Welcome to the All Party Parliamentary Group on Drones’ Blog

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Welcome to the All Party Parliamentary Group on Drones (unmanned aerial vehicles).  The Group was founded in October 2012.  The purpose of the Group is:

To examine the use of drones (unmanned aerial vehicles) by governments, for domestic and international, military and civilian purposes.

More details about the aims and objectives of the Group, can be found on our About page. We work with a range of civil society organisations, who undertake research, monitoring and advocacy on the use of drones by the UK and elsewhere. Their websites can be found on the side bar.

The APPG holds meetings in Parliament which serve to engage and educate Parliamentarians on the use of this technology.  These meetings are invitation only but the minutes, briefings and reports of these meetings can be found on the APPG meetings page.  The Group uses Parliamentary processes to increase transparency and accountability on the UK’s use of drones, a table collating these responses can be found on the Parliamentary Questions page.  The Group also submitted two Early Day Motions which can be found here.

Recall and recap

On Monday, the UN Human Rights Council (‘HRC’) expert panel met to discuss resolution 25/22 on ‘ensuring use of RPAS or armed drones in counter-terrorism and military operations in accordance with international law’. The objective of the meeting was to inform and engage Member States, and follow up on Special Rapporteur Ben Emmerson’s Reports to the HRC A/HRC/25/59 and A/68/389 and Special Rapporteur Christof Heyn’s Reports A/65/321 and A/68/382.

With parliament set for recall tomorrow, HRC input is timely. As Chair Tom Watson said:
On the verge of another remote war, we need UN Guidance on how to apply international laws to armed drones more than ever. As Chair of the APPG on Drones, I am urging Emmerson to set this in motion.’

The APPG Chair joined forces with two former UN Ambassadors Lord Hannay (Chair of the APPG on UN) and Sir Jeremy Greenstock, Admiral Lord West and APPG Officers to write to panel members highlighting that:
Resolution 25/22 is made all the more pertinent and timely as the frontiers of transnational counter-terrorism operations expand: increased use of armed drones underscores the need for greater consensus between States on how to apply the international laws that regulate lethal force.
We note, in particular, that States are invited to respond to the questions posed by Special Rapporteur Ben Emmerson in his report of 28 February prior to the 27th session of the HRC. We note that the 27th session has now commenced and the UK Government does not appear to have responded to the Special Rapporteur. In the event that the UK or other States do not respond, or do not respond adequately, to the questions posed at paragraph 71 of the Special Rapporteur’s report of 28th February, we urge you to consider the advantages of having a Special Procedures mandate holder address these questions…
In our view, in the absence of consensus on this issue, States urgently need definitive recommendations (‘UN Guidance’) from a Special Procedures mandate-holder to address the questions posed at paragraph 71.
We recommend that this should, in turn, form the basis for a further Council resolution on the core principles governing use of armed drones.

Although the UK voted against resolution 25/22 and the panel meeting, representatives attended Monday’s meeting. This is an improvement. Discussion was limited however, focusing on the argument that the ‘HRC was not considered the appropriate forum to discuss weapons on a thematic basis’ rather than the substantive issues identified by the HRC and panel. This remains disappointing, and at odds with the HRC.

The question is now: what happens next? The APPG Chairs and co-authors appear to share the view that Emmerson’s existing mandate is sufficient to cover issuing the UN Guidance sought. In other words, because the UK and other States have not responded to his report, the Special Rapporteur may provide the Guidance himself. If Emmerson agrees, he may now initiate a third report for this purpose.

Several other matters discussed reflect the concerns of a coalition of human rights NGOs and academics. Flavia Pansieri, Deputy High Commissioner for Human Rights highlighted that the right to life placed stringent conditions on the use of lethal force. The use of armed drones impacts significantly on entire communities by creating an atmosphere of fear, notwithstanding precision claims.

Christof Heyns reiterated that the law must not follow the drone; the drone must follow the law. In emphasising this, Heyns may have had in mind current debate concerning the uncertain legal bases for air strikes in Syria; and President Obama drawing from the controversial covert drone programme in Yemen and Somalia.

