Mourners carry the body of a father killed by a drone strike in Gaza. Photograph: Getty Images
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Drone attacks go against every human rights principle in the book

There is a sense that international law has failed.

It has for centuries been lawful to kill enemy commanders, on the principle that “a man who is dead renews no war”, a thought that comforted Cromwell as he viewed the body of Charles I. The outcry in the 1970s over comical CIA plots to murder Fidel Castro by sending him exploding cigars and poison pens led Congress to ban political assassinations under Executive Order 12333: “No person employed by or acting on behalf of the United States government shall engage in, or conspire to engage in, assassination.” This comports with the Fifth Amendment to the US constitution, which protects “any person” (not just US citizens) from being “deprived of life . . . without due process of law”.

Until 9/11, the legal position was clear: in war, active combatants could kill and be killed, subject to rules governing surrender, use of banned weapons, etc. But “war law” applied only to conflicts between armed forces of opposing states, invoking the right of self-defence. Confrontations with insurgents, rioters and terrorists were governed by human rights law, which requires state use of force against serious criminals to be reasonable in the circumstances. This is more restrictive – after three IRA bombers were shot dead on Gibraltar in 1988, the European Court held that the UK had denied them the right to life because MI5 had jumped to mistaken conclusions. In the case of known members of terrorist organisations, the “reasonable force” requirement exercises a necessary and humane restraint over the trigger-happiness of “special forces” and drone targeters. This is why the US, Russia and Israel pretend they are bound only by the law of war, which allows suspects to be killed without much compunction.

The states that deploy drones argue that they are operating under war law, where human rights are less relevant. As Harold Koh, legal adviser to the US state department, puts it: “The US is in an armed conflict with al-Qaeda . . . and may use force consistent with its inherent right to self-defence . . . including by targeting persons such as high-level al-Qaeda leaders who are planning to attack us.” This bald statement prompts many questions. How can you have “an armed conflict” without an enemy state? What criteria are used for putting names on the secret death list: is it enough to be sympathetic to terrorism, married to a terrorist, or anti-American? To provide shelter or give funds to terrorist groups? What is the required degree of proof? There are no accountability mechanisms – no inquests, sometimes not even a casualty list (although the US usually announces and celebrates when it hits a “high-value target”).

In drone warfare, there is no fairness or due process to enable the potential victim, his relatives or any outside body to challenge the accuracy of the information on which the targeting decision has been made. The Senate foreign relations committee reported in 2009 that the Pentagon’s approved list of “prioritised targets” contained 367 names and had been expanded to include 50 Afghan drug lords suspected of donating money to the Taliban. Suppose the suspicion was unreasonable, or the donation had been at gunpoint, or of a negligible amount? What the Pentagon is doing is secretly sentencing people to death for an unproven crime.

The Israeli Supreme Court is the only tribunal to have confronted the legality of targeted kill­ing, at a time (2008) when 234 victims had been members of Hamas and a further 153 had been civilians who got in the way. The court contented itself with comments about limiting the targets to dangerous terrorists and issued Polonius-like precautionary precepts: “well-based information is needed”; “innocent civilians are not to be harmed”; “careful verification is needed before an attack is made”. In reality, innocent civilians very often are killed, and “verification” always seems careful to the minds of the targeters.

Israeli officials seem morally content to risk civilian lives: after a one-tonne bomb was dropped on Gaza City in 2002, killing many civilians in order to assassinate the Hamas military leader Salah Shehadeh, an inquiry merely noted “shortcomings” in evaluation of information. This was a case of manslaughter by gross negligence. The CIA’s anxiety to kill the al-Qaeda leader Ayman al-Zawahiri led to a drone attack in 2006 on a village in Pakistan where he was mistakenly thought to be hiding, and 18 civ­ilians were killed. There was no explanation, no accountability and no compensation for what the CIA calls a “decapitation strike”.

Koh says that drone strikes are an exercise in self-defence under Article 51 of the UN Charter. But Article 51 applies only to attacks (or imminent attacks) by other states, not by terrorist groups. Nobody has yet noticed the irony of squeezing terrorism into this war-law paradigm. Because the Geneva Conventions and customary rights must apply to terrorist and law enfor­cer alike, if it is lawful to kill Osama Bin Laden, al-Zawahiri and Hamas commanders, then it must be lawful for them to kill their opposite numbers – Barack Obama and Binyamin Netan­yahu, generals, allies. (Even the Queen, as head of a co-belligerent state, may qualify.) Those who take the lives of innocent civilians in order to spread terror deserve to be treated like dangerous criminals and shot down when necessity requires, not dignified in law as if they were warriors matched in combat with great states.
What is the position under human rights law? It would obviously be a breach of the right to life if terrorist sympathisers were targeted to deter others, or killed in circumstances where it was possible to arrest them. It would be reasonable to kill terrorists on missions to blow up civilians, or engaged in conspiracies to kill them. But the record of drone attacks demonstrates that often individuals are targeted when they constitute no clear or present danger.

