Hague in court over UK drones policy

October 22, 2012

A two day hearing begins today (Tuesday) into a legal challenge brought against the UK’s reported policy of support for CIA drone strikes in Pakistan.

Noor Khan, whose father was killed in a drone attack on a local council meeting in 2011, is asking the Foreign Secretary to clarify the Government’s position on sharing intelligence for use in CIA strikes, and challenging the lawfulness of such activities.

Mr Khan, who is from Waziristan in North West Pakistan, is being supported by legal action charity Reprieve and represented by solicitors Leigh Day & Co. His father, Malik Daud Khan, was killed in a CIA strike on a peaceful meeting which had been called to resolve a local chromite mining dispute.

The British intelligence services have reportedly provided information to the US to assist in their attempts to target ‘militants’ in Pakistan through a secretive campaign using robotic aircraft which has resulted in the deaths of hundreds of civilians.

The hearing will take place from Tuesday 23 to Wednesday 24 October at the Royal Courts of Justice.

Reprieve Legal Director, Kat Craig said: “Drones in Pakistan hover over towns 24 hours a day, seven days a week, terrorising communities and killing innocent civilians. Neither we, nor the communities affected, know who is considered a target, nor how that process is decided. Noor Khan merely wishes to know what role the British intelligence services play in this game of one-sided Russian roulette. He is calling for the veil of secrecy around Britain’s drones policy to be lifted so that he can keep his community safe. We share his concerns about the lack of accountability, and the morality of the UK being dragged into an illegal attack on a country with whom we are not at war.”

Rosa Curling of Leigh Day & Co said: “This case is about the legality of the UK government to provide “locational intelligence” to the US for use in drone strikes in Pakistan. An off the record GCHQ source stated to a number of media outlets that GCHQ assistance was being provided to the US for use in drone attacks and this assistance was ‘in accordance with the law.’ We have advised our client that this is incorrect. The Secretary of State has misunderstood the law on this extremely important issue and a declaration from the Court confirming the correct legal position is required as a matter of priority.”


Notes to editors

1. For further information, please contact Donald Campbell or Clemency Wells in Reprieve’s press office: +44 (0) 207 427 1082 / 1099 / donald.campbell@reprieve.org.uk / clemency.wells@reprieve.org.uk

2. Background to the case:

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”.

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.