:00:00. > :00:00.Chris Christie has fired on aid for allegedly creating a scandal.
:00:00. > :00:19.Welcome to HARDtalk When a US drone kills a jihadi militant in Pakistan,
:00:20. > :00:26.has a law been broken? What if the missile kills women and children
:00:27. > :00:29.too? Who can be held to account? Today my guest is Ben Emmerson, the
:00:30. > :00:32.British lawyer addressing these questions for the United Nations. He
:00:33. > :00:36.says drone strikes and other exceptional counter-terror measures
:00:37. > :00:39.simply breed more terror. But does this liberal lawyer really know what
:00:40. > :01:14.is best in the struggle to make the world a safer place?
:01:15. > :01:22.Ben Emmerson, welcome to HARDtalk. I want to start with the role you have
:01:23. > :01:28.right now, the UN special rapid serve, looking at counterterror
:01:29. > :01:32.measures and impact on human rights. You are an experienced lawyer. What
:01:33. > :01:38.experience do you have in the field of security and counterterror? Most
:01:39. > :01:44.of the work I did during my career, in one way or another, had a
:01:45. > :01:49.security or counterterror element to it. I looked at the legality and
:01:50. > :01:55.human rights compatibility of many of the measures taken in the post-
:01:56. > :02:00.September 11 period in order to meet the immediate threat of terrorism
:02:01. > :02:04.from Al-Qaeda. It is a natural progression of the worker have done
:02:05. > :02:09.in the past. I see you as a top lawyer who sits in an office in
:02:10. > :02:14.London, around the world, but I do not see was a man who has spent a
:02:15. > :02:18.huge mass of time in conflict zones. Talking to intelligence officials,
:02:19. > :02:24.maybe even talking to militants or terrorists. Have you done that? In
:02:25. > :02:28.the course of the work they do, I certainly do travel to these
:02:29. > :02:34.countries. I do have discussions with senior national security
:02:35. > :02:39.officials. Last year I had meetings with the head of the CIA is whether
:02:40. > :02:44.the leading figures in the Obama Administration's national security
:02:45. > :02:47.agency. I have a reasonably open dialogue with those who are most
:02:48. > :02:52.closely involved in some of the difficult national-security balances
:02:53. > :02:59.that need to be struck. When you are talking to them, did you say that
:03:00. > :03:04.you are by nature a pacifist? Is that the way you sell yourself to
:03:05. > :03:08.those people to make a do nothing that the word came up in the
:03:09. > :03:14.conversation. It is an interesting philosophical position for you to
:03:15. > :03:18.have, given that you now have to weigh up the right balance between
:03:19. > :03:22.counterterror, combating the serious threats around the world with human
:03:23. > :03:31.lives. I would like to think that pacifism, , that is a torrent of war
:03:32. > :03:38.and violence, is a rational position. I regard John Brennan as a
:03:39. > :03:45.man who is not actively promoting conflict. He is an intelligent man
:03:46. > :03:50.and a man who is in a great deal to impose discipline on the role that
:03:51. > :03:59.the CIA plays. Generally, military men, they are not pacifist, are
:04:00. > :04:03.they? No. I have worked in the field of armed conflict for a long time. I
:04:04. > :04:08.was the defence counsel at the Yugoslavia war crimes tribunal. I
:04:09. > :04:12.now sit there as a judge. One thing I can say from my involvement with
:04:13. > :04:17.soldiers and military commanders is that in my experience, they have a
:04:18. > :04:23.far more acute sense of the Raghu of human life than some of the
:04:24. > :04:32.politicians who sent them into conflict. -- the value of human
:04:33. > :04:37.life. A fascinating point. I want to talk about the political leaders who
:04:38. > :04:43.currently have to deal with, whose actions you have to assess. One more
:04:44. > :04:48.question on the mandate you have as the UN report. Because you are
:04:49. > :04:54.essentially work for the human rights Council, you are beholden to
:04:55. > :05:00.them. The UN human rights Council RA particular body. They have over 40
:05:01. > :05:03.members who sit on the panel. Many of them represent some of the most
:05:04. > :05:08.repressive regimes in the world. The mandate you are handed comes to you
:05:09. > :05:15.dressed up in the language of human rights, but also dressed up in a
:05:16. > :05:21.great deal of hypocrisy. The two things I would say from the outset,
:05:22. > :05:26.my job is not to speak for the UN, but to speak to the UN. To speak to
:05:27. > :05:32.the member states that make up the organisation. They also tell you
