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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The Brexit odd squad

The Brexiters are resilient and have the support of some unlikely foreign allies. Can they really topple the political establishment and lead Britain out of the European Union?

Look at the troops arrayed on the Leave and the Remain sides in the June referendum and you might think that our continued membership of the European Union is assured. On the side of staying in the EU are Britain’s four living prime ministers, the International Monetary Fund, the Treasury, most members of the Labour and Liberal Democrat parties, the Trades Union Congress, the Confederation of British Industry, the governor of the Bank of England, the head of the NHS, Britain’s three largest trade unions and the US president. Leave has Boris Johnson, Nigel Farage and the contested ghost of Margaret Thatcher.

Yet few expect the final result of Britain’s In/Out referendum to be as asymmetric as that roll-call would suggest. At the top of the pro-EU campaign Britain Stronger in Europe, there is no doubt: it could lose.

So what – and who – is responsible for the unlikely appeal of Brexit’s “odd squad”? And how do they work together when their side is so fractious and its big personalities seem so uninterested in teamwork?

The story begins on the morning of 20 February, when David Cameron summoned his cabinet to announce the results of his EU renegotiation and ask his ministers to support Britain’s continued membership of the Union. Those who did left by the front door; the six dissidents were asked to leave by the tradesman’s entrance.

Nipping out the back were the full cabinet members Iain Duncan Smith, Michael Gove, Chris Grayling, Theresa Villiers and John Whittingdale, plus the employment minister, Priti Patel, who has the right to attend cabinet meetings. They soon reconvened at Vote Leave’s headquarters, a nondescript tower block in Westminster, where they posed with a giant sign bearing the campaign’s slogan “Vote Leave, take control” – a sight more reminiscent of a group of local councillors vowing to protect a bus lane than the upper reaches of the British political class.

Then again, the cabinet Leavers are not, on the whole, an impressive bunch. Villiers and Grayling were among the casualties of the formation of the coalition government in 2010, moving from their briefs to make way for Lib Dems, and both had to be content with junior posts until the 2012 reshuffle. Since then, Villiers has been a competent if uninspiring operator in Northern Ireland. Grayling was widely held to be a failure at the Ministry of Justice and now serves as Leader of the House of Commons, historically the antechamber between full cabinet rank and the wilderness.

As for Whittingdale, he is that rare creature in Whitehall: a secretary of state for culture, media and sport who does not regard the post as a stepping stone to bigger things. As the recent white paper on the future of the BBC showed, the golden thread of his thinking is scepticism: towards the EU, the BBC and regulation of the press. He was Margaret Thatcher’s last political secretary in Downing Street and, after becoming an MP in the 1992 election, he set up meetings between the former prime minister and his fellow new boys from the 1992 intake – meetings that John Major blamed for fanning the flames of Eurosceptic rebellion in the dog days of his premiership.

Priti Patel also has impeccable Eurosceptic credentials. She cut her teeth as a press officer to the Referendum Party, set up in a doomed attempt to secure an In/Out referendum in 1997. Following William Hague’s election as Tory leader and the adoption of complete hostility towards the single currency, she joined the Conservative Party, becoming an MP in 2010.

She is best known for contributing to Britannia Unchained, a series of essays by Patel and four of her fellow 2010-ers (including Dominic Raab, widely expected to run for the Tory leadership next time). The book was intended to provide the intellectual ballast for a revivified Thatcherism, though the only part that attracted headlines was the claim that British workers were “among the worst idlers in the world”.

This dubious crew of ministerial heavyweights has grown marginally more likeable since Duncan Smith’s resignation as work and pensions secretary. Yet it is not his six-year tenure as a minister but his two-year stint as Tory leader that has left the biggest mark on the Brexit debate, with his former hires among the loudest advocates for a Leave vote – including the founding editor of ConservativeHome, Tim Montgomerie, now at Gove’s old newspaper the Times. (In the unhappiest periods of Cameron’s first term, when the Prime Minister was frequently criticised by Montgomerie in that newspaper, Cameroons would mutter about the irony that one of their sharpest critics had served as chief of staff to the least successful leader of the Conservative Party in its history.)

As for Michael Gove, though he is loved by lobby journalists, he remains a hate figure in the country at large and particularly among teachers, as a result of his belligerent tactics during his time as secretary of state for education.

***

The last of the senior Brexit-supporting Tories didn’t leave through the back door that morning because he hadn’t yet declared his position. That came the next day, in a media scrum outside his home in Islington, north London.

The former mayor of London Boris Johnson is still Britain’s most popular politician, surviving crises and scandals that would have left others dead in the water. He is also the only politician whom the Remain campaign truly fears. But Johnson is not a wholly congenial presence among Britain’s Brexiters. Although he is a far more adept planner than his dishevelled appearance – or his paper-thin record at City Hall – would suggest, he can be difficult to manage. His  weekly Telegraph column has largely been turned to cheerleading for Brexit but Vote Leave’s biggest gun doesn’t always point in the direction its chief strategists would like.

