UK Government challenged over complicity in CIA drone attacks

December 17, 2011

Lawyers for the son of a victim of CIA drone strikes in Pakistan have written to the British Foreign Secretary, asking him to clarify what the UK’s policy is on providing intelligence used by the US in its ‘targeted killing’ campaign. Leigh Day & Co, acting on behalf of Noor Khan, whose father was killed earlier this year in a drone strike on a jirga – or council of elders – in North West Pakistan, have asked William Hague to provide answers to key questions on how far the UK assists the US in its drone strike programme. Several reports have stated that British intelligence agencies have provided information on the whereabouts of alleged ‘militants’ targeted by the CIA’s illegal campaign, which has resulted in the deaths of hundreds, if not thousands, of civilians. The letter puts the following questions to the Foreign Secretary: (1)        Whether the UK passed information to the US which was or may have been used in the attack on our client’s father on 17 March 2011, or any other drone attacks in the Pakistan border region; (2)        Whether you accept that (a) the attack on our client’s family and (b) drone attacks in Pakistan generally are contrary to international law and, if not, why not; (3)        Whether the UK continues to pass locational or other information to the US in circumstances where that information will or might be used in directing drone attacks in Pakistan (given that such attacks are endangering our client and his remaining family members); (4)        If so, what arrangements are in place to enable relevant UK authorities to satisfy themselves, before information is passed to the US which is intended to be used, or which may be used, to direct drone attacks, that the passing of that information would not involve participation by UK officials or agents in acts which are unlawful in international and/or domestic law; and (5)        In particular whether there exists any policy, guidance or other document dealing with the circumstances in which information which will or may be used in directing drone attacks in Pakistan may be shared with the US. Clive Stafford Smith, Director of legal action charity Reprieve, said: “CIA drone strikes are killing huge numbers of civilians and destabilising Pakistan. The British people have a right to know what their country’s policy is regarding our involvement in this illegal and disastrous campaign.”

Richard Stein, Head of the Human Rights team at Leigh Day & Co said: “This legal action simply looks to ask a number of questions of our Government regarding UK involvement in the drone strikes in Pakistan which, it is estimated, have killed thousands of people within a country we are not militarily engaged with and therefore, we believe, are against international law. We ask the Foreign Secretary whether any information is being passed by agents of the UK Government to US Government forces to assist in these attacks.  Unless it is catagorically denied that the UK continues to pass such information to the US Government forces, we require a clear policy statement of the arrangements which are in place and circumstances in which the UK considers it to be lawful to do so.”

ENDS1. For further information, please contact Donald Campbell in Reprieve’s press office on +44 (0) 7791 755 4152. The full text of the letter to the British Foreign Secretary from Leigh Day & Co is as follows:Dear Foreign Secretary, Re: UK complicity in unlawful killings in Pakistan Introduction We have recently been instructed by Noor Khan of Maezar Madda Khel, Kadhrtangi Post Office, Tehsil Datta Khel, North Waziristan Agency, Pakistan. Our client’s father Malik Daud Khan was a respected member of the local community and head of the North Waziristan Loya Jirga, a peaceful council of local elders. On 17 March 2011, he attended, and chaired, a meeting of the Loya Jirga which, under local law and custom, was the accepted forum for settling disputes. The meeting had been convened in order to resolve a dispute in relation to a local chromite mine. On the same day, a missile or missiles were fired from an unmanned aircraft or “drone”. The intention appears to have been to target an individual or individuals attending the Loya Jirga. Some 50 people were killed, including Malik Daud Khan, five members of a local police force, and a child. It is understood that the drone which killed our client’s father was operated by the Central Intelligence Agency or other agents of the United States of America. The US has pursued a policy of increasing the number of drone attacks in Pakistan. Since 18 June 2004, 309 drone attacks have been reported in Pakistan’s Federally Administered Tribal Areas, the vast majority occurring in the North Waziristan area.[1] The number of people killed is not known precisely. But independent reports put it between 2377 and 2997.[2] The attacks have caused serious injuries to many more. Our client has told us that he frequently hears drones overhead. Understandably, he fears for his life and the lives of those of his family members who survived the attack of 17 March 2011. US administration officials have gone on record expressing the belief that these attacks on individuals, in a sovereign state in which US troops are not militarily engaged, are lawful as a matter of international law. That belief appears to rest on an understanding of relevant principles of international law that is not shared by other states (including, as we understand it, the UK), nor by the vast majority of commentators. Despite this, there have now been a number of reports in respected UK newspapers and other media outlets to the effect that individuals or agencies acting on behalf of the UK Government have been passing information to individuals or agencies acting on behalf of the US Government for the purpose of assisting or directing drone attacks in Pakistan. In particular, it has been reported, on the basis of information from GCHQ “insiders”, that the UK uses telephone or other electronic interception to provide the US with “locational intelligence” about individuals of interest to the US; and that this intelligence is then used to direct drone attacks in Pakistan.[3]We set out the relevant extracts from the press reports below[4]:

