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

© LEWIS MORLEY/NATIONAL MEDIA MUSEUM SCIENCE & SOCIETY PICTURE LIBRARY. COURTESY OF VICTORIA AND ALBERT MUSEUM, LONDON
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Nostalgia without memory

We had a terrific time in the Sixties – but at what cost to the millennial generation?

There is a flurry of Sixties-worship at present, with an exhibition at the ­Victoria and Albert Museum in London and a cinema documentary about the Beatles’ ­touring years directed by Ron Howard. Next month, two more books on the ­subject will join the pile to which I have admittedly contributed more than my share. Steve Turner’s Beatles ’66: the Revolutionary Year reconstructs the band’s exploits in that eventful season (also recently chronicled in Jon Savage’s weighty 1966: the Year the Decade Exploded). And Paul Howard’s I Read the News Today, Oh Boy tells the story of Tara Browne, the gilded young Guinness heir whose death at the wheel of a Lotus Elan inspired John Lennon’s greatest song, “A Day in the Life”.

Truly, this is the decade that never dies. At frequent intervals since the mid-­Eighties, glossy magazines have announced that “the Sixties are back”, with fashion spreads of Paisley fabrics, Mary Quant-ish bobs, ­shorter-than-ever miniskirts and elastic-sided Chelsea boots. Sixties pop music eternally dominates radio playlists, while the Rolling Stones, the decade’s most notorious band, though now withered old-age pensioners, are still widely reckoned the coolest, most dangerous dudes on the planet.

For that, we largely have to thank the “Sixties children”, who lived through the most magical time for youth there ever was, survived its surfeits of alcohol, sex and mind-shredding drugs, and now seek to perpetuate their glorious heyday even unto senility. But the greatest celebrants of the era are often people who never experienced it first-hand yet still yearn for it in a syndrome that psychologists call “nostalgia without memory”. Tony Blair’s “Cool Britannia” shtick in the Nineties, for instance, pastiched the Swinging London of three decades earlier, right down to the Union Jack carrier bags. In folk memory the Sixties are as a rosy blur of psychedelic colour, free love and Beatles music, their complexity and manifold horrors either unrealised or disregarded.

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The mythic decade, as opposed to the real one, was no straight ten-year stretch. It didn’t get into gear until 1962 with the satire boom that produced BBC TV’s That Was The Week That Was, David Frost’s first starring vehicle, and Private Eye magazine, and didn’t absorb pop music until the Beatles’ historic first visit to America in 1964. Its closing year, marked by a series of vast open-air festivals – Woodstock, Bob Dylan on the Isle of Wight, the Stones’ free concert in Hyde Park – felt almost like a decade on its own. When 1970 dawned, so much resembling a grey morning-after, many Sixties children simply refused to believe the party was over and clung to their caftans and joss sticks far into the harsh new eras of glam rock and punk.

Its prime time is generally agreed to have been 1965, when London gave vent to a concerted burst of youthful creativity in music, art, fashion, photography, cinema and graphics, and a shabby, sleepy metropolis, bombed to ruins not long previously, received the unlikely sobriquet of “swinging”. At this stage, the swinging was confined to a small circle of musicians, models, actors and photographers, congregating in the same few, unpublicised bistros and clubs: the most emblematic pop single, among so many, was Dobie Gray’s “The ‘In’ Crowd”.

It is seen above all as an era of burgeoning freedom and tolerance when Britannia seemed to be loosening her Victorian stays one by one. The contraceptive pill became widely available, ending centuries of shotgun marriages and perilous backstreet abortions, and theatre censorship by an archaic royal flunky called the Lord Chamberlain came to an end. Male homosexuality was decriminalised, though not yet destigmatised, and the first feminist voices spoke out. The word “fuck” appeared in the Times (during the farcically unsuccessful obscenity prosecution of Penguin, publisher of D H Lawrence’s Lady Chatterley’s Lover) and was heard on BBC Television, albeit only in quotation marks, from the National Theatre’s literary manager, Kenneth Tynan.

Yet alongside the pop-cultural harlequinade, Britain faced many of the same problems as we do today – some, indeed, significantly worse. Industrial strife was so common that the rest of Europe came to know strikes as “the English disease”. Harold Wilson’s Labour government, continuously in power after 1964, imposed a strict wages freeze, then known as a “pay pause”, and failed so utterly to solve its own financial deficit that in 1967 Wilson was forced to devalue the pound by 14 per cent. The World Cup-winning 1966, that supposed annus mirabilis, also brought two events whose horrors still resonate: the Moors murders trial and the Aberfan disaster, in which a south Wales primary school was engulfed by a giant slag heap, killing 116 children and 28 adults.

Meanwhile, the outside world was taking its first steps backwards into hell. America’s inspirational young president John F Kennedy was assassinated, as, in horrifically quick succession, were his brother Robert and the great civil rights leader Dr Martin Luther King. The United States was shamed at home by racism and police violence (not much change there, then) and abroad by its war in Vietnam, which nightly filled British TV screens with images of bombed civilian enclaves and maimed children (little change there, either – except today barrel bombs replace napalm). A democratic movement in communist-controlled Czechoslovakia was crushed; there was incalculable murder and terror in China’s Cultural Revolution, genocide in Indonesia and Biafra, apartheid in South Africa and endemic famine in India. June 1967 brought not only Sgt Pepper’s Lonely Hearts Club Band and the “Summer of Love” but the Arab-Israeli Six Day War, whose cumulative effects remain seemingly impossible to resolve.

