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

BRIAN ADCOCK FOR NEW STATESMAN
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Divided Britain: how the EU referendum exposed Britain’s new culture war

The EU referendum exposed a gaping fault line in our society – and it’s not between left and right.

There are streets in Hampstead, the wealthy northern suburb of London, where the pro-EU posters outnumber cars. A red “Vote Remain” in one. A “Green Yes” in another. The red, white and blue flag of the official campaign sits happily next to a poster from the left-wing campaign Another Europe Is Possible proclaiming that the world already has too many borders.

If you were looking for an equivalent street in Hull, in the north of England, you would look for a long time. In the city centre when I visited one recent morning, the only outward evidence that there was a referendum going on was the special edition of Wetherspoon News plastered on the walls of the William Wilberforce pub in Trinity Wharf. Most of the customers agreed with the message from the chain’s founder, Tim Martin: Britain was better off outside the European Union.

“Far too much Hampstead and not enough Hull” – that was the accusation levelled at the Remain campaign by Andy Burnham in the final weeks of the campaign. He wasn’t talking about geography; Remain’s voice is persuasive to residents of Newland Avenue in Hull, where I drank a latte as I eavesdropped on a couple who were fretting that “racists” would vote to take Britain out of the EU.

Rather, Burnham was talking about an idea, the “Hampstead” that occupies a special place in right-wing demonology as a haven of wealthy liberals who have the temerity to vote in the interests of the poor. The playwright and novelist Michael Frayn, in his 1963 essay on the Festival of Britain, called them “the Herbivores”:

“. . . the radical middle classes, the do-gooders; the readers of the News Chronicle, the Guardian, and the Observer; the signers of petitions; the backbone of the BBC . . . who look out from the lush pastures which are their natural station in life with eyes full of sorrow for less fortunate creatures, guiltily conscious of their advantages, though not usually ceasing to eat the grass.”

For Hampstead then, read swaths of Islington, Hackney, Brighton, Bristol, Cambridge, Edinburgh and Oxford today – all areas that were most strongly in favour of Remain and where Jeremy Corbyn is popular. But Remain never found a tone that won over the other half of Labour England; the campaign struck as duff a note among the diminishing band of pensioners on Hampstead’s remaining council estates as it did on Hull’s Orchard Park Estate.

The rift between “Hampstead and Hull”, in the sense that Andy Burnham meant it, is one that has stealthily divided Britain for years, but it has been brought into sharp focus by the debate over Europe.

Academics use various kinds of shorthand for it: the beer drinkers v the wine drinkers, or the cosmopolitans v the “left behind”. “It’s not just that [Britain] is div­ided between people who buy organic and people who buy own-brand,” says Philip Cowley, a professor of politics at Queen Mary University of London, “but between people who wouldn’t understand how anyone could buy own-brand and people who wouldn’t buy organic if you put a gun to their head.” Equating political preferences with shopping habits might sound flippant, but on 21 June the retail research company Verdict estimated that “half of Waitrose shoppers backed a Remain vote, against just over a third of Morrisons customers”.

The referendum has shown that there is another chasm in British politics, beyond left and right, beyond social conservatism v liberalism, and beyond arguments about the size of the state. The new culture war is about class, and income, and education, but also about culture, race, nationalism and optimism about the future (or lack of it). This divide explains why Ukip’s message has been seductive to former Labour voters and to Tories, and why Boris Johnson, an Old Etonian, led a campaign that purported to despise “elites” and “experts” and spoke of “wanting our country back”.

***

At the start of the campaign, the question that most accurately predicted whether you would back Remain or Leave was consistently: “Are you a graduate?” (Those who answered yes were much more likely to vote in favour of staying in the EU.) Stronger In never found a way to change that and win over those who left education at 18 or earlier. Pollsters also suggested that the much-vaunted Euroscepticism of older voters reflects generations where only one in ten people went to university.

This fissure has been growing for the best part of a decade and a half, but Britain’s first-past-the-post system, which deters newcomers and maintains entrenched parties, has provided a degree of insulation to Labour that its European cousins have lacked. Yet even here in the UK the mid-Noughties brought the brief rise of the British National Party, powered by voter defections from Labour in its strongholds in east London and Yorkshire, as well as the election of the Greens’ first MP on the back of progressive disillusionment with the governments of Tony Blair and Gordon Brown.

In office, both Blair and Brown calculated, wrongly, that Labour’s core vote had “nowhere else to go”. In opposition under Ed Miliband, the party calculated, again wrongly, that discontent with immigration, and the rise of Ukip powered by that discontent, was a problem for the Conservative Party alone.

In a 2014 pamphlet for the Fabian Society, ­Revolt on the Left, the activist Marcus Roberts, the academic Rob Ford and the analyst Ian Warren warned that Labour had “few reasons to cheer about the Ukip insurgency and plenty to worry about”. When the votes were cast in the general election the following year, that prediction turned out to be dispiritingly accurate. Defections from Labour to Ukip led to Labour losing seats to the Conservatives in Gower, Southampton Itchen, Telford and Plymouth Moor View.