Drone killings in tribal areas of Pakistan and in Yemen have taken the lives of targets who are armed and in conspiratorial meetings, but others have merely been attending weddings or funerals or emerging from hospitals or mosques. In Pakistan, there have been cases where pro-government leaders, their families and even army soldiers have been killed by mistake in drone attacks that have severely damaged US relations with a politically tense, nuclear-armed nation that is not at war with the US.

There was little protest in the US until last year, when a drone strike in Yemen targeted a US citizen, Anwar al-Awlaki, rumoured to be al-Qaeda’s leader in that area. The rockets were fired at his pick-up truck, in which he might have been picked up rather than bombed. Obama’s lawyers said that the Fifth Amendment could not avail a US citizen who joined an enemy force. This is correct as far as it goes, but the Fifth Amendment must entitle a citizen or his family to know whether he is on a death list and to apply to have himself taken off it. When al-Awlaki’s father sought judicial review, the judge told him he did not have standing. If a father does not have standing to challenge a targeted killing, who does?

The Obama administration seems to have given the CIA carte blanche to choose targets, subject to the approval of Koh, a law professor, now an executioner. Those who press the Hellfire buttons in Nevada do not pause to consider whether their targets are engaged in combatant missions or not. But there is no point speculating about the criteria for listing or executing: these are secret CIA prerogatives, beyond the jurisdiction of the courts or the provisions of the Freedom of Information Act.

The battlefield utility of drone technology is such that it will be used widely in future conflicts, and by states much less scrupulous than the US and Israel (Syria and Iran, for example). Drones will become more compact, and more difficult to detect or shoot down – already there are plans for bird- and even insect-sized drones, capable of crawling inside homes or squatting on window ledges to listen and send “kill” messages to their bigger brethren without any “pilot” in Nevada pressing a button.

There is an urgent need for the US to make its drone operations more principled, first, by moving responsibility from the CIA to the department of defence, which is more accountable and bound by the Geneva Conventions. Second, there must be transparency in respect of both the target list and criteria for listing, and an opportunity for those listed to surrender or seek judicial review of whether the evidence against them proves they are an active combatant. Third, rules of engagement must exclude any killing if civilians are likely to be present, and finally, rules must prevent killing of a target who can be captured or arrested.

There is a sense that international law has failed: the UN Charter, the conventions and the norms of the courts have not provided satisfactory guidance for waging asymmetric warfare. Hence the silence of states and the recent earnest request, by the UN’s human rights commissioner, for urgent clarification of the law. The way forward may be to find a way back, to reasonable force and proportionality. At present, many drone killings can only be described as summary executions – the punishment of the Red Queen (“sentence first, trial later”), which denies the right to life, the presumption of innocence and the right to a fair trial.

Geoffrey Robertson QC’s full legal analysis of drone warfare is in his fourth edition of “Crimes Against Humanity” (Penguin, September 2012). Also in the New Statesman's Drones issue: Chris Woods on the legality of drones, Jemima Khan's interview with former Pakistani president Pervez Musharraf and Michael Brooks on the science that makes drones work

This article first appeared in the 18 June 2012 issue of the New Statesman, Drones: video game warfare

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Happiness is a huge gun: Cold War thrillers and the modern nuclear deterrent

For all that books and films laud Britain's strength, ultimately, they show that our power is interdependent.

Francisco “Pistols” Scaramanga, the ­assassin for hire in Ian Fleming’s 1965 James Bond novel, The Man With the Golden Gun, has invested more than money in his favourite weapon. Bond’s colleagues in the Secret Service have concluded from Freudian analysis that Scaramanga’s golden gun is “a symbol of virility – an extension of the male organ”. It is just one of many phallic weapons in the Bond saga. In Dr No, for instance, Bond reflects on his 15-year “marriage” to his Beretta handgun as he fondly recalls “pumping the cartridges out on to the bedspread in some hotel bedroom somewhere around the world”. Objectively speaking, guns comprise little more than highly engineered metal and springs, but Fleming invests them with an ­extraordinary degree of psychosexual significance.