Ben Emmerson emphasised that both international human rights and humanitarian legal regimes overlapped and applied. In human rights law, targeted killing was rarely lawful and had different connotations; one key question is whether a state of ‘armed conflict’ exists with particular regard to the intensity of the conflict. In any event, the single, greatest obstacle was lack of transparency, which prevented assessment of damage on civilians and hence accountability. Emmerson reminded States of their obligation under international human rights law to conduct impartial investigations into alleged violations.

Ms Kebriaei flagged the right of remedy for victims and challenge of accountability for remote drone strikes. She described the HRC as a ‘springboard for action’. Shazhad Akbar informed the panel that not one of the 1,449 civilian victims identified in the May 2013 Peshawar High Court judgement had been compensated.

The Panel reiterated the concerns of former Human Rights High Commissioner Navi Pillay about lack of transparency and accountability in the context of remote war; the need for States to outline their armed drone policies more clearly; and the requirement on States to take all measures to ensure any drone strike within armed conflict complies strictly with the principles of necessity, distinction and proportionality.

It is hoped that members of parliament will consider the HRC expert advice given to States. Members may wish to consider those international laws that have not been complied with to date, according to HRC panel experts. As Chris Cole’s ‘Into the Fire’ argues, the long term impact and security risks of another war must be assessed. The key issue for tomorrow is not whether ISIL should be stopped but, in all these circumstances, should the UK choose direct, remote air strikes in Iraq over humanitarian operations at this time.

To enable informed debate, the Ministry of Defence should also disclose any alternative plans to deploy UK Reapers. APPG members have sought this information for some time, and tabled EDM 136 on application of the convention requiring parliamentary debate to redeployment of armed drones. In deciding whether or not to share these basics with parliament and the public, the Ministry may wish to bear in mind the claims of Yemeni Saeed Al Yousefi’s, supported by Reprieve and Deighton Pierce.

The Stimson Drone Task Force: a roadmap

task_force_report_thumbnailThe new Stimson Centre Drone Task Force report lends weight to a number of APPG, UN expert and human rights NGO concerns about US drone strike policy. As deployment of Predators is stepped up in Iraq (for ISR, force protection and possible targeted killing) the report offers a constructive, high-level critique of current US practices. It can also be seen as a roadmap for future use: what emerges is a To Do List for the Pentagon and any allies contemplating use of armed drones as part of counterterrorism strategy – a To Do List with potential to reshape the US drone program.

Task force members include a former head of Combined Forces Command Afghanistan (Lt Gen Barno), Counsel to the President and US State Department (John Bellinger), General Counsel of the CIA (Jeffrey Smith) and Deputy Director of the CIA Counterterrorism Centre (Philip Mudd). Given the expertise of its authors, Professor Sarah Knuckey suggests that the report may signal the viability of reform in the near future.

The authors note that cooperation with allies is relevant to forming policy.This would include the UK, with its own 10 Reapers in Afghanistan, 5 of which have been obtained under a US Foreign Military Sales contract for an Urgent Operational Requirement. Those Reapers have not yet been used in Operation Herrick. It should be noted that the UK is at a critical point in deciding how to deploy Reapers post Afghanistan, if at all. No decision has been made on future basing, the UK-US Reaper Agreement is under review and scope of the proposed Joint User Group has not been determined. The well timed report may help the MOD identify key issues.

The basic premise is that drones – with their long loiter time, sophisticated sensors and extensive operational reach – enable innovative tactics and policies. In particular, drones have allowed the US to engage in cross-border targeted operations in an unprecedented and expanding way. Whilst members of the Task Force identify some tactical successes, the report recognises that UAVs (sic) are not strategic weapons and have substantial vulnerabilities. These must be addressed.

First, the report raises concerns that the Obama administration’s reliance on targeted killing as a pillar of counterterrorism strategy rests on questionable assumptions, and risks increasing instability. In-depth impact assessments on security are absent notwithstanding Sunni and Shia Islamic extremist groups growing in scope, lethality and influence across the Middle East, Africa and South Asia. Other strategic risks include the erosion of sovereignty norms where consent is questionable and allies do not regard lethal force is justifiable; revenge attacks following civilian casualties; and the slippery slope to a continual or wider conflict through apparently low-risk and low-cost missions.

