Remote Control: Remotely Piloted Air Systems

Written evidence submitted by Reprieve

Contents

I. Summary

II. Introduction

III. A short note on terminology

IV. UK involvement in the US covert drone programme

A. Intelligence-sharing

B. Communications networks

C. Drone sharing

D. Export controls

V. Ethical and legal issues

A. Illegality

B. Human Rights

C. Evidence from a Yemeni victim of drone strikes

VI. Counter-productivity

VII. Proliferation

I. Summary

The RPAS or ‘drone’ programmes of the UK and the US are closely intertwined, in a number of ways:

· The UK shares intelligence with the US in order to support its programme of covert drone strikes, carried out by the CIA and Special Operations in Pakistan, Yemen and Somalia;

· The UK Government and UK companies provide communications networks without which the US would not be able to operate this programme;

· The US is able to make use of RPAS airframes belonging to the RAF;

· UK companies manufacture key drone components, and are allowed to export them to the US by the UK Department for Business.

This is a matter of concern as the US covert drone programme – carried out by the CIA and Special Forces in Pakistan, Yemen, and Somalia – in which the UK is involved, is illegal and has a number of negative consequences:

· It violates both international law and the domestic law of the target countries, with the Peshawar High Court in Pakistan declaring earlier this year that it is a war crime.

· In its effects on the populations of the areas it targets, it violates a number of human rights, including the right to life, and freedom from cruel, inhuman or degrading treatment; the UN Secretary General has also noted its impact on children’s rights.

· It is counter-productive, having been described as the "recruiting tool of choice for militants," with a number of military and intelligence figures raising similar concerns; and therefore may in fact constitute a threat, rather than a contribution, towards UK security.

· It risks setting an international precedent for the use of such covert drone strikes by other states – such as Iran or China.

II. Introduction

1. Reprieve is a legal charity which seeks to uphold the rule of law and the rights of individuals around the world – with a specific focus on death penalty cases and abuses committed under the umbrella of the ‘War on Terror.’

2. Since early 2011, Reprieve has been investigating the use of RPAS, commonly known as ‘drones’, to carry out covert strikes outside of declared warzones – primarily, in Pakistan, Yemen and Somalia. Reprieve’s investigations have included the role played by the UK in facilitating the covert strikes carried out by US bodies including the CIA and JSOC (Joint Special Operations Command). As part of its work, Reprieve also represents a number of relatives of civilians killed – in Reprieve’s view, illegally – in such covert strikes.

3. Reprieve’s evidence to the committee will focus on two main areas: firstly, the existing overlap between UK and US drone activity, in terms of covert strikes in non-warzones; and secondly, the ethical and legal context of the drone programme, which will explain why the UK’s close involvement in it is a serious problem which must be addressed. This will include written testimony provided to the committee by a relative of two Yemeni civilians killed by a US strike in 2012. It will also briefly address the counter-productive nature of the campaign, which poses a potential threat to the UK’s future security.

III. A short note on terminology

4. Throughout this evidence, the shorthand terms of "covert drone campaign/programme/strikes" will be used for the sake of brevity – although we recognize that the military itself uses a variety of terms, including ‘RPAS’, ‘UAV’ and U-CASS to describe the aircraft itself.

5. It is worth stressing that Reprieve’s focus is on how this technology is used in the covert programme, rather than the technology itself (although the two can never be entirely separated). For that reason, the UK military’s use of RPAS in ‘legitimate’ war zones such as Afghanistan will not be covered – except where it may overlap with the ‘illegitimate’ use of RPAS over the border in Pakistan.

IV. UK involvement in the US covert drone programme

6. The US’s covert drone programme overlaps with the operations of UK Armed Forces, intelligence services and Government departments in a number of ways:

· intelligence-sharing, by which the UK helps to support the programme;

· the provision, by the UK Government and UK firms, of communications networks without which the drones could not be operated;

· the potential sharing of the RPAS airframes themselves between the UK and US; and

· the granting of export licenses by the British Government for crucial RPAS components, manufactured in the UK.

A. Intelligence-sharing

7. In 2010, it was reported in several media outlets including The Sunday Times, on the basis of a briefing said to emanate from official sources, that GCHQ provides "locational intelligence" to the US authorities for use in drone strikes in Pakistan, amongst other places. The reports appeared to quote a GCHQ source as saying that the assistance afforded by GCHQ to the US authorities was "in ‘strict accordance’ with the law". [1] The Government, however, has declined either to confirm or to deny the existence of the policy, or whether any such policy would be unlawful as a matter of international and domestic law.

