Dehumanising the dogfight: the next step in the unmanned arms race

by Pauline Canham

Last month, an artificial intelligence (AI) algorithm was pitted against a human pilot in simulated F-16 fighter jet dogfights.  The AI pilot won, 5-0.  The US Defence Advanced Research Projects Agency (DARPA) hosted the ‘AlphaDogfight’ Trials as part of the Air Combat Evolution (ACE) program, which looks at future possibilities of teaming machines with humans to enhance defence capability through “complex multi-aircraft scenarios”.  

This article will look at the issues raised by removing the human element from lethal action, before outlining the growing calls, from the human rights community, for a ban on autonomous weapons.  First, though, it is worth taking a step back to understand how we got here, through a brief history of the use of unmanned drones, the precursor to fully autonomous weapons.

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A brief history of Unmanned Aerial Vehicles (UAVs)

The use of pilotless aircraft for surveillance during conflict emerged during the Vietnam War with the US using what they called “Lightning Bugs” on reconnaissance missions.  The Israeli Defence Force (IDF), too has used drones or Unmanned Aerial Vehicles (UAVs) since the 1970s, as decoys and intelligence gathering vehicles, during wars with Egypt, Syria and Lebanon.

The merging of these robotic eyes-in-the-sky with lethal weaponry would be a pivotal moment for post 9/11 policy making and play a significant role in what President Bush called “a different kind of war”, in which the risk to American military personnel was removed through delivering death by remote control.

The use of remotely piloted drones to assassinate the enemy, rather than risking troops on the ground, found favour, particularly following the catastrophe of the Iraq war and the deeply damaging CIA torture program, and became a go-to counter-terrorism tool for Obama.  The low risk to American lives and the often-sold precision accuracy of drones gave them an ‘ethical’ flavour that appealed to those who wanted revenge with a clean conscience.  It was a way for Obama to appear tough on terrorists, but maintain his Nobel Peace Prize winning status as a man who espoused human rights and the rule of law.

Along with indefinite detention without trial in Guantanamo Bay, the drone program is one of the few surviving policies of the War on Terror, now into its 20th year.  Claims of the precision accuracy of drones, though, have been challenged by various studies in the countries of their operation, including Yemen and Afghanistan, where drone strikes were found to be “10 times more likely to kill civilians than conventional aircraft”.  In July 2020, on publishing her report into the drone assassination of Iranian General Soleimani, the UN Rapporteur on Extrajudicial and Arbitrary Execution, Agnes Callamard described the surgical precision of drones as a “myth”.

Removing the human from lethal action

Removing the human from battlefield operations is given as a significant advantage by operating states, claiming that machines are less likely to make mistakes and offer higher levels of precision and lower risk to military personnel.  The AlphaDogfight trials also exposed the fear, or feeling of “self-preservation”, of the human pilot as a limiter in performing risky manoeuvres that might provide an edge in battle.   The Pentagon’s Director for Research and Engineering for modernisation, Mark Lewis, said that the advantage of an AI pilot is that it will be prepared to “do things that a human pilot wouldn’t do”.  

Whilst this lack of fear may appear advantageous, it serves to illustrate the argument against fully autonomous weapons; they don’t have human attributes that indeed include fear for themselves, but also compassion towards others.  They are, in effect, weapons of dehumanisation, with no ability to recognise the humanity in those they fight against, or any way to distinguish between combatants and civilians.  As things stand, the use of remotely controlled drones, operated by ‘pilots’ that are stationed thousands of miles away from the target, has seen lethal strikes that have caused catastrophic civilian casualties through a misinterpretation of activities including weddings, funerals and jirgas (traditional community assemblies), that were wrongly assumed to be terrorism related. 

Jeremy Scahill, author of  The Assassination Complex, refers to this as the ‘tyranny of distance’, a phrase borrowed from the 1966 book about the precariousness of Australia’s isolation and distance from its coloniser.  The lives of the Yemeni, Pakistani, Afghani and Somali targets of drone strikes are indeed permanently precarious, and the distance of the innocent victims of robotised drone violence makes them invisible, not just to the ‘pilots’ of the drones themselves, who initiate the strike, but also to the publics of those governments who deploy such weapons.

Political theorist and author of Just and Unjust Wars, Michael Walzer has voiced his concerns about drones, stressing that their advantages make their use easier and more likely and this should trouble us, as the traditional reciprocal risks of going to war add weight to jus ad bellum considerations.   Removing the human from one side of the battle with the enemy has been described by some as “remote controlled hunting” , with the moral equality of combat removed due to a lack of risk reciprocity.

Further, as the development of these hi-tech weapons depends on the depth of defence budgets, asymmetries of power and violence have resulted in violations of human rights in Afghanistan, Pakistan, Palestine, Somalia, Yemen, Iraq and Libya, where communities live in constant fear of strikes.  These are communities that have been psychologically traumatised, their privacy denied and their cultural and religious practices undermined.  As a Stanford Law School study in Pakistan concluded, innocent men, women and children have been killed simply by dint of their behaviour such as gathering in groups, or carrying weapons, considered, by the United States to be consistent with terrorist activity.

