 Good afternoon. Welcome to the New America Foundation. I'm Peter Bergen. I run the National Security Studies program We're really really thrilled that Ben Emerson the special rapporteur of the United Nations for human rights and countering terrorism has agreed to give a Public talk here about the work that he's been doing and how he's progressing on what will be a Public report likely produced in October in some form Mr. Emerson's had a distinguished career. He took up his present post in August of 2011 He's been a previous to that we're practicing barrister in London for the with more than 25 years of experience in domestic and international human rights law International human humanitarian law and international criminal law He's litigated extensively in UK courts the European Court of Human Rights the International Court of Justice and the international criminal tribunal for the former Yugoslav the Yugoslavia Published widely lectured widely. He's the editor of a number of practitioners manuals on criminal and human rights law and He's kindly agreed to speak for about half an hour And then I'll engage him in Q&A and then throw it open to you to ask questions. Thank you very much, sir Yeah Well first of all Thank you very much indeed both for the invitation and the introduction and thanks to the New America Foundation for Setting up this event. It's part of a conversation that I am having Through the mandate and the inquiry that I'm engaged with but actually a much larger conversation About where we are and where we should be going in establishing a longer term sustainable and ethical counterterrorism strategy which tackles not just the Manifestations of terrorism from a security point of view But also some of the root causes I just say a little bit about where I'm coming from and then I'll talk a bit more about the the issue of drones as As Peter said in the introduction, I've spent most of my life as a practitioner rather than an academic working in the fields of National security counterterrorism and armed conflict And I think I'm learning More and more in the role that I presently occupy That as a practitioner I do approach things rather differently from the way in which Academics tend to approach some of the thawnier questions of international law And in particular, I don't really believe in the existence of law as an independent thing But rather as ideas and principles that people establish in order to regulate situations of fact And most often in the work that I've done one has been encountering very dramatic changes in some of the basic paradigms of security with a With the law effectively playing a game of catch up and I don't think that the drone Dilemma if I can call it that is is is any different in that sense I When I took the mandate Made it very clear from the outset indeed in my first speech to the General Assembly and in my first report to the Human Rights Council that I intended to ensure the demand date which was clearly originally set up to deal with Excesses in the so-called war on terror Was a mandate that I interpreted rather more broadly. It's a mandate The title of which is the protection and promotion of human rights whilst countering terrorism And it always seemed to me that one couldn't really start to talk about human rights in the context of terrorism Without first recognizing that the core human rights at issue Include the rights of the victims and potential future victims of terrorism to be protected against terrorist attack And I don't think that one can really begin an effective dialogue with those who have the responsibility for safeguarding the lives of their citizens And those within their jurisdiction until one recognizes from the outset the enormity and primacy of that responsibility a Responsibility which in my judgment is a human rights obligation It is the first human rights obligation of states to protect their citizens and those within their jurisdiction and therefore to have in place Effective counterterrorism strategies that mitigate that risk to the extent possible And and on one view that's more than just another human rights obligation On one view that is the reason for having states in the first place the raison d'etre of the statehood is collective security And we're not talking here about security on a macro level But the security the right of individuals within their state to hold their state accountable Where there has been a failure of policy that has exposed them to a greater risk than otherwise they would have been exposed to Now in saying that I shouldn't be taken to suggest that that involves any pulling of punches or any suspension of critical scrutiny Where there have been Recorded and systematic human rights violations Committed by states in countering terrorism that is a central concern the central concern of the mandate But I don't see the two as being in any sense inconsistent or incompatible or even As being considerations to weigh the one against the other on the contrary It has always been my position in interpreting this mandate that the two march hand in hand And that they are directed at achieving the same goal. Let me give you a couple of concrete examples in developing the Framework principles that I set out to the Human Rights Council when I first in my first report designed to promote and protect the human rights of victims and potential future victims of terrorism I Consulted very very widely with the now Large number of international organized groups representing the interests of victims of terrorism And almost with one voice, I mean there are exceptions, but almost with one voice They share a common agenda about promotion of the rule of law and democracy from their point of view whilst traditionally We have seen for example the right to a fair trial before a public court in an independent and impartial Proceeding in circumstances where the evidence is reliable and hasn't been obtained by torture Where the proceedings are open to the public that those are rights that in traditional legal and political theory I thought of as rights that vest in the individual accused person But they are also rights that vest in the victims of terrorism And they have many of these groups thought very deeply about what those rights mean They regard for example the right to truth the right to public accountability as Axiomatic as being right at the very forefront of their campaign So that secret detention or detention without trial or detention in conditions where individuals don't receive a fair trial or situations where individuals can receive convictions even capital convictions on the basis of evidence that may be tainted by torture and therefore be unreliable To be antithetical to the very values for which they stand And so from their point of view the right to truth involves the right to see the real perpetrator Identified and brought to account in real public proceedings that are fairly tried Without tainted evidence before an independent and impartial tribunal within a reasonable time So in a very real and practical sense not a theoretical one The rights of the victim and the rights of the accused person lead us to very much the same conclusion Which is a recommitment and up to our adherence to the rule of law That for me carries with it implications For every aspect of my work So for example, and we'll talk about that the specifics in a little more detail in a few moments But when I approach the development of a strategy such as The proliferation of drone technology and targeted killing I'm not simply looking at the narrow question Does this involve a violation of the human rights of people whose lives are lost as a result of the use of targeted killing strategies whether they be targeted individuals or Civilian casualties I'm also looking at whether in the longer run Strategies of that kind make a nation safer or less safe in other words, I'm looking at the question for Years and possibly decades to come of whether short-term victories can prolong longer term conflicts And it's within the rubric of that analysis if you like looking at the human rights humanitarian implications of particular counterterrorism strategies from both ends of the telescope that I have Approached each part of my work so when dealing with The increasing calls for for example accountability in relation to the Bush era CIA's policy of arbitrary detention and torture The central basis of the thesis that I put forward to the human rights council is That in a world where there are an increasing number of fragile states In a world where emerging democracies need all of the encouragement They can get in order to ensure that they move forward with commitment to the rule of law The maintenance and continuing maintenance of a blind eye policy which shields from accountability Individuals who've engaged in an international criminal conspiracy does nothing To promote Respect for the rule of law and that we need it to account for the past before Setting down a solid framework for the future But the world has seen since the atrocity and crime against humanity that was committed on September the 11th a Decade or more of exceptionalism By that I mean a decade or more of legal and political philosophy which has treated established legal norms as Being an impediment to effective security as requiring suspension of existing legal frameworks as requiring derogation from international human rights obligations as As as requiring and having brought about a paradigm shift, and it's entirely understandable Why that should be I for my part have absolutely no difficulty whatsoever in Understanding why the people of the United States consider themselves to have been the victim of an act of war on 9 11 I have to tell you that is not a view that is shared By and large with the international legal community in certain other parts of the world who regard counterterrorism operations as being critically law enforcement operations not justifying a war paradigm or resort to the principles governing the law of war and that is an important part of the conversation The dialogue that needs now to take place in relation to a future framework for For the use and deployment of drones But as I say I personally have no difficulty at all in seeing why that felt and looked like and in many respects Was an act a direct act of war on the people of the United States But we are now facing a very practical and very real dilemma that results from that During that 10-year period I think it's probably largely fair to say that the core al-Qaeda leadership as it was within Afghanistan at the time has been substantially destroyed Whilst they remain remnants of the original organization the essential command Infrastructure has gone But in its place we have found ourselves with a proliferation a hydroheaded proliferation of organizations From the Middle East to North Africa and as far south as Uganda Some of them pledging allegiance to al-Qaeda with al-Qaeda central not accepting their position Others pledging allegiance and placing the words al-Qaeda before their name in order to Identify themselves as part of a global jihad and therefore increase their appeal with the development of social media leading to a huge degree of fluidity and political change in Societies which hitherto had been held together by the absence of free flow of information and ideas with the result That genuine political disputes genuine local long-running conflicts Have in many parts of the world found that Those with an essentially Radical Islamist Extremist and politically violent agenda Have adhered themselves to what were essentially secular political movements And we've seen that with the result that what has been described