    Fox News, 25 July 2010: “A top British spy agency uses its technology to pinpoint the hiding places of Al-Qaeda and Taliban chiefs for controversial ‘target killings’ by US drones. GCHQ, the top secret UK communications agency, has used telephone intercepts to provide the Americans with ‘locational intelligence’ on leading militants in Afghanistan and Pakistan, an official briefed on its operations said. Insiders says GCHQ can provide more extensive and precise technical coverage in the region than its sister American organisation, the National Security Agency, because Britain has a better network of intercept stations in Asia…”
    Deccan Herald, 3 October 2010: “UK’s top communication and intelligence agency has identified some of the Pakistan-based terrorists who were plotting a Mumbai-style attack on London by matching their voices against a secret database… ‘GCHQ is doing a lot of significant work in spotting these guys and helping the Americans deliver the drone kills,’ said a source with knowledge of the agency’s work. An important aspect of this work is the analysis of voice prints, a technique that can identify a voice speaking on a telephone in Afghanistan or Pakistan by matching it against a databank of suspects held by GCHQ.” 
    Sunday Times, 25 July 2010: “GCHQ, the top-secret communications agency, has used telephone intercepts to provide the Americans with ‘locational intelligence’ on leading militants in Afghanistan and Pakistan, an official briefed on its operations said. Insiders say GCHQ can provide more extensive and precise technical coverage in the region than its American sister organisation, the National Security Agency, because Britain has a better network of intercept stations in Asia… GCHQ uses satellites and planes to collect and analyse the location of telephones used by militants. The Sunday Times have agreed not to disclose further details of these operations at the request of the agency.”

