Lethal allies: Khan v Secretary of State

As we tend to focus on the extraordinary feats of the International Criminal Court and somehow seek to enhance its legitimacy to trial war crimes, even in abstentia, we often lose sight of the fact that domestic courts are usually called in first instance to investigate, hear and sentence crimes committed by or against nationals. However, because internal processes are hardly reported in their entirety or are shrouded in secrecy, the ongoings of the rule of law in counter-terrorism proves to be tricky to address, and even trickier to make sense of. Sometimes, cases speak for themselves; this is the case of the Divisional Court on Appeal of the High Court of Justice this week, whose decision to refuse to permit appeal on the Noor Khan v Secretary of State,  highlights, outlines and emphasizes the inability to access political decisions surrounding the War on Terror. Why this decision has somehow fallen into deaf ears seems strange given the claims made and consequences for current questions of accountability of the United Kingdom in its worldwide counter-terrorism practices. Moreover, this raises the question of the accountability of the United States, the extent of the collusion being so deep it has permeated every level of counter terrorism operations (surveillance, intelligence, and ‘combat’).

Martin Chamberlain QC represents Noor Khan, the appellant, and an old friend – James Eadie QC, whom we were introduced to during Hassan v United Kingdom at the European Court of Human Rights – once again represents the Secretary of State, in yet another case in which collusion with the United States forms the basis of criminal accountability.

From a rally against drone strikes in Pakistan, October 2012

Facts of the case

Noor Khan comes from Miranshah, in the North Waziristan province of Pakistan. His father was a tribal elder, a member of the local Jirga, whose attributions are of legal and social order. On March  17, 2010, as his father was sitting outside holding a meeting with other elders of the province, a drone strike hit the area, killing 40 people, including Noor Khan’s father. Drone strikes, as of the time of the case and the time of this decision, are operated by the CIA. The process of intelligence gathering leading to a possible strike are not only a matter of United States intelligence, but it has also been reported in several media outlets, contemporaneously, that British surveillance firm GCHQ, operating under the British Secretary of State, was not only collecting intelligence in matters of the United States’ “War on Terror”, but collaborating with the US. GCHQ was sharing locanational data with the CIA, data from which the CIA determined which targets to hit.

On December 16, 2011, attorneys for Noor Khan wrote directly to the Secretary of State seeking clarification on GCHQ activities, especially in matters of facilitating CIA targeting and killing of suspected and alleged militants – often civilians – in Waziristan. Two months later, the Treasury Solicitor replied that regardless of the supposed gravity of the case, it would not derogate to the traditional “neither confirm nor deny” response given in those circumstances; disclosing GCHQ activities and their relation to CIA activities would “risk damaging important public interests, including national security and vital relations with international partners“. That line of defense – maintaining national security interests and the absolute, utmost and superior foreign relations between the UK and the United States – has permitted the refusal to appeal in the Divisional Court.

That Noor Khan’s father was a civilian, that collusion is a serious crime, and that the UK is responsible for indirect involvement in the grave breaches of human rights in the course of the “War on Terror” has not been found to constitute “extraordinary circumstances” in which the Court would hear a case relative to acts committed by UK nationals in a UK-supervised and UK-authorized operation of intelligence.

the absolutely-not-scary bird’s eye view of the GCHQ headquarters in Cheltenham, England

First attempt at recognition in a UK court of law

It is important to first state that Noor Khan and his solicitors have first called for a judicial review of the procedures under which GCHQ was operating in Pakistan; in that, not only was the Secretary of State not empowered with granting authorization to pass intelligence onto the CIA, but that in doing so, knowing full well the intent of the CIA in regards to that information, GCHQ would hereby facilitate the commission of war crimes or crimes against humanity. Due to the highly secretive nature of GCHQ operations, his solicitors also made a request for transparency – asking for the Secretary of State to not only formulate a lawful way to do so, if such was the way in which the UK wished to cooperate in matters of intelligence, but also publish the relevant circumstances. A week before this hearing, the Secretary of State emitted concern regarding the sensitive – understand: classified – nature of the elements discussed in front of the Divisional Court. It filed a public interest immunity (“PII”), which has the effect of not disclosing, even in the name of public interest, information gathered within the annexes of the case. One of the annexes contains a statement made by Paul Morrison, the former Head of the Counter-Terrorism Department at the time of the events of the case.  This is neither random nor casual – the decision to ask for full disclosure in matters of intelligence abroad and collaboration with the War on Terror waged by the transatlantic cousins has long been an issue of contention among public interest and human rights attorneys in the UK, fighting the issue of national security as much as possibly can in an effort to reveal to the public the real activities of GCHQ… which were eventually brought to light thanks to the Snowden leaks. This battle is not won, but has succeeded a couple of times. Revelation of this case is one of the instances in which it appears clear to us that the public interest lies in knowing that the UK government is participating in criminal activities in what it believes or assumes is a “vital foreign relation” with the United States.

