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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View from Paisley: How the Conservatives are wooing Labour's Scottish heartlands

Not so long ago, Conservative activists in Paisley could expect doors slammed in their faces. A referendum has changed that.

Tony Lawler, a Labour activist, was recently knocking on doors in the Scottish town of Paisley, when he came across a disgruntled resident. “I’m really disappointed in Douglas Alexander,” the potential voter complained. “I haven’t seen him. He used to be in Morrisons.”

Douglas Alexander, of course, has gone. He was the longstanding Labour MP and onetime International Development secretary who lost his seat in 2015 to a 20-year-old rival, the Scottish National Party’s Mhairi Black. He does not plan to stand again. But when I visit Paisley, a short train ride from Glasgow, I find that memories of him linger on. 

Two years after Alexander’s defeat, I meet Lawler and other local Labour activists in Morrisons, where Alexander used to hold his surgeries. As checkouts beep and trolley wheels roll over linoleum, they point to an empty table in the corner of this hallowed ground: “He used to sit just there.”

In 2015, the SNP’s victory in this former manufacturing town seemed to epitomise the earthquake in Scottish politics. But as the Labour activists know too well, no political fortress is undefeatable. And in Paisley, the home of one of the oldest workers’ festivals in the world, the party with the most to gain is one that previously never dared to canvass in the high street – the Conservative party. 

The town the Brexiteers forgot

In 1988, the historian Sylvia Clarke reflected on Paisley’s lost industries, wondering what was next for the former weaving towns. “Paisley as a tourist centre?” she wondered, in Paisley: A History. “Paisley as a place for visitors to come to, rather than a send-out of goods and emigrants?” 

For all Paisley’s industrial decline, it’s a pretty place. The town is in the running for the 2021 City of Culture, and has the second biggest number of listed buildings after Edinburgh. When I visit in the middle of April, blossom floats on the trees, and a river meanders through a neighbourhood of old, stone houses. It takes a moment to notice weeds tightening their grasp on the window frames. When I try the door of the ancient Paisley Abbey, it’s locked.

Perhaps if Paisley had been located the other side of the border, in Sunderland or Northumbria, it would be voting Leave and flirting with Ukip. But in the most deprived areas here, Labour activists tell me the EU referendum tally was still almost 50-50, and overall the town voted Remain.

There is a view that Brexit is an English concern. “We haven’t picked up anything about the EU referendum,” says Lawler of his doorstep conversations. “What people are talking about is the independence referendum, Jeremy Corbyn and the kids’ ward.” Scotland’s health secretary, Shona Robison, is due to make a decision on whether the specialist ward should be moved to a large hospital in the First Minister’s Glasgow constituency, against the wishes of many Paisley residents. The hospital in question is nicknamed “the Death Star”.  

Another concern, reminiscent of small towns across the UK, is the decline of the high street. When I walk down the historical shopping area Causeyside Street, I find mother and daughter Kate and Linda Hancy packing up what remains of The Pattern Café and Gift Shop. The wallpaper is a glorious Paisley print, but the scented candles are in boxes and a spray soap bottle hangs from a chair. After two years of trying, they are closing down.  

“People just don’t have money to spend,” Kate says. “A lot of people have been on the same wage for more than five years.”

Linda chimes in: “The cost of living going up but wages aren’t the same. I work in a supermarket, and people come in and say ‘How did I spend this much money?’ A lot of people are paying by credit cards.”

The Hancys voted to remain in the UK, and the EU. Although they knew Alexander, they have never met Mhairi Black, and feel devolution, if anything, has made politicians less accountable. “Why are we picking 1,2,3,4,” demands Kate, referring to Holyrood's voting system, which rejected first past the post. “Why can’t we pick one like we used to?”

Without the EU to blame, the most obvious culprits for Paisley town centre’s decline are the out-of-town shopping centres, where cinemas are opening just as historical ones in town close their doors.

Gavin Simpson, owner of Feel the Groove, a new record shop, remembers the 1980s, when a new release would have shoppers queuing round the block. However, he believes the town is over the worst. (As we speak, a customer comes in to reserve such a record and cheerfully warns Gavin that “even if I ask for my money back, don’t give it to me.”)

One thriving business is the longstanding butchers, Wm Phelps. Manager James Peacock tells me it is down to the trustworthy Scottish produce, which is carefully tracked and labelled. But the business has also embraced globalisation.  After noticing a large number of South African customers, Peacock began selling boerewors and biltong.