It appears from these reports that the UK is engaging in a practice of assisting attacks by US forces or agents which are unlawful as a matter of international law. That practice may have contributed to the death of our client’s father and several members of his community and is contributing to the risk that our client continues to face from US drones above the area where he lives. It may also be exposing agents of the UK Government to criminal liability under domestic common law (for murder) or under the International Criminal Court Act 2001. Our client understands that, for national security reasons, it may not be possible to give details of the precise intelligence gathered or passed by UK officials or agencies to US officials or agencies on any particular occasion. He is not asking for that. Instead, he is asking a number of specific questions set out at the end of this letter. We believe that he is entitled to answers to these questions so that he can understand whether the UK Government was or may have been complicit in the killing of his father and other members of his community; whether the UK continues to pass locational or other information to the US in circumstances where that information will or might be used in drone attacks in Pakistan which endanger him and his remaining family members; and, if so, what arrangements are in place to enable relevant UK authorities to satisfy themselves, before information is passed to the US which is intended to be used, or which may be used, to direct drone attacks, that the passing of that information would not involve participation by UK officials or agents in acts which are unlawful in international and/or domestic law. The illegality of US drone attacks in Pakistan The US government contends that it is generally lawful for its military or other agencies to kill individuals in Pakistan whom they suspect of posing a threat to US security. Harold Koh, Legal Adviser to the US State Department, said: “US targeting practices, including lethal operations conducted by unmanned aerial vehicles [drones] comply with all applicable law, including the laws of war”.[5] This is because, in his view, the US is in “an armed conflict with al Qaeda, the Taliban, and the associated forces […and thus has the lawful right to use force] consistent with its inherent right to self-defense” under international law in response to the 9/11 attacks. It is clear, however, that this view is unsustainable as a matter of international law. In particular: 1.      The International Court of Justice has confirmed that the right to self-defence under Article 51 of the UN Charter does not apply to attacks by non-state actors that are not imputable to another state: see Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Uganda), Judgment, ICJ Reports 2005, p. 168 (for example, paragraph 301). Accordingly, the US has no right under Article 51 to engage in acts of force on Pakistani territory without Pakistan’s consent, even if it could be said that Pakistan were failing to act in relation to threats to the US emanating from within its territory. 2.      If and insofar as reliance is placed on a doctrine of anticipatory self-defence in customary international law, that reliance is misplaced.  If there is any scope at all for a doctrine of anticipatory self-defence in customary international law, that doctrine applies only when the necessity for an anticipatory strike is “instant, overwhelming, and leaving no choice of means and no moment for deliberation”.[6]As we understand it, the US government’s broad interpretation of the doctrine to include an action of pre-emptive self-defence, which has none of the limiting criteria of the doctrine of anticipatory self-defence, has never been shared by the UK Government. When the US advanced it to support its proposed use of force in Iraq, the UK Government did not agree.[7] On the eve of the Iraq conflict, Lord Goldsmith QC, as Her Majesty’s Attorney General, said this about the doctrine of anticipatory self-defence: “I am aware that the USA has been arguing for recognition of a broad doctrine of a right to use force to pre-empt danger in the future. If this means more than a right to respond proportionately to an imminent attack (and I understand that the doctrine is intended to carry that connotation) this is not a doctrine which, in my opinion, exists or is recognised in international law”.[8] 3.      In any event, the US remains subject to obligations in international human rights law for acts occurring outside its own national territory (see eg Advisory Opinion of the ICJ of 9 July 2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, paragraphs 178-181). For example, the US is obliged not to use lethal force in circumstances where it could have acted to apprehend a person.[9]And, importantly, as the UN Special Rapporteur has observed: “…drone killing of anyone other than the target (family members or others in the vicinity, for example) would be an arbitrary deprivation of life under human rights law and could result in State responsibility and individual criminal liability.”[10] 4.      