APPG members note the dearth of robust research on the affect of drone strikes on radicalisation, although studies by Svedberg (2013) Pew Research (2012) and Columbia Law School/Stanford (Saif, 2014) suggest a significant increase in anti-US sentiment and disenfranchisement through civilian impact is likely to make individuals vunerable to radicalisation. Dr Wali Aslam’s first paper for the Remote Control Project focuses on relocation of militants; it is hoped further research may extend to impact in the UK. The more favourable report by Johnston and Sarbahi looks at shorter term changes. In the UK, the MOD do not appear to have contributed to this slender body of work.

Second, the report analyses how current US practice is ‘not consistent with core rule of law norms’ because of expansive interpretations of the key concepts ‘armed conflict’ and ‘imminence.’ This undermines the legitimacy of any lawful operations, and sets a worrying international precedent for other countries developing their own armed drones.  The APPG has consistently advocated for government engagement on the core principles governing using of armed drones through letters to the MOD, PQs, EDMs and a complaint to UN Special Rapporteur Ben Emmerson. Chair Tom Watson’s third drones EDM goes further by asking for a statement of criteria on military intervention and clarification of the uncertain role of parliament, should Reapers be relocated from Afghanistan.

Third, the report reiterates concern about continuing lack of transparency since the administration discloses only partial information about a handful of strikes against US citizens, now including the heavily redacted memo justifying the Al Awaki strike. In general, the identities of those targeted and the basis for their targeting are neither confirmed nor denied: it is inevitable that democratic accountability for the ‘covert multi-year killing program’ (as report describes it) is thwarted.

And so, the pressing To Do List heads that emerge are:

  1. Undertake a strategic review on the role of drones in targeted counterterrorism strikes. This would include in-depth impact assessments on security as well as assessments on affected communities at home and abroad, public opinion and cooperation with allies;
  2. Strategically analyse the review along side non-kinetic means of combating terrorism;
  3. Engage with legal critique of drone strikes with a view to dialogue and agreement on application of existing core principals of international law;
  4. Increase transparency starting with public acknowledgment of strikes, robust casualty counting and resulting disclosure; and
  5. Seek full democratic accountability and oversight mechanisms rather than limited, ex post facto notification.

Jeff Smith and John Bellinger’s article on the report, ‘Mr President We Need Rules for Drones’ is here.

Bring in the Special Rapporteur

This week Chair Tom Watson MP has written an Official Communication or ‘complaint’ to Special Rapporteur Ben Emmerson QC on behalf of the APPG on Drones about unsatisfactory responses from the Government to the Special Rapporteur’s Third Report. The APPG’s concern, based on responses to members’ Parliamentary Questions, is that the Government is still reluctant to engage in debate on the imperative legal questions governing use of armed drones. These are, in effect, the core principles which will define UK use of lethal drones post Afghanistan. It is thought that, notwithstanding the recent Foreign Affairs select committee report on the enduring nature of the long term UK-US relationship, the Government’s position may stem from aversion to participating in an exercise which could be interpreted as a public critique of the US covert drone war.

50% of UK equipment has already been repatriated from Afghanistan and, in the absence of a signed Bilateral Security or Status of Forces Agreement, the rest – including the UK’s 10 Reapers – must follow. It is therefore unlikely that this  ‘deafening silence’ can go on for much longer. Failure to respond properly to the Third Report may risk complicating the significant logistical challenges already faced by the MOD in withdrawing from Afghanistan (see yesterday’s Defence Committee report) and diminishing the influence that the UK government has with the United States as its most interoperable ally (see the Defence Committee’s Intervention report).

Members of the APPG are concerned that continued reluctance to engage on how to apply international humanitarian and human rights law to lethal operations outside the hot battlefield may also result in the avoidance of democratic accountability on future use of UK armed drones. This is because the Commons’ convention requiring a debate before committing UK troops abroad may not apply to drones, where they are operated from RAF Waddington.