In my view wholly and aptly as the Arab Spring or the resurgence of democracy throughout the Arab world Has resulted in many parts of the world in those which tends towards that end of the agenda Finding themselves with a disproportionately Powerful position as a result and we see now with the West with the United Kingdom and Parts of Europe as well as the United States poised in the dilemma as to whether or not to provide assistance to the rebel groups in Syria this this this state of affairs really coming into a Situation of acute concern. I mean what what we have been spending some time over the past year working with the authorities in Iraq trying to assist them in their efforts to develop an integrated strategy for Focusing on the sheer Sunni conflict and trying to find ways now finally and belatedly of Some form of meaningful cross-sectarian peace initiatives and for them The notion that the West that invaded Iraq in 2003 displaced the Sunni Ruling class and created a society which has then suffered from a decade of cross-sectarian slaughter Should now be poised in order to provide economic and military assistance to a movement which includes a significant element of Al Qaeda related fighters who themselves are directly related to Al Qaeda in Iraq and are causing massive security problems Right across the border is an incomprehensible state of affairs and So from my point of view, I try to look at some of these questions within the context of how we might move forward In a constructive form of dialogue to set some basic rules and parameters and right now one of the biggest threats to not so much to life and limb but to the international architecture of Humanitarian law the law that is designed to protect civilian life in times of conflict is a combination of the proliferation of drone technology And the absence of consensus about even the fundamentals that govern its deployment When I launched this inquiry in January of this year, I did so in response to a call That was made directly to me by a number of states during the course of a dialogue at the Human Rights Council in Geneva including two members of the Security Council And I launched it with what I thought at least was a genuinely open mind I Launched it not as an inquiry which is directed towards American foreign policy But as an inquiry which is directed towards understanding the legal framework that governs both the deployment of this new technology and The issues of accountability that go with that by which I mean questions of distinguishing between civilians and combatants questions of Ensuring that those distinctions are properly recognized and that after the event there is a proper system for determining whether or not There has been an unacceptably high level of civilian civilian casualties and the broader questions of the impact that that type of counterterrorism initiative is likely to have on radicalization and the creation of future generations of Jihadists But I realized as it because the inquiry started to get going that I had within my own Approach a prejudice that I had never really examined namely the one that comes from not being a United States citizen in this country I Think it seems I mean there are exceptions to this principle There seems to be a very large degree of consensus amongst the legal and academic community That the basic principle that the United States is engaged in a non-international armed conflict a war in other words with Al Qaeda And it's associated belligerent forces is if you like an article of faith matched only in its strength by the article of faith to the opposite effect in Europe and elsewhere in the world namely that this is not That the fight against terrorism is not one which can be one within a war framework within a Humanitarian law framework within an analysis that says that the law of armed conflict is applicable But rather one which must always be tackled as a rule of law question in other words as a law enforcement issue Recognizing that terrorism is a terrible crime a crime of enormous magnitude, but that we don't Dignify it by creating the notion that it has the validity of being an act committed by a party to an armed conflict that that is a view which like it or not is Deeply deeply bedded not only in the European psyche But I think it's fair to say in the consensus view of international lawyers in most parts of the world other than this country And it's a problem which didn't really matter terribly much until I'm in the in the first term administration in any area except the pursuit of the drone strategy because In certain parts of the world at least not I think in Afghanistan But certainly in was ira star. It is it's critical to the United States Justification for the policy that it is engaged in a non international armed conflict with al Qaeda and its associated forces and whilst there is no Universal consensus of that is the case whilst those in Europe are arguing to the contrary and I mean not just Libertarian groups not just NGOs, but advisors to government of the United States closest allies Take the view that outside a recognized theater of conflict such as Afghanistan The law of war does not apply Now if the law of war does not apply then it is unlawful to target an individual in a non belligerent state Which is why no other European state is claiming a similar justification or a similar right As is claimed by the United States their analysis is that outside recognized territorial theaters of conflict It is unlawful to target an individual unless you can show that that that is strictly necessary in the Individual case because there was a genuinely imminent threat to life and So we are in a situation where a particular form of technology is proliferating where already United States the United Kingdom and Israel have been using it, but a Large number of other states are either in the process of seeking to acquire combat UAVs or Are in this process of seeking to develop their own combat UAVs and within a relatively short time? and I and I think you know people say Within a matter of of certainly a year or two other states will be deploying the technology But in five years or so we will see large numbers of states and possibly non-state actors I'm deploying similar types of of Conflict technology and that raises some very real questions if that is the position Then how can we expect the law to? Protect life if there is no basic consensus as to what the legal framework ought to be and so far I'm bound to say that having sat through far far far more seminars of extremely intelligent Extremely reasonable and educated people at the very top end of international Humanitarian law and listened to their points of view that there is really no critical mass of Agreement amongst them as to how to and analyze the Challenges that that throws up. I mean, I think we can probably all agree That the United States has been the market leader in the use of this technology and particularly its use on the territory of course of other states and I'm not here referring to drones in their more general sense as a Surveillance technique which is capable of many many beneficial civilian uses Capable whatever the concerns are about privacy but capable of assisting for example in dealing with Humanitarian relief and its delivery in seeing large number of monitoring internal and external population displacement in anticipating and monitoring Natural disaster management and so on and so forth. Nobody is Suggesting that there is anything inherently wrong in the use of drones. Drones are not even a weapon. They're a delivery system But what we do know is that because they are relatively cheap in terms of risk to the lives of the states that deploy them in conflict situations There is a belief that there they are likely to result in a more generous use of armed force than would otherwise be the case At the same time, there is very clear evidence that the deployment of drones either as a method of delivery of Ordinance or as a method of identifying targets so that Weapons can be delivered from fixed-wing aircraft Are in fact considerably greater involving in fact considerably greater specificity And a much lower risk of civilian damage Then would be the case from the delivery of fixed-wing Ordinary of ordinance from fixed-wing aircraft alone Within Afghanistan for example the United Nations mission in Afghanistan keeps detailed statistics Recording the number of civilian casualties Resulting from armed engagements And they do so in a manner which to a very large degree Is able to distinguish between the manner in which a particular attacks have been carried out And the evidence is completely clear that the number of civilian casualties from From attacks that have been delivered with the use of drones is significantly less Than the number of civilian casualties that result from the from attacks that are Delivered from fixed-wing aircraft and there is a very obvious reason for that The critical decision that has to be made when When an attack is being planned and executed is the distinction between civilians and combatants and a proper and accurate assessment of proportionality That of course requires information And because drone is capable of hovering and remaining in an area for a considerable period of time It is in a position to assimilate much greater amount of information and therefore to make more accurate and reliable decisions I think though there are those who argue to the contrary that That technological analysis is borne out by the statistics, but equally The perception on the ground in Afghanistan is the reverse The perception on the ground is that drones are responsible for vast numbers of civilian casualties Drones are the principal cause of civilian casualties in Afghanistan And that they are effectively unleashed in discriminant weapons on a civilian population Now my task in pursuing this inquiry and maybe inquiries Looking less and less like the right The right epiphan maybe it's more process of dialogue But my task is in Exploding some of the myths but at the same time getting accurately to the truth about the civilian casualties that have happened in order To bring everybody to the table both in terms of an agreement as to the basic legal principles But also in terms of far far greater Transparency and accountability where things have gone wrong the plain fact is you cannot wage any conflict without making mistakes The fact that individual civilian casualties have occurred is not necessarily Evidence that there has been a significant system failure or certainly not evidence that there has been a war crime on the other hand it could be and by Allowing a shroud of complete secrecy to have descended over a strategy that involves the taking of life So that at neither end neither the sending end nor the receiving end is there currently Accurate and reliable data about the extent nature and frequency of civilian casualties The territory is wide open for those who want to make either Claims that minimize the risks claims that minimize the extent of civilian casualties and certainly some of the whisperings that have come out of out of Washington that suggests that civilian casualties are in single figures are regarded as being Utterly without credibility even by the most senior diplomats of the United States closest allies within Pakistan at the other end of the extreme There are those I think undoubtedly who have made exaggerated claims of civilian damage it and I think there's a very real danger in both the danger of exaggerated claims is that it contributes to radicalization and Makes the development of a sustainable ethical counter-terrorism strategy almost impossible the danger