Throughout the Sixties, Britain, along with the rest of western Europe, faced the threat of nuclear war with Soviet Russia and more-than-possible total obliteration. And yet, paradoxically, this was a time of enviable domestic peace and stability. There was full employment, with almost nobody ever getting sacked except at the very top. Inflation was marginal; the NHS and other public services functioned without any hint of crisis; the nationalised railways, shorn of unprofitable branch lines by Lord Beeching, were dirty but dependable; the postal service, even after the introduction of an avowedly “second-class” tier, remained the envy of the world.

Pending that terminal flash in the sky, people felt safe. The only communicable disease left to be feared was smallpox. ­Terrorism was something that happened only in the distant Middle East: it could not conceivably take root among Britain’s hard working and law-abiding Indian and Pakistani immigrants despite the unfettered racism constantly hurled at them. One walked on to aircraft or into official buildings or the BBC without security checks. The first shadow of Northern Ireland’s Troubles, which were to bloody the Seventies and be described by American commentators as “Britain’s Vietnam”, did not appear until 1968.

Two world wars in the space of 30 years had trained ordinary Britons to feel guilty about any conspicuous consumption. In the Sixties, the advertising industry set about remedying this. The new Sunday newspaper colour supplements bulged with adverts for Scandinavian furniture, stereo systems and white Kosset carpets, and bombarded their readers with recipes for exotic dishes such as chicken Kiev and beef stroganoff, using quantities of butter and cream that once would have seemed downright immoral. When Rowntree launched a new wafer-thin chocolate mint, the company made a last-minute name change from Minty Thins to After Eight, suggesting elegant high-society dinner parties to a demographic only recently weaned from high teas. So older generations, too, could join an “in” crowd and share the feeling of life becoming measurably better every day.

The attention paid to youth was an extraordinary volte-face from that ancient British maxim “Children should be seen and not heard”. Young people now not only wielded huge economic power through pop music and fashion, but kicked aside class distinctions and social barriers. Following the Beatles template, almost all of the decade’s brightest new celebrities were in their twenties and from humble backgrounds: the photographer David Bailey, the model Twiggy, the painter David Hockney, the comedian Jimmy Tarbuck, the film stars David Hemmings, Rita Tushingham, Tom Courtenay and Terence Stamp. A northern or a cockney accent was almost a prerequisite of success. In Britain in the past, the working class had always tried to talk “up”; now the upper and middle classes strove to talk “down”. It still goes on.

Without any form of social media other than underground newspapers and ­flyers, Sixties youth culture managed to be remarkably united. It assumed that every figure of authority – indeed, anyone over 30 – was a pitiable lunatic. Unlike its counterparts in America and across Europe, it raised up no demagogues: its figureheads were lead singers in bands and radio disc jockeys whose dimness in no way reduced their potency. The hippies, who arrived post-1966, are now viewed as hopelessly naive and deluded, with their mantra of “Love and Peace”. Yet their pop festivals, love-ins and “happenings” were occasions that brought hundreds of thousands together without the slightest violence. There were ­moments when even their fiercest detractors wondered if they might really be a force for changing the world for the better.

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The V&A exhibition “You Say You Want a Revolution?” focuses on the decade’s final phase, when Britain’s initially playful underground hardened into a many-headed protest movement containing every kind of extreme-leftish ideology; churning out insurrectionary literature amid the comforts of the consumer society; holding marches, demos and sit-ins of increasing militancy despite having nothing to protest about nearer than the Vietnam War (in which the Wilson government played no part whatsoever). It was always more serious in other European countries and the US, where former hippies made an easy transition to urban guerrillas and to Charles Manson’s serial-killing “Family”.

Simultaneously, the British police declared war on leading musicians whose songs seemed to encourage their fans to take drugs, whether the pot known to jazz players for generations or the new, man-made, “mind-expanding” lysergic acid diethylamide (LSD), which leaked from the very pores of the Beatles’ Sgt Pepper album. The fear was legitimate – in fact, nowhere near proportionate to the long-term problem in the making – but the reaction was hysterical scapegoating. In early 1967, with the collusion of MI5 and possibly the CIA, 18 police officers raided the Rolling Stone Keith Richards’s cottage in Sussex and Richards and Mick Jagger were charged with drug possession. After a grotesque show trial – yet another strike against that supposed Summer of Love – both Stones received prison terms for offences that normally would have rated a small fine or merely probation.

The recent death of Richard Neville, the founder of Oz magazine, awoke further memories of that moment when the Sixties’ indulgence of youth was suddenly turned off. The 1971 trial of Neville and his two co-editors for conspiracy to corrupt youthful morals (specifically by depicting Rupert Bear with an erection) was just as self-defeatingly comical as the Lady Chatterley prosecution almost a decade earlier.

For millennials who grew up around the year 2000, the Sixties are an object not so much of nostalgia without memory as envy without memory. My 25-year-old daughter often remarks what a terrific time my generation had and what a messed-up world we created for hers. I can’t argue with that.

Philip Norman’s “Paul McCartney: the Biography” is published by Weidenfeld & Nicolson. He tweets at: @PNormanWriter

This article first appeared in the 15 September 2016 issue of the New Statesman, The fall of the golden generation