Hard on the heels of 4 major international reports which fortify calls for increased transparency in the use and impact of armed drones, the UK Information Tribunal (‘IT’) has rejected an appeal by Chris Cole of Drone Wars against the Ministry of Defence and Information Commissioner (‘IC’). Chris Cole sought ‘bare bones’ information under the Freedom of Information Act (‘FOIA’) on each weapon launched by RAF Reapers in Afghanistan as part of the ISAF coalition: the date or month, number, province and whether the strike was pre-planned (‘daily tasking’) or not (‘dynamic tasking’). The IT, following both open and closed hearings, robustly rejected the appeal. It found the exemption at s26 (10) (b) engaged (‘capability, effectiveness or security of relevant forces’) and the public interest in maintaining the exemption was readily made out. The IT then went further than the IC had done, finding that the information sought would not inform legal or moral considerations of the public debate. This is harsh: the Information Commissioner himself had accepted that the information sought would provide a clear insight into how UAVs were used by British forces.
The significance of this appeal in the public debate is three fold. First, FOIA is a primary source of material when there is little information publically available and no higher level overarching policy on drone use in the UK. The appeal is the first of its kind on UK drone use.
Secondly, the ‘bare bones’ information sought by Cole is a prerequisite to assessing whether the requirements in international law for transparency have been met, including those which ensure evaluation of civilian impact, investigation of alleged violations and redress for civilian victims. If no basic data is available on drone weapon release, the likelihood of obtaining accurate data to assess precision and impact is minimal.
Thirdly, Cole’s appeal hearing reveals the practical difficulties of closed hearings in which the government may adduce secret evidence.The key factor in the appeal seems to have been the closed evidence of a UAV Squadron-Leader drone operator who was said to identify specific harm that disclosure of the material sought would cause. Unusually, an email was available to the tribunal which revealed the US had been asked to find a suitable representative to give evidence on the effect of disclosing the material with a view to strengthening the MOD’s case for non disclosure. This email reveals the MOD’s approach to adducing ‘expert evidence’ to be given behind closed doors and therefore not open to challenge in the usual way. Although the IT is inquisitorial rather than adversarial, it is suggested that closed hearings may compound the already significant problems faced by interested parties seeking transparency in drone use.
More striking timing: today the Pakistan MOD has reportedly admitted that low figures on civilian casualties sent to Parliament following the return of the PM Nawaz Sharif from visit to the White House were ‘wrong and fabricated.’ The claim was that only 3% of 2227 people killed since 2008 were civilians and none had been killed in 2012 or 2013 – a stark contrast to those approved by the Peshawar High Court earlier this year. ‘It seems the figures changed with the change of circumstances, demands and requirements’ commented an official at the Foreign Affairs Ministry. It is to be welcomed that the Pakistan MOD intend to correct the mistake. Although in Pakistan, not Afghanistan, this episode is no distraction; it underlines our need for accurate public information on the criteria for targeting, impact and the investigation of alleged violations. As the Special Rapportuer on Counter-Terrorism and Human Rights Ben Emmerson QC has emphasised in his interim report, accurate information is necessary to ensure meaningful oversight and accountability for violations of international law.