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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A multitude of rivals

Unless Donald Trump is able to master geopolitical complexity, the trouble in the Middle East will get far worse.

Well, who’d have thought it? Another popular insurgency in the series that started in Tunis in late 2010. The gift that keeps on giving. Only this time it has hit the United States, to the bemusement of those who like their liberal internationalism neat and any populist revolutions a long way from home. The same people who misread the Arab uprisings of 2011 and continue to believe magically that movements based on the word of God will embrace tolerance and inclusivity seem shocked that some Americans have decided to have an uprising of their own.

None of this will be lost on the leaders or people of the Middle East. My guess is they will be a lot less shocked than commentators in the US and Europe are. After all, the blurring of business and politics, the instrumentalisation of identity, ambiguity about where the public good ends and personal advantage begins and an often casual attitude to facts are characteristic of the politics of the region. More fundamentally, relations between states in the Middle East and North Africa are transactional; most significant trade flows are in commodities; and conflict within and between states is endemic. The region politically looks far more like the Hobbesian world of early-modern Europe than it does the Kantian dream of the European Union. Donald Trump talks like a mercantilist: Barack Obama talks like a Rawlsian idealist. Most Arab, Israeli or Iranian leaders are more comfortable with the former than the latter.

Indeed, Obama’s own eloquence has counted against him. His Cairo speech of 2009 in retrospect looks like a cruel illusion, one of Auden’s clever hopes more than the proclamation of a new ethical order, as many wanted to think at the time. It was unbacked by practical policies or even sustained attention. The moral reset never happened. What followed instead was disorder: the public disavowal of the Egyptian president Hosni Mubarak in 2011, an apparent assumption that the politics of Islamist revelation were consistent with ­liberal pluralism and – when the error was realised – grudging acquiescence in the counter-revolution and increasing exasperation with the result.

The Iran nuclear deal may or may not prove to be as great an achievement as its supporters claim. However, the self-congratulatory attempt to sell it to the Gulf states with an odd mixture of scolding and exhortation merely alienated them. It wasn’t that they didn’t understand the weight of Iran and the desirability of a negotiated settlement: they did and do. They simply didn’t want to be treated like the most disruptive students at the back of an International Relations
101 remedial class.

So the standard by which they – and Sisi’s Egypt, Erdogan’s Turkey, Khamenei’s Iran and everyone else in the Middle East – will judge the incoming administration is not the one that socially liberal and politically idealistic Americans and Europeans will use. They won’t worry so much about free trade: oil and gas will find their own markets. They’re OK with going bilateral: multilateralism only gives them headaches, which was why the Iranians liked dealing principally with the US over their nuclear programme, why Cairo is flirting with Moscow and why the choice between Algiers and Rabat is always going to be binary. They’re good at negotiating deals. If that’s how the new guys in Washington want to proceed, that’s fine by them.

The energy producers will like a renewed emphasis on industry: the Rust Belt isn’t coming back but it doesn’t hurt to pretend that it might. They will still worry about the resilience of fracking but that was going to be the case anyway. If new areas for energy production are opened up in Alaska, the Gulf of Mexico and elsewhere, then that adds to the downward pressure on prices. However, it will take a while to start producing significant quantities of oil and gas from the new fields. And at least it reflects an enthusiasm for hydrocarbons rather than waves, wind or water.

The real areas of uncertainty are elsewhere. All the states of the region want their concerns to be taken more seriously than anyone else’s. That will entail having opinions on the conflicts between them – and sometimes taking sides. That may be more straightforward with Israel than has been the case under Obama. Trump on the campaign trail suggested he will tilt much more towards Israel than Obama has done, not just on issues such as settlements and the status of Jerusalem but on hardcore security solutions to the challenges of Palestinian nationalism, Islamist extremism and the more generalised threat from Iran and its proxies.