Finally, any use of force by the US in the context of an armed conflict is governed, at an absolute minimum, by the rules of international humanitarian law, including Article 3 of the Geneva Convention. Attacks on large groups which are likely to kill many civilians may well be contrary to Article 3. For these reasons, the attack that killed our client’s father and other members of his community appears to have been unlawful as a matter of international law. More generally, the US programme of drone attacks against individuals and groups in Pakistan appears itself to be unlawful or, alternatively, and at a minimum, to raise very substantial issues as to its legality in particular cases. Domestic criminal liability on the part of UK officials in respect of information sharing with the US leading to drone attacks At common law a person who provides information about an individual to another, which the other then uses to locate and kill the individual, may (depending on his state of mind at the time he passes the information) be guilty of aiding and abetting the offence of murder, contrary to s. 8 of the Accessories and Abettors Act 1861. The precise circumstances in which secondary liability may be difficult to define. However, it is clear that it will arise (at least) where the person passing the information knows about the plan to kill or foresees it as a “serious risk”: see eg the discussion in R (Equality and Human Rights Commission) v Prime Minister [2011] EWHC 2401 (Admin), at [36]-[64]. In addition to secondary liability for murder, the passing of information in these circumstances may also give rise to secondary liability on the part of UK officials or agents for crimes under the International Criminal Court Act 2001. This makes it very important, not only from the perspective of our client, but also from the perspective of the individual officials and agents whose function includes passing of information of this kind, for there to be clarity about the circumstances in which information sharing make take place. Policies designed to uphold human rights in other related contexts This is not the only case in which the need has arisen to ensure that UK military and intelligence personnel respect their obligations in domestic and international law. In at least two other cases, a policy has been developed for that purpose and made available to the public. In both these cases, the need for such a policy arose in part because the view taken by the US of its obligations under international law differed from that held by the UK and most other states. First, in All Party Parliamentary Group on Extraordinary Rendition v The Information Commissioner and The Ministry of Defence[2011] UKUP 153 (AAC), the Upper Tribunal (chaired by Mr Justice Blake) ordered the disclosure of a Memorandum of Understanding between the US and UK relating to the transfer of prisoners. The Tribunal said as follows: “We very much doubt that the terms of a memorandum of understanding or similar agreement that is designed to ensure compliance with human rights and similar legal obligations in respect of people whose detention is transferred to another state could be perceived as confidential in nature or something the existence of which embarrasses foreign states.” Secondly, on 6 July 2010 the Government decided to publish its Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees. The document was published at the same time as the Prime Minister announced an independent inquiry into the question whether UK intelligence officers working with foreign security services were implicated in the improper treatment of detainees held by other countries in the aftermath of the events of 11 September 2001. The document was intended to provide guidance to military and intelligence personnel to enable them to avoid criminal liability. Disclosure of the policy allowed the public, and the courts, to assess whether the guidance was in accordance with the UK’s obligations under both international law and accurately stated the position in domestic law. The Divisional Court has since held that the guidance misstated the law in one respect (in relation to hooding of detainees): see the EHRC case cited above. Request for Information and Action Required In light of the above, please confirm: (1)          Whether the UK passed information to the US which was or may have been used in the attack on our client’s father on 17 March 2011, or any other drone attacks in the Pakistan border region; (2)          Whether you accept that (a) the attack on our client’s family and (b) drone attacks in Pakistan generally are contrary to international law and, if not, why not; (3)          Whether the UK continues to pass locational or other information to the US in circumstances where that information will or might be used in directing drone attacks in Pakistan (given that such attacks are endangering our client and his remaining family members); (4)          If so, what arrangements are in place to enable relevant UK authorities to satisfy themselves, before information is passed to the US which is intended to be used, or which may be used, to direct drone attacks, that the passing of that information would not involve participation by UK officials or agents in acts which are unlawful in international and/or domestic law; and (5)          In particular whether there exists any policy, guidance or other document dealing with the circumstances in which information which will or may be used in directing drone attacks in Pakistan may be shared with the US. If there is such a policy, please provide a copy of it, so that our clients may consider whether it is lawful and, if not, take action accordingly. We look forward to hearing from you shortly, and certainly by no later than 11 January 2012. Yours faithfullyLeigh Day & Co

