2014 and a new Roadmap for Drones

Drones are here to stay, according to the new US Roadmap on Integrated Unmanned systems, released on Christmas Eve. The Department of Defence (‘DoD) will continue to develop and operate armed and surveillance drone systems over the next 25 years with a focus on rapid deployments to troublespots in South West Asia and, increasingly, the Asia-Pacific ‘theatre’. Whatever this means, the complex environment of Asia – in which US ‘freedom of operation’ is contested and coordination with allies and host nations is required – demands continued use of unmanned systems, say the DoD.

It also demands the development of innovative technical solutions for unmanned systems with a view to reducing manpower. The Roadmap emphasises the importance of increased system, sensor and analytical automation to deliver ‘actionable’ intelligence without, or with significantly reduced, manpower [4.1.5]. This may explain why the term ‘remotely piloted’ has been avoided by the DoD. Options for weapons delivery will be expanded to take advantage of all classes of unmanned systems, for example by adding weaponised platforms on to existing, unarmed drones. This reveals the potential for overlap between surveillance and armed assets and operations. Notably, DoD drones will be set for interoperability with CIA drones [4.2.1]. This will enable integration and facilitate the DoD and JSOC’s greater involvement in the US armed drone program in 2014.

The need for international cooperation in terms of drone research, development and agreeing standards for the interoperability of allied technologies is highlighted in the Roadmap. The ‘active’ UAS program within the Technical Cooperation Memorandum (‘TTCP’) made between the US, UK, Canada, Australia and New Zealand countries gets special mention: the ‘Five Eyes’ UAS program apparently conducts joint experiments on areas which include autonomous C2 and UAS self-protection. Joint programs and interoperability may facilitate the sharing of information, technology, payloads or platforms between the UK and the US. This will need to be watched and questioned by the APPG in 2014.

It is hoped that the Secretary of State for the Defence Philip Hammond will comment on the US Roadmap and the UK government’s response to US plans for extended use of armed and surveillance drones outside Afghanistan with the cooperation of allies. The Minister made a first welcome response to public concerns about UK and US drone use in his article for the Guardian ‘In Defence of Drones’ which addressed UK use of drones in Afghanistan. The article coincided with an initiative to open up the control room at RAF Waddington to selected members of the press for a snap shot view of current UK military operations.

Perhaps more significantly, the Minister commented on future use of UK drones following withdrawal from Afghanistan in 2014. In answer to a question about whether UK drones could be flown in Yemen, he said ‘we have to pursue terrorists wherever they take themselves’. This comment suggests that the Ministry of Defence is considering use of UK military drones to pursue suspected terrorists in ungoverned spaces outside Afghanistan. This may include counter insurgency operations in Yemen or Africa, as predicted by Ben Emmerson QC and Professor Clarke at the December APPG meeting, and may involve collaborative efforts with the US. The Minister may not have had an opportunity to comment on the opposition of the Yemeni Parliament to US drone use or concerns of 2 UN Special Rapporteurs on the Yemen ‘wedding party’ strike, including Special Rapporteur on Torture Juan Mendez, a newcomer to the drones debate. Special Rapporteur Mendez commented that deadly attacks on illegitimate targets may amount to cruel, inhuman or degrading treatment.

In line with his intent to correct any misapprehensions which may exist and promote informed debate, the APPG on Drones will invite the Minister to address the APPG on current and future UK drone use, policy and the law.

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.

Stroebele in parliament: surveillance and drones

Hans-Christian Stroebele, German MP and longest serving member of the Parliamentary Oversight Committee which monitors the German Intelligence Services, visited Parliament yesterday to kick start ‘cross party, EU dialogue about the spying scandal’. His particular concern was reported surveillance from the British Embassy in Berlin and UK complicity in US telephone interception and mass data transfer via fibre optic cables and a communications hub in the UK. That hub is RAF Croughton, described as a ‘relay centre for CIA clandestine and agent communications’ by the Independent, and the same UK base which reportedly supports the US drone programme in Yemen via Djibouti. RAF Croughton has been the subject of a series of PQs by members of our APPG and a letter to William Hague by Chair Tom Watson calling for investigation and a statement of policy on use of the base.

Stroebele’s view was that UK complicity in either US tapping of Angela Merkel’s phone or the US armed drone programme would be unlawful – and a crime – in German law. As a democracy and member of the EU, the UK government must respond to the substantive allegations. On drones, he said: ‘it is a criminal case to kill someone – targeted killing – and aiding and abetting would be a criminal offence in Germany’. On surveillance and the transfer of data, he said: ‘we are of the opinion that it is an infringement of EU laws that the UK is allowing fibre optic cables in the South of England to be used in order to transfer this information from Germany to North America.’ In the absence of acknowledgement, investigation or the enforcement of restrictions so far, Stroebele has submitted a motion to the German government for initiation of an infringement procedure of EU laws against the UK.

