Legal challenge to UK support to US drone programme

About the author(s):

Katharine Fortin

Katharine Fortin is an Associate Professor at Utrecht University where she teaches IHL and IHRL. Before joining Utrecht University, she worked at the ICTY, ICC and Norton Rose Fulbright. She is the author of The Accountability of Armed Groups under Human Rights Law (Oxford University Press, 2017) which won the 2018 Lieber Prize. She has written widely about the framework of law that applies to armed groups in non-international armed conflicts and is one of the editors of the Armed Groups and International Law blog.

An interesting case is being heard in the English courts this week. The claimant is Noor Khan, a Pakistani man whose father was killed by a drone attack in North Waziristan in March 2011. The lawyers for Mr Khan are arguing that the passing of information by British intelligence agency GCHQ to the Americans running the drone operation, constitutes a serious criminal offence, namely the aiding and abetting of murder, a war crime or a crime against humanity.  The case comes in the same week as the UK government has announced that it is doubling the number of drones flying combat missions in Afghanistan. 

The case is definitely one to watch, as the court will presumably have no choice but to address some of the many of the questions which have been endlessly debated in academic fora about the legality of US’s drone programme in Pakistan. 

For a start, the court will have to consider the legality of the drone attacks under international law. In doing so, it will consider the US government’s argument that it is carrying out drone attacks as a matter of self defence.  It will also have to consider whether international humanitarian law applies to the attacks. This will require a consideration of whether the combination of the violence and actors make the situation an international armed conflict or a non-international armed conflict. None of these questions are easy, as a matter of fact or law. 

If the court is satisfied that the drone attacks are taking place in the context of an armed conflict, it will then have to go on to consider whether the attack which killed Mr Khan’s father was a breach of international humanitarian law. To answer this question, the court will probably be forced to conduct an examination of the ‘status’ of Mr Khan’s father or the people that he was with when he died. The fact that Mr Khan himself may have had no connection to the militant group will not prevent his death being legal under international humanitarian law, if it was found to be incidental to the targeting of a primary military objective. 

This will lead the court to another contentious area of debate. If we assume for the point of argument – although this finding is by no means clear – that the court finds (i) that the attack took place in the context of a non-international armed conflict between the US and the militant group and (ii) that the attack in question was directed against individuals who participated in that militant group – the court will have to consider the legality of the US government’s targeting policy towards such individuals. This will presumably take the legal arguments to the heart of the direct participation in hostilities debate: Should such militants be treated as civilians who can only be targeted when they are directly participating in hostilities? Or do individuals who play a role in an insurgency forego their civilian status, by virtue of their ‘membership’ of the armed group in question and their continuous fighting function? The court will also have to consider some difficult points of fact: What was Mr Khan’s relationship with the armed group? What was Mr Khan doing when he died? These are difficult factual questions to get any certainty on, especially considering the remote, mountainous region in which the attack occurred.  

If the court is satisfied that a war crime has taken place, the court will then have consider whether the facts point towards the UK agents bearing accomplice liability. For this to be the case, the court would have to be satisfied that the information passed to the US by GCHQ had had a ‘substantial effect’ on the commission of the crime by the US principal. It would also have to be proved that GCHQ knew that its provision of information assisted the US in its commission of the war crime in question. Depending on whether the court adopts the definition of aiding and abetting in the Rome Statute, the court may also have to be satisfied the GCHQ employees passed the information to the US “for the purpose of facilitating the commission of the crime”. This is the standard of intent required by Article 25(3)(c) of the Rome Statute, but it is notably higher than the mens rea for aiding and abetting that has been applied at the international criminal tribunals which only require knowledge. Relevant to this discussion would be the extent to which GCHQ was aware of the US’s targeting policy and whether or not it considered that targeting policy to be in accordance with law. 

If the court is not satisfied that international humanitarian law applies to the situation in North Waziristan, it may be confronted with the equally tricky question of whether international human rights law can apply to aerial attacks abroad. While this argument was rejected by the European Court of Human Rights in the Bankovic case, the judgement in the Al Skeini  case may have opened the door for more success on this point with its statement that a “State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of that individual”.   

So, it is clear that the case raises lots of tricky questions of international law which have been much debated in academic circles and the blogosphere. It will be refreshing to see them being addressed in a judicial forum, if that is what happens. My own fear is that there may be no such analysis – or perhaps worse, muddled analysis – and international lawyers will be left disappointed with the result. My caution about this, is prompted by an apparent statement from foreign secretary, William Hague’s lawyers that it would prejudicial to the national interest for them to explain the legal framework that the government applies to Pakistan. One wonders what the UK government’s pleadings will look like, if this is really the case. 

But another reason for caution is that it is not at all clear how Mr Khan is going to argue in the case. Indeed, the short summary of the argument provided online points to a number of inconsistencies and anomalies that may make the resulting analysis confused. The first point to note in this regard is that in arguing that the death of Mr Khan was a ‘war crime’, Mr Khan’s lawyers will have to argue that there is an armed conflict in Pakistan. While one can understand their wish to secure justice for their client and a designation of the death of his father as a ‘criminal act’ under international law, one wonders if such a designation of the situation would be in the broader interest of the citizens of North Waziristan. Because if there is a non-international armed conflict in North Waziristan between the US and the militant group, this makes the US government’s targeting of militant individuals in that area more likely to be lawful under international humanitaian law. Although there is no explicit ‘right’ to target un-protected persons in the international humanitarian law framework, such a right under international law is surely explicit in the principle of distinction and basic rule that you cannot target civilians. If it is found that there is not an armed conflict in North Waziristan – and in my view there are very strong arguments to say that there is not – it is arguable that the higher standards on the use of force of human rights law will apply, and the attacks will – in almost every instance – be unlawful. 

Having said that, it remains unclear what the claimants will argue on this point. In the summary of their argument linked above, they apparently argue that there is no armed conflict in North Waziristan. Yet if this is so, they will have a definite problem achieving their stated aim of securing a conviction for ‘war crimes’. As Dapo Akande stated in an earlier EJILtalk blog post on this case: “Without an armed conflict, IHL does not apply and there can be no war crimes!” 

Another seeming confusion is the claimant’s arguments on combatant immunity. This has been addressed at length by Dapo Akande in his post on EJILtalk (see link for his analysis) so I don’t want to go into it in any depth here. Essentially, the confusion seems to stem from the claimants’ argument that GCHQ employees can be prosecuted under domestic law because they do not have combatant immunity under international law, because there is no armed conflict. 

The first point to note is that the mere fact of a non-combatant participating in hostilities does not give rise to criminal liability under international law (see Dapo Akande’s analysis of this). A further point to note is the mere fact that a combatant has combatant immunity under international humanitarian law, does not mean that he cannot be convicted for war crimes. 

But if there is no armed conflict – as the claimants apparently argue – I cannot see why discussions of combatant immunity are relevant at all. In the absence of an armed conflict, the only question to answer is whether the GCHQ agents have breached domestic law (or international human rights law – see above) by facilitating the murder by a third State of individuals abroad. And here the issues discussed at the end of Dapo Akande’s post become relevant, including the pertinent question: can one be prosecuted in the UK for aiding and abetting a principal which has committed a crime in a third State?