High Court refuses to condemn US drone strikes

9 January 2013 by Shaheen Rahman

R (Khan) v Secretary Of State For Foreign & Commonwealth Affairs [2012] EWHC 3728 (Admin) (21 December 2012) – Read judgment

In this unsuccessful application for permission to apply for judicial review, the Claimant sought to challenge the Defendant’s reported policy of permitting GCHQ employees to pass intelligence to the US for the purposes of drone strikes in Pakistan.  The Claimant’s father was killed during such an attack in March 2011.

The Claimant alleged that by assisting US agents with drone strikes, GCHQ employees were at risk of becoming secondary parties to murder under the criminal law of England and Wales and of conduct ancillary to war crimes or crimes against humanity contrary to international law.  The Claimant sought declaratory relief to that effect and also sought a declaration that the Defendant should publish a policy addressing the circumstances in which such intelligence could be lawfully disseminated. [paragraph 6]

The Defendant’s objected to the grant of permission on four bases [4]:

•       that the court would be required to adjudicate upon the acts of foreign sovereign states;

•       that the Claimant was seeking a declaration as to whether future conduct would be proscribed by domestic criminal law;

•       that the court should not give an advisory opinion; and

•       that the case could not be tried at all given the absence of a statutory closed material procedure in judicial review proceedings since AHK v Home Secretary [2012] EWHC 1117 (Admin). (The court did not determine this issue given the refusal of permission.

The court’s approach – what was the Claimant “really after”?

Lord Justice Moses observed that in R (Gentle) v Prime Minister) [2008] 1 AC 1356, the court sought to ‘lift the cloak’ of a claim for a public inquiry under Article 2 of the European Convention on Human Rights.  The real aim of the litigation was an investigation into why the Attorney General allegedly changed his mind to give the wrong advice as to the legality of the invasion of Iraq.

In this case, Moses LJ considered that the court must also cast a “critical eye” on the claimant’s description of the issues and identify what he was “really after”.  He considered that the intention in this claim was to persuade the court to do what it could to stop further strikes by drones operated by the United States. That what the claimant was “really after”.[13]

Judgment on the acts of a foreign state

The court noted that domestic courts are precluded from sitting in judgment on the acts of a foreign state, or adjudicating upon the “legality, validity or acceptability of such acts, either under domestic law or international law” (Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] 2 WLR 1353).  To do so would imperil international relations.  Further, a state could not protest that it was not responsible for the conduct of its courts – the judgment of the court would be regarded as the judgment of the country (see R v (Campaign for Nuclear Disarmament) v Prime Minister [2002] EWHC 2777 (Admin) per Simon Brown LJ).[15-16]

The Defendant asserted that expressing a definitive view on the legal issues raised by this claim would indeed risk damage to the UK’s relationship with its most important ally and thus national security.

The Claimant contended that there was no absolute principle that the court could not resolve international disputes.  For example, in R v Home Secretary, ex parte Adan [2001] 2WLR 143, the court was obliged to consider whether France and Germany were misapplying the Refugee Convention order to determine the Claimant’s asylum rights.[21]

Moses LJ accepted that if a domestic right or obligation can only be vindicated by consideration of the actions of other states under international law, the court may be compelled to undertake that task. However, he identified an “important caveat”, given that identifying a right should involve consideration of :

“what exercise of the right would entail. Thus the restraint traditionally shown by the courts in ruling on what has been called high policy – peace and war, the making of treaties, the conduct of foreign relations – does tend to militate against the existence of the right.(Gentle [8(2)])” [23]

He also recognised that it may be necessary to determine questions of international law for the purposes of considering a legitimate defence under domestic criminal law.  In R v Gul (Mohammed ) [2012] 1 Cr App R. 37, the Defendant sought unsuccessfully to defend terrorism charges on the basis that he was encouraging self-defence against coalition forces invading Iraq, contending that those forces were not entitled to combatant immunity in the absence of any international armed conflict.[25]

Combat immunity

In the instant case the Claimant contended that it was necessary to decide on the nature of the United States’ attacks to determine whether employees of GCHQ would be entitled to combatant immunity.  Thus, the court was not being asked to sit in judgment on a sovereign state but was obliged to consider how international law would classify the actions of the United States for the purpose of determining issues of domestic criminal law.

The court rejected this contention, concluding that it was being asked to give an advisory opinion on “a difficult point of criminal law, depending upon sparse and unproven facts”.  Such opinions are rarely given and the particular difficulty here was that whether conduct amounts to a criminal offence is peculiarly sensitive to the facts of the particular case. Any declaration made would, without engaging with the factual circumstances, be “useless, inaccurate and misleading”, offer no meaningful guidance as to future conduct and risk including lawful activity within the scope of criminal conduct.[31]

However, the fundamental objection to the grant of a declaration was that it would involve and would be regarded “around the world” as “an exorbitant arrogation of adjudicative power” in relation to the legality and acceptability of the acts of another sovereign power.  Any consideration as to whether a GCHQ employee is guilty of a crime or encouraging or assisting crime in these circumstances would be regarded by the US as an accusation of murder. [55]

The lack of a published policy

The court also rejected the contention that the Defendant was obliged to publish a policy addressing the legality of dissemination of intelligence to be used in drone attacks.  It was not persuaded of the relevance of the published policy for intelligence officers on the detention and interview of overseas detainees. This policy and the extent to which it had accurately addressed secondary liability under s.134 of the Criminal Justice Act 1988 (assisting torture), had been considered by the court in R v (Equality & Human Rights Commission) v Prime Minister [2012] 1 WLR 1389.  However, Moses LJ considered that the guidance illustrated the difficulty of attempting to transform difficult concepts such as the difference between knowledge, belief and suspicion into a written policy or court declaration.[42-5]

Ultimately, the court did not determine the question of whether GCHQ employees would have a defence of combatant immunity to criminal charges, given that “there is no risk they will ever be prosecuted and where the existence of facts likely to found a criminal charge is a matter of imaginative conjecture.”[46]

The only means of redress?

The Claimant accepted that there was no likelihood of prosecution and argued that a declaration would be the only way that the legality of passing intelligence to the US for use in drone strikes could be determined.  However, the court noted that GCHQ activities are monitored by parliamentary committees, with access to the “best advice” and that “an abstract declaration would be far less effective than the oversight of the Parliamentary Committee charged with ensuring, amongst other things, that legality does not give way to expediency.”[47-9]

Challenging a policy that is neither confirmed nor denied

A final hurdle facing the Claimant was the Defendant’s refusal to formally confirm if it did provided intelligence to the US for use in drone strikes, in accordance with its policy of neither confirming or denying such matters to protect national security. The question was whether this precluded the grant of permission, given the need to base the claim on a firm factual premise.  The court held that in this case the “mere assumption that targets are identified with the aid of intelligence from GCHQ” was not a sufficient factual basis for a declaration. [9-11; 35-6]

No judgment on actions of foreign state

Ultimately, the Court found that the real aim of this litigation was to persuade the court to make a public pronouncement condemning the activities of the US.  However, this was not one of the exceptional cases where the court was obliged to resolve a question of international law and judge the actions of another sovereign state.

A declaration from the court was inappropriate given the lack of a firm factual premise and that any judgment on the potential criminal involvement of UK intelligence services in US drone strikes as accessories would inevitably require a judgment on the culpability of the US as the perpetrators of the attacks. Ultimately, parliamentary committees tasked with monitoring GCHQ were best placed to consider any concerns about the dissemination of intelligence to the US for use in drone strikes.

The Claimant has indicated that he intends to appeal this judgment.

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