It may also stymie the MOD providing basic information on the basing options for UK Reapers. It is unfortunate that APPG members, with colleagues on the Defence Committee, are left to speculate about future basing of UK military drones, from Camp Lemonnier in particular. If it is right that the MOD is planning to relocate our Reapers to Djibouti at the end of the year, members are likely to expect a reasonable opportunity for debate and scrutiny of arrangements to ensure that UK personnel and assets cannot be not drawn in to the covert drone strikes carried out from that US Expeditionary base, unwittingly or otherwise. It is hoped that the APPG complaint may help move this debate forward.

 

 

The Defence Committee report

Yesterday the Defence Committee published its report into ‘Remotely Piloted Air Systems – current and future UK use’. The report, led by Madeline Moon MP, is a welcome contribution to the debate on military UK RPAS use and those areas of UK policy which support other states’ use of armed drones. It reinforces calls for the MOD to take steps to increase transparency and accountability in a number of key areas – shared resources, future options, investigations into civilian casualties and trials on emerging technologies; and to update JDN 2/11 formulating a clear, overarching policy on drone use, integration and strategic partnerships which will survive withdrawal from Afghanistan in 2014.

Significantly, the Defence Committee welcomes recommendations of UN Special Rapporteur Ben Emmerson QC. In line with the recent European Parliament’s resolution and the Early Day Motion tabled by APPG members, the Defence Committee recommends that the UK Government ‘engage actively in the debate on these matters and report on progress in its response to our report.’ This would involve dialogue, internationally and with the FCO, on the core principles or legal questions governing use of armed drones, as the APPG have consistently advocated.

In this context, the Committee draws a ‘vital’ distinction between the actions of UK armed forces operating drones in Afghanistan, and those of other states elsewhere. The distinction suggests the Committee’s own view of the principles of international law governing drone use, although not spelt out, reflects that of the European Parliament and mainstream academia on the scope of key terms ‘armed conflict’, ‘self defence’ and ‘combatant’. The report notes the evidence given by Dr William Boothby, author of ‘the Law of Targeting’ and ‘Weapons and the Law of Armed Conflict.

The Committee rightly supports MOD policy that combat missions will always involve human operators, although degrees of automation within combat, other missions and support systems are not addressed. Members of the Committee were obviously influenced by meeting individual RAF Reaper aircrew. They conclude, based on impression rather than objective psychological or impact assessment, that the crew exhibit ‘a strong sense of connection to the life and death decisions they are sometimes required to take.’ The report emphasises the potential for military use of intelligence, surveillance and reconnaissance drone capabilities. For this reason, presumably, the report seems to have been welcomed by the Rt Honourable Mark Francois MP and the MOD. There is much work to be done but, nomenclature side-show aside, it is some feat to capture positive attention from both sides of the debate in the way the report has done.

The short section on non-military uses should not go unnoticed. The Committee notes current domestic use of applications, insofar as that is known, including trials run by Research Councils UK funded by the Department for Business, Innovation and Skills, and the ASTRAEA consortium. The report quotes from the European RPAS roadmap which identifies that increased use of drones ‘may cause serious and unique privacy and data protection concerns’ potentially undermining the overall benefits from this innovative technology, and notes the need to amend existing regulatory frameworks. As APPG members have requested, the report calls on the UK Government to set out in detail joint working across departments so that the implications of drone use in the civilian environment can be properly considered.

The APPG is hosting a meeting on the Use of RPAS by the UK’s Armed Forces later today, at which Mark Francois MP will speak with Air Vice Marshal Osborn and Professor Clarke, Director General of RUSI.

Kareem’s story

At the crack of dawn on Valentine’s Day, drone victim Kareem Khan was released – or rather thrown from a van, blindfolded, in the Tarnol surburb of Islamabad, not far from the temporary home of his family. His hands, at least, were untied but he was ‘pretty shaken up’ after being ‘tortured, beaten up, questioned, put in a cell, and handcuffed’ for 9 days, according to his lawyer Shazhad Akhbar.  Kareem’s abduction bears the hallmarks of the Pakistan intelligence services (‘ISI’): the timing of the operation, number of men (about 20 men of whom 8 were uniformed), vehicles in attendance and absence of a local police report.

