Dutch court to hear action by tribesmen devastated by drones

It's a sign of the extent to which the world has been changed by the revelations of CIA whistleblower Edward Snowden. A legal action by two Somali tribesmen whose lives were devastated by an American drone strike last year is to be heard in a Dutch court.

The classified documents published by Snowden revealed the way global surveillance programmes – often run by the United State's NSA or the "Five Eyes", the intelligence services of the US, the UK, Canada, Australia and New Zealand – work, and, consequently, who is responsible when they run amok.

More than that, the Snowden disclosures allowed ordinary citizens in countries such as the Netherlands to see how data "hoovered up" by domestic or outside software programmes or shared anonymously with agencies on the other side of the globe could, conceivably, return to haunt them.

The story of the two nomadic tribesmen following their cattle through the arid terrain of southern Somalia in January 2014 is – so the Dutch judges will be told – one such example of apparently innocuous data coming home to roost, with terrible consequences.

Travelling in the same vicinity as the Somalis and their cattle was a small convoy belonging to the Islamist militant group Al-Shabaab, thought to have included its leader, Ahmed Abdi Godane – regarded as an "imminent threat" to the US.

Believing they had Godane in the crosshairs – he was eventually killed in an American air strike last September – a drone operated by the US defence department fired a Hellfire missile which obliterated the convoy, causing “collateral damage”.

The Somali nomad nearest the point of impact lost a leg. More harrowingly, his two young daughters who were working with him were both killed. The second man was uninjured, but both had their livestock, their sole source of income, wiped out.

Dutch connection

So where is the Dutch connection? Documents leaked by Edward Snowden show that data from telecommunications intercepted by the Netherlands plays an important role in American covert operations in Somalia.

Closer to home, it’s believed the Dutch military intelligence agency, MIVD, “processes” millions of telephone calls and text messages a year from Somalia at a satellite “listening station” – known locally as “the big ear” – near the village of Burum, in remote Friesland province.

The station was the subject of questions in parliament last year after a television programme alleged that the US had placed equipment of its own in a unit on an industrial park adjacent to the Burum station – a unit to which only Americans with special passes had access.

So close did the US-Dutch relationship become, lawyers for the Somalis allege, that America's National Security Agency provided the MIVD with special technology for listening to telephone traffic to and from ships off the Somali coast as part of the anti-piracy operation, Ocean Shield.

“The Netherlands should realise that these targeted killings are not as clean as they are sometimes made out to be”, says Göran Sluiter, a lawyer for the Somalis. “Drone strikes are only allowed if there are no innocent victims in the area . . .”

The circumstances raise the issue of culpable negligence, Sluiter says. “They should have spotted these people. There were a lot of livestock around, always a clear indication that people are nearby.”

In a nutshell, the Somalis allege the Netherlands is "co-responsible" for the attack because the Dutch routinely provide crucial intelligence about Somali communications to the United States.

This will be the first case to be brought in a Dutch court by the victims of a US-directed drone strike, and, depending on the outcome, it could lead to similar actions in other European countries.

If the case is successful, it will be a major embarrassment for the Dutch government and a message to other western governments that they cannot share data, metadata, or intelligence without potentially being held liable for intended or unintended consequences.

Defence minister Jeanine Hennis-Plasschaert has said several times that there is no evidence that the US uses Dutch intelligence to carry out illegal assassinations using drones. This indicates that the “wiggle room” is likely to be over what is illegal and what is not.

That's why D66 MP Wassila Hachchi, a former naval officer, has changed the question and wants the minister to declare that "the Netherlands does not share intelligence that could be used for targeted killings and where the maximum is not done to prevent civilian casualties".

That’s a form of words that could open a real Pandora’s Box.