Before LORD JUSTICE MOSES and MR JUSTICE SIMON
Tuesday 23rd October, 2012
At half past 10
Applications for Permission
CO/2599/2012 The Queen on the application of Khan v Secretary Of State For Foreign And Commonwealth Affairs
From the outset Moses LJ and Simon J had their already present doubts about the relevancy and scope of the case before them in Court.
The Hearing sought to consider the Secretary of State’s threshold objections.
- Such issues are not determinable by our domestic English Courts.
- The US has immunity as a result of the Sovereignty acts.
- Thus the issue cannot be looked at because they are on an “international plane”.
- So the case to be looked at is ‘not justiciable’.
On the 17 March 2011, Mr Noor Khan’s father; Malik Daud Khan and between 40-50 others were killed by drone strike, when they were holding a tribal meeting ‘jirga’ on a commercial matter.
As the barrister acting for Mr Khan laid out the facts of the case, of the extremity of living in a drone-filled land, the Judge put it to him that such a lifestyle like that of the claimant’s is touching, where ‘rockets, drones and missiles fall without warning’, but that this was not the essence of the case. And so the rest of the case circled around legalities and specifics without any meaningful context.
Under the reported policy of UK Government, there is evidence that UK intelligence officials provide “locational intelligence” to the CIA in USA for drone attacks. And that spy agencies have been pinpointing targets for killing. The GCHQ have used and use phone intercepts in Pakistan and Afghanistan.
In July 2010 a Sunday Times article on the matter made the following points;
- The policy or practice of passing locational intelligence comes from insiders in the GCHQ.
- It appears to be authorized – the GCHQ are proud of the work they do, and abide by saying it is in strict accordance with the law.
The GCHQ could have refused comment but instead did not. And the Secretary of State adopted an extreme version of the NCMD policy; by neither confirming nor denying the UK’s involvement in the drone strikes carried out in Pakistan.
However, the Judge said that the assertions mentioned in The Sunday Times were “mere puff”. And didn’t take it to have any real basis.
There were also issues with imprisonment practice that were highlighted. They were not admitted by the UK Government. But an issue regarding legality of phone intercepting when prisoners contact their lawyers was also mentioned. Despite seeking assurance from the Police that such surveillance would not be carried out, various cases have emerged claiming this.
What was clarified was that the case is not about the US or any agent being guilty of a crime or tort. It is about the narrow circumstance of activity of UK officials. Thus it is not needed to show that anyone from the CIA committed a crime.
So it was considered that under the offence of murder; where a person encourages/assists another to kill a third person (outside of the UK) the English Courts can assist even where the person doing the killing cannot be tried here. In other words the CIA who “push the button” and make the decision to order a strike, but are not UK nationals, therefore, cannot be tried for murder. But the GCHQ operative can be guilty for murder, as it is an act he anticipates.
Yet the Judge challenged this and said that you first have to show there is murder, and that the person passing on the intelligence information has encouraged or tends to encourage the killing. And have to have the killing in their contemplation. This was the crux of their hesitation; that “if drone attacks in Pakistan is not unlawful, then what on earth is the official doing wrong”.
Thus, the larger issue is the lawfulness of drone attacks; but the hearing did not look at this.
But what was clarified was that Pakistan is on a CIA target list, there was an acknowledged drone strike programme against them, and even Obama and his opponent in last night’s presidential debate made mention of the drone strikes. Therefore, it is a “bold statement” to say that providing such intelligence does not have the requisite intention that such officials were aware that intelligence would be used to facilitate drone strikes.
What Mr Khan’s representatives sought to prove was that Pakistan is not in a state of ‘armed conflict’ The Judge was shocked and perhaps unaccepting of this. But it was proposed that it is vital for anyone passing on intelligence to know which regime of law will be applied to them. Whether it be our ordinary domestic law (through the Criminal Court), or through international humanitarian law, where a soldier gets “combatant immunity”. With the overriding point being that in case law there is no suggestion that the issue is ‘non-justiciable’ as the Secretary of State claims.
The issues questioned in the hearing today are in principle questions that we can determine domestically, and we should not allow it to “fall into the forbidden area that the Court cannot consider”. However the Judge said that this is open to questionability in each case, as some proceedings cannot be heard in the domestic court. Like the recent extradition cases. So ultimately it seemed to be at a Judge’s discretion.
However, it was said that Courts need to decide on whether domestic or international law applies, and the Court “must grapple with this” even if hard issues need to be dealt with, as it is a part of English law. The case involves somebody in fear of their health and safety and that of his community from drone attacks. And so the case is brought so that the individual interests of the client can be looked after, but also so that the GCHQ cannot carry out activity that has the potential to be criminal. But the Judge described it as “very problematic” as to whether the officials passing on intelligence have contemplation that they are potentially committing a criminal offence.
Before going for a short adjournment at 1pm the Judge still questioned the purpose of being here today and had a “real anxiety” about this. He said one can get sucked into ‘well-argued and interesting’ facts, but that we are losing the point of this. Also, that there needs to be established policy and practice, and grounds for thinking that officials are committing criminal offences.
The barrister for Khan concluded before adjournment that the issue arises because there is good reason on the basis of evidence aforementioned; to believe the UK is practicing policy that puts its own officials at risk of committing criminal offences that endanger lives of his client and the client’s community. So such an official needs to know whether their actions are governed by ordinary domestic law or international humanitarian law.
After reconvening, it was concluded that if the propositions are accepted, then it can be established that it is likely that a GCHQ officer passing intelligence to the CIA in circumstances where he knows there is a real risk of it being used to carry out drone strikes, then it can be an offence under domestic law.
The following debate then revolved around the kind of scope there has to be for such an offence; whether it is a serious possibility or real risk. There was the suggestion of a declaration to answer this. The Judge however was confused as to what such a declaration would say; “if you are acting for the Government, make sure you act lawfully?” Also, he questioned the need to know what the crime is, not just something where there is a risk. However, with the knowledge of a known drone strikes programme, there is scope for this, yet it was hesitatingly heard. Especially as existing policy under international humanitarian law was described as so “wooly” that an official inquiring on what s/he can or cannot do would not get a lot from it, and nor would the public.
The rest of the hearing continued on in this manner, with question as to what such a policy would look like if it was put into place. However, it was mentioned that such policy gives us more than what we have in the current case – nothing.
The overall serious concern that was presented was on the Secretary of State’s objections, in that;
- The US has immunity from suit from our domestic Courts under sovereignty acts – which is held to not have been waived in such circumstances.
- Even if the interest of the US is not engaged to give rise to Sovereignty immunity, the issue cannot be looked at as it is on an “international plane”
In other words, the US has not been made a party to the case and so have immunity. If this is correct it would mean that an English Court in civil proceedings could not determine acts that have been made by their own UK Government where such acts are done “in concert with” foreign agents. An example was given that if a victim suffers torture by agents of a foreign government and UK government officials assisted in this mistreatment. If such a policy of immunity was accepted, then, the victim would not be able to bring proceedings against the UK because under this theory, they wouldn’t be allowed to investigate acts committed ‘as a result of a foreign government’. There has never been such a broad principle of state immunity.
Therefore, such issues where international law is incorporated into domestic law cannot be considered non-justiciable as a matter of rule of law. Furthermore, they cannot be considered non-justiciable even if they are a matter of embarrassment for the UK government.
The hearing will continue tomorrow…
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