The drones debate is linked to the wider debate on mass surveillance in 3 key respects. First, identical UK bases, communications facilities and practices are used to support both US data transfer and drone programme as demonstrated by the Merkel/RAF Croughton episode.

Secondly, it offers a striking example of potential abuse of surveillance data gathered by our and guest intelligence services in that data may end up being used to support an activity which would be prohibited under UK law. Review of documents disclosed by Edward Snowden indicates a high level of support provided by the NSA Counter-Terrorism Mission Aligned Cell to the CIA in targeting suspects, and GCHQ shares data with the NSA through the Tempora programme.

Thirdly, we know that 11 domestic state agencies have permission to fly drones in the UK, although the use to which these surveillance drones are being trialled or put is not clear yet, partly because there is no requirement for individual police forces or other bodies to report to the Home Office and police forces tend to cite the s23 ‘security body’ exemption to Freedom of Information Requests.  

In the wake of these claims, Germany has also reportedly suspended its troubled drones programme pending a thorough review of ‘all associated civil and constitutional guidelines and ethical questions.’ According to Der Speigel, the Social Democrats and Conservatives are in discussion about issuing a statement condemning targeted killing by the US. The draft agreement between the Social Democrats and Conservatives obtained by the newspaper states: ‘we categorically reject illegal killings by drones. Germany will support the use of unmanned weapons systems for the purposes of international disarmament and arms control.’ The issue of a clear statement on the law and policy concerning drone use by the German government may serve as an excellent model to other EU states as they define their position, especially those wishing to rebuild German trust. Meanwhile in Brussels this week, EU Defence Ministers have instructed the European Defence Agency to study the military requirements and costs of an EU surveillance drone.

Underpinning the Stroebele meeting is increasing concern that the intelligence agencies are operating outside their constitutional mandate. Stroebele himself visited Snowden last month to discuss the possibility of the whistleblower giving evidence in Berlin. Stroebele says this could happen if the majority of MPs voted in favour: the debate on how to investigate is well under way in Berlin. In the UK, the ISC review of the legislative framework governing intelligence agencies’ access to information has been extended to consider some broader questions concerning the balance of privacy and security. This is a welcome start. It is hoped that the ISC may consider use of its new power to examine operations at RAF Croughton under s2(1) Justice and Security Act 2013. However the ISC review will take place almost exclusively in private and the hands of the PM-nominated Committee are tied in a number of respects.The debate in Parliament on how to supplement the ISC review has only just begun.

Striking Timing

Aside

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.

All eyes on drones

After much expectation, the Special Rapporteur on Counter-terrorism and Human Rights, Ben Emmerson QC, has released his interim report on his investigation into the use of drones.  His final report will be submitted to the Human Rights Council in 2014.  The original parameters of his inquiry were to examine evidence that drone strikes, together with other kinds of remote targeted killing, are causing, in some instances, disproportionate civilian casualties.  While the UK is one of the countries under consideration, it is the use of this technology by the United States which is the primary focus of this report. 

From a UK perspective (and a brief first reading), the following points are interesting to note. With reference to the UK’s participation in NATO’s campaign in Libya in 2011, the Rapporteur comments that the UK carried out its own investigations into incidents where civilian casualties may have been caused by British “assets”, though none involved drones (para 36).   On the subject of investigations, the MoD has told him that

under operating procedures followed by the United Kingdom in Afghanistan, every remotely piloted aircraft weapons discharge is the subject of internal review involving the senior qualified weapons instructor. A mission report is prepared and is then reviewed by the most senior British officer at the Combined Air Operations Centre in Afghanistan and his or her legal adviser. This includes a review of video footage and communications reports. If there is any indication of civilian casualties, the incident is referred to the Joint Incident Assessment Team at ISAF, whose personnel are independent of the chain of command involved in any strike. Individuals are presumed to be civilian for this purpose unless it can be established that they were directly involved in immediate attempts or plans to threaten the lives of ISAF personnel.

While this approach is to be welcomed, we have to respectfully argue that the Government does not go far enough in providing transparency to Parliament as to the use of this technology, especially as the Government continues to re-iterate its claim that it has only killed four civilians, in an incident in March 2011, in the duration of its drones campaign in Afghanistan.

