Finlay, Terrorism and the Right to Resist: a Theory of Just Revolutionary War, Cambridge: Cambridge University Press, 2015, p. 261.


[8] Christopher J Finlay, ‘Just and Unjust Wars in Syria: the Questionable Ethics of Bombing ISIS,’ Stockholm Centre for the Ethics of War and Peace: Ethical War Blog, February 16th, 2016:

[9] Joint Committee, ‘Government’s Policy,’ p. 5, with reference to the UK’s Permanent Representative to the UN, speaking on the 7th September 2015 about the killing of Reyaad Khan.

[10] Ibid.

[11] As late as March 2015, Graeme Wood could still find little interest within the leadership of ISIS and its international supporters in carrying their war to the USA or Europe: see Wood, ‘What ISIS Really Wants,’ The Atlantic, March 2015, pp. 78-94, at p. 90. But when ISIS claimed responsibility for the attacks in Paris in November 2015 and in Brussels in March 2016, it declared them to be revenge for participating in the coalition against its forces in Iraq and Syria: see Lizzie Dearden, ‘Isis claims responsibility for Brussels attacks ‘in revenge for Belgium’s role fighting militants in Syria and Iraq’ And as ISIS loses ground in battles over territory in Iraq and Syria, its determination to develop a capacity to strike at targets outside the region through terrorist attacks seems to be increasing. See, for instance, Martin Chulov, ‘Losing ground, fighters and morale – is it all over for ISIS?’ The Guardian:

Christopher Finlay
Christopher Finlay
Dr Christopher Finlay is Reader in Political Theory at the University of Birmingham where he teaches in the Department of Political Science and International Studies. Currently, he works chiefly on the theme of violence in political thought, ethics, and international political theory. His most recent book is Terrorism and the Right to Resist: a Theory of Just Revolutionary War (Cambridge University Press, 2015).
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Committee chairman Rep. John Conyers (D-MI) holds a House Judiciary Committee hearing on the George W. Bush presidency, called "Executive Power and Its Constitutional Limitation", on Capitol Hill in Washington, July 25, 2008.  REUTERS/Jonathan Ernst   (UNITED STATES) - RTX84D9A masked, black-clad militant, who has been identified by the Washington Post newspaper as a Briton named Mohammed Emwazi, brandishes a knife in this still image from a 2014 video obtained from SITE Intel Group February 26, 2015. Investigators believe that the masked killer known as "Jihadi John", who fronted Islamic State beheading videos, is Emwazi, two U.S. government sources said on Thursday. The British government and police refused to confirm or deny his identity, which was first revealed by the Washington Post, saying it was an ongoing security investigation.  REUTERS/SITE Intel Group/Handout via Reuters (CIVIL UNREST POLITICS CRIME LAW TPX IMAGES OF THE DAY) CONFLICT) ATTENTION EDITORS - THIS PICTURE WAS PROVIDED BY A THIRD PARTY. REUTERS IS UNABLE TO INDEPENDENTLY VERIFY THE AUTHENTICITY, CONTENT, LOCATION OR DATE OF THIS IMAGE. FOR EDITORIAL USE ONLY. NOT FOR SALE FOR MARKETING OR ADVERTISING CAMPAIGNS. THIS PICTURE WAS PROCESSED BY REUTERS TO ENHANCE QUALITY. AN UNPROCESSED VERSION WILL BE PROVIDED SEPARATELY - RTR4RBZV