Imagine, then, the spectre of full autonomy in the use of armed drones,  offering the prospect that such behavioural ‘signatures’ could be programmed into targeting algorithms that would totally disregard any cultural context. 

Calls for a ban

As yet, there is still little in the way of international law to specifically regulate the use of drones or autonomous weapons, other than International Humanitarian Law (IHL), – a.k.a the Law of Armed Conflict (LOAC) – which covers areas of operation within zones of existing armed conflict; or International Human Rights Law (IHRL), which requires the justification of self-defence, limited by necessity and proportionality for any counter-terrorism operations.  

Furthermore, there are ambiguities around the use of IHRL extraterritorially, which allows the US to sidestep accountability on a technicality, namely Article 2 of the International Covenant on Civil and Political Rights (ICCPR), which limits the obligations of a state to “ all individuals within its territory and subject to its jurisdiction”.  In addition, the state of exception that ushered in Bush’s “different kind of war” has become permanent, and the ability to flout international law under the guise of a universal project of global security and human rights, has slipped quietly under the radar, with the suffering of thousands of innocent victims out-of-sight.

There are now growing calls for a ban on fully autonomous weapons and a treaty, seeking to ensure that humans maintain control over the use of force and lethal decision making.  A 55-page report released by Human Rights Watch in August 2020, “Stopping killer robots: Country positions on banning fully autonomous weapons and retaining human control”, listed the positions of 97 states involved in discussions on the topic since 2013.

The United States position on negotiating a new international treaty on fully autonomous weapons is that it is “premature”, arguing that IHL, as it currently stands, is sufficient.  Rather interestingly, China supports a ban on the use of autonomous weapons, but not on their development as they currently seek to develop themselves as a hi-tech military superpower, with a focus on machine-learning, AI and autonomous weapons systems.  The United Kingdom, meanwhile, joined the United States in insisting that existing IHL is adequate and “has no plans to call for or to support an international ban” on such weapons.  Opposition parties in Germany too have called on Chancellor Merkel to take a tough stand on the issue, arguing that without restraints, there is a very real danger of a new arms race.  However, Merkel’s coalition voted down the motion, and critics point to German arms sales of “new weapons with autonomous functions” as playing a key role in that vote.

Conclusion

The Vice President of Heron, the small Maryland company that developed the algorithm that won the dogfight competition, said that despite ethics concerns, it is important to forge ahead with employing AI within military hardware because “if the United States doesn’t adopt these technologies, somebody else will.”   Such a position simply ensures an acceleration of the race towards a global proliferation of robotic violence, noted by UN Secretary General, Antonio Guterres in his 2020 Report on Protection of Civilians in Armed Conflict. In the report, he stressed the “moral and ethical issues in allowing technology to decide whether to take a human life”, adding that the current absence of debate “leaves a policy vacuum that has to be addressed by Member States.” 

In his Nobel Peace Prize speech, Obama’s warning-cum-US national security strategy, that “modern technology allows a few small men with outsized rage to murder innocents on a horrific scale”, would become the modus-operandi of the War on Terror.  If the international community does not come together to curtail the further development of unmanned and autonomous lethal weapons, those few small men will become many.

ABOUT THE AUTHOR

PC_AJPauline Canham is the HRC Blog’s student editor.  Pauline is studying a Masters Degree in Human Rights and Cultural Diversity at Essex, after 20 years in the broadcasting sector, working for the BBC and AlJazeera, with a focus on large change projects including the BBC’s move into the new Broadcasting House in 2013, and the re-launch of Al Jazeera’s Arabic Channel in 2016.

International Human Rights Weekly News Roundup

by  Pauline Canham and Lauren Ng

 

This week’s stories in focus:

 

Authoritarian police tactics threaten democracy in the US

20UNREST-PORTLAND-VETERAN-videoSixteenByNineJumbo1600-v2The Mayor of Portland, Oregon, has called the strong-arm tactics of federal agents in his city as a “direct threat to democracy” and warns other officials that their cities could be next.  Mayor Ted Wheeler has asked for the agents to be removed, stressing the tactics are “abhorrent” and “are leading to more violence”, rather than quelling it.   Trump has responded by saying local leaders have lost control and he is trying to help.

Portland has seen a wave of protests since the death of George Floyd in Minneapolis in May and rallies have become increasingly violent with clashes between police and protestors escalating in recent days.  Language coming out of the White House has done little to calm the situation, with the Homeland Security Secretary calling protestors “anarchists” and Trump blaming democratic leaders for the chaos.  Federal agents have appeared to snatch people off the streets into unmarked vehicles and detained them without justification.

A video has emerged of a Navy veteran being attacked by camouflaged agents, striking him with batons, which resulted in a broken hand, and pepper spraying him at close range directly into his face, without provocation.   David Steel said he had wanted to talk to the officers about why they were “violating their oath to uphold the constitution” and he was standing still with his hands by his sides when he was attacked.  This can clearly be seen in the video that’s been viewed over 3 million times.