The Divisional Court did not see it necessary to consider non-disclosure. It dismissed the claim for judicial review on December 21, 2012.

The claimant then reformulated to please the Court, keeping however in mind that the crux of the case lied within the tied responsibility of the UK in the commission of war crimes by the US; and that the difficulty would arise when the UK Court would find no jurisdiction nor discretion to judge the lawfulness of the US actions in Pakistan. In the reformulation, and the instruments used, is a skilful yet slightly warped intention by Martin Chamberlain QC to attempt to bring to the Court the facts of the GCHQ activities by themselves, and the danger they posed by themselves, without forcing the Court to examine the direct implications created by the CIA and therefore the United States. This delicate game of chess would then lead in the deposition and conclusion to a counter terrorism version of Alice in Wonderland in which the wonderland is filled by the dead bodies of civilians never indicted nor even allowed to make a case, where Alice would be a civilian attempting to reach for accountability in democratic societies supposedly upholding the rule of law, domestically and internationally, yet the Cheshire Cat of United States’ national security hovered over the distraught heads of those still holding onto the International Crimes Act of 2001. Reading this decision is falling down the rabbit hole of the unbelievable denial of representatives of the United Kingdom that not only is a context that the court refuses to address, at least under public admission, but that relations with the United States have to be preserved, at all costs. All. Costs.

A graph from PBS showing localisation of drone strike and approval rates by country. 44% of the UK population polled by Pew in 2012 would approve of US drone strikes.

Domestic instrument: the Serious Crime Act of 2007

When it comes to submitting a criminal claim committed by a UK national and its UK authority / leadership in a UK court, resort to domestic law is not only paramount, but in the international counter terrorism context, important to reiterate that domestic law in fact does bear provisions that allows alleged and suspected war crimes to be heard in domestic courts. It is only in its failure to do so that supranational (in the case of the UK, European) and international jurisdiction mechanisms can be implemented. Luckily, the Serious Crime Act of 2007, Section 44 contains what the claimant alleges was GCHQ activities: aiding and abating crime. (respectively, 44 “intentionally encouraging or assisting an offence”; 45, “encouraging or assisting an offence believing it will be committed; 46, “encouraging or assisting offences believing one or more will be committed.”) As those sections deal with actus reus, it is possible that, under the SCA 2007, a person might be found not guilty of the offence in question (section 50, Part 2) if he acted reasonably.

Professor Michael Clarke, director-general of military think tank Rusi, told Parliament in a session that it was “little doubt” GCHQ had passed off intelligence to the CIA.

The integration of information operations and sharing means that of course we share information. It would be very hard to say that the information that we share about people of interest isn’t used for a drone strike.

According to The Bureau of Investigative Journalism, which has been documenting the damages of the drone wars in Pakistan, Yemen and Somalia, the estimates of casualties due to drone strikes in Pakistan are between 2,537 and 3,646 since 2004, for a total of 381 strikes (330 under Obama, elected two years before the strike that killed Khan’s father). Those numbers, it appears, would make the assumption that passing off intelligence to the CIA is unreasonable.

Debating the war on terror: defining terror, war, combatant, immunity, and conflict

This is precisely the point where the Court’s decision starts burying itself into a sinkhole of head-shaking, refusal to consider a drone strike as murder.

In my view, a finding by our Court that the notional UK operator of a drone bomb which caused a death was guilty of murder would be understood – and rightly undersood – by the US as a condemnation of the US.

Note the use of the conditional tense.

In an attempt to what could appear to appease the Court, Chamberlain finds himself in the position of arguing there is, in fact, no “war on terror” as is always politically argued – that the issue of the conflict between the United States and Pakistan is of a whole different nature. Arguing Khan’s case without mentioning the serious breaches of international criminal law committed by the US is nothing short of a mental game of chess in which all of the pawns have to be sacrificed to the altar of political pandering. The Court will refuse in all matters possible – legitimately, jurisdiction, and less legitimately, criticism – to consider, even contextually, that the CIA drone strikes are unlawful under international law. It was a question of tip-toeing around the issue as much as legally possible whilst still assessing the gravity of GCHQ collusion.