There might have been nothing unusual about Kareem’s story at the hands of the ISI, now able to work under cover of a new law which permits detention of terror suspects for 90 days without need to disclose whereabouts or charges. But the timing of his disappearance days before he was due to speak to parliamentarians in the UK, Germany and Holland suggests there may have been a connection. We are now told that the interrogation focused on Kareem’s work reporting on drone strikes in Waziristan; and that he was specifically warned not to speak to the media. News of his abduction on the 9th triggered legal action (habeas) in Pakistan and a concerted campaign for his release in the United States and EU.

MPs and peers will now benefit from hearing Kareem’s story first hand: the deaths of his father and son; the investigation and reporting of drone strikes he has done since; the impact of drone strikes on his community; the Pakistan High Court civil proceedings in which judgment is due; perhaps Kareem’s interrogation last week.

The story does not end here. The abduction demands some reflection on why this brave man was invited to the UK – and why he was taken on the 5th. Kareem, and the other APPG invitees Noor Begram and Noor Khan, represent the ‘human face’ of the CIA drone program in Pakistan. Where there is still no official acknowledgment of the program – and therefore no official record of anyone killed or wounded in the strikes – we are dependent on individual victims and investigative reporters, like Kareem, speaking out to ‘name the dead.’ Stuck between a rock and a hard place – and manipulation of numbers and stories by all sides – those willing and able to negotiate this role are thin on the ground.

Inviting individuals like Kareem to speak directly to parliamentarians has the potential to be a powerful antidote to lack of both transparency and access to Waziristan. It also sends a clear message: that European parliamentarians will continue to use parliamentary mechanisms to seek information, promote informed debate and increase the accountability of those responsible. There is a model for this: the family of Momina Bibi, the 67 year old midwife killed in October 2012, travelled to give testimony to lawmakers in Washington DC one year later.

But we should reflect on the dangers to individual invitees, and recall the history of interference with drone strike investigators. Last year in July, Abdulela Haider Shaye a Yemeni journalist was released but confined to Sana’a for two years – his drone strike reporting marshalled as evidence of links with terrorists. In September, Bara’a Shiban a Reprieve investigator was detained at Gatwick airport; in December he received anonymous death threats after recording eye witness accounts and images of the aftermath of the Yemen JSOC ‘wedding party’ strike, although his reporting triggered a rare investigation.

It is hoped that parliamentarians in the UK may reflect on the reported ‘back door’ consent of the ISI in the US drone program.  According to anonymous DOD officials reported over the weekend, any ongoing arrangement between the CIA and ISI may be jeopodised if the US military and JSOC take over the program. Significantly, this is at a time when the US may be forced in 2015 to seek alternative bases from which to launch the drone strikes in Pakistan, perhaps from Tajikistan, visited last month by Major General Nagata, Commander of US Special Operations in the Middle East and Central Asia. This was anticipated in January. The US drone program in Pakistan, paused for peace talks, is under pressure.

Kareem’s disappearance may also cause MPs to reflect and examine the claims of complicity of our own intelligence services; and recent statements from the MOD which indicate further opportunities for ‘burden sharing’ between the UK and US are being considered. Policy makers in the UK may be more circumspect about providing support to a program approved by those who go to such lengths to silence their critics.

Jemima Stratford QC’s Advice

Chair of the APPG on Drones Tom Watson has obtained an expert Advice from Jemima Stratford QC on the legality of the reported ongoing GCHQ practice of intercepting ‘internal’ and ‘external’ data in the UK, and the potential availability of that data for use in lethal targeting by the CIA. The trigger for seeking the Advice, with a view to sharing it with APPG members, was reported CIA reliance on NSA surveillance to inform the CIA-operated drone program. It is widely known that GCHQ share data with (and permit interception by) the NSA. The Advice is written on the basis of 5 hypothetical scenarios, based on the newspaper reports of investigative journalists. It provides a detailed review of those scenarios. In summary, the striking conclusions are:

(i) GCHQ is not entitled to intercept mass ‘internal’ contents data between two British residents under the existing legislative framework of Regulation of Investigatory Powers Act (‘RIPA’) in the opinion of the writers;

(ii) RIPA authorises GCHQ to intercept metadata and ‘external’ contents data under RIPA, although this is very probably an unlawful interference of Article 8 (privacy) rights of those affected;