:05:33. > :05:37.what you would like to investigate. Sometimes they do, sometimes they
:05:38. > :05:40.make decisions of my own. Is it not true that Russia and China have been
:05:41. > :05:45.very keen for you to look at the human rights of occasions of US and
:05:46. > :05:50.other Western electronic surveillance techniques? It is
:05:51. > :05:54.certainly true that Russia and China were joint parties to a statement
:05:55. > :05:59.with a number of other states, calling me to look into the
:06:00. > :06:07.implications of drone technology in counterterrorism operations. I have
:06:08. > :06:11.not had any direct? -- direct communication in terms of
:06:12. > :06:19.surveillance. We will take drones as an example. Do you not see them as a
:06:20. > :06:25.tool to be used by governments? We are always acutely aware of the
:06:26. > :06:30.risks of being pushed and prodded in one direction or the other. One has
:06:31. > :06:38.to credit those who occupy these mandates with the political savvy
:06:39. > :06:42.and as to understand it is a risk. We have to ensure that the standards
:06:43. > :06:47.are playing will not just apply to certain states, but to all states.
:06:48. > :06:57.To take the example of drones. That is an issue which the US has been
:06:58. > :06:58.the market leader in the use of drugs technology for
:06:59. > :07:05.extraterritorial counterterrorism operations, operations in states
:07:06. > :07:10.outside their own. There are credible reports that a large number
:07:11. > :07:14.of other states and 30 state have arsenic to look into the US policy,
:07:15. > :07:20.are themselves in the process of developing arms drone capabilities.
:07:21. > :07:26.We know that more than 50 states currently have rightly piloted
:07:27. > :07:29.aircraft. The question is whether they are capable of adaptation for
:07:30. > :07:36.military weapons. Some nations were now have them. Israel has them,
:07:37. > :07:42.China has them. Israel, the UK and the US have them and have used them
:07:43. > :07:45.in conflict. There are reports that China is in the process of
:07:46. > :07:52.developing and acquiring its own capability. Other states are doing
:07:53. > :07:57.the same. There are a number of European states negotiating
:07:58. > :08:03.contracts. My point is this - once the ball is kicked into play, it is
:08:04. > :08:08.my responsibility, not any particular State's responsibility,
:08:09. > :08:12.to decide how it is investigated. So I am asking questions not just of
:08:13. > :08:17.the US, but of China and Russia and other states. You put it within a
:08:18. > :08:24.framework you developed of an era of exceptionalism in counterterror Tech
:08:25. > :08:28.knowledge it that technology. And there that began at the end of
:08:29. > :08:32.September 11. A new way of conducting counterterror operations.
:08:33. > :08:39.I love the work has been about the way the Americans have used them. Is
:08:40. > :08:42.there any doubt in your mind that in the record that Americans have
:08:43. > :08:51.developed in using Dram strikes in Afghanistan, Pakistan, Yemen, that
:08:52. > :08:54.they have broken the law? There is considerable doubt as to whether
:08:55. > :08:57.they have broken the law. There is considerable doubt as to what the
:08:58. > :09:04.law is and how it applies in some of these situations. One of the great
:09:05. > :09:07.difficulties in dealing with drones, they have brought in to
:09:08. > :09:12.focus some of the difficult legal questions, but on basic principle
:09:13. > :09:22.they note different from any other form of weapons delivery system.
:09:23. > :09:26.They make it much easier to make a military intervention in a country
:09:27. > :09:30.with which you are not at war. You do not have to put boots on the
:09:31. > :09:37.ground. The first thing to say about them is that they are a weapon which
:09:38. > :09:43.is peculiarly suited to asymmetrical warfare. Warfare where one of the
:09:44. > :09:49.parties is a nonstate group, but in common parlance, a terrorist
:09:50. > :09:55.organisation, insurgents. They are Ray Carter in certain to weapon.
:09:56. > :10:00.Used in conventional warfare between states they would be much less
:10:01. > :10:02.useful, because they are relatively easily defeated by sophisticated
:10:03. > :10:10.defence systems. This is a weapon which has been a weapons delivery
:10:11. > :10:14.system, it has been designs for these kind of conflict. I am
:10:15. > :10:19.surprised that he shied away from a clear declaration that they are used
:10:20. > :10:26.outside of declared war zones and illegal. You say you are not sure.