Size matters in the Bond novels – a point made by a furious Paul Johnson in a review of Dr No for this paper in 1958 (“everything is giant in Dr No – insects, breasts, and gin-and-tonics”). One of the Bond stories’ biggest weapons is a rocket carrying an atomic warhead: the Moonraker, which gives its name to the third Bond novel, published in 1955. The most important thing about the Moonraker is that it is apparently British – a gift to a grateful nation from the plutocrat Sir Hugo Drax. And, like Bond’s Beretta, it is freighted with psychosexual significance. When Bond first lays eyes on it there is no doubt that this is an erotically charged symbol of destructive power. “One of the most beautiful things I’ve ever seen,” Bond says, with a “rapt expression”:

Up through the centre of the shaft, which was about thirty feet wide, soared a pencil of glistening chromium [. . .] nothing marred the silken sheen of the fifty feet of polished chrome steel except the spidery fingers of two light gantries which stood out from the walls and clasped the waist of the rocket between thick pads of foam-rubber.

The guns in the Bond books can be seen as expressions of their bearer’s power – or, as with Scaramanga’s golden gun, compensation for a lack of virility. The Moonraker is equally symbolic, but on a far larger scale: an expression of a nation’s geopolitical power, or compensation for its impotence.

As what is known officially as Britain’s independent nuclear deterrent (“Trident” to everyone else) returns to the top of the political agenda, the cultural dimension of the debate will no doubt continue to be overlooked. Yet culture matters in politics, especially when the issue is a weapon. As the guns in the Bond novels remind us, weapons are not merely tools, they are also symbols. Trident is not just a system comprising nuclear warheads, missiles and four Vanguard-class submarines. Its symbolic meanings are, to a great extent, what this debate is about. Trident stands for Britain itself, and it does so for different people in different ways. Your opinion on whether to cancel or replace it depends to a great extent on what kind of country you think Britain is, or ought to be.

The Cold War British spy thriller is particularly topical because it developed in tandem with Britain’s nuclear programme through the 1950s and 1960s. Moonraker was published just weeks after Churchill’s government announced its intention to build an H-bomb in the 1955 defence white paper, and three years after Britain’s first atomic test on the Montebello Islands, Western Australia. These novels drew on technological reality in their plots concerning the theft of nuclear secrets or the proliferation of nuclear technology, but they influenced reality as well as reflected it, with stories of British power that helped create Britain’s image of itself in a postwar world.

The main theme of the genre is the decline of British power and how the country responded. Atomic or nuclear weapons serve this as symbols and plot devices. Len Deighton’s debut novel, The Ipcress File (1962), for instance, concerns a plan to brainwash British scientists to spy for the Soviet Union, and has as its centrepiece an American neutron-bomb test on a Pacific atoll, observed by a British double agent who is transmitting Allied secrets to an offshore Soviet submarine. The novel’s technical dialogue on nuclear technology, and its appendices providing a fictionalised account of the Soviet Union’s first atomic bomb test and a factual explanation of the neutron bomb, are in the book not merely for verisimilitude: Deighton’s British spies are observers or victims of the nuclear arms race between the US and the USSR, agents with remarkably little agency.

A more dour variation on the theme is John le Carré’s The Looking Glass War (1965), in which the prospect of obtaining information on Soviet nuclear missiles in East Germany provokes “the Department”, a failing military intelligence organisation, to try to regain its wartime glory with an intelligence coup. This hubris leads to tragedy as its amateurish operation unravels to disastrous effect, le Carré’s point being that military and economic might cannot be regained through nostalgic wish-fulfilment. These novels situate British decline in the context of superpower domination; their characters recall the technological and operational successes of the Second World War but seem unable to accept the contemporary reality of military and geopolitical decline. For Deighton and le Carré, Britain simply doesn’t matter as much as it used to, which is why, in le Carré’s later Smiley novels and Deighton’s Game, Set and Match trilogy (1983-85), the spymasters are so desperate to impress the Americans.

Fleming is usually seen as a reactionary, even blimpish writer – his England was “substantially right of centre”, Kingsley Amis remarked – and he signalled his own politics by making a trade unionist the ­villain of his first novel, Casino Royale (1953). So it might seem surprising that he was as concerned as his younger contemporaries Deighton and le Carré with British decline. The historian David Cannadine, for one, emphasises that although Fleming may have been aghast at certain aspects of postwar change such as the welfare state and unionisation (opinions that Bond makes no secret of sharing), he simply refused to believe that Britain was in decline, a refusal embodied in Bond’s very character.