Anticipating a possible line of defence by the Respondent to call combatant immunity for GCHQ operatives working and cooperating with the CIA on drone strikes, Chamberlain then proceeds to describe what seems to be a denial of the War on Terror, but actually is a perfectly logical and rational denunciation of said War on Terror;  a reasonable claim that none of these facts could possibly exist in a democratic society abiding by the rules of criminal justice abroad and at home, following the regulations of warfare if such a conflict became an international armed conflict, and human rights law. Chamberlain explains why it would be impossible – reading, impossible to admit – a defence of combatant immunity:

First, CIA officials are not members of the US armed forces and GCHQ officials are not members of the UK’s armed forces. They cannot, therefore, be combatants. Secondly, it has never been suggested that there is an armed conflict with Pakistan. In so far as it is suggested that there is an armed conflict with Al-Qaeda taking place in Afghanistan and elsewhere, that is wrong because a) Al-Qaeda is not a sufficiently coherent grouping to be capable of being a party to an armed conflict; and b) the acts of violence with which Al-Qaeda is associated are too sporadic to reach the threshold of violence required to establish the existence of an armed conflict. Thirdly, if there is an armed conflict in Pakistan between the US and those who are targeted by the drone strikes, it is of a non-international nature.

End scene.

Eadie treads lightly. He doesn’t want to deny the fact that there is a context of conflict in which the issue of whether or not an intelligence agent constitutes a combatant – and is therefore eligible to the defence of combatant immunity – is “fact-sensitive”. He will even go as far as saying that “this is a factor of great importance”. But it’s clearly not enough. The Lords expressed that it was “unnecessary to express a concluded view”. It appears as though this “factor of great importance” ought to be discussed in the eyes of both Eadie and the Court, but preferably not in a court of law, and definitely not on public record.

January 2011: Pakistani tribesmen march against drones in Miranshah, the town where Noor Khan’s father was killed. (Global Post/AFP/Getty)

Chamberlain accepts that all manners of defence could be taken under Section 44 and following of the Serious Crime Act 2007. He also accepts that individual responsibility of GCHQ officials would require the satisfaction of mens rea and could hereby be dismissed on the claim that said official would simply follow a policy. The applicant however insists that the lawfulness of GCHQ’s collusion with the CIA is in question. Problem is, it is impossible to insist that indirect responsibility can be raised for a war crime unless said war crime is acknowledged as such. In this regard, the Court could be within its rights in matters of jurisdiction and discretion in sitting against judging the policies of the United States. It appears, however, that the issue of jurisdiction, although described in a page and a half, is secondary to the Divisional Court. What was mentioned and what seemed to have motivated the dismissal is political, and is, of course, tied to this ethereal, evanescent yet ubiquitous national security – this national security that justifies a PII claim, that justifies refusing to acknowledge criminal activity by an allied state, that national security that authorized, extra-constitutionally, criminal activities by GCHQ officials.

In the secondary claim made by the claimant, which refers to international humanitarian law; more specifically, section 52 of the International Criminal Court Act of 2001, crimes committed outside of a domestic court’s jurisdiction. Section 52 refers to the criminal act as being an ancillary offence if being committed outside of England and Wales, yet still amounting to a crime against humanity. Schedule 8, article 8 (2) (c) (i) defines crimes against humanity as such:

In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placedhors de combat by sickness, wounds, detention or any other cause:

(i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

The claim made by the Respondent regarding the jurisdiction of the Court and its limited scope following the US Supreme Court decision Underhill v Hernandez – “and the courts of one country will not sit in judgement on the acts of the government of another done within its own territory” – is impossible to detach from the facts of the case. Asserting knowledge of a war crime on the part of GCHQ officials acting on behalf of the Crown leads to the denunciation of those drone strikes as being in violation of the Geneva Convention and the International Criminal Court Act of 2001; the targets being civilians, and not “alleged militants” as often declared by NATO officials.  Although the Underhill ruling is impossible to overturn in international law, as state sovereignty is a governing principle, comes the permanent, overbearing, overwhelming and absolutely inevitable exceptionalism of the situation. This is a grave, serious breach of human rights law and international criminal law. Chamberlain maintains that his injunction for relief is based on the fact that CIA actions are committed by UK nationals, which makes their actions unlawful under English law. The very thin line to walk between international jurisprudence on never sitting on the legality of another state’s actions and ruling clearly on acts committed on behalf of said state seems clear to Chamberlain. It also seems clear that international human rights law imperatives ought to be addressed within the Court. It appears incumbent to the United Kingdom to declare the fact of GCHQ collusion with CIA-operated drone strikes an offence so serious, defined and authorized under cloak of secrecy, that the judicial branch fell under duty to address it.

