UN Special Rapporteur and Director of RUSI address APPG

This week Ben Emmerson QC, UN Special Rapporteur, and Professor Michael Clarke, Director General of RUSI addressed MPs, peers, the ambassador of Yemen and members of the Foreign Affairs and Intelligence and Security Committees at an APPG meeting in parliament.

The two experts focused on the following hot topics, which they explored with a surprisingly wide measure of agreement: (i) Emmerson’s ongoing inquiry on drones following his interim report (ii) the role of UK military drones post-Afghanistan (iii) the contrasting practices of the UK and US governments in deploying armed drones and (iv) the complicity of the UK government in the US drone programme by the provision of intelligence which may be deployed for targeting outside armed conflict. 

The experts’ broadly agreed position on (iii) and (iv) engaged the audience in some rather overdue discussion on increasing tension between the MOD’s and DOD’s different approach to the law and policy regarding use of drones as a platform to deliver lethal force; the urgent need for debate on how to apply international humanitarian and human rights law to lethal operations; and on possible restrictions to data sharing between the two countries with a view to ensuring that UK information and information-gathering facilities are not used in manner which is incompatible with UK law or policy. Unlike the US, the UK only operate armed drones in Afghanistan and apparently never when there is risk of civilian casualties.

Professor Clarke said: ‘we share information and it’s very hard to say that it is not used to target individuals. There’s a reasonable presumption that sharing information makes us complicit in the US policy…the government and GCHQ prefer not to acknowledge [this] but  it’s coming down the track with increasing force….the UK silence [on US drone programme and UK role] is deafening.’ On use of UK armed drones post Afghanistan he said: ‘they will be re-deployed in other areas. They are relatively cheap, risk free and they do a useful job…we’ll be tempted to increase their use’

Ben Emmerson said: ‘this week I will be asking states to come clean…at least we know the US position [on questions of international law raised by the US drones programme including the key definitions of ‘armed conflict’ and ‘combatant’]….I came ferociously opposed to the US analysis but I’ve been brought round: we need to debate this.’

On complicity he said: ‘we agree that intelligence from the UK will be deployed for lethal operations.’

And on use of UK drones post 2014 he said: ‘there is currently no consent that UK drones will be returned to the UK. I take that as an indication that their role is changing to that of counter insurgency…they are likely to be relocated to Africa for the purposes of counter insurgency.’

Professor Clarke, who is well placed to comment on the most pragmatic way forward, concluded by making a proposal that has been mooted by some specialist human rights organisations. He said: ‘ultimately what we want is a declaration that information that is shared…cannot be used for this purpose [targeted killing outside Afghanistan] It is hoped that this debate may contribute towards discussion in government on the four hot topics and next steps.

The response to the Special Rapporteur’s letter inviting the UK government to state its position on the disputed areas of international law and policy which underpin the US drone programme is keenly awaited, as is the Rapporteur’s new inquiry into the surveillance powers and oversight of GCHQ.

A podcast of the meeting, headed ‘UN Special Rapporteur on counter-terrorism and human rights’ inquiry on drones’ and hosted jointly with the APPG on UN, is available on the APPG on Drones website. Part 2 of the podcast is here and part 3 is here.

The Domino Effect

Following the first UN debate on increasing extra-territorial use of armed drones, the UN General Assembly Third Committee has approved a draft resolution on the protection of human rights and fundamental freedoms while countering terrorism. In it, the Committee considers drone use by member states. The draft recalls the duty to comply with international law when operating remotely piloted aircraft and asks members to (i) conduct prompt, independent fact-finding inquiries when there are plausible indications of civilian harm and (ii) engage in dialogue on the application of human rights and humanitarian law pertaining to drone use.  

This closely reflects the interim recommendations of Special Rapporteur Ben Emmerson QC, in particular his conclusions that (i) the obligation to conduct an inquiry is ‘triggered whenever there is a plausible indication from any source that civilian casualties may have been sustained…within or outside an area of active hostilities’ and (ii) there is an ‘urgent and imperative need to seek agreement between States on….legal questions on which there is currently no clear international consensus’.

The UN resolution is the second practical proposal to follow the Special Rapportuers’ reports. The first was a proposed amendment to introduce a statutory requirement on the US President to report on the number of civilian casualties in targeted operations including drone strikes. The amendments to the Intelligence Authorisation Act for 2014 were adopted by the Senate Intelligence Committee and put to the House Permanent Select Committee on Intelligence, although rejected by a 15-5 vote.

These are small but welcome steps on the road to transparency and oversight. The statutory amendment would have meant that US drone operations outside Afghanistan would have to be acknowledged and declassified, and that the government would have to release its own data on civilian casualties. It is encouraging that this proposal was taken seriously. The UN resolution would be a practical first step which should at least engage members with opposing views on the legality of operations outside UN mandated warzones. More significantly for the purposes of the APPG, the resolution would require EU members – including the UK Government –  to formulate clear, public policies on drone use and the law in order to participate in the debate. Sitting on the fence – saying that armed drone use is a ‘matter for the states involved’ for example – would not cut the mustard.

For many, the draft resolution does not go far enough. In particular, the UN Ambassador Masood Khan has indicated Pakistan’s concern that the resolution leaves open the possibility that the law may follow the drone, rather than the drone follow the law, as warned against by Special Rapportuer Christof Heyns. Khan commented: ‘ we appreciate that the resolution, for the first time, includes references to the use of unmanned aerial aircraft for counter-terrorism and emphasises the urgent and imperative need to seek agreement between member states on the legal questions pertaining to such aircraft operations…[but] it is not justifiable to launch strikes in the context of non-international armed conflict on the Pakistan-Afghanistan border area.’

Pakistan’s response to the resolution may have been influenced by the recent US drone strike of an Islamic seminary in Khyber Pakhtunkhwa. The strike was unusual because Khyber is a settled area of Pakistan outside the semi-autonomous Federally Administered Tribal Areas. In protest against the strike, Imran Khan’s political party Tehreek-e-Insaf disclosed the name of CIA’s highest ranking officer in Pakistan and continued to block NATO supply routes through Khyber. 

Meanwhile over the border, Afghan President Hamid Karzai has accused the US of a drone strike which killed a 2 year old child and wounded 2 women in Helmund. As a direct result, Karzai has vowed not to sign the long-term Bilateral Security Agreement if similar ‘oppressions by foreign forces’ continue. In stark contrast to the Khyber strike, General Joseph Dunford apologised directly to President Karzai on Friday and promised a full ISAF investigation. It is hoped that President Karzai will clarify his proposed restrictions to drone strikes in and from Afghanistan and will scrutinise the investigation. In a twist that has not been picked up by the British media, it is not clear that the Helmund drone was supported by UK or US military personnel: both operate drones from Helmund, as do the CIA. Either way, pressure to implement the Special Rapporteurs’ recommendations is on.