Ben Emmerson QC - UN Rapporteur, Counter-terrorism and Human Rights HARDtalk

Chris Christie has fired on aid for allegedly creating a scandal.

Welcome to HARDtalk When a US drone kills a jihadi militant in Pakistan,

has a law been broken? What if the missile kills women and children

too? Who can be held to account? Today my guest is Ben Emmerson, the

British lawyer addressing these questions for the United Nations. He

says drone strikes and other exceptional counter-terror measures

simply breed more terror. But does this liberal lawyer really know what

is best in the struggle to make the world a safer place?

Ben Emmerson, welcome to HARDtalk. I want to start with the role you have

right now, the UN special rapid serve, looking at counterterror

measures and impact on human rights. You are an experienced lawyer. What

experience do you have in the field of security and counterterror? Most

of the work I did during my career, in one way or another, had a

security or counterterror element to it. I looked at the legality and

human rights compatibility of many of the measures taken in the post-

September 11 period in order to meet the immediate threat of terrorism

from Al-Qaeda. It is a natural progression of the worker have done

in the past. I see you as a top lawyer who sits in an office in

London, around the world, but I do not see was a man who has spent a

huge mass of time in conflict zones. Talking to intelligence officials,

maybe even talking to militants or terrorists. Have you done that? In

the course of the work they do, I certainly do travel to these

countries. I do have discussions with senior national security

officials. Last year I had meetings with the head of the CIA is whether

the leading figures in the Obama Administration's national security

agency. I have a reasonably open dialogue with those who are most

closely involved in some of the difficult national-security balances

that need to be struck. When you are talking to them, did you say that

you are by nature a pacifist? Is that the way you sell yourself to

those people to make a do nothing that the word came up in the

conversation. It is an interesting philosophical position for you to

have, given that you now have to weigh up the right balance between

counterterror, combating the serious threats around the world with human

lives. I would like to think that pacifism, , that is a torrent of war

and violence, is a rational position. I regard John Brennan as a

man who is not actively promoting conflict. He is an intelligent man

and a man who is in a great deal to impose discipline on the role that

the CIA plays. Generally, military men, they are not pacifist, are

they? No. I have worked in the field of armed conflict for a long time. I

was the defence counsel at the Yugoslavia war crimes tribunal. I

now sit there as a judge. One thing I can say from my involvement with

soldiers and military commanders is that in my experience, they have a

far more acute sense of the Raghu of human life than some of the

politicians who sent them into conflict. -- the value of human

life. A fascinating point. I want to talk about the political leaders who

currently have to deal with, whose actions you have to assess. One more

question on the mandate you have as the UN report. Because you are

essentially work for the human rights Council, you are beholden to

them. The UN human rights Council RA particular body. They have over 40

members who sit on the panel. Many of them represent some of the most

repressive regimes in the world. The mandate you are handed comes to you

dressed up in the language of human rights, but also dressed up in a

great deal of hypocrisy. The two things I would say from the outset,

my job is not to speak for the UN, but to speak to the UN. To speak to

the member states that make up the organisation. They also tell you

what you would like to investigate. Sometimes they do, sometimes they

make decisions of my own. Is it not true that Russia and China have been

very keen for you to look at the human rights of occasions of US and

other Western electronic surveillance techniques? It is

certainly true that Russia and China were joint parties to a statement

with a number of other states, calling me to look into the

implications of drone technology in counterterrorism operations. I have

not had any direct? -- direct communication in terms of

surveillance. We will take drones as an example. Do you not see them as a

tool to be used by governments? We are always acutely aware of the

risks of being pushed and prodded in one direction or the other. One has

to credit those who occupy these mandates with the political savvy

and as to understand it is a risk. We have to ensure that the standards

are playing will not just apply to certain states, but to all states.

To take the example of drones. That is an issue which the US has been

the market leader in the use of drugs technology for

extraterritorial counterterrorism operations, operations in states

outside their own. There are credible reports that a large number

of other states and 30 state have arsenic to look into the US policy,

are themselves in the process of developing arms drone capabilities.

We know that more than 50 states currently have rightly piloted

aircraft. The question is whether they are capable of adaptation for

military weapons. Some nations were now have them. Israel has them,

China has them. Israel, the UK and the US have them and have used them

in conflict. There are reports that China is in the process of

developing and acquiring its own capability. Other states are doing

the same. There are a number of European states negotiating

contracts. My point is this - once the ball is kicked into play, it is

my responsibility, not any particular State's responsibility,

to decide how it is investigated. So I am asking questions not just of

the US, but of China and Russia and other states. You put it within a

framework you developed of an era of exceptionalism in counterterror Tech

knowledge it that technology. And there that began at the end of

September 11. A new way of conducting counterterror operations.