For the most part, however, first-past-the-post papered over the cracks in Labour’s broad coalition: cracks that, in the harsh light of the EU referendum, have become obvious. The divide isn’t simply one of class, or income. The social profile and culture of voters in Cumbria are no different from that of voters on the other side of the border – but Scots in the Borders backed a Remain vote while their English peers in the border areas opted for Brexit. Inhospitality towards Brexit proved a stronger indication of city status than a mere cathedral: Vote Leave generally found Britain’s great cities more difficult terrain than the surrounding towns and countryside.

The problem of the fracturing vote is particularly acute for the Labour Party, which for much of the 20th century was able to rely on the Herbivores. In concert with Frayn’s “less fortunate creatures”, they have been enough to guarantee Labour close to 250 seats in the House of Commons and roughly one-third of the popular vote, even in difficult years. But Britain’s EU referendum placed Hampstead and Hull on opposing sides for the first time in modern British political history.

It was Tony Blair who, in his final speech to the Trades Union Congress as Labour leader in September 2006, said that the new debate in politics was not left against right, but “open v closed” – openness to immigration, to diversity, to the idea of Europe. Driven by their commitment to openness, Blair’s outriders dreamed of reshaping Labour as a mirror of the US Democrats – though, ironically, it was Ed Miliband, who repudiated much of Blair’s approach and politics, who achieved this.

At the 2015 election Labour’s coalition was drawn from the young, ethnic minorities and the well educated: the groups that powered Barack Obama’s two election wins in 2008 and 2012. The party was repudiated in the Midlands, went backwards in Wales and was all but wiped out in the east of England. (Scotland was another matter altogether.) Its best results came in Britain’s big cities and university towns.

The Remain campaign gave Labour a glimpse of how Miliband’s manifesto might have fared without the reassuring imprimatur of a red rosette. Britain Stronger In Europe has been rejected in the Midlands and struggled in the east of England. But it also failed to inspire passion in Sunderland, Oldham and Hull – all areas that, for now, return Labour MPs.

***

In appearance, Hull’s city centre is built on blood and sandstone, dotted with memorials to a lost empire and postwar replacements for bombed buildings, all ringed by suburban housing built by the private sector in the 1930s and the state in the 1950s and 1960s. It could be Bristol without the excessive hills, or a smaller Glasgow with a different accent. Unlike in Glasgow or Bristol, however, the residents of Hull are largely hostile to the European Union. Unlike Glasgow and Bristol, Hull is a post-imperial city that has yet to experience a post-colonial second act.

The William Wilberforce is named after a native son who helped destroy the British slave trade, the engine of Hull’s prosperity in the 18th century. The destruction of another local industry – fishing – drives resentment among the pub’s ageing clientele, who were there for breakfast and a bit of company when I visited. They blame its demise squarely on the EU.

Although the Labour Party now has only one MP in Scotland, the back rooms of the labour movement host an outsized Scottish contingent. For that reason – and the continuing threat that the loss of Labour’s seats in Scotland poses to the party’s chances of winning a majority at Westminster – the Scottish independence referendum of 2014 loomed large for Labour throughout the EU campaign.

From the outset, Britain Stronger In struggled to replicate the success of the Scottish No campaign, in part because the price of victory was one that Labour regarded as too high to pay a second time. In Glasgow, in the week before the Scottish referendum, everyone knew where Labour stood on independence – consequently, many voters were already planning to take revenge. The proprietor of one café told me that Labour was “finished in this city, for ever”.

Predictions of this sort were thin on the ground in Hull. Alan Johnson, the head of Labour’s EU campaign, is one of the three Labour MPs whom Hull sent to Westminster in 2015. But even late in the campaign, in his own constituency, I found uncertainty about the party’s official position on the referendum. For that reason, if nothing else, it didn’t have the feeling of a city preparing to break with a half-century-plus of Labour rule, as Glasgow did in 2014. In Scotland, most people I spoke to believed that they were on the brink of independence, which made the eventual result a big blow.

Only among Hull’s pro-European minority could I find any conviction that Britain might actually leave the EU. In September 2014 Kenneth Clarke remarked that Ukip’s supporters were “largely . . . the disappointed elderly, the grumpy old men, people who’ve had a bit of a hard time in life”. To listen to Hull’s Leave voters is to hear tales of the same frustrated potential: they feel that politicians of all stripes have lives entirely removed from theirs. In their defence, they are right – just 4 per cent of MPs in 2010 were from working-class backgrounds.

As for Ken Clarke, he has carved out a second career as every left-winger’s favourite Tory, but that tone of indifference towards the “disappointed lives” of globalisation’s casualties recalls his younger days as a rising star of Margaret Thatcher’s government.