of a combination of secrecy and Underestimating civilian damage is that it enables the terror leaves the territory wide open for those claims to be made So the two essential twin tasks that I'm engaged upon is To try to promote some sort of sensible discussion between two polar opposite positions as to the basic legal framework With a recognition and as I said, I think there's nobody within the administration here who doesn't now recognize this that whatever framework emerges from this as the United States justification and the discipline and limits on the use of force on the territory of another state without its consent in order to pursue a combatants from a non-state from a terrorist organization It has to be a framework which we are willing to see applied by those states that we are not on friendly terms with in other words It has to be a framework that we can live with if it is being used by Iran when it is deploying drones against Iranian dissidents hiding inside the territory of Syria or Turkey or Iran Rock it has to be a framework. We're prepared to see China use against dissident groups from Tibet or that we that we're prepared to see armed groups use in conflicts that We are inevitably going to encounter Over the coming years in other words, it has to be a framework that can sustain And stand the test of time Now the reality is that that there are almost certainly and the preliminary indications Seem so far to confirm this Greater safeguards built into the way in which the program has been operated certainly in the very most recent times Then people are generally aware of but I think there is now an understanding Within Washington of the absolute necessity to engage in a debate with a view to agreeing some basic international principles which discipline the use of this technology. It's not going away Drones are here to stay their military logic is unanswerable therefore, they will become a part of the regular Regular feature a fixed feature and a growing one Of the way in which conflicts are conducted There is not going to be in the future the monopoly that has existed over the past few years on the use of drone technology In the hands of the United States It is a very real situation that we are facing and facing immediately and indeed Those who advise me in the area of weapons technology Sometimes make the joke that I may as well be doing a report on bows and arrows because by the time it comes out They will have moved on to the next generation Which are capable of making I mean we know they're capable of making kill decisions, but at the moment nobody is suggesting Ethically that it would it would be acceptable to delegate to a machine the decision to take a human life But there are many many shades in between for example allowing a machine to override a decision To launch a missile because it is capable of detecting risks that a human being is incapable of detecting building into the systems opportunities for them to Protect themselves against attack and there are many many shades of development And the reality is that as with many other areas in the past the law as I said at the outset often struggles to catch up with the facts and some of those who are enthusiastic proponents of a Progressive development in the legal framework referred to the days when Bombs were first dropped from air balloons during the course of armed conflicts, which was regarded at the time as being unethical and Unlawful unethical and unlawful because it was a remote delivery of death. It didn't involve putting your troops in arms way It was capable of inflicting indiscriminate civilian damage The reality is these weapons do not Carry with them the inevitable risk of inflicting indiscriminate civilian damage They are more precise than and more capable of distinction Than fixed-wing aircraft delivering precisely the same ordinance however The problem comes when we are deciding who is a legitimate target and who is not In other words the risk of killing civilians comes in when the choice is being made about how Individuals are to be targeted. It's one thing to have a small list of high-ranking pre-identified individuals and set out to eliminate them But the reality is that that the evidence suggests that that is not the way in which the strategy has been pursued And therefore all depends on the quality of the decision-making Process in identifying who is and who is not a legitimate military target If we're looking at this through the paradigm of the law of war, and I'm afraid I can't I find myself drawing an analogy in my own mind between the identification of an individual or group of people as being associated with Al Qaeda for the purposes of Being legitimate targets on a military kill list and Precisely the same question as it is posed by the United Nations Security Council when deciding whether an individual or Entity should be included in the United Nations Al Qaeda sanctions list a list maintained Since resolution 1267 of individuals who are thought to have provided material support or otherwise be associated with a summer bin Laden Al Qaeda the Taliban or its affiliate and co-religion organizations Present there are 230 individuals on that list The list is created by nomination by states on the basis of their intelligence assessments The United States is probably the highest and certainly amongst the highest of not of the nominators to that list But the list can include individuals nominated by any state And there has never been a very satisfactory mechanism for deciding whether an individual should be included within the list but two years ago The UN or the Security Council was persuaded to appoint an ombuds person to consider individuals and entities applications for removal from the list and In the first 30 cases that the ombuds person could consider and 30 out of 230 so a significant number resulted in a 90 percent Error rate in other words 90 percent of the applications considered resulted in the individual or entity being delisted That doesn't mean to say they shouldn't have been on the list in the first place But it does mean to say that at the time when they remained on the list They were no longer considered objectively and reasonably to represent a present threat or to be part of or associated with Al Qaeda as it now exists Well, if that is the position with the United Nations Security Council list I think we're entitled to ask what is it about the lists that are compiled for the purposes of targeted killing which gives them a far greater degree of Reliability than the very same lists when compiled on the basis of nomination by states including the US and on strongly analogous criteria indeed some of those who are arguing in favor of The expansion of targeted killing strategies argued that it should now be expanded to include those involved in provision of material support So the very same individuals therefore who are on the United Nations List and the list is published I mean, you know if that were to be a development in other words if it were to then be accepted that those providing material support are legitimate targets then you know you've got 230 names straight away on the website of the UN Security Council and yet We know the fallibility of the system that that involves so there are some very serious questions thrown up I think amongst the most difficult and painful and controversial questions is this by adopting a law of war paradigm a Legal law of war paradigm international humanitarian law paradigm We necessarily have to recognize a new species of armed conflict Before in the old days it was all very simple war was essentially territorial it took place inside countries or between countries They were either international armed conflicts or they were what we used to call internal armed conflicts or civil wars But the battle the boundaries of the battlefield nowadays are almost impossible to discern I mean Marco Sassoli who's an international lawyer in Geneva speaks about his mother who lives in a little village in Italy and Who lived through both the first and the second world war? and from her point of view she said she was perfectly happy really with the first World War because All the men folk went off to war they fought on a front line Hundreds of miles away and after the war those who survived came back, but life in the village carried on much as normal in the meantime Whereas during the second world war the war was brought home. There were bombs in the village There were bombs in the town around them people were dying near to them And really what he's seeking to demonstrate is that you know the nature of warfare changes And it's one thing where you have a front line which is clearly identifiable Which is limited in time and space and is located many miles away It's another thing when the boundaries of the battlefield begin to shatter and be brought home to All parts of the population well now we're into the third generation Where it's unclear where the conflict is taking place and where the claimed authority is an authority to kill Anybody associated with al-Qaeda wherever they are found in the world Well the uncomfortable Consequence of that like it or not is that humanitarian law the law of war is reciprocal By elevating al-Qaeda and its associates to the status of a party to a non-international armed conflict We are Asserting a right to kill them wherever we find them But we are also bestowing on them a right to kill American forces wherever they find them within humanitarian law now There are arguments to modify Shave off the edge of this. I'm not saying that's an uncontroversial position some disagree Some argue that it doesn't matter whether or not in humanitarian law. They would be entitled to target American Military assets because it would still be a crime under American domestic law Undoubtedly the case But on an international law level and this is an international law justification that we're discussing The uncomfortable reality and it was being confirmed very recently by a statement from the international committee of the Red Cross It's first really clear statement about targetability Last week it is that if the law of war applies and That is essential to the current analysis Then the consequence is that American military personnel engaged in that strategy would be regarded in humanitarian Laws legitimately targetable Now that is a very troubling state of affairs to my mind because it elevates those involved in waging these dreadful dreadful crimes To a status that they Certainly don't deserve and has a potential to weaken efforts to maintain international peace and security So those are some of the problems that we're trying to grapple with and it'd be no surprise to say it's taking longer than perhaps we expected at the outset Thank You mr. Amazon. That was a brilliant presentation Made made made it made without notes I hasten to observe So let give can you give us a little bit of sense about what your investigation has actually done? Take us through the what you know where have you been? Who have you talked to to the extent that you can say yeah They're there as I sort of hinted at earlier on there are two Separate tracks one is to look at in discussion with state policy makers At the basic legal framework questions the authorizations and I don't mean domestic Authorizations for the use of force, but the justifications in international law For the use of force on the territory of other states to see where the arrows of agreement and disagreement are And to consider also the questions of sovereignty And so as some of your audience may be aware I did a visit not very long ago in April to Pakistan Which? involved meeting with senior Pakistani officials