The Rapporteur also highlights the use of “pattern of life analysis” by the RAF for targeting purposes.  The amount that such analysis actually contributes to the identification and execution of such targets is not clear though the statement is worrying and perhaps explains, in part, the low levels of identifiable civilian casualties caused by UK drone strikes.

More positively,

the United Kingdom has specifically informed the Special Rapporteur that in making targeting decisions involving the use of remotely piloted aircraft in Afghanistan it does not authorize strikes on the basis that the infliction of civilian casualties would be proportionate to a high-value military target.

Emmerson’s report comes on hot on the heels of that by the Special Rapporteur on extrajudicial, summary or arbitrary executions, whose inquiry into drones “examines the ways in which the constitutive regimes of international law, including international human rights law, international humanitarian law and the law on the inter-State use of force, regulate the use of armed drones.”  His report makes a number of recommendations that it would be beneficial for the UK government to engage with as these echo many of the concerns raised by NGOs, Parliamentarians and the public, particularly around the need for transparency, in relation to the development, acquisition and use of drones, and respect for existing legal frameworks.

Relevant for our purposes is the call for states to

publicly disclose the legal basis for the use of drones,  operational responsibility, criteria for targeting, impact (including civilian casualties), and information about alleged violations, investigations and prosecutions.

…and must ensure meaningful oversight of the use of drones and, where appropriate, investigation and accountability as well as reparations for their misuse.

The devastating impact of drones were once again the focus of attention from NGOs last week with Amnesty International’s in-depth investigation report into drone strikes in Pakistan by the United States.  The report considers the provision of intelligence, and other assistance, by the UK to the US drone campaign in Pakistan and highlights the relevant consequences for the UK’s international human rights obligations.  Further, the report states

The authorities of all states who assist the USA in carrying out drone strikes in Pakistan, including those of Pakistan, must carry out independent and impartial investigations into any organs or officials implicated in involvement in US drone strikes that may constitute human rights violations.

The UK is also encouraged to hold the US to account in relation to its own international legal obligations – a role that the APPG has previously highlighted.

This report has been complemented by the publication, by Human Rights Watch, of their report examining “the Civilian Cost of US Targeted Killings in Yemen”.  Between a Drone and Al-Qaeda calls for the US and Yemen to implement “measures to reduce civilian casualties from targeted killings in Yemen and to ensure these strikes comply with international law” and, like those reports discussed above, calls for prompt, thorough and impartial investigations.

These reports all make a positive contribution to increasing transparency and accountability on the use of drones and it is hoped, will be carefully considered by the US, UK and other relevant Governments.

APPG submission to the Defence Select Committee

The APPG on drones made a submission to the Defence Select Committee’s inquiry into Remotely Piloted Air Systems – current and future UK use.  The full submission can be downloaded:  appg-submission-on-the-use-of-drones.pdf.

The APPG’s submission focused on the following issues:

(a) A lack of transparency and accountability about the use of drones by the UK Government particularly in relation to:

  • the poor recording of the status and numbers of those killed and injured in drone strikes;
  • the limited consideration of the psychological impact of drones on operators and those living in affected areas;
  • the broader relationship between the achievement of the UK’s military and diplomatic objectives and drone use.

(b) Concerns about the shape of the US-UK relationship and drone warfare with particular reference to:

  • Operation of US drones from UK soil;
  • Citizenship stripping.

 The inquiry’s terms of reference are:

 Concept of Remotely Piloted Air Systems (RPAS)

 Nomenclature – what do we mean when we talk about Remotely Piloted Air Systems (RPAS), Unmanned Aerial Systems (UAS) and associated terms?

Current utility and dispersal

  • For what purposes are RPAS used currently?
  • What RPAS capabilities do the UK military and intelligence communities currently possess or operate?
  • What governance and oversight arrangements are in place for the use of RPAS in the UK and overseas?
  • What lessons have been learnt from RPAS operations in Afghanistan, and elsewhere (including present and planned weapons), and how will this enable the future development of doctrine on their use?
  • How dependent is the UK RPAS programme on technology, training and operational support from the USA?

 Tomorrow’s potential

  • What additional capabilities will the UK seek to develop from now to 2020?
  • What current and prospective partnership working on RPAS is the UK engaged in?
  • What governance and oversight arrangements are in place for such programmes?
  • What are the associated costs?

 Constraints

  • What constraints exist on the use of RPAS in the UK and overseas?
  • What air worthiness and certification requirements apply?
  • What restrictions apply to insertion into civil airspace?

 Ethical and legal issues

  • What ethical and legal issues arise from the use of RPAS?
  • What governance and accountability arrangements are in place for UK operated RPAS?