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2012 | UNITED KINGDOM High Court of Justice, Queen’s Bench Division | The Queen on the Application of Noor Khan v. The Secretary of State for Foreign and Commonwealth Affairs, Case no. CO/2599/2012, 21 December 2012

Court

UK High Court of Justice, Queen’s Bench Division – Administrative Court

Type   of decision

Approved Judgment

Date judgment

21 December 2012

Case no.

CO/2599/2012

Area of jurisdiction

Administrative law

Claim

The UK’s policy and practice to provide locational intelligence to the US authorities for use in drone strikes, gives rise to a risk that employees of UK Government Communications Headquarters   (GCHQ) who provide the  intelligence, may be liable under domestic criminal law for murder or for facilitating the commission of a war crime or crimes against humanity contrary to international criminal law.

Principle legal argument(s)

The claimant rests his case as to potential criminality on Sections 44-46, Section 52(2) and Schedule 4 of the Serious Crime Act 2007, which give rise to a risk of committing offences under the International Criminal Court Act 2001. By assisting US agents to direct armed attacks in Pakistan, GCHQ employees are at risk of committing offences under the criminal law of England and Wales, as secondary parties to murder. Even if   GCHQ employees would not be guilty of murder, there is a significant risk that they are guilty of conduct ancillary to crimes against humanity or war crimes.

Type   of reparation sought

The   claimant seeks a declaration that:
(a) A person who passes to an agent of the United States Government intelligence on the location of an individual in Pakistan, foreseeing a serious risk that the information will be used by the Central Intelligence Agency to target or kill that individual: (i) is not entitled to the defence of combatant immunity; and (ii) accordingly may be liable under domestic criminal law for soliciting, encouraging, persuading or proposing a murder, for conspiracy to commit murder or for aiding, abetting, counselling or  procuring; 

(b) Accordingly the Secretary of State has no power to direct or authorise UK Government Communications Headquarters (GCHQ) officers or other Crown  servants in the United Kingdom to pass intelligence in the circumstances set out in (a) above. 

(c) Alternatively, where a GCHQ officer or other Crown servant has information relating to the location of an individual, whom it knows or suspects the U.S. intends to target or kill, the officer may not pass the intelligence to an  agent of the U.S. Government if there is a significant risk that doing so would facilitate the commission of a war crime or crimes against humanity contrary to the International Criminal Court Act 2001.

(d) Accordingly, before directing or authorising the passing of intelligence relating to the location of such an individual to an agent of the U.S. Government, the Secretary of State must formulate, publish and apply a lawful policy setting out the circumstances in which such intelligence may be   transferred.

On 17 March 2011 a drone, believed to have been operated by the US in Pakistan, killed Malik Daud and 49 others. His son, Noor Khan, applied for a judicial review of the UK’s policy and practice to provide locational intelligence to the US authorities for use in drone strikes. The claimant said that this policy and practice gave rise to a risk that employees of UK Government Communications Headquarters (GCHQ) who provide locational intelligence to the US, are committing offences, contrary to domestic criminal law. This application was dismissed on the basis that the court would not sit in judgment on the sovereign acts of another state.

The claimant asked the court to review the, ‘decision’ of the Secretary of State for Foreign and Commonwealth Affairs to share intelligence gathered by GCHQ employees with United States authorities for the use of drone strikes in –amongst others- Pakistan [paras. 1-2]. In doing so, the GCHQ officers may be liable under domestic criminal law for murder or for facilitating the commission of a war crime or crimes against humanity contrary to the Rome Statute [para. 6]. The claimant submits that there is no armed conflict in Pakistan, as it is recognised under international law, still less an international armed conflict, and thus GCHQ employees are not entitled to combatant immunity [para. 2].

From the beginning the court is critical about the real aim of claimant’s proceedings. The court observes that the claimant has also launched proceedings in the Peshawar High Court in Pakistan and determines that claimant’s real aim is not to inform GCHQ employees that if they were prosecuted, no defence of combatant immunity would be available and that they could be held liable under domestic criminal law [para. 6], but “to persuade a court to do what it can to stop further strikes by drones operated by the United States” [para. 13]. This given, the court explains that it will not judicially review the question of the legality of the US’s drone trikes and refers to the 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. What one country holds of the acts of another country, says the court “is a matter of high policy, crucially connected to the conduct of the relations between the two sovereign powers” and adjudicating such act would damage the inter-state relations [paras. 14-15].

Subsequently, the court seeks to identify claimant’s legal right under domestic law which is a prerequisite for the claim to be justiciable. In addition, a legal right must be recognized before it can be vindicated and the courts expresses that traditionally, courts are reluctant to recognize a legal right in high policy issues (peace and war, the making of treaties, the conduct of foreign relations) [para. 23]. Notwithstanding the fact that the court acknowledges that there are cases in which the courts are compelled to interpret and apply international law for the purposes of determining private rights and obligations under domestic law [para. 21] ultimately it concludes that in essence, this case is not concerned with the legality of the activities of GCHQ employees under domestic criminal law. Rather, it aims at persuading the court to condemn the US drone strikes in North Waziristan [paras. 56, 59].

Apart from its concern regarding the identification of claimant’s recognized legal rights, the court points at another impediment to exercise its jurisdiction: Claimant asked to court to declare that GCHQ employees who share intelligence on the location of suspects knowing that this may be used to kill them with drone strikes, are risking to be liable under domestic criminal law for murder or for facilitating the commission of a war crime or crimes against humanity [para. 6]. According to the court, the fact that the declaration sought is phrased in rather general terms and leaves out relevant factual information such as the nature of the employee’s activities, the effect of those activities in a particular case (encouragement or assistance) and the employee’s state of mind (knowledge or belief) makes the declaration useless and thus it inevitably concludes that it cannot produce a meaningful declaration [paras. 36-41].

Reaching its conclusion, the court considers that claimant “has not found any foothold other than on the most precarious ground in domestic law” [para. 57] and reiterates that in essence it is the United States’ conduct in North Waziristan that is on trial and that it is not for the adjudicative power to judge the legality and acceptability of the acts of another sovereign power [paras. 55-56, 59].

The application for permission to apply for judicial review was dismissed by the
court on 21 December 2012. The claimant appealed the court’s decision.