including and up to foreign minister level In order to put some of the difficult questions to the authorities of Pakistan that people quite understand of being rightly asked about Pakistan's and Historically ambivalent relationship to the use of force on its own territory as well as meeting with some of the tribal Malik's and at an admittedly entirely non representative sample of individuals Who gave their own personal accounts of involvement and having suffered injury in drone strikes? but that's a That the principle focus of a visit like that is on Engaging with the state as to its position and trying to get to the bottom of what in reality is taking place At the same time there are investigations taking place on the ground In particular parts of the world where individual strikes have been identified as having caused significant numbers of civilian casualties not with a view I hasten to add of making any findings of civil or criminal responsibility or the correctness or otherwise, but rather of underlining and of Establishing the need for an independent accountability mechanism in relation to those deaths in other words some process by which The states deploying the technology and the states on whose territory it is deployed undertaken meet their obligation To ensure that where civilian lives have been lost. There is an effective independent official investigation Which is capable of getting at the truth So those if you like of the two parts and there are inquiries taking place principally focused at Pakistan Yemen Afghanistan We've done a little work, but it's historical mainly in relation to Libya Somalia is presenting it will be no surprise very considerable difficulties in terms of getting accurate empirical data and a certain amount of work also in collaboration with others in relation to Palestine are you going to be traveling to Yemen? Yes, and Any other countries in yes? I'm Speaking with reserve because so I'm Yemen is a certainty although the timing of it is is still the subject of discussion I Afghanistan we have a UN presence which is doing detailed work on the ground already in documenting civilian casualties From all forms of conflict including drones. So that data is effectively In existence and independently verified by the offices of the UN already you know, I'm a Operation in Afghanistan Some of the information I mean I Never made it clear at the very beginning of this process. I am not setting out to do a universal analysis of The number of civilian casualties or the ratio of civilian casualties to legitimate targets. We have currently very widely divergent estimates Although as I think we discussed yesterday. There seems to be a Sense in which even the top and lower end estimates are beginning to diverge with evidence of a Diminishing number of civilian casualties quite sharply diminishing number of casualties in fact In in recent years and we certainly over the last 12 months But yeah, I mean it's a Visits visit certainly a lot of the diplomatic work can take place not without necessarily being in situ Some areas as you know well are extremely difficult to conduct investigations on the ground and certainly I don't need to conduct the physical Investigations myself. I have other people who are working with me in order to do that So it's interesting that you're not confining yourself to the CIA not at all. Yeah program not at all. Mrs I mean, I Mean it's a very important message to get across this is about a form of technology and the strategy of targeted killing It's been used in a variety of different contexts from Libya to Afghanistan Somalia Yemen As well as was Iristar In very different situations in fact very different situations legally very different situations factually on the ground So far acknowledged three states using drones for military purposes, but As I say very very shortly, I think we will see Others and indeed non-state actors using the technology. So it's it's really about facing a challenge that is a global challenge I mean, it's it's been it has been a period in which the US has operated effectively with a monopoly over this technology But that is over which countries do you think are closest? That's not the comment. I would want that this states to make I mean I Understood that their discussions underway. I mean certain amount of information is public France and Germany have been Dithering backwards and forwards Germany has just postponed a decision until after its next election France has ostensibly postponed for longer But they are all as our Russia and China and many other states Anxious to acquire the technology as quickly as they possibly can and it's their chief military strategic objective Because they see it's it's value not simply in terms of being able to deploy Ordinance without putting personnel in immediate risk of fire, but also because it rapidly speeds up the decision-making process between identifying a target and Executing and an analyzing an operation it dramatically alters the military advantage And so in any world where war remains or conflict remains a reality States that have the wherewithal and the resources to do so want to have the best available technology This is the best available technology now It was publicly reported after your trip to Pakistan to to I think very interesting things One is that every Pakistani official you spoke to and you say up to the foreign minister Said that Pakistan has not authorized The use of drones. Yeah, or did they say we used to authorize, but we've changed our mind I mean we know Mishara for said publicly then no, it's fine. I mean, it's all very carefully worded The the statement that came out after the end of the Pakistani visit Is that it's based based on the information that was provided to me at Consistently right across government at the highest level and throughout Was that there is no continuing consent to the use of drones on Pakistani territory now It's never it's it's never been a secret that Mishara authorized the use of drones during the Bush administration and his Revelation that he did was really no more than confirming what's been an open secret for years It's no secret that there have been WikiLeaks disclosures indicating that there have been nods and winks given by members of the last not immediately preceding but the civilian administration that preceded that And So and I think and I think it's probably right to say I certainly wouldn't challenge anybody Based on what I the information I've got I would not challenge anybody who said to me that there remain continuing contacts between the Pakistani military and intelligence service and the United States forces Contacts which may facilitate and indeed provide information capable of being used to target individuals If that was an assertion made I would not seek to contradict it So it's a very complex situation But what seems to me to be the critical factor in this is that on the 12th of April of last year both houses of parliament in Pakistan unanimously without a single descent adopted a new resolution governing Consent to the use of Pakistani territory for the military force by other states Governing the relationship between Pakistan NATO the US and ISAF and The resolution says in terms that in so far as there may in the past have been any Oral consents given those consents are hereby rescinded it says henceforth oral consent is impermissible and of no effect and It says that any consent to use Pakistani airspace or territory Can only be affected in writing The agreement must be the subject of scrutiny by two parliamentary committees and once concluded must be the subject of a statement on the floor of the house Now that is the position of the Pakistani parliament who are the democratically elected representatives of the people and It is a mandate binding the Pakistani government as a matter of international law therefore if we ask ourselves the question What is the position of Pakistan? Who occupies the seat of Pakistan at the United Nations? The position is very clear And were that to be any other state in the world where the elected representatives of the people in cabinet government, but with the Anonymous support of both houses of parliament had taken a particular position on consent to the use of territory But the military or intelligence were acting inconsistently with that First of all no one would question what the legal position was and secondly they'd marched the relevant military officers off to jail Why is Pakistan different? Well, Pakistan is different Pakistan's different not as a matter of law as a matter of law that is the position in my view But it's different because it's such a fragile democracy This is this election that happened this weekend is the very first time in the history of Pakistan that a full civilian government has served a full term without military intervention and Has handed over through the democratic process to another democratically elected administration Now we all I think recognize that democracy is the enemy of terrorism Democracy and the promotion of respect for the rule of law is In the end the battle of ideas with which we are all engaged And it is also the means by which to bring to those areas of the world that are Have the conditions really conducive to the spread of terrorism the oxygen of economic development of democratic and political participation that is the antithesis of the recruitment to violent extremism therefore all Who are concerned with peace and stability in the region? Need to do everything that they can to promote respect for Pakistani democracy Well two hours after that resolution was passed on the 12th of April last year. There was a drone strike in Waziristan And one has to ask oneself first of all what message does that send to the people of Pakistan about the value of democracy? And secondly, how can it be in those circumstances? legitimate for Pakistan to take that position and repeatedly In the United Nations to object to the use of its territory to accuse the United States of violating its sovereignty and territorial integrity And if what I'm told is true sending note verbals of complaint citing the resolution as the basis for it for us to claim to be promoting democracy Whilst at the same time so flagrantly undermining it and so to my mind there is a very real premium on supporting the Pakistani democratic process and enabling democracy to take root so Not only from a legal point of view from a legal point of view it seems to me the position is unequivocal Pakistan the nation the representatives of Pakistan those the world the international community Recognizes as representing Pakistan do not consent And from a political point of view if we believe in the promotion of democracy as the route to ending violent extremism Knife for one most certainly do Then then we need to ensure that both aid as economic aid is focused on Rewarding the promotion of democracy and that military intervention is attenuated so as to ensure that democracy is not fundamentally under Undermined any discussion with Pakistani officials about why they don't use their f-60s shoot. Yes, of course On why they don't use their f-16s on why they haven't raised the issue with the security council on why they haven't done more of course, I pressed them on that and The short answer is not a really very surprising one in fact The United States the Pakistan does not want to be in a war with the United States at the moment The war is going on between the United States and non armed groups within the federally administered tribal areas of Pakistan Pakistan does not want to find itself engaged in armed conflict with the US by attacking United States military assets directly More