8. Other countries, however, have taken a different approach to intelligence sharing amid concerns they potentially violate both international and domestic law. In 2011, the German Interior Ministry issued new, more restrictive rules on intelligence sharing. It instructed its domestic intelligence service, the Bundesamt fϋr Verfassungsschutz (BfV), to stop providing the U.S. with current information that would make it possible to determine the location of German citizens. [2]

B. Communications networks

9. Reprieve’s investigators recently found evidence that both the British state and a British firm – BT – may be providing key communications infrastructure for the US covert drone programme. The US Defense Information Systems Agency (DISA) was found to have contracted with BT (formerly British Telecom) to provide telecommunications services between Camp Lemonier in Djibouti and RAF Croughton in Northamptonshire. [3]

10. Camp Lemonier is a key centre for US covert drone operations in Yemen and Somalia. In 2012, the Washington Post described it as "the U.S. military’s first permanent drone war base." [4] It has been described by The Economist as "the most important base for drone operations outside the war zone of Afghanistan", from where Predator drones take off "round the clock" on missions in nearby Yemen and Somalia. [5]

11. RAF Croughton is leased by the US and used for military communications - providing "world-class combat support enabling communications and global strike operations" according to the USAF’s 501st Combat Air Support Wing. [6]

12. It therefore seems highly likely that communications infrastructure linking the two bases will carry information for use in covert drone operations and/or video feeds from drones – as it is known that, while the drones may take off and land from Lemonier, they are operated remotely from elsewhere. For that reason, the communications networks which link the bases in Lemonier and elsewhere with the drone pilots’ ground control stations – thought to be in the US – are an indispensable part of the overall system.

13. In response to concerns raised by Reprieve, BT has said that it is "comfortable having the US government as a client," and that "what they do with it [the service provided by BT] is their concern rather than ours." [7] Responding to questions in Parliament, ministers have only stated that:

"RAF Croughton is part of a worldwide US Defence communications network, and the base supports a variety of communications activity. The Ministry of Defence does not hold information on what support to US operations is provided by RAF Croughton." [8]

C. Drone sharing

14. The close inter-relation between the UK and US drone programme has long been known – for example, until recently RAF pilots flew drones over Afghanistan from a USAF base in Nevada. However, a recent ministerial answer in Parliament shows this interaction to go still further, by confirming that the US may make use of UK drones under something called the ‘Reaper agreement.’

15. Defence Minister Andrew Robathan told Parliament on 12 June this year that: "Under the Reaper agreement the United States Air Force (USAF) may request use of a UK Reaper airframe." [9]

16. This raises further concerns over Britain’s part in the US’ covert drone campaign, given that there appear to be considerable grey areas between the use of RPAS airframes by the US Armed Forces and the CIA. Wired has reported that: "the CIA sometimes borrows the Air Force’s drone fleet," [10] and, according to the Washington Post, "The [Obama] administration has touted the collaboration between the CIA and the military in counterterrorism operations, contributing to a blurring of their traditional roles. In Yemen, the CIA routinely "borrows" the aircraft of the military’s Joint Special Operations Command to carry out strikes." [11]

17. The concern is that Britain’s drones are in effect part of a pool of airframes on which US forces can draw – which is problematic given the reported lack of clear lines between the US’ use of drones in legitimate theatres of war, and their use of them in non-war zones to carry out ‘targeted killings’ which are widely considered to be illegal. Moreover, as noted above, that pool may be used not only by traditional military forces, but also by the CIA, a civilian intelligence gathering agency that does not enjoy combatant immunity under international law. British ministers have so far failed to provide assurances on what – if any – safeguards are in place to ensure British RPAS airframes cannot be used in such cases, or further detail on the exact provisions of the ‘Reaper agreement.’

D. Export controls

18. Another way in which the UK may be implicated in the US’s drone operations is through the supply of components by British companies. The UK maintains a "consolidated list of strategic and dual-use items that require export authorization" (the "Consolidated List"), which is intended to include all military and dual-use items requiring an export licence.

19. When considering whether to grant an export license, the Department for Business (BIS) has stated that it applies the "Consolidated EU and National Arms Export Licensing Criteria" (the "Consolidated Criteria"), which include "respect of human rights", "preservation of regional peace, security and stability" and "the behaviour of the buyer country with regard to ... respect for international law". In recent correspondence with Reprieve, BIS has indicated that it has granted licenses for the export of goods which are intended for use by the US government in weaponised drones. BIS further stated that the current advice of the FCO and the MOD is that granting such licences would not breach the Consolidated Criteria. In light of the illegality of the covert drone programme and the human rights violations that result from it, this position is of great concern, and risks undermining the purpose for which arms export controls exist – and severely damaging the UK’s international reputation.

