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 lost boys: how the white working class got left behind

The gap between poor and middle-class white pupils is widening. What can we do about the educational plight of underprivileged white youngsters?

One pleasant Thursday at 3.20pm, Carl Roberts, the principal of the Malling School in Kent, walks to the front gates. Along with several other members of staff, he makes the same journey every morning and afternoon, greeting pupils as they arrive and leave. “It’s all about modelling positive behaviour for young people from disadvantaged backgrounds,” he explains.

Roberts is an admirable head teacher. Energetic and ambitious, he runs a school that marries warmth with a sense of order. Just outside the gates, he gently admonishes the only boy without his shirt tucked in. The child immediately apologises.

The Malling has thrived during Roberts’s eight years as head. In 2015 it was rated “good” across all of the main areas assessed by Ofsted, the schools standards agency, and “outstanding” for its students’ personal development. In recent years, its overall progress has been in the top third of schools nationally and the attainment gap between disadvantaged and non-disadvantaged pupils is less than half the UK average.

The school is nestled in East Malling, a town that at first glance seems to conform to an idealised view of 1950s England: abundant green spaces and farmland, several busy pubs and a couple of churches. There was an uproar last year when East Malling Cricket Club, which dated back to the 19th century, closed because of a shortage of funds and players – even though there remain three other clubs within four miles of the station. Tonbridge and Malling, the constituency that encompasses the town, is among the safest Conservative seats in the country and ranks above average judging by national indicators for employment, health and well-being.

This is not an obvious place to find students struggling. Yet at the Malling School last year only 30 per cent of pupils got five good GCSEs including English and maths. Of the third of students eligible for free school meals (FSMs) – the national average is one in five – just 17 per cent get five good GCSEs, falling to 15 per cent for boys. Here, almost all of these pupils are white.

These results are indicative of a wider trend. Across England, the white working class performs badly. Overall, just 28 per cent of white children on FSMs get five good GCSEs; the figure drops to 24 per cent when girls are excluded. A white working-class boy is less than half as likely to get five good GCSEs, including the core subjects, as the average student in England, and among white boys the gap between how poor and middle-class pupils do is wider than for any other ethnic background. As Theresa May noted in her first speech as Prime Minister, “If you’re a white, working-class boy, you’re less likely than anybody else in Britain to go to university.” More recently, she signalled her intention to address this and other shortcomings in education through sweeping reforms, including allowing grammar schools to expand. Britain, May said, should be the world’s “great meritocracy”.

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A few hundred metres away from the Malling School lies the East Malling estate known to local people as Clare Park. About one-third of the school’s 700 students live in tower blocks here. Roberts says that, all too often, these pupils “will be worried about their parents, they will be worried about where their next meal is coming from. And suddenly they are no longer worried about passing exams.”

Roberts can relate to this. He grew up in the 1980s on a council estate in Tewkesbury, Gloucestershire, and his father was unemployed for many of his teenage years. Roberts attended the local comprehensive and, helped by his supportive parents, got the best GCSE grades in his year. He went on to study at the University of Bath.

“My childhood shaped my values, which is why I now work with children from disadvantaged backgrounds, with a view to ensuring they can have the future I was lucky enough to have,” he says. Maximising pupil attendance is central to doing so. On the main school noticeboard, a sign reads: “365 days a year, 190 in school, 175 not in school”. This is designed to stress to pupils how important it is to attend class, but it also serves as an unwitting reminder of the limits of what any school can achieve.

“Schools will see children for six hours a day,” Roberts says. “There’s a lot of other time when children are much more influenced. Until you sort out things like health for people from disadvantaged backgrounds, until you help them overcome the issues with crime, until you help them overcome the issues associated with poverty and lack of employment, schools are never going to be able to close that attainment gap by themselves.”

When pupils arrive at the Malling School at the age of 11, their attainment is already 20 per cent below the national average. Here, as across England, much of the damage to deprived pupils’ prospects is done even before primary school begins. In his or her first years of life, a young child with two highly educated parents will receive 40 minutes a day more parental engagement in playing and reading – 240 hours more per year – than one with two low-educated parents. By the age of five, there is an average 19-month gap in school readiness between the most and least disadvantaged children.

“This is a wider issue that’s actually nothing to do with schools,” Roberts tells me. “If you’re going to tackle [it], you need to do it between the ages of nought and two in the family home. It’s a social issue, not an education issue.” From their early years, poor white boys do particularly badly. At Key Stage 1, the exams taken when children are six or seven, white boys on FSMs already perform worse than any other ethnic group.

The challenge facing disadvantaged students is exacerbated by politicians’ neglect of primary education. Primary-school teachers in the UK are the youngest in the Organisation for Economic Co-operation and Development area. In an OECD report in 2012, the UK and Estonia were the only two out of 30 countries surveyed in which class sizes at primary were larger than at secondary level.

“There’s something fundamentally crackers about having a class size of 34 for children aged five and a class size of five for children aged 18,” says Phil Karnavas, the executive principal of the academy trust that runs Canterbury High, another school in Kent with a large proportion of underprivileged white pupils. The earlier in a child’s life money is invested, the further it goes.