:10:27. > :10:30.The current situation is that as a matter of international law, there
:10:31. > :10:36.is very significant disagreement as to what the basic principle is. URA
:10:37. > :10:42.top international lawyer. Push your opinion on the table. One are the
:10:43. > :10:47.things I have made clear is that I am not avoid the question at all.
:10:48. > :10:53.Once it becomes clear that there is no consensus, amongst international
:10:54. > :10:58.lawyers... There will be no consensus on less top leaders like
:10:59. > :11:05.you put your opinion on the table. How is it develop a must win a
:11:06. > :11:11.woodchipping? -- how does a consensus develop unless we know
:11:12. > :11:15.what you think? States around recurrence to come together in order
:11:16. > :11:22.to determine whether the series of legal issues in dispute are ones in
:11:23. > :11:30.which they can agree on. I will sketch team in a few sentences. The
:11:31. > :11:35.US position, which is not broadly accepted in Europe, is that it is
:11:36. > :11:43.engaged in a non- international armed conflict with a nonstate armed
:11:44. > :11:49.group named allocator. It has no geographical limitation. --
:11:50. > :11:53.Al-Qaeda. In their view, a war in which they are entitled to use the
:11:54. > :12:03.violent means that the drone strike represents. They are entitled to
:12:04. > :12:08.invoke the targeted rules that are part of a war. He made a speech
:12:09. > :12:16.where you refer to these as an attack on international law. You may
:12:17. > :12:19.be able to correctly, that think what I would have said is that they
:12:20. > :12:24.pose a very real challenge to the framework of international law. We
:12:25. > :12:31.need to get absolute clarity as to the circumstances in which it is
:12:32. > :12:34.lawful to use any form of lethal extraterritorial force in a
:12:35. > :12:37.counterterrorism operation. Most conflict that take place in the
:12:38. > :12:43.world today are asymmetrical conflicts. Within a war zone such as
:12:44. > :12:48.Afghanistan, all of the evidence suggests that drones are capable of
:12:49. > :12:53.improving the situation awareness of commanders and reducing the risk of
:12:54. > :12:57.civilian casualties if they are used and operated strictly in accordance
:12:58. > :13:01.with the requirements of international law. The difficult
:13:02. > :13:09.issues arise in those areas where there is no recognised, that is to
:13:10. > :13:15.say, there is no conflict between the US or the state using drones and
:13:16. > :13:22.the insurgents on the ground. For that, it was a judge whether the
:13:23. > :13:25.drones are lawful, we run right into a profound difference of legal
:13:26. > :13:40.opinion which is really running right across the ground. You said,
:13:41. > :13:46.the United States has violated human rights with the use of crime
:13:47. > :14:00.strikes. First of all, how can you be sure... Defined, violating
:14:01. > :14:08.Pakistani rights. They have collaborated about the drone
:14:09. > :14:15.strikes. Evidence shows historically that there was corporation from the
:14:16. > :14:20.security services. Is the president of Yemen Saint... There is no
:14:21. > :14:25.dispute that in Yemen the use of lethal force with drawings and other
:14:26. > :14:28.methods is conducted with the express consent of the Yemeni
:14:29. > :14:32.government. The Yemeni government is engaged in its own internal armed
:14:33. > :14:36.conflict with Al Qaeda and other groups, and there is no question as
:14:37. > :14:39.far as Yemen is concerned that consent has been provided, and the
:14:40. > :14:47.Yemeni government tells me they give consent on a case-by-case basis, and
:14:48. > :14:53.if consent is with health, -- withheld, the strike doesn't go
:14:54. > :14:55.ahead. In April of 2012, the Pakistani Parliament, the elected
:14:56. > :15:01.representatives of the people, unanimously passed a resolution
:15:02. > :15:04.which rescinded all prior consent to the use of Pakistani territory for
:15:05. > :15:10.their space for military operations by the US. And they required that
:15:11. > :15:13.all future consent should be the subject of a formal parliamentary
:15:14. > :15:20.procedure, so they have to be done in writing, they had to be screwed a