20. Further, Reprieve is concerned that due to the constantly developing nature of drone technology, there are many components being produced in the UK which do not currently appear on the Consolidated List, and therefore may be exported without export licenses. BIS has indicated that it is unwilling to add certain components which we have identified to the Consolidated List, on the basis that this would be an export control "operating solely at the national level" and would therefore be ineffective, as it could easily be circumvented. We consider this position demonstrates that the system for controlling exports is failing to keep up with technological advances in warfare. If the UK refuses to consider amending the Consolidated List in the absence of EU consensus, it is highly likely that an increasing number of components will be exported without any governmental scrutiny at all, to recipient countries which may use these goods in violation of human rights.

V. Ethical and Legal issues

A. Illegality

21. The UK’s apparent areas of overlap with the US drones programme, as outlined above, risk implicating this country in violations of international law of the most serious nature. International law governs both when a state may resort to the use of force, as well as what conduct is acceptable in an armed conflict. These laws were developed and codified in the aftermath of World War II, in an effort to bring peace and stability to the international system. Since then, they have become customary international law, accepted universally among states. The US covert drone programme is in direct violation of these laws.

22. Article 2(4) of the UN Charter sets out a clear prohibition on "the threat or use of force by one state against another." The Charter contains two exceptions to this general ban on the use of force. The first can be found in Chapter VII, which gives the Security Council the right to authorize the use of force. The UN Security Council has not authorized the US or the UK to use force in Pakistan, Yemen or Somalia.

23. The second exception is found in Article 51, which grants states the right to self-defence. Even if one takes the most lenient reading of this exception by referring back to the 19th century case of the Caroline, anticipatory self-defence is only allowed when the necessity for it is "instant, overwhelming, and leaving no choice of means, and no moment for deliberation." [12] The US covert drone programme almost certainly does not meet this standard.

24. Consent may also act as an exception to the use of force. The U.S. has consistently claimed that it has the consent of the states involved, although this claim is strongly contested by Pakistan and the US has provided no evidence to date to counter this objection.

25. Even if the target country has given its consent, this consent does not make US drone strikes legal. It merely absolves the US of violating the sovereign territory of the country upon which the strikes are carried out. The US is still bound by rules of international human rights when it acts with the consenting state, unless the state is involved in an armed conflict. International human rights law requires a law enforcement approach. Such an approach prohibits the arbitrary deprivation of life except in the rare circumstance where there is a threat to life and no other means of preventing that threat to life. US drone strikes do not meet this strict legal test.

26. Whether a state is involved in an armed conflict is not determined merely by the declarations of a state. Customary international law dictates that in order for an armed conflict to exist, there must be both 1) the existence of organized armed groups, and 2) these armed groups must be engaged in fighting of some intensity. [13] Intensity is defined not only in terms of its severity, but also in terms of its duration. This intensity of fighting is absent in the countries involved, thereby making declarations that an armed conflict exists unsupported by international law.

27. Moreover, even if there were a declared armed conflict, such that international humanitarian law and not international human rights law applied, the legality of any drone strike must still then be assessed in accordance with fundamental principles of distinction, proportionality, humanity, and military necessity. ‘Living Under Drones,’ a study published by Stanford University and New York University in September 2012, was based on interviews with more than 60 people in North Waziristan, Pakistan - many of whom were survivors of strikes, with others having lost family members. [14] It documents substantial evidence to suggest that these criteria are not met by drone strikes in Pakistan – including the reported failure to distinguish between "civilian" and "militant" targets, the large number of people killed in strikes, and the timing of particular strikes, which do not appear to be in response to any particular threat. In particular, the New York Times revealed that the Obama administration considers "all military-age males [killed] in a strike zone" to be "combatants… unless there is explicit intelligence posthumously proving them innocent." [15] There is also significant use of "double" tap strikes, whereby the same area is hit by successive missiles, meaning rescuers have been struck. [16] The UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, has observed, "[I]f civilian ‘rescuers’ are indeed being intentionally targeted, there is no doubt about the law: those strikes are a war crime." [17]