Yet deprivation alone cannot explain the struggles of poor white children. Equally disadvantaged pupils from other ethnic groups perform far better. Thirty years ago, researchers divided children in Kingston, Jamaica, into three groups. One group received nutritional supplements; the parents of another group received hour-long weekly coaching sessions in parenting techniques and were encouraged to play with their children and to read and sing to them; the control group received nothing. Those whose parents were encouraged to play with them thrived both at school and in later life and now earn 25 per cent more, on average, than the other sets of children.

Parenting seems to explain some of the differences in results between white children and those of other ethnic groups on FSMs. Studies suggest that ethnic-minority parents often have higher aspirations for their children and are more involved with their education. This leads their children to engage more at school, says Simon Burgess, an economics professor at Bristol University whose speciality is education. More engaged parents can transform a child’s educational prospects. In July, a trial involving 16,000 pupils conducted in England by the Education Endowment Foundation found that children in secondary schools perform better and are absent less often when their parents receive regular text messages alerting them about forthcoming tests.

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Demographics also work against poor white children. According to the Social Market Foundation, where a child grows up now has a greater impact on his or her results in school than in previous generations. Only about 10 per cent of England’s white population lives in London, against 45 per cent of the ethnic minorities. Schools in London have been transformed over two decades with intensive investment and focus from politicians; they are also more likely to have thriving after-school clubs, which are crucial in ensuring that children from disadvantaged areas do not fall behind. There is little selection among state schools in London but, instead, an emphasis on demanding higher standards from all students.

Disadvantaged white children perform better when they are in London but they are more often educated in small towns or rural areas where they can be “invisible”, as Michael Wilshaw, the head of Ofsted, warned in June. They can also suffer because they have longer commuting times than children in big cities, making it harder for them to take part in after-school or homework clubs, if their school offers them at all. Meanwhile, local services such as libraries are more difficult to find, especially since the cuts imposed under the government’s austerity programme. And in places such as Kent, the allure of London, which is nearby, can make it even more of a struggle for schools to attract the best teachers.

“As each year goes on, the quality of teachers gets better and better but it becomes harder to recruit teachers,” Roberts says. He is desperate to introduce a homework club after school but lacks the funding.

Throughout the Western world, boys now work less hard at school than girls and get worse results. Across 64 countries that the OECD surveyed last year, boys were less likely than girls to do homework and to read for enjoyment, but were more likely to play computer games and surf the internet, as well as have negative attitudes towards school and turn up late. Girls aged 15 were, on average, a year ahead of their male peers in reading aptitude.

Yet the gender gap is particularly high among the white working class in England. Just 9 per cent of white males on FSMs aged 18 go to university. For every two disadvantaged white boys who go to university, three disadvantaged white girls do: the highest gap between boys and girls on FSMs in any ethnic group.

White working-class boys suffer from a paucity of positive role models. The decreasing numbers of well-educated, working-class men in public life makes poor white boys less willing to work hard at school. “It’s not cool for boys to do well. They have stereotypes to live up to,” a girl at Canterbury High School tells me.

Another factor working against young boys is that most teachers in the UK are female and middle class, says Anna Wright, an educational psychologist. Less than 15 per cent of primary-school teachers in England are male (the figure rises to 37 per cent in secondary school). And poor children are more likely than advantaged children to grow up with only one parent. In nine cases out of ten, children from broken families live mostly with their mother rather than their father, and so have no male role model.

White boys suffer in particular because of the legacy of deindustrialisation and the collapse of secure jobs for life. “The culture of white, Anglo-Saxon, working-class boys is one which has historically led them from the terraces to the factory, the fields or the farm. That doesn’t exist any more,” says Karnavas, of the Canterbury Academy. “If you’re at the bottom end of generational unemployment – not just first-generation, but in some cases second- and third-generation – your assumption will be that you are not going to be employed.”

Karnavas says that when GCSEs come around, teachers are left “firefighting”, attempting to salvage a few decent results from boys facing stiff challenges from birth. This is nothing new: he argues that we could have been having a similar discussion 40 years ago. However, in a globalised world, the consequences of failure at school have become “more dramatic than they may have been in the past”, as a House of Commons education committee report warned two years ago. There is more competition for jobs than ever before. This bodes ill for white working-class boys, who now rank bottom for educational attainment in England. Their position relative both to girls and to other ethnic groups has never been lower. In the job market, poor white boys are left standing at the back of the queue.

The position of white working-class boys is falling. Ethnic minorities continue to soar: since 2005, the GCSE results of black children on FSMs have improved 50 per cent more than those of white children on FSMs. A white British boy on FSMs is now less than half as likely to get five good GCSEs as a Bangladeshi British boy on FSMs.

The gender gap, too, continues to grow. On current trends, a girl born in 2016 will be 75 per cent more likely than a boy to proceed to higher education. For the first time in history, it will become the norm for women to date and marry men with fewer educational qualifications than they have.

Back at the Malling School, Roberts is content as he lingers by the gates. “They’ve all left incredibly happy, having had a very positive day,” he says. Then he pauses, and regrets that many of the children “may not have their own bedroom or their own workspace. They may not even have books in their house.” By the time they return to school tomorrow, many boys at the Malling may have fallen even further behind. 

Tim Wigmore is a contributing writer to the New Statesman and the author of Second XI: Cricket In Its Outposts.

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