particularly, I mean more generally than that. I don't think I mean that's that's a very narrow way of putting it more generally The way it was put to me was this that the Pakistan has a very broad relationship with the United States across a very wide range of issues Which is critical to Pakistan's Infrastructure and indeed to the maintenance of its development its growth and its democracy and that Though this is one area on which there is profound disagreements It's not an issue about which it is worth severing Relationships with the United States. I mean it's a cost-benefit analysis from the point of view of those who are responsible for making these decisions in Pakistan We know that that there was a very significant deterioration in diplomatic relationships after one particular A tragic mistake in which a large number significant number of Pakistani military Personnel were in error targeted and and killed But by and large, you know Pakistan has to consider a wide range of issues in its international relations of which this is one And so it doesn't cause me the slightest surprise that a weak state is not in a position to engage in a military engagement with the United States A more delicate question is why doesn't the Pakistan Complain directly to the Security Council of a violation of its Of its territorial integrity. Well, I mean that's a very interesting question because it raises a much broader issue Where is the Security Council in all of this? It's since 2001 the Security Council has formally recognized that Al-Qaeda represents a threat to international peace and security And as a result that means that the Council has all of the chapter 7 charter powers available to it from the imposition of sanctions That's the basis for the Al Qaeda sanctions list right the way up to the use of military force if necessary But of course, I mean the United States has not sought Security Council approval for the use of force inside was used on which it would have been open to it to do Now that may be and people would say in response Well, that's just not the real world You never get China and Russia to consent to you using drones inside Pakistan, but in a sense I don't think it means the question isn't worth asking because You know the council is there partly to help maintain peace and security Because it's difficult to get a decision through the council to authorize the use of military force I mean that may be an obstacle to the deployment of military force, but that's exactly what it's meant to be It's meant to make the deployment of military force more difficult But another way of asking the question is this I mean the principle justification that the United States uses For deploying force in Pakistan Is self-defense under article 51 of the UN Charter But article 51 imposes an obligation on states that invoke it To report the use of force to the Security Council ordinarily obviously article 51 was envisaged as a situation Where a state uses force to defend itself against aggression from another state And there's been a long-running debate about whether or not a state can use force under article 51 As part of its defense self-defense against the non-state actor I think I'm right in saying that the majority view, although it's not unanimous, is that it does entitle states to use Force in self-defense against the non-state actor, but it also carries with it an obligation to report the use of force to the Security Council There's no suggestion that that is a practice that's been followed or adopted or followed in relation to The deployment of drones at the end of the day. I mean Pakistan's answer to the question that you're asking is you know We are in a very very awkward and difficult position We have a hundred and forty five thousand of our own troops stationed in and around the Fatah region We do not accept or regard this as an armed conflict inside Pakistan We regard it as a law enforcement operation We have a long-term strategy which involves dialogue and engagement with some of these groups The situation is immensely complicated as it now is with the core leadership of al-Qaeda really destroyed There being a number of Remaining what they call foreigners foreign fighters people from outside the region basically Well from various different parts of the world, but people who would be identified as al-Qaeda But then there are also Afghan Pakistan Afghan Taliban Pakistani Taliban and a very large number of different tribal Pashtun tribal groups all of them look the same all of them carry guns as you know wherever they go and Who form and break allegiances with one another with alarming frequency so that half the time the Pakistani Army is trying to fight an insurgency Against one group and then finds that that group has joined with a group with whom it's acting in alliance So it's an extraordinarily complex mosaic of Constantly moving and shifting allegiances and the attitude of Pakistan is we need the time space and support to tackle this problem intelligently and what you're doing by continuing now to send military ordinance through the air is you may be Terminating individuals who are legitimate targets, but at the same time you're making the war the long term struggle for peace One which is going to go on that much longer when the battle lose the war is the attitude that the Pakistani authorities have I'm conscious in some of the things. I'm saying that you may be perceiving a View on my part and and I don't think that would be a fair assumption if you if you are I'm I'm listening To as many people as I can try to assist the dialogue I mean I have made that statement about Pakistani consent because the position on that one issue seems to me to be legally very very clear but on All other issues my principal role in this is Facilitating a dialogue. It doesn't really matter what I think the end of the day I suspect I shall forbear from expressing a clear opinion on any of the legal framework debates because there are many you You know, I tell you you can put your finger in the air And you will you know pick up the passing Academic who has an opinion on the subject and there are as many academics as there are opinions and as many opinions as there Are academics and I and others as well. I don't just matter meaning to denigrate academics. I mean Practicing lawyers within government and so on And I don't think adding two things I don't think those who shout loudest and necessarily right and I don't think adding my voice to the myriad of voices that there are with Different views on the subject is necessarily right and I don't think what academics and practicing lawyers think really matters because what matters is what states do How they behave and what agreements they make and part of what I'm trying to do is to foster a dialogue between the United States and Europe in particular, but also those states on whose territory that the technology has been deployed The I mean in a way what we're talking about is the collapse of sort of a Westphalian kind of concept of Warfare and I mean there's a very interesting observation that Rosa Brooks who's a fellow here is made You know the responsibility to protect which is a basically a liberal humanitarian idea Is based on the idea that states that can't control their own territory or not You know where there's genocide going on other states can intervene essentially abnegating their national sovereignty The flip side of that idea is essentially the drone program, right because what the United States was says these states don't control their own territory We're you know facing potential violence from the actors who are not being controlled and therefore we have the right to intervene So in both cases, I mean is it uncomfortable perhaps your liberals to kind of recognize There's a link between the two so and as a sort of and before we move to that, you know It is obviously the reason that people are having this discussion at all It is confusing about whether this is a law enforcement exercise or a war That's a the fact that people are confused about it. Is it legitimate is there and you know the nearest sort of analog And we've of which we've had a long experience is piracy, which is a crime that has elements of warfare. I Mean presumably in international law, there's quite a lot that has been read and said about piracy I mean there's many statutes that exist So would there be a kind of Geneva, you know new convention on drones that would sort of try and address these problems It wouldn't say this comfortably fits in the law of war box or the law enforcement box But it's something new and we're just gonna here's how we're gonna think about it The question of whether we need a new or an updated international treaty effectively to revisit the Geneva conventions is I think probably the most difficult question It causes absolute shivers And rightly it causes absolute shivers across the world because people think that the moment that you unpick The structure that exists Then there will be a free-for-all Where the result is far from being a Structure that restricts and limits conflict one which is more permissive and Enables form certain forms of conflict to be more easily waged and there's a legitimate point of view That says that when you trace through The analysis that we are entitled to move on to the territory of a state that is unwilling or unable to deal Effectively with terrorists who pose a threat to us There is a responsible body of opinion that says that that translates into saying Strong states are entitled to invade the territory of fragile states And that that enshrining that in a new agreement Would be to enshrine the a recipe for a Breakdown in in in peace and security in other words that in fact It's a very very dangerous thing to open up the the conventions And that a more productive Strategy and certainly one which would be more likely to produce some sort of result in the shorter term is To negotiate agreements of understanding in other words to try to come to a common understanding I mean, I think I think what what needs to be said very loud and clear and what's not well understood I think outside the United States certainly is That this administration is committed to trying to find a way of doing this within International law however much people may disagree with the strategy on for political reasons They are trying to find a way of accommodating it within an international law framework by that I mean They are I mean how old co uses the word translation to describe the process in other words. He says Here are these principles they were culled in an Former age where war was territorial and therefore it made sense to talk in territorial terms We're now dealing with a new form of conflict and non international but transnational armed conflict with a non State group and that is not what was contemplated by the conventions now when a an old statue comes up for interpretation by a court in a new situation whether it be You know a statute about the preservation of human tissue and then suddenly there's a new form of stem cell research The question arises. What is the limit of a court's interpretive discretion always? I mean you have statutes passed in the 1800s which come up for consideration in in in modern-day circumstances and a court has to try to fit the statute as best it can around a changed technological or social or economic situation and It's a very familiar to lawyers this this debate because sometimes there comes a point where a court says I can't go any further The job of a court is to interpret but if you're really asking me not to interpret but to legislate That's not my job. That's the job for the legislature. That's a classic dilemma in it