28. Furthermore, under international humanitarian law, only members of armed forces qualify as lawful combatants. The CIA is not part of the US armed forces. It is a civilian intelligence agency and as such its officers are not immune from prosecution. In other words, while international humanitarian law allows soldiers to kill, it does not allow intelligence officers to kill. Those intelligence officers who do kill – and those who assist them in the killing – are potentially guilty of violations under both international and domestic law and, therefore, may be prosecuted for those crimes. Such a situation is not beyond the realm of possibility. In fact, in December 2010, a domestic murder case was lodged against the CIA station chief in Pakistan for his involvement in drone strikes in the country’s Federally Administered Tribal Areas. The US was so concerned about the legitimacy of the case and the security of its operative, that it immediately pulled him from the country. A decision in that case is still pending, but in May 2013, another court in Pakistan – the Peshawar High Court – declared drone strikes to be war crimes, and ordered the Pakistani government, among other things, to appeal to the UN for a war crimes tribunal to be established. [18]

29. Concern about the US use of drones has already attracted at least one UN investigation. In January of this year, Ben Emmerson, the UN special rapporteur on human rights and counterterrorism, launched an investigation into the legality and impacts of drone strikes in Pakistan, Yemen, Somalia and Gaza. [19] He is due to report his findings to the UN Human Rights Council in March 2014.

B. Human rights

30. Even aside from the legality of specific strikes, the constant presence of US drones has had devastating human rights impacts for communities living in affected regions, due to their inability to protect themselves and their families from a strike, and the uncertainty as to when and where the next strike will happen. ‘Living Under Drones’ noted that communities reported as many as six drones circling over a village at any one time and that the drones emitted a low buzzing noise which terrorized those living below with the possibility of imminent death. Interviewees told the researchers that widespread fear of drones has led people to shy away from social gatherings, and inhibited their willingness to carry out day-to-day activities and important community functions, including attending school or funerals.

31. It is quite clear, therefore, that in addition to violating the right to life, the US use of drones in non-war zones infringes numerous human rights of those living in the affected areas, including the right to freedom from torture, cruel, inhuman or degrading treatment, to privacy, family life and a home, to education and to an adequate standard of health and well-being.

32. The impact of drones on children’s rights, in particular, was recently highlighted in the Annual Report of the UN Secretary-General on Children and Armed Conflict. [20] This report noted an "increasingly worrisome number of reports of child casualties" in the course of drone strikes. It further reported that the mixed use of armed and surveillance drones has "resulted in permanent fear in some communities, affecting the psychosocial well-being of children and hindering the ability of such communities to protect their children". In addition, the Secretary-General highlighted the impact on access to education, in some cases due to fear among children of drone strikes.

33. The UK’s close involvement in this programme, as set out above, is therefore of serious concern. Yet not only has the UK Government refused to engage with questions over their own involvement in the US’ covert drone programme – they have also refused to engage with concerns over its illegality, continually stating simply that "the use of unmanned aerial vehicles (UAV) against terrorist targets is a matter for the states involved". [21] By not engaging with the concerns raised by US actions, the UK risks tacitly consenting to such behaviour, thereby undermining international law and setting potentially dangerous precedents for other states to follow in the future.

C. Evidence from a Yemeni victim of drone strikes

34. The following testimony is from Faisal bin Ali Jaber, whose brother-in-law and nephew were killed in a US drone strike in the Hadramout region of Yemen on 28 August 2012. [22] They were, respectively, a preacher who had spoken out on a number of occasions against Al Qaeda and a local police officer. Reprieve is representing Faisal in his attempts to secure justice for his family. Faisal provided this testimony for the Defence Select Committee via his representatives at Reprieve.

35. My name is Faisal bin Ali Jaber and I am a Yemeni engineer. I was born in my family’s ancestral village, Khashamir, located in southern Hadhramaut. Today, I live and work in Yemen’s capital, Sana’a, in the field of environmental protection.

36. I sometimes find it hard to believe that our village was once a happy one. On the 28th of August last year, our village was celebrating both Eid and the marriage of my eldest son. We were all dancing and singing, enjoying the wedding festivities. But all this joy came to an abrupt end when US drones attacked our village in the evening of the 29th of August 2012. The strike was a very loud one- at least four missiles attacked the side of a mosque fifteen meters away from where we live.

37. Our village had never experienced something as tragic as that strike. Fear and panic quickly replaced the atmosphere of joy, with several people being admitted, suffering from shock. But I was more directly affected by this attack. I lost my dear brother in law, Salim, and my young nephew Walid. Salim was a local imam in Hadhramaut. He was especially known amongst the villagers for his continuous attempts to combat, through his Friday sermons and through religious education, al-Qaeda. I also lost my nephew in this attack. Walid was a 21 year old traffic policeman.