(iii) the executive has retained a largely unrestrained discretion to permit transfer of UK data to the NSA under RIPA;

(iv) RIPA places limited restrictions on the uses to which intercept material might be put, other than its admissibility in court;

(v) a new UK-US bilateral arrangement governing the transfer, storage and use of UK data is the minimum required to protect British citizens and ensure British data and facilities are not used to support activities which would be unlawful in the UK, including drone strikes against non combatants;

(vi) the government is obliged to investigate and prevent UK agents, visiting forces and visiting agents becoming ‘accidental’ accessories to murder under domestic law, where those responsible know that relevant data or facilities may be used to support US drone strikes, properly regarded as unlawful in the UK;

(vii) RIPA has been overtaken by developments in technology since 2000. The key distinction between ‘contents’ and ‘communications’ data is no longer meaningful, given modern internet usage.

The Advice also lends real weight to amendments proposed to the Defence Reform Bill, Visiting Forces Act and RIPA tabled by four peers from the All Parliamentary Group on Drones which will be moved next week on 3rd February in the Grand Chamber. Jemima Stratford QC, advising with Tim Johnston, ends up concluding that the probing amendments might go some way to ensuring that Ministers are informed about data passing through the UK, as well as interception taking place in the UK. This would, in turn, assist the government monitor compliance with UK law, and make informed decisions about the need for an updated multilateral agreement between NATO partners. Chair Tom Watson yesterday submitted the Advice to the Intelligence and Security Committee to contribute towards their ongoing inquiry. It makes an interesting read.

After Noor Khan

This week the Court of Appeal handed down judgment in the case of Noor Khan v The Foreign Secretary. Khan was denied leave to appeal his claim which sought a declaration that a GCHQ official may be liable for under domestic (and international) criminal law for passing ‘locational intelligence’ to the CIA. Liability would arise, Khan argued, where the UK official foresaw a ‘serious risk’ that the information would be used for targeted killing. If the targeted killing took place outside armed conflict, it was tantamount to murder in UK law and the UK official would be ‘encouraging or aiding’ a crime. The key to this part of Khan’s claim was that civilian GCHQ officials would not be entitled to the defence of ‘combat immunity’ for supporting operations outside armed conflict, unlike their military colleagues in Afghanistan.

Khan also sought a declaration requiring the FCO to write and publish a lawful policy on when ‘targeting intell’ could properly be transferred to the US. This seems to have hit a spot: 3 leading QCs were employed by the FCO to defend the claim.

The case rested on the construction of a ‘topsy turvy’ hypothetical scenario: a UK drone operator killing a person in Pakistan. The conduct of the notional principal would fall within the jurisdiction of the UK courts because the operator was a UK national working from the UK. In this way, Khan stayed clear of asking the Court of Appeal to make a finding about the lawfulness of any US act or practice. The case was about the application of UK law to UK officials, not the lawfulness of drone strikes under US law. The Master of the Rolls found Khan’s argument ‘persuasive’ but declined to express a view. Ultimately – whatever the correct legal analysis – the legal fiction created by the claim would give the impression that a UK court was presuming to judge US foreign policy. Without exceptional circumstances, a UK court would not do this.

In its short judgment, the Court of Appeal was careful to distinguish the case of Rahmatullah v Secretary for Defence, and did not make any factual findings to contradict Khan’s claim. This may leave the door open for a less hypothetical case or a different analysis and challenge to data sharing practices.

There may be no appeal, but the Khan case has contributed significantly to the debate on lethal drone use. The 17 March CIA strike in which Khan’s father, a tribal elder, was killed with more than 40 others at a Jirga in Datta Khel, North Waziristan, is now well known as a cautionary tale. The case has shone a spotlight on the UK-US data relationship, and complications that may arise from it. Khan’s request for a published policy – which would require the UK government to face different interpretations of the key words ‘combatant’ and ‘armed conflict’ – has been picked up and developed by others, including Professor Michael Clarke Director of RUSI who called for a declaration on UK-US information sharing at the last APPG meeting on 5 Dec. This call is unlikely to end.

The APPG has invited Noor Khan and other strike victims to speak to APPG members and other parliamentarians next month.