for in every courtroom where constitutional law questions arise What are the limits of judicial authority to interpret and there's an analogy to be drawn there Is this something that can be Can be negotiated by means of an interpretation of the existing framework certainly this administration thinks it It is doing that. It's not saying to hell with the Geneva Conventions to hell with international law It's saying within international law. This is how we analyze it This is our translation of this law into current every modern-day situations now Many would say translation is a very generous word for what is involved some would say it's not translation It's it's gone beyond that. It's a new type of of analysis But that is precisely the debate with which we're all engaged. I mean I just I just it might be worth just brought with me the text of a Excuse me of a lecture that Harold co gave just last week at Oxford University, and I just just wanted to read out a couple of passages, which I mean I with which I agree And which kind of encapsulate the problem He says first of all that the present administration has not done enough to be transparent about legal standards and the decision-making process that it's been applying It hasn't been sufficiently transparent to the media to Congress or to our allies Because the administration has been so opaque a left-right coalition from Code Pink to Paul Rand has now spoken out of against the drone program Fostering a growing perception that the program is not lawful not necessary, but illegal unnecessary and out of control The administration must take responsibility for this failure because its persistent and counterproductive lack of transparency Has led to the release of necessary pieces of its public legal defense too little and too late as a result the public has Increasingly lost track of the real issue, which is not drone technology per se But the need for transparent agreed upon domestic and international legal process and standards now He goes on to say the administration as well as being more transparent and more consultative must be quotes more willing to discuss International legal standards for the use of drones so that our actions do not inadvertently empower other nations And he cites China North Korea or Iran or other non-state actors who would use drones inconsistent with the law I mean, I do think the case now for greater transparency and accountability and for International agreement on the standards is pressing and overwhelming and to be honest could it wait for another treaty? I don't think so. I think by the time we have another treaty we'll be looking at a whole new generation of weapons, you know It seems that when American officials go to Oxford University They actually say different things than they would if they would hit here So so to give you an example of the Pentagon Council You know gave it I think a speech the Oxford Union and he said, you know We should be thinking about the time when the war on terror is sort of over and As as we when we discussed yesterday I think the movement in Congress now and when the discussion of the authorization for the use of military force Which could theoretically be over when combat troops are taken out of Afghanistan at the end of 2014 The movement in Congress seems to be actually instead of either ending this authorization or or making it much more constrained To actually enlarge it it seems that that's kind of the mood right now So in a sense, you know if that were to happen You'd actually have a much more expansive Program, which would be You know at least it within American law better kind of articulated where Because at the end of the day the AUMF was about the people who attacked us on 9-11 So if you're going after the Islamic Jihad Union, which is an Uzbek group It's hard to sort of really connect them to the events of 9-11 So in your talks and in your thinking about this, what what's your That's a very interesting question. I mean first of all, I don't presume to say anything and won't say anything about the Authorization for the use of military force discussions here partly because I'm not qualified to partly because it's outside my mandate I'm I'm my concern is about international law and human rights issues And I don't think that it's helpful for me to Or indeed that I'm qualified to to engage in a debate about the detail of the way in which the AUMF is or should be recast What I would say is this that that There is a growing Movement may not be Coalescing yet But there is a there is a strand of opinion within this administration and its closest friend that If we if if we are to move forward We need to think about this as not being a never-ending war if you accept the basic war paradigm and and as I say that in itself is hugely Controversial, but if one if one works through the base to the issue from the basic war paradigm The the there then has to be some concept of the way in which this war can come to an end Because we know and I mean I I I don't think there's anybody in the global security community who Who would predict that no matter what? Strategy we adopt or is adopted Or could ever be adopted We will see an end to jihadist terrorism during the next three generations I mean whatever might happen beyond that no one can predict, but there is no question of Jihadist terrorism linked in one way or another to al-qaeda's basic or philosophy Coming to an end in my lifetime my children's lifetime or their children's lifetime so therefore we have Struggled for a decade after the the shock the tectonic shift that 9-11 represented with exceptionalism with you know Suspending our commitment to basic core values and that hasn't worked not only is it not worked, but we've ended up with now probably 30 upwards of 30 different Organizations around the world all engaged in active conflict in the name of the same jihadist agenda I mean one of the one of the ghastly realities when we look back in history at the evil geniuses who conceived of Strategic world-changing Military strategies, you know we we think of Hitler and those who look at Global strategy will say well, you know the man may have been mad, but he was a genius as well I mean the same is true of bin Laden, you know the man invented the notion of a global jihad Some would say by the way in which the West reacted we accelerated that process But one thing is for sure we have a global jihad on our hands now You know it definitely did work. He succeeded. I mean there's an al-Qaeda in the Arabian Peninsula There's an al-Qaeda in the Islamic Maghreb, you know, we've been fighting al-Qaeda in Mali They can ban up they're now back up in in In Libya, they're crossing through Indonesia or they're down in Uganda. They're over in Syria They're in Chechnya. They were Chechen fighters in Syria They were you know, I mean no seriously. There's a huge Chechen brigade fighting in Syria Alongside a massive al-Qaeda operation and who within Syria is set up an infrastructure who set up courts and hospitals the al-Qaeda brigades So I mean you know at the end of the day, I think that some I think I think you know There's some real food for thought Just before we throw it open one final question It was reported after a trip to Pakistan that the Pakistani of government told you that 400 civilians have been killed that fits pretty neatly with the low end of the estimates of the Bureau of investigative journalism and Our estimates here once you add in some people that we can't exactly categorize as civilians who may be unknowns rather the militants So that seems like a very plausible number Did they elaborate no and and and I asked for disaggregation twice and It didn't appear Although I can tell you a little bit about methodology so far as there is a methodology But I mean the request for disaggregation continued the bottom line is that that There is a genuine Security obstacle to the investigation of the deaths that follow from drone strikes. That's undoubtedly the case within FATTA Not only are the strikes tending to happen in very remote areas But the security situation on the ground is unstable the FATTA secretariat has no effective police force It's not how FATTA has been governed ever since the British left the British left a legacy of a of an area which was accepted to be ungovernable and that the Pashtun people should be entitled to regulate their own affairs and to Guide themselves not by civilian law, but by Pashtun Valley by the local But by the local tribal law and they do and they have at least they have for a very long time they say now that their entire tribal structure for decision-making is broken down because I mean one of the classic ways in which decisions are made is the convening of a tribal yoga and Which is a group of situation in which men sit together in a circle and they all carry guns And they all have great big turbines and when I met them in Islamabad They were laughing and joking with me and saying look if you saw my photograph in the newspaper What would you think I looked like and and and one of the tragedies is that one of the most notorious Strikes in which a large number of civilians died Sadly was a yoga which had been called in order to get two tribes to unite in order to expel Al-Qaeda militants from the area in which they were and that I'm afraid has resonated throughout the tribal community and has caused a sort of major breakdown but The secretariat, but basically their working method goes as follows When there's a strike If it's successfully hit militants, no one comes to tell us Hmm if civilians have died someone comes to The secretariat and says our family members have been died have been killed They then conduct an inquiry to find out if this person was or was not a civilian And it's on the basis of that information that they compile their statistics now. I mean, I have to say I have some I Have some difficulty with the idea that there is a completely clear-cut distinction here between civilians and Militants, I mean these are tribal peoples they they operate in In a way that Involves, you know the use of violence against one another even, you know, it's it's it's very difficult to draw some of these Distinctions, it's obviously it's completely different when you're dealing with foreign fighters who've come into the area because they are easily distinguishable because they're not Pashto Or they're not local pastor But I think that some of the other distinctions are extremely extremely difficult to draw and Must in the end depend on the combination of human intelligence and signals intelligence and it's the human intelligence element that worries me most because I Mean the point is an obvious one if you are a paid informant to provide information to the ISI as to who within your village is associating with a Militant organization you have to face with a choice, you know, you either Identify the real people and run the risk of being beheaded or you identify somebody who's house down the road You'd like to occupy Or whatever or somebody with whom you've got a long-running tribal Dispute and and as with a lot of these as with a lot of these Tribal Legal structures the Pashtun valley has revenge as its heart You know, and I mean one of the well I see somebody shaking it. Yeah, but it is a party. Yeah Yeah Yeah, I mean so so the short answer is I don't I don't know how reliable the statistics are And I think Pakistan has a responsibility to do a great deal more to be honest to get to the bottom of some of these Incidents and if it involves working more closely with the Malik's in the area to get the details Then more needs to be done But let's face it. There are two ends of the story You know, it's not just