38. I have tried to seek justice for my brother-in-law and my nephew, and for all the victims of the US drone attacks in Yemen. When I heard that our President Hadi was visiting President Obama in the US, I wrote a letter to both of them. I asked them to explain to me why were Salim and Walid killed by drones on that night? What have they done? I have asked them to tell us why our village was attacked and why our province is still being attacked? Why the children and women of our province are still being terrorised in this way? We know how to challenge Al-Qaeda; we know that through education and awareness, we will be able to combat Al Qaeda and its ideology. But we are at loss as to how we can face the US drones that kill our innocent and terrorise us. I have not received any answers yet for my questions, and so I am now considering litigation. I want to use the full force of the law so that justice can finally be done.

39. I am concerned to hear that Britain may be involved in supporting these strikes, either through its intelligence agencies or through links between bases in the UK and the US base from which the drones over Yemen are operated. I would ask that the committee investigate fully the UK’s role in the US’ covert drone programme, and consider the terrible effect it has had on my family and many others like it.

VI. Counter-productivity

40. Given Britain’s role in the US’ covert drone campaign, it is crucial to consider how much more or less secure the UK may be as a result of the campaign; and the related issue of how much more or less stable it makes the countries – such as Pakistan and Yemen – which it targets.

41. It should be noted that the warnings on the counter-productivity of the covert drone campaign do not come only from the ‘usual suspects,’ but also former senior figures in US military and intelligence. Robert Grenier, the Director of the CIA's Counter-Terrorism Center from 2004 to 2006, has said: "One wonders how many Yemenis may be moved in future to violent extremism in reaction to carelessly targeted missile strikes." [23] Michael Boyle, a former security adviser to President Obama, has warned that the covert drone campaign is "counter-productive," [24] while Obama’s former Director of National Intelligence, Denis C Blair, has warned that

"Our dogged persistence with the drone campaign is eroding our influence and damaging our ability to work with Pakistan to achieve…important security objectives." [25]

42. General Stanley McChrystal, the former US commander in Afghanistan, said in a recent interview:

"What scares me about drone strikes is how they are perceived around the world…The resentment created by American use of unmanned strikes ... is much greater than the average American appreciates. They are hated on a visceral level [and exacerbate a] perception of American arrogance that says, 'Well we can fly where we want, we can shoot where we want, because we can.'" [26]

43. Meanwhile, the covert drone campaign has been found to be unpopular in those countries and regions which bear the brunt of the strikes. FCO research has found increasing opposition to drone strikes in the Federally Administered Tribal Areas (FATA) of Pakistan, with the proportion of respondents that believed that drone strikes were never justified rising "from 59% in 2010 to 63% in 2011." [27] Support for drone strikes across Pakistan as a whole continued to fall into 2012, with just 17% of those Pakistanis polled by Pew backing them. [28] In fact, drone strikes featured as one of the key issues in the country’s most recent elections, with anti-drone sentiment leading all major political parties to declare that they would stop US drone strikes if elected.

44. In Yemen, perhaps the clearest indication has come from the National Dialogue, a non-partisan gathering of civil society which is mapping out the country’s democratic future. Earlier this year, it voted to outlaw the covert drone strikes by an overwhelming majority. [29]

45. The New York Times has concluded that "drones have replaced Guantánamo as the recruiting tool of choice for militants." [30]

VII. Proliferation

46. The near monopoly the US, UK and others have enjoyed with respect to drones is quickly coming to an end. According to the US Government Accountability Office (GAO), the number of countries that have acquired drones has almost doubled over the past eight years, from 41 in 2004 to at least 76 in 2012. [31] As more and more countries acquire drones, there is a significant danger that current US (and possibly UK) practice are setting dangerous precedents for other countries to follow.

47. On 7 March 2013, members of the European Parliament expressed deep concern about the "unwelcome precedent" the US drone programme sets, citing its "destabilising effect on the international legal framework". They urged the European Union and its Member States to "speak up" against the dangerous precedent t he US was setting and stressed that Europe has a "critical role" to play in this regard. [32]

48. The UK has a unique role to play in ensuring that US practice does not become the norm by which all other states operate drones. It needs to make transparent what it sees as the legal rules governing the use of drones, and where that approach differs from that of the U.S. Unless it does so, its silence will likely be taken as tacit agreement and used by states such as Iran and China to justify similar actions.

September 2013

Notes