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The revelation comes from a high-level review of a complaint that the £23m BT communications line supported drone missions that had accidentally killed between 426 and 1005 civilians in the last decade in the course of strikes on suspected insurgents, according to estimates of the Bureau of Investigative Journalism.
Officials at the UK Department for Business, Innovation and Skills threw the complaint out last October, saying there was no evidence to say whether the comms line supported the drone attacks or not.
A review of the decision has since raised the prospect that BT could be asked to gather evidence to answer the question itself.
The big question – whether the fibre-optic cable is infrastructure used in drone strikes critics say are illegal – remains unanswered.
Legal charity Reprieve used an international agreement on corporate ethics, called the OECD Guidelines for Multinational Enterprises, to complain that BT should never have taken the contract because it obvious what the cable was for.
But the only evidence BIS had to go on was due diligence BT did to satisfy the OECD guidelines when it took the contract in 2012. BT’s due diligence ignored the drone controversy. BIS said it therefore didn’t know and couldn’t say.
The review, published at the end of February, said companies shouldn’t get away with glossing over controversies in their due diligence. They shoudn’t turn a blind eye when they took on a customer with a bad reputation. They should ask awkward questions and address them specifically in their due diligence.
BT had done only general due diligence when it took out its contract with the US Defense Information Systems Agency on 26 September 2012.
Now the review, though indirect, has turned the spotlight back on BT.
BT refused to comment on the review’s conclusion.
It denied knowledge of drone strikes. It also tried to portray the fibre-optic line, which it laid between the US military intelligence communications hub at RAF Croughton, Northamptonshire, and Camp Lemonnier, the base in Djibouti, North-East Africa, that launches the drone strikes, as a civilian cable not suitable for military applications.
“BT can categorically state that the communications system mentioned in Reprieve’s complaint is a general purpose fibre-optic system.
“It has not been specifically designed or adapted by BT for military purposes, including drone strikes,” said the statement.
“[It] could be used at the base for a wide range of day-to-day activities, such as general housekeeping/internet browsing, email, communications, stores ordering, data functions and voice communications,” said a BT spokesman in an email. He refused to rule out the possibility that it might serve a military function.
Neither BT nor BIS would release the due diligence BT had done. As a system of self-regulation, the OECD rules left it to those best placed to ask and answer the awkward questions, and to allay public concerns that they conducted their business ethically. But it did not allow the public to see the deliberations. Only officials could see the due diligence. The due diligence failed. The officials rubber stamped it even after the complaint.
Could try harder
BIS should clarify its position on how companies should address awkward questions in their due diligence, said the report, written by legal experts Jeremy Carver, a lawyer at Clifford Chance who advised Ulster Unionist Party leader David Trimble on the Northern Ireland peace process, Peter Astrella, head of corporate policy for UK Trade and Investment, and Daniel Leader, who has fought cases over rendition, torture and death of prisoners in Guantanamo Bay and Iraq.
BIS refused to say whether it would do this or not.
The report said general due diligence was not good enough when there was an obvious controversy – what it called a foreseeable, heightened risk that the contract would relate even indirectly to a human rights abuse.
Sheldon Leader, director of the Essex University Business and Human Rights Project and an advisor to the Law Society, said the OECD guidelines were clear on this point and companies were already required to address specific, foreseeable risks in their due diligence.
It would therefore be possible to bring a complaint against BT for not addressing the foreseeable human rights risks of the DISA contract when it did its due diligence in 2012. BT could meanwhile be held liable for civil damages if a specific link could be established between its comms line and drone attacks that have killed civilians.
The professor, an expert on the OECD rules and father of BIS review committee member Daniel, said BT’s position that a comms supplier is not liable for what someone does with its services did not stand up when it came to potential human rights abuses.
“If I have a dangerous swimming pool, I don’t intend anybody to misuse it, but I don’t pay enough attention to the fact that someone could misuse it, then I’m responsible.
“The fact that BT put out a platform that is able to be misused is certainly something that could get the attention of the courts,” he said.
The complex context of the US base in Djibouti make concerned, civil observers more reliant on those involved to clarify the ethical questions and either reconcile their consciences with the conflict or, as the OECD rules say should be done, use their commercial influence to “prevent or mitigate” wrongdoing.
The drone strikes had been a matter of public controversy, particularly in the US, in the year BT took the contract. BT admitted it was aware of the controversy. The big question it refused to face, and which raged while BT was bidding for the work, was whether it was legal at all.
Critics said the strikes were illegal and constituted inhumane summary executions. These intelligence-led “targeted killings” of suspected terrorists, without trial, in areas outside official war zones had eliminated between about 2,800 and 4,400 people in three brawling states over the course of a decade, according to Bureau estimates.
The death statistics were drawn from a decade when the US War on Terror, in whose name they were first conducted, was refashioned into a more general mission to support fragile African and Asian governments against armed insurgents, with an emphasis on local military partnerships, medical intervention and construction projects. The drone attacks nevertheless had the trappings of war without being formally, legally-declared war. The US insisted it worked in collaboration with governments fighting violent uprisings, and the consequence of a ground-led counter-insurgency would have been many more casualties and a runaway escalation of violence. But its rules of engagement permitted strikes where local governments were unwilling or unable to co-operate. The White House press office would not say when it acted alone.
Those it executed were suspected t o be the sort of terrorists who killed 74 people in Westgate shopping mall, Nairobi, in September. Critics said drone attacks would make things worse. The public outcry nevertheless grew loud enough last year for US President Barack Obama to appoint a committee of US judges to vet them.
Ongoing Bureau investigations reported between 17 and 26 civilians killed by US drone strikes in Yemen last year. The country has been fighting an al-Qaeda-led armed uprising with US support, but one derived from a long-standing North-South religious, economic and political division with colonial roots and a recent history of war.
Reported civilian casualties dropped to nil in Pakistan, where the number of strikes was cut right back. But Military drones strikes and civilian deaths have been ongoing in Afghanistan and Yemen, the UN reported last month, while the questions of their legality has still not been settled under international law.