The Oregon Attorney General has sued the federal government for unlawfully detaining protestors, requesting a restraining order to prevent federal agents from making any more arrests.  Ms Rosenblum stated “These tactics must stop”, adding that the tactics used by The Department of Homeland Security, US Marshals Service, US Customs and Border Protection and Federal Protection Service, are preventing people exercising their First Amendment right to protest and are “out of character with the Oregon Way.”  Meanwhile, the mothers of protestors have come out onto the streets to protect their children’s right to protest but linking together to provide a barrier between protestors and federal forces.

President Trump, however, has applauded the actions of officers in Portland, saying they’ve done a “fantastic’ job and threatened to use similar tactics in more liberal democratic cities.

 

1921 Tulsa Race Massacre – a new horizon for US reparations?

Tulsa_dig2Nearly 100 years after one of the most brutal racial events in US history, a test excavation for the mass graves of the Tulsa Race Massacre victims will begin this week.

Between May 31 to June 1 in 1921, a white mob burned Tulsa’s local Greenwood community, a thriving black neighborhood, then known as the “Black Wall Street”, to ashes. Within 24 hours, thousands of Black Americans were displaced from their homes and an estimate of 300 people were killed.

For years, it has remained unknown as to where the victims of the massacre were buried. An investigation was initially initiated in 1991, yet discontinued shortly after. The Tulsa Race Riot Commission’s in 2001 made clear in their recommendations that officials should investigate the location of the graves, but Tulsa failed to comply.

However, due to the unresolved questions surrounding the massacre, Tulsan Mayor G.T. Bynum reopened the investigation in 2018. In December 2019, forensic scientists of the State of Oklahoma Archaeological Survey detected anomalies in the ground that could indicate the existence of two mass burials on city-owned property. The senior researcher of the Oklahoma Archaeological Survey, Scott Hammerstedt, felt confident that this discovery was “something associated with the massacre”. While the test excavation was initially postponed in March due to the Coronavirus pandemic, Bynum announced it will be restarting this week:

“As a city, we are committed to exploring what happened in 1921 through a collective and transparent process – filling gaps in our city’s history and providing healing and justice to our community. In the past 99 years, no other agency or government entity has moved this far into an investigation that will seek truth into what happened in Tulsa in 1921.”

Furthermore, earlier in May this year, Human Rights Watch published a detailed report highlighting how city officials have continued to obstruct rebuilding of the Greenwood area and reject offers of medical and reconstruction aid. In addition, ongoing police brutality in the area have destroyed the prosperity and livelihood of the local community. It is hoped that unearthing this truth will allow the start to an important part of restoring justice for Black Americans – that of reparations.

 

Other stories making the headlines around the world

International

 

Asia

 

Europe

 

Africa

 

Australasia and Oceania

 

North America

 

Latin America

 

Middle East

 

 

International Human Rights Weekly News Roundup

by Pauline Canham & Amita Dhiman

 

This week’s stories in focus:

 

BREAKING: Shamima Begum wins the right to return to Britain to fight her citizenship case

The Court of Appeal has ruled that Shamima Begum, who travelled to Syria in 2015 and married a Dutch ISIS recruit, could not make her citizenship case from a Syrian refugee camp.   Human Rights Organisation, Liberty, has welcomed the ruling saying “equal access to justice must apply to everyone”.  But the UK Government hopes to appeal the decision, saying it was “very disappointing”.

US drone strike on Iranian General was unlawful, UN report concludes

CallamardA report by Agnes Callamard, the UN’s Special Rapporteur on extrajudicial and summary executions, has concluded that the US drone strike that killed a senior Iranian General violated international law.  The report states that evidence does not support any justification for the strike that killed Qasem Soleimani in January this year.  In particular, the UN expert said that the US had not provided enough proof that Soleimani’s activities constituted an “imminent threat to life”, and therefore the attack amounted to “arbitrary killing.”

The UN Special Rapporteur went further, calling for greater regulation on the military use of Unmanned Aerial Vehicles (UAVs), warning that the proliferation of UAVs (known as drones) risks destabilising global peace and security.  She also noted that the states using them to fight the ‘war on terror’ currently face no accountability for their deployment.  She proclaimed that the “targeted killing of General Soleimani….is not just a slippery slope.  It is a cliff.”; appealing for the UN Security Council to meet to debate the self-defence claim (the justification most commonly used to carry out drone strikes in counter-terrorism operations).

President Trump ordered the strike on Soleimani in early January, and shortly afterwards, the Pentagon released a statement saying “General Suleimani was actively developing plans to attack American diplomats and service members in Iraq and throughout the region….. This strike was aimed at deterring future Iranian attack plans.”  Professor of International Law at the University of Copenhagen, Kevin Jon Heller, cast doubts on the legality of the strike, commenting “the legality of an attack depends on the immediacy of the threat that it aims to avert”.

Defenders of the use of drones point to their apparent ‘precision’ which they claim reduces the numbers of civilian casualties.  However, the UN expert called this claim “illusory” and the idea of the ‘surgical strike’ a “myth”.  The lack of oversight and the secret nature of the drone program have given rise to a significant underreporting of the harm caused to civilian populations targeted by the ‘war on terror’.

Following the release of the report, the United States hit back, saying Ms Callamard was effectively “giving a pass to terrorists”.  Secretary of State, Mike Pompeo strenuously defended the strike adding that Ms Callamard “gives more cause to distrust UN human rights mechanisms.”

