Day 2 of the hearing began with brief marks from the representative for Mr. Khan. He asked the Court to use its discretion to allow the litigation to continue, and asserted that the investigatory powers tribunal (IPT), which handles human rights complaints about the intelligence services, would be an inappropriate venue for these issues, since it could only make determinations in individual cases, but would not provide the more substantial and general relief sought through the declaration. The declaration sought would state that the British policy of passing on locational information to the CIA about particular individuals, may be a criminal offense, since this information is likely to be used in targeted killings.
The representative for Mr. Khan also argued that we need a policy in place to make sure that crimes are not being committed by GCHQ, and we particularly need the Court determine whether international humanitarian law or domestic law applies in this context. If GCHQ officials do not have combatant immunity when passing on locational information to the US, then they can be prosecuted under domestic criminal law. [Combatant immunity would only be in place if it was determined that there is an on-going armed conflict in Pakistan.] If combatant immunity does apply to GCHQ officials, then any potential crimes would be prosecuted under the facets of international humanitarian law which have been incorporated into English law, for example whether they complied to the principles of proportionality.
Next, the representatives for the governments presented their claims opposing any further litigation on this issue; the main thrust of their argument was that the Court ought to use its discretion to deny the litigation to proceed, as the Court is not the ideal venue for the issues to be decided and as the declaration sought would not serve the public interest. Firstly, they addressed how the litigation would affect institution confidence and democratic accountability. They argued that an IPT would be a more appropriate venue, since they handle human rights claims that involve the intelligence services. Similarly, given the Justice and Security Bill currently before Parliament, the lawyer suggested that dealing with this issue through the Court would circumvent the solutions put forth by elected representatives to deal with cases involving sensitive information. Secondly, the representatives urged the Court to consider whether such a declaration was even legally justifiable. For the declaration to be issued there has to be a possibility that a criminal prosecution could go forward. Could British subjects be held liable for murder for passing on information, if “the people actually pushing the button” cannot be held liable under British law?
Thirdly, the lawyers for the government argued that issuing the declaration, or allowing the litigation to go forward, would inevitably raise thorny political questions counter to the public interest. Even if the Attorney General gave his consent for the prosecution of a GCHQ official, this prosecution would be for some kind of secondary offense - e.g. conspiracy to commit murder, aiding and abetting murder, etc – which would necessarily imply that US officials and soldiers were committing the primary offense. Any prosecution would thus require the Court to examine whether the United States’ policy of drone strikes is lawful and whether Pakistan has given consent for the strikes to occur (as the strikes would be lawful under international law if it has given consent). The government argued that the principles of justiciability (whether the Court can exercise its judicial authority in the case) and discretion (whether the Court has decided to use this authority to hear the case) are not absolute principles to be decided in isolation from each other, but rather exist on a sliding scale. In other words, if the litigation went forward it would have a significant impact on British foreign relations, and it is legitimate for the Court to take these issues into consideration in making its ruling. The declaration might also put the British public in danger, for example if the Americans refused to continue sharing intelligence.
As the second day of hearings ended, the representative for the government urged the Court to consider what it would inevitably “be sucked into” if it allowed the litigation to proceed. Since any criminal prosecutions would essentially require the government to show that the drone strikes were illegal under domestic or international law, this would have serious consequences for the British public.
On Day 3, the representative for Mr. Khan was given time to rebut the assertions made the previous day by the government. He first refuted the government’s contention that it was the appropriate stage to determine whether the sensitive nature of the information involved n the case, meant that it shouldn’t proceed. The lawyer added that depending how the Court rule, it may be the first occasion in the national security context where the Court finds that the application of Public Interest Immunity (PII) principles mean that litigation could not go forward. He stressed that the Court should use IPP principles to decide how the case can go forward, eg. by assigning a Special Advocate to look at sensitive documents, holding partially closed sessions, etc.
Responding to the government’s assertions that the claimant was requiring the Court to rule on a contentious issue – but not a particular case – he clarified that the legal team wanted the Court to determine a threshold issue: namely, whether the defence of combatant immunity apply to GCHQ officials in this context. In other words, the claimant and legal team is requesting the Court to determine whether the act of passing locational information to the US military would fall under international human rights law (in the case of an on-going armed conflict) or domestic law (if no on-going armed conflict). He added that whether the US is lawfully engaging in self-defence, or Pakistan is consenting to the strikes, is irrelevant to whether combatant immunity applies to GCHQ officials.
The lawyer stressed that he was not aware of a single case whether immunity applied in cases of UK law, simply on the basis that the UK had been acting on concert with other states. Even if immunity was not granted here, judicial restraint could still be taken into account later. He contested that what is at stake here is foreign policy, or that issuing a declaration would constitute a judgment on the legality of US actions. Instead, as the representative commented, “the real question is whether the Court should shut us out on the basis of the possible reaction from US or Pakistan”, when the declaration from the Court would only be in respect to UK law and UK actions.
The judgement should be rendered in a matter of weeks. If the Judges rule in the claimant’s favour, his representatives will be allowed to continue their legal battle to get the Court to issue the desired declaration.