:15:21. > :15:27.fight by the relevant committees. -- scrutinised. It determines how
:15:28. > :15:31.consent can lawfully be given within Pakistan for the purposes of
:15:32. > :15:36.providing authority for the use of its airspace were territory by
:15:37. > :15:39.another state. If I may, I don't want to get the entire interview
:15:40. > :15:44.devoted to drones. One final question on drones, it comes back to
:15:45. > :15:47.me asking Wattyl security credentials are. He made it quite
:15:48. > :15:51.plain you don't believe in the efficacy drone attacks. Your
:15:52. > :15:57.argument seems to be that they breed more terror, they don't live in
:15:58. > :16:00.terror, they encourage it. Again, I think you may be in accurately
:16:01. > :16:12.paraphrasing my position. The report that I produced to the General
:16:13. > :16:15.Assembly makes it clear that an analysis of how drones operate and
:16:16. > :16:22.what their implications is something which requires a far greater degree
:16:23. > :16:27.of transparency and accountability. I want to carry on... That is the
:16:28. > :16:31.key question, because it is difficult to make a proper and
:16:32. > :16:36.objective evaluation of trust in the reliability of the information that
:16:37. > :16:39.emerges, without a far greater degree of transparency. If I was to
:16:40. > :16:46.make one point about this, the biggest mistake that was made in the
:16:47. > :16:50.use of armed drones as a counter-terrorism technique was the
:16:51. > :16:57.original decision to hound the operation to the CIA -- hand. The
:16:58. > :17:01.CIA, like any other agency that operates as a secret intelligence
:17:02. > :17:06.service is bound not to confirm or deny its operations, which makes
:17:07. > :17:09.accountability and transparency impossible. One of the big positive
:17:10. > :17:16.developments last year is the Presidents decision to migrate the
:17:17. > :17:19.drone strategy away from the CIA. Let's stick with that theme of
:17:20. > :17:23.trust, and run with it into a different area. That is the area of
:17:24. > :17:27.electronic mass surveillance, which you have said that you are going to
:17:28. > :17:30.look at and write a report on by the end of this year. Edward Snowden
:17:31. > :17:36.told an awful lot of things we didn't know about the scale of US
:17:37. > :17:43.and UK Internet-based and telephone -based surveillance right around the
:17:44. > :17:47.world. In the UK, intelligence chiefs said this was extraordinarily
:17:48. > :17:52.damaging to their ability to do their work. You appear not to trust
:17:53. > :17:58.their word on that, and don't believe them. I think the public is
:17:59. > :18:03.entitled to know what, first of all, the level of surveillance capability
:18:04. > :18:11.is, and to engage in an intelligent debate about whether that is
:18:12. > :18:16.unacceptable invasion of privacy. When Andrew Parker, head of MI5,
:18:17. > :18:19.said enormous damage had been caused, this was a gift for those
:18:20. > :18:24.who want to attack the UK and will help them to attack that well. Those
:18:25. > :18:31.were mere assertions? They are just assertions? How do you know? You
:18:32. > :18:33.might be looking at Intel... They were correct or incorrect
:18:34. > :18:37.assertions, but they are assertions. They are not backed up by public
:18:38. > :18:45.disclosure of the nature of the harm it is said to be cause. It is vital
:18:46. > :18:49.at this point that there is an informed public debate about where
:18:50. > :18:52.that balance is to be struck. I can tell you that intelligence chiefs
:18:53. > :18:58.make it quite clear to me in private that they take the view that the
:18:59. > :19:02.nature of the threat posed by a violent extremist and fundamentalist
:19:03. > :19:08.terrorism has changed dramatically over the past five years or so. It
:19:09. > :19:10.has changed in terms of its organisation, it has changed in
:19:11. > :19:16.terms of its predictability. And they have a very strong case to make
:19:17. > :19:24.that therefore under current circumstances the only way to
:19:25. > :19:29.identify the risk of an act of terrorism, particularly from small
:19:30. > :19:36.cells or loan terrorists, is to have a comprehensive metadata system in
:19:37. > :19:40.place. The case needs to be made, and a debate needs to take place.