Bond the man is more than the “anonymous, blunt instrument wielded by a ­government department” that Fleming described to the Manchester Guardian in 1958. He is an expression of the British state itself, demonstrating Britain’s toughness while besting its enemies – the Russian agents of SMERSH and, later, the international criminals and terrorists of SPECTRE. He is supported by a formidable apparatus of technological and logistical capability that mythologises British research and development, which had peaked during the Second World War (a point made more obviously in the film franchise when Fleming’s Armourer becomes the white-coated Q, heir to Barnes Wallis and the ingenious technicians of the Special Operations Executive). And, as Cannadine astutely observes, “this comforting, escapist theme of Britain’s continued pre-eminence” is most evident in Bond’s relationship with the United States. The Americans may have more money, but they cannot spy or fight anywhere near as well as Bond, as is made plain when the hapless Felix Leiter, Bond’s friend in the CIA, literally loses an arm and a leg to one of Mr Big’s sharks in Live and Let Die (1954).

Moonraker, however, exposes a more complex and sceptical side to Fleming’s Bond. It is significant that this emerges in a book that is explicitly about Englishness and the Bomb. The rocket is being built atop another symbol: the white cliffs of Dover, prompting some surprisingly lyrical passages on the beauty of South Foreland coast. And yet, though replete with emblems of English tradition and bursting with hatred of ugly, evil-minded foreigners, this novel has an unmistakable political subtext that undermines its apparent confidence in British power. Drax, it turns out, is a patriot – but a patriot of Nazi Germany, which he had served as an SS officer and plans to avenge with a missile that is pointing not, as everyone believes, at a test site in the North Sea, but at central London, the intended Ground Zero being a flat in Ebury Street, Belgravia (the location, incidentally, of Fleming’s own bachelor pad in the 1930s and 1940s). The missile has been designed and built by engineers from Wernher von Braun’s wartime rocket programme, and its atomic warhead has been generously donated by the Soviet Union, which is looking to bring Britain to its knees without having to go through the rigmarole of fighting a war.

The Moonraker, we are told repeatedly, will restore Britain to its rightful place at the global top table after its unfortunate postwar period of retrenchment and austerity. But the rocket is not British, except in being built on British soil, and the aim of the man controlling it is to destroy British power, not project it. The implication is that Britain is not only incapable of looking after its own defences, but also pathetically grateful for the favours bestowed on it. After the missile is fired, its trajectory diverted by Bond back to the original target (thereby fortuitously taking out a Soviet submarine carrying the fleeing Drax), the government decides to cover it all up and allow the public to continue believing that the Moonraker is a genuinely British atomic success.

One of the ironies of the Bond phenomenon is that by examining the myths and realities of British hard power, it became a chief instrument of British soft power. Of the first 18 novels to sell over a million copies in Britain, ten were Bond books, and Moonraker (by no means the most successful instalment of the saga) was approaching the two million mark 20 years after publication. The film franchise continues to offer Cannadine’s “comforting, escapist” image of Britain (the two most recent pictures, directed by Sam Mendes, are especially replete with British icons), but the novels are altogether more uncertain about Britain’s role in the world. Moonraker is full of anxiety that the myth of British power is nothing more than a myth, that Britain lacks the industrial and scientific wherewithal to return to greatness. It even conjures up an image of the apocalypse, reminding readers of the precariousness of those cherished British values and institutions, when the love interest, the improbably named Special Branch detective Gala Brand, imagines the terrible consequences of Drax’s plan:

The crowds in the streets. The Palace. The nursemaids in the park. The birds in the trees. The great bloom of flame a mile wide. And then the mushroom cloud. And nothing left. Nothing. Nothing. Nothing.

***

Even though their plots ensure that apocalypse is averted, Cold War thrillers thus made their own contribution to forcing us to imagine the unimaginable, as did more mainstream post-apocalyptic novels such as William Golding’s Lord of the Flies (1954), Nevil Shute’s bestseller On the Beach (1957) and The Old Men at the Zoo (1961) by Angus Wilson. In Desmond Cory’s Shockwave, first published in 1963 as Hammerhead and featuring the Spanish-British agent Johnny Fedora (whose debut preceded Bond’s by two years), Madrid is saved from destruction by a nuclear bomb that the Soviet master spy Feramontov almost succeeds in delivering to its target. As he contemplates his objective, Feramontov muses that, in the “bomb-haunted world of the Sixties”, death in a nuclear fireball “might even come as a release, like the snapping of an overtautened string; and after the rains of death had flooded the Earth, those who survived in the sodden ruins might think of him as a benefactor of the race”.

