Before I start, a question: do we really need an article explaining why it’s OK to take out members of a powerful, clerical fascist militia that’s terrorising several countries?
It seems we do.
In my first piece for Conservative for Liberty (which you can read right here) I set out why I was a Conservative, and why I felt a staunch belief in individual liberty was fundamentally compatible with Conservatism.
But as a liberty-conscious chap, I think that killing ISIS fighters is fine. I also think that coming out against doing so makes both liberals and the things liberals cherish – like human rights, and so on – look utterly ridiculous.
The basic liberal argument against taking out terrorists as I understand it is that ISIS, much like Somali pirates and the IRA before them, aren’t a state. Thus we can’t declare war on them, and so the formal rules of war don’t apply.
Therefore, the thinking goes, we should treat them as ordinary criminals, not combatants. They have the right to a fair trial, a jury of their peers, and so on.
They might have gone to Syria and started posing with AK 47s in ISIS-controlled territory, but the standard of proof for criminal cases is “beyond reasonable doubt”. Can we be sure that they weren’t, for example, “in Syria to work on their tan or on an unfortunately-timed trip to the Palmyra Visitors’ Centre”?
Isn’t our failure to grant them the full protection of British law, just because they’re in Syria, nothing more than an updated version of the “it’s different in Africa” justification used to justify the murder of Mau Mau prisoners in British Kenya in the past?
No. The answer is no.
There’s a fundamental, qualitative difference between killing terrorists in a combat situation and doing so once they’re in custody (as was the case with the Mau Mau). In the latter instance, the suspect is under our control and has been made safe. There is no reason the law should not proceed normally.
But an ISIS fighter in a warzone, or a pirate vessel in the Gulf of Aden, is not in our custody. They’re armed and actively engaged in an act of terror. Killing in those circumstances parallels much more closely with the police shooting an armed criminal who poses a threat to others.
That’s an area in which we grant the security forces operational discretion. Investigations may be conducted and even charges levelled after the fact, but the presumption of innocence rests with those upholding the law, not the armed criminals.
How would a trial for the likes of Reyaad Khan and Ruhul Amin even work? They obviously wouldn’t be present to hear the charges or defend themselves – a further grotesque violation of British justice! Perhaps we could have the drones delivering court summons.
The burden of evidence placed on the Crown in a criminal trial – “beyond reasonable doubt” – is deliberately very heavy. But it’s designed for circumstances where the police and prison system can make sure a suspect is no threat to the public and perform a thorough investigation.
Syria is not a theatre in which British law enforcement can operate. We can’t arrest these men, nor can we interview their victims or collect DNA samples from the scenes of their crimes.
And forget complaints about extra-judicial execution – our legal system hasn’t permitted judicial execution for any reason, including treason, since 1998. The European Convention on Human Rights forbids it.
So even a guilty verdict – which would be very hard to secure – wouldn’t actually justify a drone strike unless that drone was delivering a prison sentence. Perhaps we could equip them with cages, or lassos.
The court could licence the use of lethal force against an ISIS fighter, of course, but as that isn’t required to take down a school shooter or bank robber the result is that we’d be giving the warriors of a religious army greater legal protections than ordinary armed criminals on our own shores
How’s that for “but it’s different in Syria”?
Drone strikes haven’t been adopted as an alternative to arresting and trying these people. They’ve been adopted as an alternative to doing nothing.
That, really, is what the people piously invoking Magna Carta and Human Rights really need to clarify. Yes, it would be lovely if we could treat ISIS militiamen as ordinary criminals, bring them in quietly and lock them up.
But if we can’t do that – and let’s be clear, in this instance we can’t do that – what should we do?
In way too many instances, I get the impression that the answer is either “nothing” or some vacuous nonsense about “peace”.
This is of a piece with the liberal fixation of applying things like human rights in wildly excessive and inappropriate ways – a phenomenon skewered on CfL here – which has caused the words “human rights” to be held in such contempt by so much of the public.
Most people are far too sensible to buy for one moment that every member of ISIS needs a jury trial before we kill them. Insisting otherwise makes us, our beliefs and our hallowed documents look ridiculous, nothing more.
I’m not the cheering sort. But if word comes that a drone has taken out Mohammed Emwazi – aka ‘Jihadi John’, that guy from the beheading videos – I will be smiling.