Pakistan that needs to be more forthcoming or do more to get to the realities it's also those who are dispatching this technology because they have a record which is capable of Determining whether or not there is a serious risk of civilian casualties from a visual recording and there will be in each case Have been an analysis of the success or failure of an operation and the extent of civilian casualties and remaining silent over that without giving any realistic sense of what the truth is simply Leaves the space open for claims that are inaccurate and exaggerated to be made which in itself is a threat to security Great. Well, we'll take questions. If you can if you have a question Can you wait for the mic and we'll start with akab Malik who is a Visiting here from National Defense University of Pakistan and is a Pashtun and is at SICE Right, you've done the introduction I Had a lot of questions. I wrote a lot down, but you answered most of them anyway Situation I you know we can talk a lot about Pashtun Wali and Pashtun Wali and what Badali is what what you call revenge is reciprocity Sorry, and I can't never said that would probably anyway But the point of the matter is that that's a given take and that's instilled in that society primarily to Maintain certain amount of law and order and deterrence so that if you take mine I have to take yours. It's built in and allows a certain amount of peace Taliban in fact have been Separately to this being de-tribalizing Those those areas primarily because De-tribalization is a process of Islamization Tribal society doesn't exist well with Islam primarily because for most Pashtun Being Pashtun is more important and that doesn't bode well for the Taliban at the end of the day So they've been killing off a lot of Malik's especially and I mean this is the true for Afghanistan and southern areas as well As it is true for father What's the question but the question that's very helpful but when I did this I had to add that but When we're talking about Undermining legal frameworks undermining international law, which is what a lot of countries in fact see the United States That's doing when they strike into another country and infringe its territorial integrity Given especially now that Pakistan is unanimously said that It doesn't agree with it and does not want this and etc. etc One of the biggest concerns also is India, which you didn't touch upon it for Pakistan that is that this may give certain amount of legitimacy US actions through precedent maybe to strike into Pakistan However, the problem here is that Pakistan has a different relationship with India Unlike with the United States it has seen India as an enemy since 47 has for for we could say three and a half wars The like response would be very difficult and very different and escalation is very likely We have a lot of questions and so So my point is couldn't that be played up Primarily to to consult it or cement real rules on the use of drones in other territories I mean, I just say it's not my job to play anything up. I mean, I you know, I Understand exactly what you're saying one thing is certain is that That as great a transparency emerges from the US as to the legal rationale for the strategy US officials will say and are entitled to say that if other states remain silent in The face of that that is the beginnings of a principle of acquiescence and I think that is I mean a Certainty, but I think at the same time what carries with what's carried with it is the need to As I said earlier on I think very much a recognition of the fact that The US now needs to engage with a framework that it would be content to see other states using Mr. McGovern who's a longtime? CIA officer now retired Hi, I Yeah The picture you draw of global jihad is rather chilling I'm bothered by the notion that we here in this country are subjected to The idea that these people self radicalize They look in the mirror in the morning and say he looks like a good day to self radicalize They are legitimate grievances and they need to be acknowledged. My question is very simple and it pertains to that You mentioned that before a drone strike There's a really difficulty trying to make a clear-cut distinction between civilians and militants How do you suppose it looks after a drone strike? Good question Yeah, well, I mean, I think I think that's where the accountability question comes in I Make it clear that when I say there's a great that there's an apparent difficulty of distinction I say that from a currently as for most of us a position of ignorance as to how that distinction is being drawn And one of the things that I am anxious to try to do in this process is to encourage such Transparency as can be given without compromising legitimate security interests as to the process by which those choices are being made Because I suspect there may be more More that can sensibly be said about the accuracy and reliability of some of those choices But in the absence of information about it looking at it from the outside I see a high risk of misidentification Which is of course reinforced by the fact that a number of individuals seem to have been killed on multiple occasions Which is a remarkable and unfortunate feat But I mean I think the process You know, I'm not sure whether you're tilting at the idea of of The the criteria by which a decision is made after the event to determine whether or not an individual was or was not engaged with with with militant activity We you know, I mean one option here is to get to what mr. McGovern was saying perhaps is to have some sort of after-action review that would and what would be the mechanism for that Who would do that that it would be seen as sort of legitimate by the UN or other? Well, I mean there is of course an after-action review. Yeah, but we don't know anything about it. That's the point We don't know enough about it. We can't know everything about it, but we don't know enough about it Inevitably there's an after-action review because as a minimum a decision has to be an assessment has to be made as to whether or Not the military objective of the attack was achieved But equally, you know, it's not the aim of the US military to kill civilians That is not its objective Its objective is to minimize the risk of the loss of civilian life So it needs to make an assessment as to whether or not a mistake has been made or an error has been made But more can undoubtedly be said about the means by which that assessment is made and I think to be fair More should be said about what the findings are not of any in each individual case But I mean I have had discussions with the United Kingdom, and I'm not holding this up at them up as a As a paradigm because I don't think their Transparency and accountability systems are as well developed as they might might be But they are prepared to say and have said in response to parliamentary questions how many people they consider they have killed Ironiously in drone strikes in Afghanistan and what happened in relation to the investigation that followed and the way that it works I mean very crudely and Well, that's a good too much leader, but I think I think I think that within the UK system There's a there's a basic process by which the distinction choice is made first of all And then following the strike and analysis takes place of what had occurred And if there is thought to have been any possibility of a risk of a civilian casualty, there will then be an investigation usually By the military police now. I think that they're met. I mean there may then be a room for the hybrid process of independent inquire of each strike rather than Leaving those who have been involved with the responsibility of having to review it But I mean that's a that's a detailed question to be looked at as we move forward, but but I tell you one thing Israel and I'm not commenting for a second on whether this process is carried into effect effectively but since the 2006 decision of the Israeli Supreme Court on targeted killing and two subsequent commissions which have set up the procedural and systematic systemic requirements for independent and high-level review of targeting decisions and of subsequent accountability reviews has quite a detailed calibrated mechanism for legal and independent review both before and critically after the event and They are now transparent about what that system is And I think that Israel feels that it's got quite a lot to say About how transparency can operate and I actually think quite a you know people in this country in a broad Would certainly feel more comfortable if they knew what the system was if they felt comfortable with the system in terms of They're being a sufficient degree of oversight and independent review within a security and classified framework And if people were told listen We screwed up last week, you know, it's a terrible tragedy, but accidentally we Had a had a had a had a terrible mishit And that happens occasionally and it happens in Afghanistan and the families are paid compensation Because it's a regular do d engagement and and and when it when it where it's happened with the UK military You know, there's been acknowledgement and there's been compensation paid that makes a significant difference and it closes down some of the territory the intellectual territory that's left open for For misrepresentation, so I mean I actually I don't believe this is a battle between freedom of information advocates and government secrecy advocates, I think that both sides really ought to be engaged in a search for truth and Success and peace and security and if they are greater transparency will serve the interests of both We have a lot more questions are running a little bit over. Do you have time fine? Okay So we're going to start bunching them together Shawn Warderman of the Washington Times this gentleman here next to him Yes, thanks very much, Ben. It was a very interesting presentation On the transparency question. Do you think that that will be helped at all if the Program was transferred to the US military as I missed the beginning of your talks And give me if I you addressed that already, but would you comment on on that and also is there a sense in which You know the United States Which I think probably does have More transparency in regard to its intelligence services than most Democracies have I mean, you know when the British had a targeted killing policy in Northern Ireland They kept it secret until the Manchester cops stumbled over it, right? So so Is there a sense in which the United States is suffering because it's actually more Transparent about these things than say the Russians the Chinese or even the French And this gentleman here you just identify yourself. Yeah My name is Alfredo Miranda. I'm corresponded with his pen TV. They have a straight question for you As of today the use of drones is a violation of human rights Thank you together. Yeah, I I'm Not in a position to answer that question unequivocally at this point in time It's certainly from the point of view of the individuals and the victims and there have been significant numbers of civilian casualties Their right to life as far as their concerns has been violated There's been a very recent and significant decision in the Peshawar High Court which follows from Follows from those civilian casualties and directs Pakistan now to Take action not military action, but action short of military action But up to and including the severance of diplomatic ties if the United's if If the drone attacks continue But you can't make given unequivocal answer to a question that says our drone attacks of human rights violation It's like saying is it a human rights violation to shoot