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

Michael Frith for New Statesman.
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Kezia Dugdale on the decline of Scottish Labour: “Nobody knew what we were for”

The Lothian MSP has just taken on the toughest job in politics – leading Scottish Labour against the SNP.

Coming in to Edinburgh on the airport shuttle bus, you pass the city’s zoo, festooned with ­posters for its star attractions, Tian Tian and Yang Guang. The old joke used to be that there were more pandas in Scotland than Tory MPs. Since the early hours of 8 May, however, that axiom applies to ­Labour and the Liberal Democrats, too.

How can Labour recover from the loss of 40 of its Scottish seats? The task falls to Kezia Dugdale, the 33-year-old elected on 15 August as the sixth leader of Scottish Labour in eight years. In May, she was at a TV studio when the general election exit poll was announced and neither she, the Scottish Tory leader Ruth Davidson, nor the Lib Dems’ Willie Rennie could believe it. But by the time she reached Labour’s headquarters on Bath Street in Glasgow, and watched a five-figure majority in Rutherglen and Hamilton West get swept away, she knew the party had suffered a wipeout. “I watched Jim Murphy lose his seat and he joined us not too long after that, and then Brian Roy [Scottish Labour’s general secretary], watched his dad lose his seat,” she tells me. “The atmosphere was just deathly quiet.”

Small wonder the scene was funereal. Labour once dominated Scottish politics effortlessly – in fact, the effortlessness may have been the problem, because the party became complacent and its electoral machine was rusty with underuse. Now, Labour gets kicking after kicking. On 14 August there were swings to the SNP of over 20 per cent in council by-elections in Falkirk and in Wishaw, Lanarkshire. Similar swings were recorded earlier in the month in Glasgow and last month in Aberdeen.

At this point, the drubbing Labour is receiving reminds me of that clip from The Simpsons where a child shouts: “Stop! Stop! He’s already dead!” The party has been routed at Westminster and it seems likely to lose all its constituency MSPs at next year’s Holyrood elections, too. Its survival there would then depend on the vagaries of the D’Hondt system, which will award Labour a few dozen list MSPs, based on its total vote share. (The SNP could do so well in some constituencies that it won’t get topped up with any list MSPs.)

What can Kezia Dugdale do to arrest the party’s decline? It feels as though everyone I speak to is more dejected than the last. “The crucial thing is to regain permission to be heard,” says David Torrance, the biographer of Alex Salmond and Nicola Sturgeon. “That was lost during the referendum debate and wasn’t regained during the election.” Stephen Daisley, STV’s digital political correspondent, adds: “Labour lacks a coherent narrative. A stray cat could tell you what the SNP stands for: protecting Scotland from wicked Westminster. Put two Labour supporters in a room – more and more of an ask in Scotland – and you’ll get three opinions on what the party’s message is.”

According to Dugdale, Willie Rennie often runs up Arthur’s Seat and back at lunchtime, such is the proximity of the old peak to the Scottish Parliament. Her own uphill struggle is no less daunting. When I ask her how far back Labour’s problems go, she laughs: “We’re only here for an hour!” She says that “2007 was the warning sign, because we shouldn’t have lost that . . . Some people might even say 2003 because we started to look like caretakers.”

She says the blame for the party’s present predicament should not fall on any individual or policy, but does criticise the 2015 manifesto. “There were 160 different policies in our manifesto in Scotland . . . 160 policies and nobody knew what we were for.” The road back to credibility lies in outlining the ethos behind Scottish Labour. As she puts it: “What we did was say, ‘This is what we’re going to do with policies . . .’ Barely if ever did we tell people why.”

Here, Dugdale faces a huge disadvantage against the SNP leadership, which has a simple answer to most questions: more powers for Scotland. “What is galling for Scottish Labour is that attempts to hold ministers to account are branded unpatriotic,” Daisley says. “‘Stop talking down Scotland’ is the nationalists’ favourite response. The challenge for Labour is that Scottish voters might now be voting on their national ambitions rather than policy. Scottish Labour is talking about service delivery. The SNP is waving a flag. Flags always win.”

The election of Jeremy Corbyn as Labour’s leader in Westminster may pose an intriguing problem for the SNP, which ran in May on an anti-austerity platform (although the IFS found its manifesto was more fiscally conservative than Labour’s). Many former Scottish Labour supporters say they now back the SNP because of that stance. But if Labour is also anti-austerity, will any of those voters come back? “The idea a Corbyn-led Labour Party can help it recover in Scotland is, I am afraid, for the birds,” the Spectator’s Alex Massie wrote on Twitter recently. Another centre-right commentator told me: “It’ll be like Canada, post-referendum. The SNP are like the Bloc Québécois; people will vote for them to represent Scotland’s interests at Westminster.”

