UK to face legal challenge over drones policy

March 12, 2012

Image of Noor Khan & Kareem Khan

Reprieve and solicitors Leigh Day & Co have announced that they will be issuing formal legal proceedings this week against the UK Foreign Secretary on behalf of Noor Khan, whose father was killed last year in a drone strike on a Jirga – or council of elders – in North West Pakistan.

Noor Khan (27), lives in Miranshah, North Waziristan Agency, in the Federally Administered Tribal Areas of Pakistan. His father, Malik Daud Khan, was a member of the local Jirga, a peaceful council of tribal elders whose functions included the settling of commercial disputes.

On 17 March 2011, Malik Daud Khan attended and presided over a meeting of the Jirga, held outdoors at Datta Khel, NWA, which had been called to settle such a dispute. During the course of the meeting a missile was fired from an unmanned aircraft or “drone”, which is believed to have been operated by the US Central Intelligence Agency. Malik Daud Khan was one of more than 40 people killed in the strike.

Several reports have stated that British intelligence agencies have provided information on the whereabouts of alleged ‘militants’ targeted by the CIA.

In 2010 several media outlets on the basis of a briefing said to emanate from official sources, reported that UK intelligence agency GCHQ, for which the Foreign Secretary is responsible, provides “locational intelligence” to the US authorities for use in drone strikes in Pakistan. The reports appeared to quote an on-the-record GCHQ source as saying that the assistance provided by GCHQ to the US authorities was “in ‘strict accordance’ with the law”.

However, in the papers to be filed in the High Court this week the lawfulness of such actions will be challenged.

The legal challenge states that the only persons entitled to immunity from ordinary criminal law in respect of armed attacks are those regarded under international law as “lawful combatants” participating in an “international armed conflict”.

As CIA and GCHQ employees are civilians and not “combatants” they are not entitled to the benefit of immunity from ordinary criminal law. Even if they were there is also no “international armed conflict” in Pakistan. Indeed, there is no “armed conflict” of any sort.

GCHQ employees who assist CIA employees to direct armed attacks in Pakistan are in principle liable under domestic criminal law as secondary parties to murder and that any policy which involves passing locational intelligence to the CIA for use in drone strikes in Pakistan is unlawful.

Evidence suggests that drone strikes in Pakistan are being carried out in violation of international humanitarian law, because the individuals who are being targeted are not directly participating in hostilities and/or because the force used is neither necessary nor proportionate.

This suggests that there is also a significant risk that GCHQ officers may be guilty of conduct ancillary to crimes against humanity and/or war crimes, both of which are statutory offences under the International Criminal Court Act 2001.

Clive Stafford Smith, Director of Reprieve said:

“What has the Government got to hide? If they’re not supplying information as part of the CIA’s illegal drone war, why not tell us? And if they are, they need to come clean, and stop colluding in a campaign that has killed hundreds of civilians.”

Richard Stein, Head of Human Rights at law firm Leigh Day & Co said: “We believe that there is credible, unchallenged evidence that the Secretary of State is operating a policy of passing intelligence to officials or agents of the US Government; and that he considers such a policy to be “in ‘strict accordance’ with the law”.

“If this is the case the Secretary of State has misunderstood one or more of the principles of international law governing immunity for those involved in armed attacks on behalf of a state and/or the lawfulness of such attacks; and his policy, if implemented, involves the commission of serious criminal offences by employees of GCHQ or by other officials or agents of the UK Government in the UK.”