 

Coalition to defend freedom of expression in Lebanon announced

lebanese flag 2A “Coalition to Defend Freedom of Expression in Lebanon”  was announced this week by 14 Lebanese and international organizations . The initiative was prompted by an expanding campaign of repression by the Lebanese Government against the people.

Lebanese authorities launched a crackdown on activists and people who posted defamatory posts against the government during the ‘2015-2019 Anti- government protests’. As many as 60 activists and people were detained and questioned in regard to their social media posts concerning accusations of corruption towards high ranking officials such as the President and reporting on worsening economic and political situation in the country.

The documented cases are proof of mistreatment by prosecution and security agencies as a tool to intimidate and silence voices that were raised against the President. Before any case was transferred to the Court, there were a range of physical and psychological interrogation tactics used to coerce signed pledges that activists would not resort to writing any defamatory content against the government in future. The promises have no legal sanctity since they violate the fundamental right of free speech and expression.

On June 15th this year, the country’s top prosecutor ordered a security agency to investigate social media posts deemed offensive to the president labelling it a move to amend the old Media Laws and bring it in line with today.  “Parliament should urgently bring the media law in line with international law and prioritize the decriminalization of defamation and insults” said the coalition.

Lebanon’s constitution guarantees freedom of expression “within the limits established by law.”  The Lebanese penal code criminalizes defamation against public officials and authorizes imprisonment of up to one year in such cases.  The code also authorizes imprisonment up to two years for insulting the president and up to three years for insulting religious rituals.  These laws, many of them older than the country’s independence, are enforced by prosecutors today.  The country will see a dark future if the laws are not soon amended and implemented in line with international human rights obligations.

Other stories making the headlines around the world

World

 

Africa

 

Americas

 

Asia

 

Europe

 

Middle East

 

 

 

 

 

 

 

 

 

 

Spotlight on Clive Stafford Smith OBE

Part 1 of 2

Each month, the HRC Blog features a significant figure from the Human Rights community to go under the Spotlight, answering questions put by students from the University of Essex.  This month, we feature Clive Stafford Smith OBE.  This is part 1 of 2.

 

About Clive

Clive Stafford SMithClive Stafford Smith is the founder of ‘Reprieve’ and a well known human rights lawyer.  He has spent his career fighting against the death penalty in America, only taking cases of those who could not afford a lawyer, assisting in the representation over 400 prisoners and preventing their execution in 98% of cases.  Clive is also known for his work in representing detainees at Guantanamo Bay, successfully suing the US government to gain access to the facility, and helping to secure the release of some 80 detainees to date, with seven clients still there.  In addition to visiting and representing the detainees, Clive tracked down the families of ‘disappeared’ prisoners across the Middle East, prompting some unwelcome ‘interest’ from US allies, including the Jordanian Secret Police, who detained him in 2004.  In 2000, Clive was awarded an OBE for ‘humanitarian services’ and has won a raft of awards in the field of human rights.

 

Students’ Questions Answered

Clive was gracious enough to allow the students at Essex an opportunity to send him  some questions about his experiences and ongoing work in the field of human rights.  Clive answered questions on a range of topics.  This first part focuses on the Death Penalty and the impact of COVID 19

DEATH PENALTY

HangingQ: Due to the racial bias in its administration, historic links have been made comparing the death penalty in the US to lynching methods previously used in the South. From your experience working on capital punishment within the US criminal justice system, in what ways would you agree that the death penalty is a “direct descendant of lynching”, and in what ways would they differ?

A: First, it must be said that the US has a direct form of lynching today, which is the assassination programme, a simple case of “execution without trial” (which is what lynching was). The archetype of this is the case we have pending of Bilal Abdul Kareem, an African American comedian-turned-war-correspondent who is in Syria, and who the US has tried to killed five times to date. So there is more than one form of US death sentence.

But in terms of the death penalty as it is more commonly conceived, it is only a system of societal control, the same as lynching. The underpinnings of lynching involve a racism that seeks to play poor white people (the KKK and their ilk) against (primarily) poor black people to prevent them seeking common cause – a demand for equality.  Likewise, it is ludicrous to think that the death penalty solves anything.  Instead, it is a way to pretend that we are solving the manifest problems in society (crime, which is mainly rooted in poverty, the proliferation of guns, drugs, and a lack of healthcare) by blaming a small number of disproportionately black ‘criminals’ and executing them.  Of course, this does nothing to solve the problems.

