Taking On The State

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Experienced lawyers will tell you, you can’t really call yourself a litigator until you’ve won the unwinnable case, and lost the un-loseable. I’ve had more than my share of hopeless cases, with varying results, but here’s one even I wouldn’t like to take on.

Earlier this week the British Prime Minister David Cameron revealed the UK government used an RAF drone strike in Syria to kill two British Islamic State militants, one of whom was said to be orchestrating ‘specific and barbaric attacks against Britain’, including an atrocity at an event attended by the Queen. In the very week Her Majesty became Britain’s longest-ever serving monarch, the revelation sparked understandable alarm and outrage on the streets of London, with the Daily Mail’s front page headline typical of the tabloid reaction – “They Got What They Deserved.”

David Cameron assured Brits that the strike was “the only feasible means” of disrupting terror attacks being planned at a string of public events in the UK, including the 100th anniversary commemoration of the Anzac landing at Gallipoli in April.

But now some British commentators are predicting the families of the executed IS fighters Reyaad Khan and Ruhul Amin could sue the Government for millions of pounds in compensation, claiming the attack could be seen as an unlawful execution. Kate Hudson of the Campaign for Nuclear Disarmament has called it an “extra-judicial killing”, and the Ex-Conservative Attorney General Dominic Grieve has called the strikes “draconian”, adding he expects the terrorists’ families to take legal action.

Good luck. Under Article 51 of the UN Charter a state is entitled to defend itself, and the British Prime Minister contends there was clear evidence the targets were ‘planning and directing armed attacks’ against the UK. He asserts the Government acted in self-defence, claiming the strike was both necessary and ‘proportionate.’

He’s refused to publish details of the legal advice justifying the strike and, given the later-discredited WMD intelligence that led Britain into the Iraq War, it’s fair to say there is a level of both scepticism and discomfort about British citizens being executed on the basis of undisclosed evidence. But given the application by British courts of the UK’s Official Secrets Act, and the blanket exemption of UK Intelligence Agencies from Freedom of Information legislation, there’s not much chance the families are going to see any of that ‘clear evidence’ relied on for the strike any time soon.

Sounds like this case may lean towards the unwinnable end of the scale.

Chris Nyst

Gold Coast Lawyer, Novelist and Film Maker

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