Hull’s residents have been dismissed, first as the regrettable but inevitable consequence of Thatcherite economics, and now as small-minded opponents of social progress and racial diversity. Unsurprisingly, people who feel that their wishes have been ignored and in some cases actively squashed by successive governments of left and right did not expect to wake up on the morning of 24 June to discover that this time, their votes really had changed something.

Equally unsurprisingly, the Remain campaign’s warnings of economic collapse lacked force for people for whom the world’s end had been and gone.

In Glasgow in 2014 Scottish independence was a question of identity in itself, whereas in Hull, hostility towards Europe is the by-product of other identities that feel beleaguered or under threat: fishing, Englishness and whiteness, for the most part.

In Hampstead, a vote for Remain feels more like a statement about the world as you see it. One woman, who walks off before I can probe further, tells me: “Of course I’m voting to stay In. I buy Fairtrade.”

***

Immigration, not the European Union, is the issue that moves voters in Hull. “Britain is full” was the most frequent explanation they gave for an Out vote. Knowing that immigration, rather than the abstract question of sovereignty, would be crucial to winning the contest, Vote Leave tried from the beginning to make it a referendum on border control. Leave’s main theme: the threat of Turkey joining the European Union and, with it, the prospect of all 75 million Turks gaining the right to live and work in Britain.

Although Turkey’s chances of joining the EU are somewhere only just north of its hopes of launching a manned mission to Mars, the tactic worked: according to an ­Ipsos MORI poll released on the morning of 16 June, 45 per cent of Britons believed that Turkey will be fast-tracked into the Union.

That same morning, Nigel Farage posed in front of a poster showing refugees – mostly from Syria and most of them non-white – on the border between Croatia and Slovenia, with a slogan warning that uncontrolled immigration was leaving Britain at “breaking point”. But the row over the poster came to an unpleasant halt just a few hours later as news began to break that Jo Cox, the Labour MP for Batley and Spen, had been shot and stabbed on her way out of a constituency surgery. She died of her injuries a little over an hour later. On 19 June Thomas Mair, who was arrested in connection with the killing, gave his name at Westminster Magistrates’ Court as “Death to traitors, freedom for Britain”.

The circumstances of the killing felt familiar. A little after midnight on 5 June 1968, Robert Kennedy was returning to the Ambassador Hotel in Los Angeles in high spirits. He had just won a crucial victory in the California primary and was well placed to secure the Democratic nomination to run in that year’s presidential election. Going through the kitchen in order to avoid cheering crowds and get straight to his press conference, he was ambushed by a man called Sirhan Sirhan, who fired six shots from a revolver. Kennedy was rushed to hospital, where he died early the following morning.

Five months later Richard Nixon was elected president. The American right held on to the White House for 20 years out of the next 25. Jo Cox’s killing, amid the nativist howling from Farage et al, felt like the beginning of a similar chapter of right-wing advance in the UK.

Labour’s problem, and that of its social-democratic cousins throughout Europe, is the same as the American left’s was in the 1960s. Its founding coalition – of trade unions, the socially concerned middle classes and minorities, ethnic and cultural – is united (barely) on economic issues but irrevocably split on questions of identity. Outside crisis-stricken Greece and Spain, the left looks trapped in permanent opposition, with no politician able to reconsolidate its old base and take power again.

***

When I arrive in Hull, preparations are under way for a vigil in Jo Cox’s honour, but it is the nation of Turkey that is weighing on the minds of undecided voters. On Park Street, residents are divided. Those who have exercised their right to buy and are concerned about their mortgages are flirting with an Out vote but are terrified about negative equity. Those who remain in social housing or the private rented sector are untouched by stories of soaring mortgages. To many residents, the Treasury’s dire warnings seem to be the concerns of people from a different planet, not merely another part of the country. As Rachel, a woman in her mid-fifties who lives alone, puts it: “They say I’d lose four grand a month. I don’t know who they think is earning four grand a month but it certainly isn’t me.”

As Vote Leave knew, the promise that an Out vote will allow people to “take control” always had a particular appeal for those with precious little control – of their rent, of next week’s shift, of whether or not they will be able to afford to turn the heating on next week. Never mind that the control envisaged by Vote Leave would be exercised by the conservative right: the campaign found a message that was able to resonate across class and region, at least to an extent that could yet create a force to be reckoned with under first-past-the-post in Britain.

Four grand a month isn’t a bad salary, even in leafy Hampstead, but in that prosperous corner of north London fears of an Out vote, and what will come after, gained a tight purchase. The worry was coupled with resentment, too, over what would come, should the Outers triumph.

The great risk for the left is that herbivorous resentment is already curdling into contempt towards the people of Hull and the other bastions of Brexitism. That contempt threatens the commodity on which Labour has always relied to get Hull and Hampstead to vote and work together – solidarity. The referendum leaves the Conservatives divided at Westminster. That will give little comfort to Labour if the long-term outcome of the vote is to leave its own ranks divided outside it.

 

Stephen Bush is special correspondent at the New Statesman. He usually writes about politics. 

This article first appeared in the 23 June 2016 issue of the New Statesman, Divided Britain