The SNP now also has the advantage of the staff and infrastructure that come with 56 Westminster MPs. “We’ve gone from 41 to one, against a juggernaut of 56 whose raison d’être is to get an independent Scotland,” says Labour’s only remaining MP in Scotland, Ian Murray. He feels the press is hostile, too, and argues that “some of the media in Scotland would rather continue to attack Labour than hold the SNP or Tory government to account”. He must surely be thinking of the National, a bruisingly partisan publication that specialises in grotesque photoshopped cover pictures. Recent highlights include Boris Johnson as the Joker and Tim Farron as Frankenstein.

I ask Dugdale how she plans to cope with abuse on social media. “I’ve never really let it affect me, because I just feel sorry for the people who live on the internet in the middle of the night,” she says. “The most powerful button in the world is the mute button.” It helps that her close friends work in politics. “I can’t just go home at 6pm and drink a bottle of wine. Sometimes I have to do things at the last minute. Sometimes, despite making plans, you have to cancel. Normal people don’t think that’s cool.”

She also gets occasional support from the other two main party leaders, Sturgeon of the SNP and the Tories’ Davidson. Having three women at the top of Scottish politics does not make things “less aggressive, just different. It’s undoubtedly different. There’s a degree of camaraderie between the three of us.” That said, she is unimpressed by the others’ criticisms of my New Statesman piece on childlessness in politics. “They saw the outrage and went with it. In my gut, I don’t think either of them had read the full article before they commented on the front cover . . . Ruth Davidson is not a feminist and Nicola Sturgeon is a late convert, in my view.”

Dugdale has been involved in politics for only a decade. She is not from a political family, though her father Jeff, once a Tory supporter, is now an SNP member who likes to wind his daughter up on Twitter. She joined Labour when, after graduating in law, she found herself unemployed and wondering what to do with her life. “I had no great drive to do law other than watching a lot of Ally McBeal,” she says now. “I thought that everyone who did law just had unisex loos, went to the piano bar at night and spent their entire life in the courtroom.”

Instead, she ended up, aged 23, “on the sofa in our pyjamas watching Trisha” with a flatmate who was a member of the Labour Party and encouraged her to get involved in politics. She found that she was a good election agent, and in 2011 she acted as a key seat organiser with a place on the regional list. “I was expecting to wake up the day after the 2011 election unemployed, with a pretty decent redundancy package and a summer to work out what I was going to do with the rest of my life. I woke up as an MSP.”

She knows that many observers believe there is no way back for Scottish Labour. Her hopes rest on a few calculations: the first is that the SNP leadership (with the exception of Salmond) doesn’t want to push for a second referendum too soon, yet its activists might try to get it into the 2016 manifesto. “It’s an incredibly difficult call for Nicola Sturgeon, because it’s what her 100,000 party members want but it’s not what the country wants,” Dugdale says. “We were told this was a once-in-a-lifetime, once-in-a-generation opportunity. I was 33 when they told me that, and I’m still 33 and they’re changing the rules.”

The second is that the SNP has now governed Scotland for eight years, four of those with a majority, and at some point Scottish voters might treat them as incumbents rather than insurgents. As Murray puts it: “What gives me a little bit of hope for the 2016 election is that they’re going to have to start answering for their own pretty abysmal record.” He thinks that grumbles about public services (the police, the NHS, the justice system) might finally boil over; Dugdale’s own focus will be on education. She says this policy area is “integral to battling poverty and inequality in all its forms”, and it can’t hurt that Scotland’s primary schools are full of children who have never known anything other than SNP rule.

Intelligent, funny, hard-working, well-liked and – well, normal (her trashy telly ­anecdotes were clearly real, rather than focus-grouped to make her sound “authentic”), Kezia Dugdale is an impressive politician. But she is under no illusions about how hard her job will be. As she puts it: “There were lots of people saying, ‘Don’t stand, because you’ll have a crap election in 2016, it’s inevitable, and then they’ll have your head and that’ll be you done.’”

Helen Lewis is deputy editor of the New Statesman. She has presented BBC Radio 4’s Week in Westminster and is a regular panellist on BBC1’s Sunday Politics.

This article first appeared in the 20 August 2015 issue of the New Statesman, Corbyn wars