:19:41. > :19:45.Particularly when we are transgressing with the United States
:19:46. > :19:50.across borders into surveillance which includes other states. In your
:19:51. > :19:53.view, are we transgressing individual human rights? Fundamental
:19:54. > :20:05.rights of privacy for example? In the way that this data is being
:20:06. > :20:12.gathered? Does it matter? I want to pin you down. If you want to ask the
:20:13. > :20:15.personally, do I think that my Google mail, did I ever think that
:20:16. > :20:23.my Google mail was secure, the answer is no. And do you care if in
:20:24. > :20:32.those metadata terms it is being mined by intelligence agencies? It
:20:33. > :20:38.has always been my personal consumption that that kind of
:20:39. > :20:41.communication through an unprotected non- encrypted communication across
:20:42. > :20:46.open Web-based mail is a bit like pinning a notice on a noticeboard,
:20:47. > :20:53.it is available for people to see. A lot of those people at commercial
:20:54. > :20:57.intelligence services, it perhaps doesn't matter if you have no
:20:58. > :21:01.reasonable expectation of privacy. When the revelations first emerged,
:21:02. > :21:05.I made it clear that while I thought it was an important issue for public
:21:06. > :21:13.debate, and it certainly seems to be regarded as such in the US, perhaps
:21:14. > :21:18.more so than in this country, it is clearly not the most egregious human
:21:19. > :21:21.rights violation that is permitted in the counter-terrorism context. We
:21:22. > :21:26.have talked mass surveillance and drone strikes, we could have talked
:21:27. > :21:30.extraordinary rendition as well, and your work finding outwards at the
:21:31. > :21:36.what happened in terms of rendition of prisoners. Is your conclusion
:21:37. > :21:39.that the high moral ground that western states often adopt when it
:21:40. > :21:44.comes to talking about human rights and their adherence to human rights,
:21:45. > :21:50.even in the most sensitive security matters, that moral high ground no
:21:51. > :21:54.longer exist, is actual conclusion? It is difficult to generalise about
:21:55. > :21:58.states as a whole. If you want to ask me about the UK and the US there
:21:59. > :22:07.is a genuine governmental commitment to observing the basic vegetables of
:22:08. > :22:11.international human rights law. This idea of exceptionalism since 911,
:22:12. > :22:17.has been a falling away that? There is no doubt that in the first five,
:22:18. > :22:24.six, seven years after September 11, there was a violation of laws, to an
:22:25. > :22:28.extent that is now recognised. Even in the US, the first thing that
:22:29. > :22:33.President Obama did after his first election was to recognise that the
:22:34. > :22:36.US had taken a wrong turn and had engaged in acts of secret
:22:37. > :22:43.detention, that water boarding was torture, and that these were gross
:22:44. > :22:47.violations that needed to be... What is striking is that nobody has been
:22:48. > :22:54.held to account. Exactly, it is striking. And you are a man who has
:22:55. > :22:58.spent his entire career dedicated to treaties and conventions and
:22:59. > :23:04.institutions like the International Criminal Court. Would it make a huge
:23:05. > :23:09.difference if for example a western leader, like George W Bush, or Tony
:23:10. > :23:14.Blair, were brought before an international court? Even a national
:23:15. > :23:19.court, these crimes were committed in a national jurisdiction. Is that
:23:20. > :23:24.what should happen? The only country to prosecute a CIA agent for
:23:25. > :23:33.involvement importer is Italy. 22 CIA agents have been sent to prison
:23:34. > :23:38.in Italy. Were out of time, but yes or no, should George W Bush or Tony
:23:39. > :23:42.Blair, for the good of everybody's belief in the international system,
:23:43. > :23:50.face a court of law for what they did? The crimes that were committed
:23:51. > :23:55.under the hat of the CIA were gross human rights violations for which
:23:56. > :24:01.those responsible not just for the infliction of the punishment, but
:24:02. > :24:09.those who authorised it, they should be put on trial. That depends on the
:24:10. > :24:13.evidence, it will always depend on the evidence. Ben Emmerson, thank
:24:14. > :24:43.you for coming on HARDtalk. It has been an eventful start to the
:24:44. > :24:48.year, and we can all breathe a sigh of relief over the next few days as
:24:49. > :24:53.things quieten down. A bit of patchy rain today, the weekend shaping up
:24:54. > :24:58.quite nicely. Drive but colder, and some rain towards the end of the
:24:59. > :24:59.weekend. At the moment, we are sandwiched in between to weather