At the same time as with lynching, where the ‘victim’ was generally a white woman (who might only have been the object of a cat-whistle, but might have been raped by someone), we use the death penalty to value people differently.  As Justice Brennan wrote in his dissent in the McCleskey case:

At some point in this case, Warren McCleskey doubtless asked his lawyer whether a jury was likely to sentence him to die. A candid reply to this question would have been disturbing. First, counsel would have to tell McCleskey that few of the details of the crime or of McCleskey’s past criminal conduct were more important than the fact that his victim was white. Petitioner’s Supplemental Exhibits (Supp. Exh.) 50. Furthermore, counsel would feel bound to tell McCleskey that defendants charged with killing white victims in Georgia are 4.3 times as likely to be sentenced to death as defendants charged with killing blacks. Petitioner’s Exhibit DB 82. In addition, frankness would compel the disclosure that it was more likely than not that the race of McCleskey’s victim would determine whether he received a death sentence: 6 of every 11 defendants convicted of killing a white person would not have received the death penalty if their victims had been black, Supp. Exh. 51, while, among defendants with aggravating and mitigating factors comparable to McCleskey’s, 20 of every 34 would not have been sentenced to die if their victims had been black. Id., at 54.  Finally, the assessment would not be complete without the information that cases involving black defendants and white victims are more likely to result in a death sentence than cases featuring any other racial combination of defendant and victim.  Ibid. The story could be told in a variety of ways, but McCleskey could not fail to grasp its essential narrative line: there was a significant chance that race would play a prominent role in determining if he lived or died.

I was privileged to represent Warren in his last appeal, and it is indubitably true that he died because the US could not face the fact that he was being killed due to the colour of his skin.

 

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Q: Your decades’ long work seeking to counter the death penalty in the US will have exposed you to the depth and extent of racism in the United States. How do you think the human rights community can contribute to the struggle to denounce and overcome racism in the US?

A: First, British people should take a look in the mirror.  At least the US talks about racism and tries to confront it.  The British don’t, and the comments I have heard from British people in the past BLM-weeks have been sad. “I believe all life matters,” is a refrain you would never hear in the US, any more than you would go to the funeral of someone’s child and hear someone say, “I believe the life of my own child matters too.”

Also, the British legal system is rife with racism yet nobody talks about it.  At current rates, it would take 100 years for there to be proportional BAME parity among QCs and judges (and 50 years for women).  Almost three quarters (74%) of judges went to private schools.

That said there are real problems in the US, a country that was built on slavery (much as the wealth of Britain was made, in large part, on the same dreadful practice).  Yet at least in the US we have the tools to combat it.  We can question jurors about racism (Turner v. Murray) – there is no questioning at all in the UK.  We can challenge racism in all the stages of the legal process (Rose v. Mitchell, McCleskey v. Kemp) – it is unheard of in the UK. We can challenge the racial decision making by jurors (Tharpe v. Sellers) – it is a crime to speak to jurors about their service in the UK. And so forth.

But the real issue is that we need people who are making the effort. That means you.

 

Q: What kind of practical obstacles have you faced in your journey of bringing justice to those facing the death penalty?

A: There are many. Some of the rules of the US Supreme Court are just fatuous for their failure to take into account reality.

 

2012 Kris&Marita

Marita and Kris Maharaj

When I started doing capital trials, I had just graduated Columbia Law School, and most of my colleagues had gone to firms on Wall Street where they were paid $1,000 an hour to waste their lives representing corporations over money. We were paid $1,000 for an entire capital case.  And when the clients were on death row, they were meant to represent themselves – they could only have lawyers if they had volunteers…

 

 

And then there is the issue of innocence – the US Supreme Court has held that “mere” innocence is not enough to release someone from death row (Herrera v. Collins).  This is why Kris Maharaj – my British client sentenced to death 33 years ago, now 81 years old – remains in prison despite the magistrate judge finding that he is innocent by “clear and convincing evidence” last September 13th – nine months ago.

But there are many other reasons.  One is the standard of proof.  While people say they must find a person guilty “beyond a reasonable doubt”, my not very scientific studies suggest that judges think this means around 83% sure – which we may translate as saying they are aiming to convict one innocent person in every six cases, or one million of the 6 million Americans who are in prison or facing it. (As Robin Hood reminds us, if you aim that low, you always miss.)

Sad to say, similar problems permeate the British system too.

 

Q: How does the approach to working on behalf of detainees in certain black sites/ secret prisons differ from cases of prisoners facing the death penalty and is one more challenging than the other?

A: Part of the problem with black sites is that you cannot get to your client, there is no rule of law, and they have no legal rights.  So that is much more challenging.  But at the same time, we have got 740 of the 780 people out of Guantánamo largely through publicity, as generally public opinion favours those being held without trial more than it favours those being held on death row after an unfair trial.

 

 

COVID 19

Coronavirus_greenQ: How has the COVID19 pandemic, considering government responses to the outbreak in particular, impacted upon detention centres like Guantánamo Bay and US death row prisons?

A: Prisons are, in the words of the Washington Post, “petri dishes of the virus.”  My clients cannot “social distance” from anyone.  The best example is Kris Maharaj: 81 years old, held now in a dormitory with 45 other old men, locked in their in “quarantine” now they have had 4 men test positive, which means you are locking him in with the virus, in beds that are 3 feet apart, 24/7.  We got him off formal death row in 2002, but now the State of Florida is intent on executing him by Covid 19, before we can get him out of prison.

 

Q: Do you think lockdown measures have caused attitudes to change towards detention or have helped to raise awareness about the conditions experienced by detainees?

A: No. I think people think they have had it like prison which is nonsense.

 

Q: How has Reprieve’s work been impacted by the COVID19 pandemic?