But where the post-apocalyptic dystopias might be viewed as an argument for nuclear disarmament, later Cold War thrillers such as Cory’s usually accepted the fact of mutually assured destruction – and that British peace and prosperity were guaranteed by US nuclear firepower. Nowhere is this more apparent than Frederick Forsyth’s 1984 bestseller, The Fourth Protocol, which turns the Labour Party’s famously unilateralist 1983 election manifesto into a uniquely party-political espionage plot. In it, the general secretary of the Soviet Union conspires with the elderly Kim Philby to smuggle into Britain a small, self-assembly nuclear bomb that a KGB “illegal” will put together and ­detonate at a US air force base in East Anglia.

Unlike in Moonraker and Shockwave, however, the objective is not to provoke hostilities or prompt military capitulation, but to persuade the British public to vote Labour – by provoking horror and outrage at the risks of US nuclear weapons remaining on British soil. However, the new and moderate Labour leader, Neil Kinnock, will have a scant few hours in Downing Street, as a hard-left rival under Soviet control (such as a certain Ken Livingstone, whom Philby describes as “a nondescript, instantly forgettable little fellow with a nasal voice”) will at once usurp Kinnock and reinstate a policy of unilateral disarmament, leading to the removal of the US missiles.

The ideological force of Forsyth’s novel is clear enough: Britain is beset by enemies within and without, and must arm itself morally and politically against communism. But although this is an insistently, even tiresomely patriotic novel, its plot makes no attempt to conceal Britain’s relative military weakness and dependence on the United States, though disaster is averted by the combined brilliance of MI5, MI6 and the SAS. The Fourth Protocol thus becomes an allegory of this country’s world-leading “niche capabilities”, which maintain Britain’s prestige and relevance despite its declining military and economic might.

Today, the political argument remains on much the same terms as at the start of the Cold War. Whichever way you look at it, Trident symbolises Britain. To its supporters, it is symbolic of Britain’s talent for “punching above its weight”, and its responsibility to protect freedom and keep the global peace. To its opponents, it is an emblem of economic folly, militaristic excess, and a misunderstanding of contemporary strategic threats; it is an expression not of British confidence but of a misplaced machismo, a way for Britons to feel good about themselves that fails to address the real threats to the nation. One academic, Nick Ritchie of York University, argues that Britain’s nuclear policy discourse “is underpinned by powerful ideas about masculinity in international politics in which nuclear weapons are associated with ideas of virility, strength, autonomy and rationality”.

In 1945, shortly after Hiroshima became a byword for mass destruction, George ­Orwell predicted in his essay “You and the Atom Bomb” that nuclear weapons would bring about what he was the first to call a “cold war”. Because an atomic bomb “is a rare and costly object as difficult to produce as a battleship”, it could be produced at scale only by countries with vast industrial capacity; this would lead to the emergence of two or three superpowers, confronting each other in a “peace that is no peace”.

Orwell’s point about industrial capacity helps explain why Trident is totemic: it is proof that our industrial might has not entirely vanished. Alternatively, it can be seen as a consolation for industrial decline. This may be why the huge cost of the Successor programme – one of the main arguments wielded by Trident’s opponents against replacement – appears to be a source of pride for the government: the Strategic Defence and Security Review proclaims that, at £31bn, with a further £10bn for contingencies, Successor will be “one of the largest government investment programmes”.

Clearly, size matters today as much as it did when Fleming was writing. But Moonraker again helps us see that all is not what it seems. Just as the Moonraker is a German missile with a Soviet warhead, even if it is being built in Kent, so the missiles carried by the Vanguard-class submarines are, in fact, made in California, Britain having given up missile production in the 1960s. The Trident warheads are made in Berkshire – but by a privatised government agency part-owned by two American firms. Trident may be British, but only in the way Manchester United or a James Bond movie are British.

The Cold War spy thriller presciently suggests that true independence is an illusion. Britain may consume the most destructive weapons yet invented, but it can no longer produce them or deliver them without America’s industrial might. British power is interdependent, not independent: that is the Cold War thriller’s most politically prescient message.

Andrew Glazzard is a senior research fellow at the Royal United Services Institute and the author of “Conrad’s Popular Fictions: Secret Histories and Sensational Novels” (Palgrave Macmillan)

This article first appeared in the 21 July 2016 issue of the New Statesman, The English Revolt