[1]http://www.thebureauinvestigates.com/category/projects/drone-data/ [2]http://www.thebureauinvestigates.com/category/projects/drones/ [3]See, e.g., Top U.K. Spy Agency Aids in Controversial U.S. ‘Targeted Killings’, (Fox News, 25 July 2010), http://www.foxnews.com/world/2010/07/25/uk-spy-agency-aids-controversial-targeted-killings/; Oliver, J., GCHQ finds Al-Qaeda for American Strikes, (The Times, 25 July 2010); Gardham, D., Terror plot against Britain thwarted by drone strike, (The Telegraph, 28 Sept. 2010),  http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/8031570/Terror-plot-against-Britain-thwarted-by-drone-strike.html; North-Taylor, R. and Bowcott, O., Mumbai-style raids on UK and France foiled by drone attacks: Germany was also target of militants in Pakistan Western intelligence agencies confirm plot fears, (The Guardian, 29 Sept. 2010), http://www.guardian.co.uk/world/2010/sep/29/terror-attack-plot-europe-foiled; Gannon, K., Pakistan: Dozens of Europeans in terror training, (Washington Post, 3 Oct. 2010), http://www.washingtonpost.com/wp-dyn/content/article/2010/10/03/AR2010100302119.html;Press Trust of India, GCHQ identifies voice of Pak-based terrorists plotting attack, (The Deccan Herald, 3 Oct. 2010), http://www.deccanherald.com/content/101655/gchq-identifies-voice-pak-based.html; GCHQ team helps foil Mumbai-style terror attack on London, (This is Gloucestershire, 4 Oct. 2010), http://www.thisisgloucestershire.co.uk/news/GCHQ-team-helps-foil-Mumbai-style-terror-attack-London/article-2716460-detail/article.html; Norton-Taylor, R. and Tisdall, S., Briton killed by US drone ‘had wanted to attack UK’, (The Guardian, 7 Oct. 2010), http://www.guardian.co.uk/world/2010/oct/06/abdul-jabbar-terror-attack-plans; Mir, A., British Islamic Army hit hard by drones, (The News, 20 Dec. 2010), http://www.thenews.com.pk/TodaysPrintDetail.aspx?ID=21242&Cat=2. [4] See, e.g.,Top U.K. Spy Agency Aids in Controversial U.S. ‘Targeted Killings’, (Fox News, 25 July 2010), http://www.foxnews.com/world/2010/07/25/uk-spy-agency-aids-controversial-targeted-killings/; Oliver, J., GCHQ finds Al-Qaeda for American Strikes, (The Times, 25 July 2010); Gardham, D., Terror plot against Britain thwarted by drone strike, (The Telegraph, 28 Sept. 2010),  http://www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/8031570/Terror-plot-against-Britain-thwarted-by-drone-strike.html; North-Taylor, R. and Bowcott, O., Mumbai-style raids on UK and France foiled by drone attacks: Germany was also target of militants in Pakistan Western intelligence agencies confirm plot fears, (The Guardian, 29 Sept. 2010), http://www.guardian.co.uk/world/2010/sep/29/terror-attack-plot-europe-foiled; Gannon, K., Pakistan: Dozens of Europeans in terror training, (Washington Post, 3 Oct. 2010), http://www.washingtonpost.com/wp-dyn/content/article/2010/10/03/AR2010100302119.html;Press Trust of India, GCHQ identifies voice of Pak-based terrorists plotting attack, (The Deccan Herald, 3 Oct. 2010), http://www.deccanherald.com/content/101655/gchq-identifies-voice-pak-based.html; GCHQ team helps foil Mumbai-style terror attack on London, (This is Gloucestershire, 4 Oct. 2010), http://www.thisisgloucestershire.co.uk/news/GCHQ-team-helps-foil-Mumbai-style-terror-attack-London/article-2716460-detail/article.html; Norton-Taylor, R. and Tisdall, S., Briton killed by US drone ‘had wanted to attack UK’, (The Guardian, 7 Oct. 2010), http://www.guardian.co.uk/world/2010/oct/06/abdul-jabbar-terror-attack-plans; Mir, A., British Islamic Army hit hard by drones, (The News, 20 Dec. 2010), http://www.thenews.com.pk/TodaysPrintDetail.aspx?ID=21242&Cat=2. [5]        Speech at the American Society of International Law, 26 March 2010. [6]           See eg Brownlie, Principles of Public International Law, 7th ed, 2008, pp. 733-734. [7]        See the views of Prime Minister Blair as expressed to the Liaison Committee of the House of Commons on 21 January 2003 and the UK government’s arguments to the Security Council on 21 March 2003. [8]        Lord Goldsmith, “Iraq Resolution 1441”, Memo to the Prime Minister, 7 March 2002: http://image.guardian.co.uk/sysfiles/Guardian/documents/2005/04/28/legal.pdf. [9]        McCann v. United Kingdom (1995) 21 EHRR 97. [10]       See Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, cited at fn 2 above, paragraph 86.

3. Reprieve, a legal action charity, uses the law to enforce the human rights of prisoners, from death row to Guantánamo Bay. Reprieve investigates, litigates and educates, working on the frontline, to provide legal support to prisoners unable to pay for it themselves. Reprieve promotes the rule of law around the world, securing each person’s right to a fair trial and saving lives.  Clive Stafford Smith is the founder of Reprieve and has spent 25 years working on behalf of people facing the death penalty in the USA.Reprieve’s current casework involves representing 17 prisoners in the US prison at Guantánamo Bay, assisting over 70 prisoners facing the death penalty around the world, and conducting ongoing investigations into the rendition and the secret detention of ‘ghost prisoners’ in the so-called ‘war on terror.’ 

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