Saudi Arabia, meanwhile, will be closely watching what position the new administration takes on the recently passed Justice Against Sponsors of Terrorism Act, which will allow families and victims of the 9/11 attacks to pursue a civil lawsuit against Riyadh. The kingdom will also monitor how belligerent campaign statements about Islamic State and its ideological cousins might play out in power, and how compliant the US approach will continue to be on the Iran nuclear agreement. A unilateral abandonment of US commitments is unlikely: the deal is a Security Council matter, many other states have equity, and they are only too eager to do business, as we have seen for some time with China and now more recent activity by France’s Total and German and British business delegations to Tehran.

It is also not clear that being justifiably suspicious of Iran automatically makes you a friend of Riyadh. Trump has done business with the kingdom in the past but has also criticised Saudi over-reliance on the US for its defence. And hardliners in Tehran would probably be undisturbed if Washington walked away. A resumption of enrichment would hardly look like a victory for the new US administration, especially if European energy firms were the wider beneficiaries.

Trump has displayed a startlingly nativist and isolationist side during the presidential campaign. The test of this will include Iraq, where the US has a highly effective strategy at the moment that involves significant political and military commitments; Syria, where it does not; and Yemen, where it had one but mislaid it. And even in Iraq, the real test will be sustaining an effective political strategy after the fall of Mosul. This will happen on Trump’s watch, not Obama’s.

In the end, the Trump administration will come up against a fundamental and enduring feature of Middle Eastern politics: everything is connected. In business, if one golf-course project is a bust, you can always find another that isn’t. In the international diplomacy of the Middle East, that won’t work. It may be unfair, but US presidents are supposed to do something when 400,000 people die in a civil war somewhere and Iranian-backed militias colonise zombified states. If you recognise Jerusalem as the undivided capital of Israel, you alienate not just Palestinians, but most other Arabs and Muslims and many Europeans. But you need them if you want a proper contain, distrust and verify policy on Iran. You also give movements such as al-Qaeda, Islamic State and Hezbollah – one of the biggest criminal enterprises on the planet – a perfect alibi. If you think the answer on Syria is to let Bashar al-Assad reassert control with the help of the Russians and the Iranians, you need to be able to persuade those Arabs and Turks who back the largely Sunni opposition to stop doing so. You can’t do that if they think you don’t respect them or their interests. And you might want to ask yourself if making nice with Putin over Aleppo could lead him to think you wouldn’t mind if he helped himself to Tallinn, Riga and Vilnius while he was at it.

Full disclosure: I’m a signed-up member of the international relations blob. So I would say this, wouldn’t I? But here goes anyway. The trick is managing political complexity. That isn’t something for which the president-elect is famous, and wasn’t a notable feature of the campaign debates. It may be that his choices of secretary of state, national security adviser, CIA director, and indeed energy and treasury secretaries, will reflect an understanding of the importance in a complicated and uncertain world of competent, experienced figures, and of the central role of the US president in supporting the liberal international order created after the Second World War that underpinned the US rise to dominance. I hope so. If this order collapses it won’t be just because US voters elected Donald Trump. It will be because of demographic, economic and sociological shifts across the globe.

As far as the Middle East and North Africa go, the dilemma is not so much Thucydidean (rising powers challenging established rivals) as Machiavellian: a multitude of rivals with shifting allegiances challenging each other for primacy. We have lacked a common understanding and collective purpose for at least a decade. Determined and smart US political engagement across the region is essential to rebuilding both. Without that we won’t see a new and stable order created by the regional states: we will see more entropy. US partners in the region will feel both abandoned and licensed. US enemies will feel liberated. In both cases, the costs of hedging with other external powers – Turkey, Russia, China, India – will decrease dramatically. Good luck with the aftermath of all that. However bad the region may look today, “the worst is not. So long as we can say: ‘This is the worst.’”

John Jenkins is a former British ambassador to Saudi Arabia, Libya, Iraq, Syria and Burma. He also served as a senior diplomat in Jerusalem, Abu Dhabi, Kuwait and Malaysia, and as director for the Middle East and North Africa at the Foreign Office in London. He is now the executive director (Middle East) of the International Institute for Strategic Studies, and is based in Bahrain

This article first appeared in the 17 November 2016 issue of the New Statesman, Trump world