The other referendum campaign

If Paisley has been spared the divisions of the EU referendum campaign, its “buddies” – as residents are known – are still reeling with the repercussions of an earlier referendum, that on Scotland in the UK. In 2014, the town voted for independence, although the county overall opted to stay in the UK. 

The town is home to a particularly brash strain of indyreffers, including the “Smith Commission burners”, three SNP councillors who gathered in front of the council headquarters to burn a copy of the report setting out new powers for Scotland. One of them, Mags MacLaren, went on to manage Black’s constituency office.

But if the Paisley independence movement has been well covered, less is known about its opposite - the rise of pro-unionism. 

Of the three mainstream parties opposed to independence, it is the Scottish Conservatives, with their unconventional leader Ruth Davidson, who have most effectively capitalised on the pro-union message. In the 2016 Scottish Parliament elections, the Tory Jackson Carlaw captured the West of Scotland constituency of Eastwood, which had been held by Labour since its creation. 

In Holyrood, the Scottish Tories benefit from proportional representation, which allows voters to choose a constituency MSP but also rank parties. 

According to Paul Masterton, the Tory candidate for East Renfrewshire, and the secretary of the Renfrewshire and Inverclyde Scottish Conservative Association, the Conservatives are now getting huge numbers of first preference votes, including in neighbourhoods like the suburb of Ralston, where both Black and Masterton are from. So who are these voters? Masterton describes them as “New Labour voters who were happy with Tony Blair and Gordon Brown but didn’t like Jeremy Corbyn and get tied up into knots by [Scottish Labour leader] Kezia Dugdale flipflopping on the union stance".

The 2016 election saw the Scottish Conservatives surge to second place in Scotland – a superb comeback for a party once ridiculed as being rarer than pandas. The next electoral test is the local council elections. In Paisley, even Labour activists acknowledged the Conservatives were likely to be the most notable winners.

“For a long time we simply didn’t go out in Paisley," says Masterton. "We were written off and we allowed ourselves to be written off.”

But the referendum has changed this. “What I found was that last May, people weren’t shutting the door in your face," he adds. "Once you started the conversation they were far more receptive to that.” 

Like the Labour activists, Masterton argues that the constitutional question matters more than Brexit. “When Theresa May said ‘now is not the time’, I think a lot of people across Paisley did a small quiet fist pump,” he says of a second independence referendum.  

Ironically, after the early election is called, the Scottish Conservatives do everything they can to mention the prospect. “Don't mention the 'i' word,” crows a recent press release about the “SNP indyref ban”. Davidson tweets: “Nicola doesn't want to stand on her record. She knows the country doesn't want her #indyref2.” A Panelbase survey commissioned by The Sunday Times Scotland published shortly after the early election was announced finds support for the Conservatives at Scotland at 33 per cent, 18 percentage points higher than in 2015. 

What you stand for

For now, Paisley remains a Scottish National Party stronghold. George Adams, the MSP with an office off the high street, proves elusive – Labour activists confirm his reputation as a hardworking local. Black’s aide turns down my request for an interview for similar reasons, but I bump into her that evening at a protest against cutting child tax credits in Glasgow’s George Square.

Black, an admirer of the left-wing Labour figure Tony Benn, once said she feels "it is the Labour party that left me". I ask her if she, like her Labour predecessor, holds surgeries in supermarkets. Black says she’d considered it, but given the sensitivity of some of the issues, such as benefit problems, she thought her constituents might appreciate a more private space. “The main thing that crosses the door in my offices is Universal Credit changes,” she explains. She says she has raised her concerns about the children’s ward.

As for the independence debate, she argues that the Scottish government have been “incredibly compromising” since Brexit, but adds: “A lot of folk want another chance at the question.”

Black is standing for re-election. With a majority of more than 5,000, and neither of her previous challengers in the running, she’s likely to keep her seat, even if buddies' discontent over local issues rumbles on. 

Still, as I have discovered, the 2014 referendum continues to reverberate in towns like Paisley. It has divided friends and neighbours on constitutional lines, galvanised new strains of politics, and brought a Labour heavyweight crashing down, with no appetite to return. 

The Tories believe their unionist message is enough to flip seats like East Renfrewshire, once Conservative, then Labour, and now an SNP marginal. As the SNP's shine wears off, could Paisley, with its long tradition of the left, one day follow? It no longer feels implausible. “The one thing about the Scottish Conservatives - and this is true whatever you like us or not,” says Masterton. “You know what we stand for.”

 

Julia Rampen is the digital news editor of the New Statesman (previously editor of The Staggers, The New Statesman's online rolling politics blog). She has also been deputy editor at Mirror Money Online and has worked as a financial journalist for several trade magazines. 

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