A: I can really only speak for myself. It is busier than ever and actually I have generally found I waste lots of time travelling when I can get much more done by staying home. The only thing I really miss is being able to go to Guantánamo and see the clients in person, but at least I can talk to them regularly on the phone.

 

Part 2 of our Spotlight with Clive Stafford Smith OBE will cover the topics of counter-terrorism, The US Criminal Justice system and the ‘de-mystification’ of the curriculum.

 

 

Spotlight on Sami Al Haj

By Pauline Canham

Each month, the HRC Blog will feature a significant figure, or team from the Human Rights community to go under the Spotlight, answering questions put by students from Essex University.  This month, we feature Sami Al Haj.

Sami_al_haj

Image courtesy of Al Jazeera Media Network

About Sami

Sami Al Haj is the Director of the Centre for Public Liberties & Human Rights at the Al Jazeera Media Network (AJMN) in Doha, Qatar.  He was born in Sudan and started working for Al Jazeera as a cameraman in 2001.  Shortly after the events of 9/11, he was sent to cover the US invasion of Afghanistan in October 2001, an assignment that would change his life forever.  After two months, while crossing from Kandahar across the border into Pakistan, Sami was arrested and detained by Pakistani Intelligence on 15th December 2001 and subsequently handed over to the Americans.  Nothing could have prepared Sami for the horrors that were to come and the course that his life would take as a result.  After some time at the infamous Bagram detention facility, where he experienced harsh and humiliating treatment, he was transferred to a facility in Kandahar and then on to Guantanamo Bay, where he remained as Prisoner 345 for 6 years, without charge.

Guantanamo_captives_in_January_2002

 

While there, according to Sami’s lawyer and founder of Reprieve, Clive Stafford Smith, “Sami endured horrendous cruelty – sexual abuse and religious persecution”. He was beaten, deprived of sleep and force-fed after going on hunger strike.

On 1st May 2008, Sami was released without charge.  He said that he was glad to be free but sad that his ‘brothers’ remained in the hands of “people that claim to be champions of peace and protectors of rights and freedoms.  But a true just peace doesn’t come from military force or threats to use…bombs or economic sanctions.  Justice comes from lifting oppression and guaranteeing rights and freedoms and respecting the will of the people…”

Shortly after his release, and his long awaited reunion with his wife and son, Sami returned to Al Jazeera, where he created a new team dedicated to the field of human rights and civil liberties.

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Students’ Questions Answered

Sami_al_haj_smSami was gracious enough to allow the students at Essex an opportunity to send him and his team some questions about his experiences and ongoing work in the field of human rights:

 

Q: It is almost 20 years since 9/11 – What are the biggest changes faced by journalists and humanitarian aid workers operating on the ground in war zones, and have the policies of the war on terror had a ‘chilling effect’ on journalists’ ability to hold truth to power?

A: Regrettably,  journalists are now facing a far worse reality with regard to field coverage. Authorities, militias, and armed groups all endeavour to suppress the voice of truth.   Counter- terrorism policies went to the extent to limit the range of ethical journalism and criminalize journalists.  Press freedom has been compromised all over the world.

 

Q: To what extent do you believe that the CIA Enhance Interrogation Program at Abu Ghraib and other so called ‘black sites’ emboldened repressive regimes in their own torture practices?

A: Tyrants and dictators felt at ease seeing the free world legitimizing water-boarding and torture, we can see that in the Middle East and elsewhere.

 

Q: After your experiences at Guantanamo, do you believe in the universality of human rights both as a concept and in practice?

A: Indeed. My personal experience has provided me with a more humane universal vision and understanding.   I believe human rights should be granted to all individuals regardless of their race, religion or nationality.   Human Rights mechanisms and intentions are good.   However, unfortunately, in practice, things are quite different.

 

Q: Were you told why you were being detained in Guantanamo?   And what gave you the strength to endure your detention?

A: My guards told me that I was being brought to Guantanamo and I would never leave alive.   No information was given except that YOU ARE GUILTY, YOU ARE A TERRORIST!!   I endured due to my strong belief in Allah, the Most Gracious, the Most Merciful.  Throughout my tormenting experience, I believed that I would go out and support my family.

 

Q: To what extent do we see a repetition of the policies of exceptionalism that we saw immediately after 9/11 playing out now in Syria, and how can we ensure a fair judicial process to those accused of involvement with ISIL?

A: Unfortunately, all Middle Eastern regimes  do not believe in an independent judiciary system, and the British and Americans do not want the defendants to stand trial in London nor in Washington DC.

 

Q: How can journalists, humanitarian workers and human rights practitioners maintain their safety in hostile environments?

A: They should adhere to safety guidelines, and subject themselves to strict professional training.   At our Centre at Al Jazeera, for example, we have a Safety Section, and we provide journalists in the Middle East and elsewhere with workshops on the necessity of safety.

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Q: Can you tell us more about your team and objectives at Al Jazeera?

