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2014 | UNITED KINGDOM Court of Appeal (Civil Division), The Queen on the Application of Noor Kahn v. The Secretary of State for Foreign and Commonwealth Affairs, Case no. C1/2013/0139, 20 January 2014

Court

UK Court of Appeal (Civil Division)

Type   of decision

Appeal judgment

Date judgment

20 January 2014

Case no.

C1/2013/0139

Area of jurisdiction

Civil law

Claim

The UK’s Government policy and practice to provide “locational intelligence” to the US authorities for use in drone strikes is unlawful.

Principle legal argument(s)

The claimant’s primary case is based on the proposition   that a UK Government Communications Headquarters   (GCHQ) officer who passes locational intelligence may commit an offence under sections 44 to 46 of the 2007 Act.

Type   of reparation sought

A declaration that a UK national who kills a person in a   drone strike in Pakistan is not entitled to rely on the defence of combatant immunity. Accordingly a GCHQ officer or other Crown servant in the United Kingdom may commit an offence under the Serious Crime Act 2007 when passing locational intelligence to an agent of the US Government for use in drone strikes in Pakistan.

In January 2014 the English Court of Appeal gave judgment in R (Noor Khan) v Secretary of State forForeign and Commonwealth Affairs. The court refused permission to appeal on the grounds that appellant’s claims involve serious criticisms of the acts of the US. Only in certain established circumstances –which are not given here- UK courts will sit in judgment of such acts.

The claim was brought in an attempt to establish the unlawfulness of the reported policy and practice of the UK Government to provide “locational intelligence” to the US authorities for use in drone strikes. Appellant’s case is mainly based on the proposition that an officer of the UK Government Communications Headquarters (GCHQ) who passes locational intelligence may commit the offence of encouraging and/or assist the commission of murder which punishable under sections 44 to 46 of the (domestic) Serious Crime Act 2007 [para. 7].

Examining the question of justiciability, the court takes the same stance as the court of first instance. It refers to the Foreign Act of State Doctrine entailing that it is a well-established principle that, save exceptional circumstances, English courts will not inquire into the legality of the acts of a foreign government when such action takes place within the territory of the foreign state. The rationale behind this is that to examine and judge the conduct of another state would imperil relations between states [para. 25]. One such exception is a) when there is a breach of clearly established rules of international law or contrary to English principles of public policy, and b) where there is a grave infringement of human rights [para. 28]. The Court briefly dismisses those exceptions as not being engaged by the facts of the claim considering that “there are no such exceptional circumstances here” [para. 53] – a rather remarkable conclusion given that more than 40 people lost their basic human right to life.

In turn, the appellant rejects that the cited principle applies [para. 32] arguing that he is not asking the court to give a legal judgment on the acts of CIA officials either under our domestic law or under international law. Assuming that the GCHQ officers are required to encourage and/or assist the commission of murder, he seeks relief on the basis that the acts of the CIA officials, if committed by UK nationals, would be unlawful in English law. This assumption is a necessary link in a chain of reasoning in essence comprising that the finding that a GCHQ employee who encourages or assists such an act is liable as a secondary party to murder under sections 44 to 46 of the 2007 Act builds on the prerequisite that the act of the principal who operates the bombs is murder in English law [para. 32]. However, the court declines this construction arguing that a hypothetical finding that the notional UK operator of a drone bomb which caused a death was guilty of murder, is tantamount to adjudicating the legality and acceptability of the US acts by the court. Moreover, such finding would inevitably be understood by the US as a serious condemnation of the US activities by a UK court [paras. 37, 53]. This given, and in absence of an exception to the Foreign Act of State Doctrine, the court refuses permission to appeal and dismissed the case [para. 53].