During Barack Obama’s visit to the UK in April, Johnson became embroiled in a war of words in which he suggested that the president had an ancestral dislike of Britain because of his “part-Kenyan” heritage. Having made this racially charged argument in the Sun, he extended the story needlessly by giving a similarly robust interview to the Daily Mail, much to the frustration of staffers at Vote Leave.

So there you have it. An unpopular firebrand, an unsuccessful former Tory leader, four relative nonentities and a blond bombshell who is considered clever but uncontrollable. It is less a huddle of Big Beasts than a grotesque menagerie – and these are among the sensible, mainstream voices on the Leave side. The other politicians who can get on to the Sunday shows to talk Brexit include Nigel Farage, who is adored by the four million people in Britain who voted Ukip in last year’s general election – and hated by the remaining 42 million. Yet he is a national treasure compared to George Galloway, formerly of Labour, who secured just 37,000 votes in the mayoral election. An unkind observer might say that none of the Brexit-backing politicians can stop traffic: half of them because they are unknown and the other half because most people would quite like to run them over.

There are also few compelling figures from business, sport, entertainment and science backing Brexit. Ian Botham is a rare celebrity Outer. “Cricket is a game where you achieve the greatest success when you are confident in your own ability to go out and stand proud,” he wrote in the Sunday Times. “Britain has that spirit.” In April, a slew of acts withdrew from a gig in Birmingham after finding out that it was organised by Leave.EU. Only Phats & Small, whose last hit was in 1999, refused to pull out.

Then there’s the infighting. To give just one example of the ongoing civil war, Vote Leave – the officially recognised campaign group for Brexit – believes Farage is so toxic to its cause that it regards his invitation to appear in a TV discussion alongside Cameron as an establishment stitch-up. “ITV has effectively joined the official In campaign,” said a Vote Leave statement to journalists on 11 May, written by Dominic Cummings, the campaign’s director. “There will be consequences for its future – the people in No 10 won’t be there for long.”

***

In the light of all this, why are the pro-Europeans so worried? Many feel that the current campaign is beginning to remind them of a nightmare year: 2011, when Britain voted decisively to reject electoral reform by moving from first-past-the-post to the Alternative Vote (AV). Around the time of the 2010 general election, polls had shown that Britain was in favour of the change by a 27-point margin. But on 5 May 2011, more than two-thirds of voters said No to AV, which ended up more than 35 points ahead.

What undid the Alternative Vote was a ruthlessly effective campaign against it – one that was almost completely fact-free. No2AV focused relentlessly on the cost of a new voting system; poster after poster made reference to its illusory price tag of £250m. “He needs bulletproof vests,” intoned one illustrated with a picture of a soldier, “NOT an alternative voting system.” Another came with a picture of a baby: “She needs a new cardiac facility, NOT an alternative voting system.”

As one veteran of the pro-AV campaign recalled recently: “It was impossible to fight. How do you repudiate it without repeating it? We never found a way.”

That appeal to economic interests was so powerful that Vote Leave has come up with a similarly memorable figure: the £350m weekly cost of Britain’s EU membership. This has been debunked by fact-checkers such as Full Fact, which estimates that the UK pays roughly £9.8bn a year once money back is taken into account. Regardless, Vote Leave keeps quoting the figure – and no wonder, because the chief executive of Vote Leave is also the architect of No2AV’s crushing victory: a 38-year-old LSE graduate called Matthew Elliott.

Despite Vote Leave’s anti-politics flavour, Elliott is a Westminster insider and well connected in the wonk world. He is the founder of the Taxpayers’ Alliance, the most high-profile of a close network of think tanks that are a proving ground for a rising generation of right-wingers. The Taxpayers’ Alliance, the Institute of Economic Affairs and the Adam Smith Institute together form what one alumnus jokingly calls a “Sorbonne for neoliberals”.

Much of Vote Leave’s staff is drawn from another Elliott creation: Business for Britain. The group was set up ostensibly to lobby for David Cameron to renegotiate Britain’s membership of the EU but was in reality designed as a Leave campaign in utero. Accordingly, many of its early recruits have ended up moving across.

Elliott is regarded as having a keen eye for talent and for being generous with his time. At each organisation where he has worked, he has taken care to bring on promising protégés. Alumni of the Elliott school include Susie Squire, who spent two years at the heart of Cameron’s administration as press secretary; Nick Pickles, head of UK public policy at Twitter; and Dylan Sharpe, the combative head of public relations at the Sun. Most of his favourite employees have three things in common: libertarian politics, a cut-throat instinct and loyalty to him personally. Those who have worked for Elliott largely speak highly of him.

The same cannot be said for the second leading player in Vote Leave who has the Remain side worried: Gove’s former henchman Dominic Cummings. David Laws – who, as a junior minister, worked closely with Cummings when he was at Gove’s Department for Education – describes him as a “grade-A political Rottweiler”. “As well as being bright,” Laws writes in his memoirs, “Dom Cummings was also blunt, rude, impatient and tactless.” According to friends of both, without Cummings’s encouragement, Gove would have been a mostly silent presence in the Leave campaign because of his close friendship with Cameron.