A: The Public Liberties and Human Rights Centre first started as a specialised desk within the Al Jazeera Arabic newsroom in 2008 and expanded to become a Centre in 2015.  The Centre now has a team of 14, all based at Al Jazeera’s headquarters in Doha, spread between the Arabic and English newsrooms and online, writing articles and doing research.  Our aim is to ensure human rights content across all AJMN platforms, to raise awareness and competence of international humanitarian law with journalists in the field,  and inform the public about human rights issues and legislation.  In addition, we endeavour to build and develop strategic partnerships with international, regional and local organisations to identify human rights violations and contribute to the promotion of freedom of expression and the press.

 

Q: How does Human Rights fit with Al Jazeera’s core business?

A: Human Rights issues are no longer fleeting news, but at the core of what the Al Jazeera Media Network does.  Al Jazeera’s interest in human rights has clearly emerged as a key element during analysis and discussion both in general and more particularly in the area of press freedom and the detention of journalists.

 

Q: What achievements you are most proud of in the work that you have done over the last 12 years?

A: I believe, over the last 12 years, we have done very well with regard to spreading the culture of human rights in the Middle East and North Africa.  We are now an effective partner of UNESCO, specifically with respect to Press Freedom and we work closely with the International Press Institution.   Our editorial section has contributed over 5,000 pieces and 6 full length documentaries and our partnership section has held more than 60 workshops with international experts from the UN and other global institutions benefitting over 1000 journalists from Al Jazeera and other media organisations.  We are also very proud of our Global Solidarity Initiatives, working in partnership with other media organisations in the areas of press freedom, anti-hate speech, protection of journalists and humanitarian workers, safeguarding displaced persons, rights of prisoners and detainees, and consolidation of transitional justice and the rule of law.

 

Q: What do you see as the biggest challenges and the top 3 priorities for human rights advocates around the world?

A: The biggest challenge right now is the rise of the far right all over the globe.  The top 3 priorities are Right to Religion, Right to Health and Press Freedom.

 

Q: What one piece of advice would you give to a human rights student just starting out on their career?

A: Never compromise.

 

My thanks to Sami and his team for engaging so generously with the questions from our students.  The HRC Blog Editorial team will be publishing further Spotlights in the coming weeks and months and welcome suggestions from students, staff and alumni for subjects they’d like to see featured.

 

 

Facial Recognition Technology, the Metropolitan Police and the Law

This blog was first published on Policing Law Blog

The Metropolitan Police Service (MPS) is not immune to surveillance related controversy.  From its role in the phone hacking scandal, to the sexual exploitation of activists by its ‘Special Demonstration Squad’, it may be no exaggeration to say that the force has attracted more criticism for its ill-fated surveillance activities than any other in recent years.  Little wonder, then, that its decision to roll out live facial recognition technology (FRT) in public spaces has raised eyebrows.  The MPS is introducing FRT in the face of fierce criticism, threatened legal action, and an independent evaluation, by Professor Pete Fussey and Dr. Daragh Murray of the Essex University Human Rights Centre, which dismantled almost every aspect of the methodology underpinning their ‘trial’ of the technology with forensic precision.

This is certainly a bold move, as FRT is deeply divisive.  Is it legal?  The MPS have published a ‘Legal Mandate’ for their use of live FRT.  It identifies the general powers of a constable at common law to fulfil his basic duties as the legal basis for using the technology, and goes on to identify several statutes, secondary legislation, and internal policy documents that regulate how the MPS will use FRT.  Others have considered the extent to which live FRT complies with existing statutory regulations.  Here, the focus is on evaluating the common law as an adequate legal basis for using FRT.

To support its Legal Mandate, the MPS relied heavily on a decision of the High Court of Justice in R. (Bridges) v Chief Constable of South Wales Police [2019] EWHC 2341 (Admin) – where a campaigner from Cardiff failed to convince the Court that his human rights had been violated after his face was scanned on two occasions by the South Wales Police.  This decision seems to have emboldened the MPS to operationalise FRT, relying solely on the basic common law powers of a constable to protect life, prevent and detect crime, and bring offenders to justice as the legal basis.

Facial_recognition_free

There is no question that Bridges supports the MPS’s position.  In rejecting Mr Bridges’ contention that there must be some specific statutory basis for the use of live FRT, Haddon-Cave LJ and Swift J relied on the following passage from Rice v Connolly[1966] 2 QB 414 at 419:

“[I]t is part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal damage.  There is no exhaustive definition of the powers and obligations of the police, but they are at least those, and they would further include the duty to detect crime and to bring an offender to justice.”

Drawing on more recent authorities in R (Wood) v Commissioner of Police of the Metropolis [2010] 1 WLR 123 and R (Catt) v Association of Chief Police Officers [2015] AC 1065, the High Court held that this general power of the police covers the use, retention, and disclosure of imagery of individuals for any of the duties articulated in Rice.  Haddon-Cave LJ and Swift J observed that, in his leading majority judgment in Catt, Lord Sumption held that there is an important distinction between ‘intrusive’ and ‘non-intrusive’ methods of gathering personal information.  Live FRT was the latter and only the former fell outside the common law powers of the police.  The High Court ruled that the distinction turned on whether there was a physical intrusion with a person’s rights vis-à-vis his or her home or interference with his or her bodily integrity [74].  It seems that only these forms of ‘physical’ intrusion require a statutory legal basis.