I love the work has been about the way the Americans have used them. Is

there any doubt in your mind that in the record that Americans have

developed in using Dram strikes in Afghanistan, Pakistan, Yemen, that

they have broken the law? There is considerable doubt as to whether

they have broken the law. There is considerable doubt as to what the

law is and how it applies in some of these situations. One of the great

difficulties in dealing with drones, they have brought in to

focus some of the difficult legal questions, but on basic principle

they note different from any other form of weapons delivery system.

They make it much easier to make a military intervention in a country

with which you are not at war. You do not have to put boots on the

ground. The first thing to say about them is that they are a weapon which

is peculiarly suited to asymmetrical warfare. Warfare where one of the

parties is a nonstate group, but in common parlance, a terrorist

organisation, insurgents. They are Ray Carter in certain to weapon.

Used in conventional warfare between states they would be much less

useful, because they are relatively easily defeated by sophisticated

defence systems. This is a weapon which has been a weapons delivery

system, it has been designs for these kind of conflict. I am

surprised that he shied away from a clear declaration that they are used

outside of declared war zones and illegal. You say you are not sure.

The current situation is that as a matter of international law, there

is very significant disagreement as to what the basic principle is. URA

top international lawyer. Push your opinion on the table. One are the

things I have made clear is that I am not avoid the question at all.