The former special adviser’s commitment to anti-Europeanism is a long-held one – his first job in politics was at Britain for Sterling, which lobbied against Britain joining the European single currency in the 1990s. Thereafter, he worked for Iain Duncan Smith during his brief and unhappy leadership. A former staffer from that time remembers him as an “abrasive presence”.

After Duncan Smith’s removal as Tory leader, Cummings retreated to his native Durham, where he helped to engineer victory for the No side in the referendum on whether to give the north-east its own devolved assembly. It was the tactics used in that referendum – an endless focus on costs, coupled with personal attacks on the credentials of the Yes side – which were taken on and extended by Elliott during the AV contest. Those tactics are once again on display in this referendum.

That partly explains why, on the Remain side, Cummings is respected and feared in equal measure. Yet his confrontational approach often proves his undoing: for instance, he understood the importance of giving a cross-party sheen to Vote Leave (not least to secure the official campaign designation), yet his conduct led to the departure of the Eurosceptic Labour MP Kate Hoey. “We live in a world where people get things by being nice to each other,” reflects a former colleague of Cummings, “and Dom doesn’t really work like that.”

Hoey’s walkout set the ball rolling on another, less dramatic exit: John Mills, Labour’s largest private individual donor and a Brexiter of many years’ standing. He feared the Vote Leave brand had become irrevocably Conservative. (Unlike Hoey, Mills remains on speaking terms with Vote Leave.)

Friends say that, for Elliott, who has been “planning this [campaign] for some time”, Cummings’s disposition is a price worth paying for his tactical nous. It was Cummings who was the architect of Vote Leave’s two-pronged strategy: claiming that the money we now pay to the EU could go towards the NHS, and suggesting that Brexit will allow us to cut immigration by “regaining control of our borders”.

The perceived cut-through of the latter message with older Labour voters was behind Vote Leave’s big tactical gamble. On 8 May, an official statement by the campaign declared that leaving the EU would also entail leaving the single market.

That decision is unlikely to find favour with big businesses that rely on international trade but it does allow Vote Leave to make strong and unambiguous claims about cutting immigration. If we are outside the European Union but inside the single market (as Norway is), we would have to accept free movement of labour. If we leave the single market, however, we could introduce a points-based entry system, or even finally achieve Cameron’s otherwise impossible cap on net migration.

Upset business but win over small-C conservative voters: it’s a big risk for the Brexiters to take. It represents a throw of the dice by Cummings, who sidelined Nigel Farage precisely in order to minimise the campaign’s focus on immigration. But with the vote scheduled to take place on 23 June and a repeat of last year’s refugee crisis in the Mediterranean looming, security and borders are likely to be at the forefront of voters’ minds. For all that those on the Brexit side have denounced Cameron for running a repeat of “Project Fear”, they know that they have to make change less terrifying than maintaining the status quo.

***

In their quest to take Britain out of the EU, the Brexiters have a simple, if high-stakes, strategy. They want to appear to be the underdogs (hence their repeated complaints about the government’s £9m pro-EU leaflet) and as a scrappier, grass-roots campaign taking on the might of the establishment. Naturally, this image doesn’t reflect an unvarnished truth: the press has been largely onside and senior editors and columnists are very willing to take Vote Leave’s calls.

There is also no concern about keeping the lights on. Arron Banks, the insurance magnate who bankrolled Ukip at the 2015 general election, might have refused to fund Vote Leave after it triumphed over his favoured vehicle, Leave.EU – he has called Matthew Elliott “Lord Elliott of Loserville” and threatened to sue the Electoral Commission for naming Vote Leave the official voice of Brexit – but insiders say that the campaign’s financial position is nothing to worry about.

If Vote Leave wins, it will have scored an extraordinary victory – and, it should be noted, defied the hopes of most of our allies in the rest of the world. The politicians backing Britain’s continued membership of the EU include not just Barack Obama but his likely successor, Hillary Clinton, as well as the prime ministers of Canada, New Zealand and Australia.

There is a vanishingly small number of international politicians who back Brexit. Like the inner core of Vote Leave, they are overwhelmingly drawn from the right-wing fringe – US Republicans such as Ted Cruz and Donald Trump and the French National Front leader, Marine Le Pen, who, unhappily for the Brexiters, is expected to visit Britain to support their case.

The only foreign leader who seriously supports a British Leave vote in June is a man praised by Nigel Farage and whose country Dominic Cummings spent several years working in: Vladimir Putin, who, as far as British voters are concerned, is even more toxic than Farage, Galloway or Gove.

When Britain’s odd squad looks abroad for allies, its options are few – but this ragtag collective is far from beaten. 

Stephen Bush is special correspondent at the New Statesman. He usually writes about politics. 

This article first appeared in the 26 May 2016 issue of the New Statesman, The Brexit odd squad