Finger_printing

This is a significant finding, as it permits the police to use new overt surveillance technologies like live FRT operationally, without Parliament authorising this use.  It puts the police collection and processing of biometric data by FRT in a separate category to other forms of biometric surveillance, such as DNA and fingerprint collection.  These tend to require ‘physical intrusion’ and, as such, have a statutory legal basis.  The effect of the High Court’s interpretation of these cases is that statutes are only relevant in so far as they place limitations on how live FRT is used by the police.  Thus, the police are free to trial and use these new technologies in the absence of the democratic mandate that legislation passed by Parliament provides.

If this is the case, there is no need for police live FRT to be approved by our elected representatives, usually following robust debate on the implications of its use, and consideration of expert evidence scrutinised by Select Committees.  The decision to use live FRT is a matter for police to decide for themselves; their discretion on this matter is fettered only by the limits of their common law powers which, as the Court in Bridges acknowledged, are expressed in ‘very broad terms’ [73].

It is difficult to fault Haddon-Cave LJ and Swift J’s interpretation of recent authorities in Wood, and Catt. These authorities do suggest that the general common law powers of the police set out in Rice extend to the collection, use, retention and dissemination of facial images.  The problem is that, in interpreting the common law powers of the police so broadly, these authorities have sent the law down a wrong path.

Notwithstanding the rulings in Catt and Wood, it is not clear that the passage in Rice was conferring a broad discretion upon the police in this way.  In Rice, the appellant successfully argued that the offence of obstruction of justice was not made out in circumstances where he merely refused to provide his name or other assistance to a police constable in the course of his investigation into a series of breaking offences.  Lord Parker CJ held that police constables have a duty to take steps which appear necessary to prevent and detect crime.  However, as Val Aston notes, this finding was categorical.  Lord Parker CJ also held that there are clear limits on this power; one being that citizens are not under a general legal duty to assist the police by providing them with information.  This was the unambiguous legal principle of Rice.

FRTIt is one thing to hold that the common law power to prevent crime and bring offenders to justice justifies police asking for the identifying particulars of a person seen in the vicinity of reported criminality (even though the person may be under no legal obligation to comply with the request).  It is quite another for this same power to support the use of myriad biometric and/or algorithmic technologies, which facilitate the use and collection of ever-more sensitive personal information by public authorities.  Live FRT enmeshes physical and informational forms of surveillance by collecting information from the physical body of the person and breaking this down into an information structure, which can then be processed.  The High Court’s distinction for fleshing out the scope of the common law powers of the police, between physical and informational intrusions, seems unfit for this novel policing landscape.  It has allowed the powers of the police enunciated in Rice to be extended too far.

For now, the MPS can rely on broad common law powers to use live FRT, but its decision to do so may prove unwise.  Bridges was qualified and is subject to appeal.   The Court acknowledged that the legal framework governing live FRT should be strengthened further and, since this judgment, the Information Commissioner has called for the use of FRT to be placed on a statutory footing.  In recent years, the European Court of Human Rights has also expressed concern that the common law powers of the police are so broad as to create a risk of ambiguity or extensive interpretation (See S and Marper v United Kingdom [2008] ECHR 1581 at [99]; Catt v United Kingdom [2019] ECHR 76 at [96]-[99])

We are still at an embryonic stage in our efforts to regulate the police use of algorithms.  Given the legal uncertainty, it is curious that the MPS has chosen this moment to begin incorporating FRT into its operational surveillance arsenal.  It may soon find itself on the wrong side of the law.

JOE PURSHOUSE

Joe PurshouseAbout the author: Joe Purshouse is a lecturer in criminal law at the University of East Anglia. His main areas of interest focus on the human rights of those subject to the criminal process, with a particular emphasis on privacy.  His PhD research examined the extent to which the privacy interests of those subject to the criminal process are recognised and afforded adequate protection in England & Wales.

 

 

An Independent Investigative Mechanism: Identifying Ways To Combat Impunity In Georgia

By Mariam Uberi

According to a number of civil society and human rights commentators, Georgia requires an effective independent body to deal with the investigation of torture perpetrated by law enforcement officials.

Between 2013 and 2015, the Public Defender’s office made 58 referrals to the General Prosecutor’s office to investigate alleged ill treatment of prisoners either by the police or prison staff. Some reports indicate that the Prosecution office has either dropped some investigations or did not provide any information during the course of the investigation.

In 2016, the number of alleged acts of ill treatment committed by the police was higher than that perpetrated by prison staff. The number of referrals for investigations into ill treatment in prisons dropped by one third. Reportedly, only two of 173 allegations of ill treatment perpetrated by police were brought to the court.

These statistics raise serious questions around whether the investigative powers vested to the State security services, the Ministry of Corrections and the Ministry of Internal Affairs lack adequate guarantees of independence and impartiality to address legal wrongs by its public authorities. Further, the Public Defender’s office and various UN human rights bodies have highlighted trends of either dismissing allegations of ill treatment against state agents or instigating charges that carry lesser sentences.

This post will review the national legislative framework on torture and ill treatment and how it is implemented. It will then provide an overview of pertinent human rights obligations and will review a draft law on independent investigative mechanisms aimed at ending impunity by law enforcement agents.

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