Once it becomes clear that there is no consensus, amongst international

lawyers... There will be no consensus on less top leaders like

you put your opinion on the table. How is it develop a must win a

woodchipping? -- how does a consensus develop unless we know

what you think? States around recurrence to come together in order

to determine whether the series of legal issues in dispute are ones in

which they can agree on. I will sketch team in a few sentences. The

US position, which is not broadly accepted in Europe, is that it is

engaged in a non- international armed conflict with a nonstate armed

group named allocator. It has no geographical limitation. --

Al-Qaeda. In their view, a war in which they are entitled to use the

violent means that the drone strike represents. They are entitled to

invoke the targeted rules that are part of a war. He made a speech

where you refer to these as an attack on international law. You may

be able to correctly, that think what I would have said is that they

pose a very real challenge to the framework of international law. We

need to get absolute clarity as to the circumstances in which it is

lawful to use any form of lethal extraterritorial force in a

counterterrorism operation. Most conflict that take place in the

world today are asymmetrical conflicts. Within a war zone such as

Afghanistan, all of the evidence suggests that drones are capable of

improving the situation awareness of commanders and reducing the risk of

civilian casualties if they are used and operated strictly in accordance

with the requirements of international law. The difficult

issues arise in those areas where there is no recognised, that is to

say, there is no conflict between the US or the state using drones and

the insurgents on the ground. For that, it was a judge whether the

drones are lawful, we run right into a profound difference of legal

opinion which is really running right across the ground. You said,

the United States has violated human rights with the use of crime

strikes. First of all, how can you be sure... Defined, violating

Pakistani rights. They have collaborated about the drone

strikes. Evidence shows historically that there was corporation from the

security services. Is the president of Yemen Saint... There is no

dispute that in Yemen the use of lethal force with drawings and other

methods is conducted with the express consent of the Yemeni

government. The Yemeni government is engaged in its own internal armed

conflict with Al Qaeda and other groups, and there is no question as

far as Yemen is concerned that consent has been provided, and the

Yemeni government tells me they give consent on a case-by-case basis, and

if consent is with health, -- withheld, the strike doesn't go

ahead. In April of 2012, the Pakistani Parliament, the elected

representatives of the people, unanimously passed a resolution

which rescinded all prior consent to the use of Pakistani territory for

their space for military operations by the US. And they required that

all future consent should be the subject of a formal parliamentary

procedure, so they have to be done in writing, they had to be screwed a

fight by the relevant committees. -- scrutinised. It determines how

consent can lawfully be given within Pakistan for the purposes of

providing authority for the use of its airspace were territory by

another state. If I may, I don't want to get the entire interview

devoted to drones. One final question on drones, it comes back to

me asking Wattyl security credentials are. He made it quite

plain you don't believe in the efficacy drone attacks. Your

argument seems to be that they breed more terror, they don't live in

terror, they encourage it. Again, I think you may be in accurately

paraphrasing my position. The report that I produced to the General

Assembly makes it clear that an analysis of how drones operate and

what their implications is something which requires a far greater degree

of transparency and accountability. I want to carry on... That is the

key question, because it is difficult to make a proper and

objective evaluation of trust in the reliability of the information that

emerges, without a far greater degree of transparency. If I was to

make one point about this, the biggest mistake that was made in the

use of armed drones as a counter-terrorism technique was the

original decision to hound the operation to the CIA -- hand. The

CIA, like any other agency that operates as a secret intelligence

service is bound not to confirm or deny its operations, which makes

accountability and transparency impossible. One of the big positive

developments last year is the Presidents decision to migrate the

drone strategy away from the CIA. Let's stick with that theme of

trust, and run with it into a different area. That is the area of

electronic mass surveillance, which you have said that you are going to

look at and write a report on by the end of this year. Edward Snowden

told an awful lot of things we didn't know about the scale of US

and UK Internet-based and telephone -based surveillance right around the

world. In the UK, intelligence chiefs said this was extraordinarily

damaging to their ability to do their work. You appear not to trust

their word on that, and don't believe them. I think the public is

entitled to know what, first of all, the level of surveillance capability

is, and to engage in an intelligent debate about whether that is

unacceptable invasion of privacy. When Andrew Parker, head of MI5,

said enormous damage had been caused, this was a gift for those

who want to attack the UK and will help them to attack that well. Those

were mere assertions? They are just assertions? How do you know? You

might be looking at Intel... They were correct or incorrect

assertions, but they are assertions. They are not backed up by public

disclosure of the nature of the harm it is said to be cause. It is vital

at this point that there is an informed public debate about where

that balance is to be struck. I can tell you that intelligence chiefs

make it quite clear to me in private that they take the view that the

nature of the threat posed by a violent extremist and fundamentalist

terrorism has changed dramatically over the past five years or so. It

has changed in terms of its organisation, it has changed in

terms of its predictability. And they have a very strong case to make

that therefore under current circumstances the only way to

identify the risk of an act of terrorism, particularly from small

cells or loan terrorists, is to have a comprehensive metadata system in

place. The case needs to be made, and a debate needs to take place.

Particularly when we are transgressing with the United States

across borders into surveillance which includes other states. In your

view, are we transgressing individual human rights? Fundamental

rights of privacy for example? In the way that this data is being

gathered? Does it matter? I want to pin you down. If you want to ask the

personally, do I think that my Google mail, did I ever think that

my Google mail was secure, the answer is no. And do you care if in

those metadata terms it is being mined by intelligence agencies? It

has always been my personal consumption that that kind of

communication through an unprotected non- encrypted communication across

open Web-based mail is a bit like pinning a notice on a noticeboard,

it is available for people to see. A lot of those people at commercial

intelligence services, it perhaps doesn't matter if you have no

reasonable expectation of privacy. When the revelations first emerged,

I made it clear that while I thought it was an important issue for public

debate, and it certainly seems to be regarded as such in the US, perhaps

more so than in this country, it is clearly not the most egregious human

rights violation that is permitted in the counter-terrorism context. We

have talked mass surveillance and drone strikes, we could have talked

extraordinary rendition as well, and your work finding outwards at the

what happened in terms of rendition of prisoners. Is your conclusion

that the high moral ground that western states often adopt when it

comes to talking about human rights and their adherence to human rights,

even in the most sensitive security matters, that moral high ground no

longer exist, is actual conclusion? It is difficult to generalise about

states as a whole. If you want to ask me about the UK and the US there

is a genuine governmental commitment to observing the basic vegetables of

international human rights law. This idea of exceptionalism since 911,

has been a falling away that? There is no doubt that in the first five,

six, seven years after September 11, there was a violation of laws, to an

extent that is now recognised. Even in the US, the first thing that

President Obama did after his first election was to recognise that the

US had taken a wrong turn and had engaged in acts of secret

detention, that water boarding was torture, and that these were gross

violations that needed to be... What is striking is that nobody has been

held to account. Exactly, it is striking. And you are a man who has

spent his entire career dedicated to treaties and conventions and

institutions like the International Criminal Court. Would it make a huge

difference if for example a western leader, like George W Bush, or Tony

Blair, were brought before an international court? Even a national

court, these crimes were committed in a national jurisdiction. Is that

what should happen? The only country to prosecute a CIA agent for

involvement importer is Italy. 22 CIA agents have been sent to prison

in Italy. Were out of time, but yes or no, should George W Bush or Tony

Blair, for the good of everybody's belief in the international system,

face a court of law for what they did? The crimes that were committed

under the hat of the CIA were gross human rights violations for which

those responsible not just for the infliction of the punishment, but

those who authorised it, they should be put on trial. That depends on the

evidence, it will always depend on the evidence. Ben Emmerson, thank

you for coming on HARDtalk. It has been an eventful start to the

year, and we can all breathe a sigh of relief over the next few days as

things quieten down. A bit of patchy rain today, the weekend shaping up

quite nicely. Drive but colder, and some rain towards the end of the

weekend. At the moment, we are sandwiched in between to weather