someone it all depends on the circumstances Sometimes it's the human rights violation not to shoot someone because if you don't they're going to kill somebody else So I'm afraid You know first of all drones are not a weapon. They're a delivery system and secondly I'm afraid it's it if the question we're capable of such a simple answer I wouldn't be engaged in this extremely long and detailed and difficult inquiry Can I come back to the other question? I'm First of all I'm very interested to learn more about the Extent of these Senate's intelligence select committee's review of drone strikes and their legitimacy And that's one of the issues that I want to Inquire into and you're absolutely right to say that the Parliamentary oversight Senate oversight of the CIA is significantly more Calibrated and Robust then is to be found in terms of the oversight of other Intelligence services in many other democratic countries on the other hand They don't tell us much about it I mean, we're still waiting for the release of the report that I On the secret detention Interrogation and brackets torture program on the close brackets, but then Well, I mean, I think you know even Joe Biden has added his voice to a call for its publication now It was the subject of recommendation I made to the United States in my report to the Human Rights Council in March and also Incidentally to the United Kingdom who've got an interim report that they're sitting on on the involvement of United Kingdom officials in Interrogations that have involved the use of torture in In counterterrorism operations. So, you know got these two reports. They're both sitting there under wraps I mean, I I'm a firm believer in the idea that accountability And reckoning with the past is a crucial way of moving forward and and you know When we talk about you mentioned earlier on you know, how do we disengage from this conflict? Is it is it capable of having an end or are we looking at a forever war? I mean, you know, I get back to what Harold Co said at Oxford last week You know, he's saying the critical steps are disengagement from Afghanistan closure of Guantanamo Bay and a reckoning with the past and And an approach which does not aggregate together every group with an Islamist agenda but focus is very tightly on al Qaeda and on the core al Qaeda Machine now, you know, there may be some very interesting debates to be had around that last question but That there should be some means of disengagement from this conflict I think is something with which the American public generally would agree and Will we'll moving the the drone policy over to the DOD? Increased transparency or accountability. I mean, you know, obviously everybody's familiar with the basic dilemma that The agency has oversight in through the Senate Intelligence Committee That doesn't exist directly within DOD, but on the other hand DOD has published rules of engagement and In the past where things have gone wrong DOD has been more transparent about dealing with them I mean, I think there is a very real question as to whoever thought it was a good idea To wage an international campaign of air-based warfare Through an agency which because of its nature has to stick to the NCND neither confirmed nor deny the existence of the program because it was always going to result in a deficit of transparency Which which Which leaves open far too much intellectual and debate space for for for misrepresentation. I mean I it can't have been really thought through from the outset that the agency was the right branch of government to be Deploying this amount of ordinance through the air because it isn't a secret, you know and agencies deal in secrets But I mean I'd like to say that transferring to DOD would regularize the position, but I don't know that I mean I mean off on the outside that sounds sensible But the devil always is in the detail and if the transfer is made with a carve out for Pakistan Which is one of the suggestions as I understand it's on the table in other words that the agency would retain operations in Pakistan But everything else would be transferred to DOD That doesn't sound as though likely to make a huge difference to the situation on the ground, but I have to say, you know, I mean I Don't want to shoot from the hip about what I think the right answer to these questions is I'm Involved in conversations, which I hope will enable me to have a better grasp of what I can and can't Legitimately say about what ought to happen next But I I don't believe that there is there are many who within this administration Who disagree with the proposition that greater transparency would be a good thing? Both in terms of gaining public support at home and abroad and in a greater understanding of the of the program as a whole In the front here, Medea Benjamin co-pink wait for the microphone well lots of questions The high court decision and shower how significant is that and what does that mean for what? No, no, no ashiris might or might not do and then on this issue of Personality versus signature strikes. Do you the the signature strikes? Is that something that you find? particularly problematic and The use of secondary stripes strikes double taps that have killed humanitarian workers and lastly Supposedly the US uses the drone strikes in places where it can't capture people But we have a number of incidents where we know that people have been in very easy places to capture and so Could you comment on that? the Peshawar High Court decision I Would characterize as more of a of a of a judicial outpouring of angst and anger than I Don't mean an individual. I mean, I think it reflects a very real and passionate degree of Opposition within Pakistan Both to the to the use of drones and also to a perceived failure on the part of the government to take enough action to prevent it I Don't think there will be a lack of political will In inside Pakistan in continuing to oppose the use of drones Whether or not the government will then escalate its diplomatic initiative to the point of threatening to abandon diplomatic relations I think is extremely doubtful I mean the solution lies in Pakistan and the United States coming to a clear understanding of what the position is so that we don't have a situation where the United States Believes itself probably with reasonable grounds To continue to have consent from certain sections of the Pakistani establishment or be it not from the elected government I mean at some point along the way We have to at Pakistan has to be held responsible for its own position in other words It says it isn't consenting. Well, it must be held to that position So I can't I mean I think it would be it would be I Mean I think the decision is significant It's significant Not necessarily because it's terribly closely reasoned, but it's significant because it it reflects the degree of of passion and concern But I wouldn't necessarily think that it was That there will be a dramatic change in the approach that the government has adopted I mean the government has adopted the only approach so far that I think it can adopt which is to say we do not consent We do object But we are not going to engage in a fight with the Americans. We're not going to shoot these drones down. We're not going to Several ties on all issues, but we constantly object and the Americans they say need now to listen to us I mean, I'm not sure what realistically in the world of international relations. Pakistan can do more other than get its own security under control and bring them within the Authority of the civilian government, which you know to be honest is not as straightforward in Pakistan as as in other places Second question Yeah, well, I mean first of all I'm Waiting for confirmation as to the existence of signature strikes and what precisely that means Obviously one of the great difficulties and now that One of the things that I was saying about the Pashtun tribal groups is that I mean if your signatures involves Individuals large groups of men walking around together with guns on their back of combat age then If it was as crude as that Then obviously the risk of misidentification is huge But you'd expect that to have been a greater degree of Misidentification and a larger number of civilian casualties than there have been even if it were as crude as that If I mean the again the great difficulty with the signature strike issue is That we don't know what the signatures are and probably never can know because of soon as anybody indicates what the signature issues are then of course That would enable those who might be engaged in in in conflict to all to their behavior So I think that that is a very real area of difficulty. I think everybody recognizes that that You know that signature strikes are the biggest danger In terms of the risk of civilian Casualties and error and I think you know there is a different pattern within within Wasiristan From the way in which targeting takes place or has taken place in Yemen Not only because the demography and the topography is different, but because The nature of the targets are different So I mean we know that there have been instances inside Yemen where Vehicles moving between Connovations that tended to be a frequent area of targeting and there have been tragic errors in which Vehicles that contain civilians have been targeted now that may be because it was thought that the vehicle contained somebody else or it may be because It was engaging in a bit in a journey at a time which was thought to trigger suspicions But I mean I think again This is an area in which it's possible to imagine nightmares in the absence of some truth and I think greater clarity on what is whether such strikes exist and what it means may well Dispel some of the more exaggerated myths and risks that are involved. So I think I think We're having this conversation Precisely because we don't have enough facts And I think that really is a vitally important lesson in all of this and the third question was Yeah, well, I don't actually think that the United States justification does depend on the proposition that they're unable to capture individuals I mean, I think it depends on the proposition that the US is engaged in an armed conflict With a non with a non-state group with a terrorist organization and that it is entitled to kill them wherever it finds them and so I don't think that the The killer capture and analysis that it has to be in a impossible to capture is essential at all to the US frame of reference on the other hand We have seen that where a law enforcement paradigm can work The US is showing itself increasingly willing to adopt a law enforcement paradigm So, you know, if you have an al-Qaeda suspect who is available arrested and can be made available for trial in the US They're going to be tried now in the US. They're not sent to Guantanamo and they're not necessarily eliminated. I mean, we have some significant individuals potentially facing trial in the United States, but You know, I think The choice between do you move into the mountains of of of Waziristan with a Snatch squad and try to pick off individuals and bring them back to Manhattan and put them on trial here I mean, I think That is not the analysis that the US is Is working on it's working on the analysis that this is a conflict And in conflict you kill people but in conflict people kill you too. We want to thank you for your gen We've got a lot more questions, but we are already 20 minutes over and Want to thank Elizabeth Anderson for the American Society of International Law who kind of helped to arrange this I really want to thank you sir for a brilliant Interesting presentation and we await your report with great interest