James Eadie QC, solicitor for the Respondent, who himself recognized that the issue of crimes committed by the CIA were “a factor of great importance”

The judicial branch and executive authority: a Court decision upholding that “the law is bound to diplomacy”

Paul Morrison, the former head of the Counter-Terrorism branch, gave testimony in an annex that the Respondent initially sought to classify. The Lords maintained they would have reached the same conclusion even without Mr. Morrison’s addendum, but it bears repeating that the issue in this case was not one of simple jurisdiction, but a matter of discretion in addressing war crimes committed under counter-terrorism actions. His statement indicates that not only would the Court hear Mr. Khan in defiance of national security, but that said security is held in high regard by the United States, and therefore this relationship must be preserved for the good standing, tenure and safety of the United Kingdom:

… The UK’s bilateral relationships with the US and Pakistan are critical to the UK’s national security as they are both key partners in efforts to combat the very real threat of terrorism faced by the citizens of all three countries. A key feature in international relations is that law, politics and diplomacy are bound together and the assertion of legal arguments by a state is often regarded as a political act. The UK’s international alliances could be damaged by the assertion of arguments under international law which might affect the position of those states. (…) Whatever the findings of the Court (…) (they) are liable to complicate the UK’s bilateral relations with both the US and Pakistan, and there is a clear risk of damage to essential UK interests.

The argument advanced by Mr. Morrison is nothing new and has been a major obstacle in the rule of law between nations since Westphalia. The concept of strict legality versus transcendent legality has been well-addressed by Gerry Simpson, who illustrated the issue in a comprehensive way (1), understanding the complex mechanisms between the somewhat absolutist position of the supranational, suprapolitical, and overarching rule of international law, and impossibility to remove diplomatic protocols, transnational agreements, and local and international politics from a position in which one state’s actions are deemed a war crime by another, or a conflation of, states.

A standard position  emerges from all this that seeks to implicate something called ‘politics’  in the ruination or compromise of something called ‘law’. A just and meaningful international criminal order could only then be created by cleansing the system of political influence. When politics interfere with judging, then politics must be swept aside.  (…) For ‘realists’ like Hankey and Kissinger, war crimes trials are bad politics. Generally, such pragmatists are hostile to the idea of applying principles of justice at the international level. (…) There is no over-arching and trumping justice in the international system that would override these concerns. (…) The certainty of criminal law must give way to the subtleties of diplomacy.

However, in this particular case, the United Kingdom is refusing to grant relief on actions that are clearly demonstrated as grave breaches of the Geneva Convention – actions that were committed by UK nationals within a corporation acting on behalf of the UK government in collusion with a foreign state directly committing these violations. The United Kingdom would not simply sit on the acts committed by the CIA, let alone rule on them, but would hear, investigate, inquire and judge the actions of GCHQ officials. By placing the interests of its relationship with the United States and their bilateral work on intelligence gathering above the lawfulness of UK agents’ actions, the UK is somewhat granting immunity to GCHQ officials, arguing they are simply respecting the agreements between the UK and the US.

If Simpson is correct, and refusing to address the issue of politics in international criminal law amounts to strict legalism, there is perhaps an interest in using the rule of international law as an instrument of measure against the failure of the state to operate with, by and through lawful, transparent means. Chamberlain reiterated a few times that should the actions of GCHQ officials be found lawful under English law, then the Respondent should not see any issue in publishing the authorization and actions in the name of public interest. GCHQ agents would be gathering data, as ordered, and passing it on to the CIA, as ordered, unbeknownst to them that the CIA is operating those drones – outside of the usual Department of Defence military action scope – and directing them against civilians in Pakistan (as well as  Yemen, Somalia, and Afghanistan) suffering military action that typically does not fall under military and hereby congressional review. The United Kingdom, in assisting the CIA, finds itself in the same position of operating extrajudicially in order to achieve a means to an end that is somewhat unclear.

On December 5, 2013, Ben Emmerson – UN Special Rapporteur on Human Rights while Countering Terrorism – told the UK Parliament that the UK complicity on US drone strikes was “inevitable”.

There’s a reasonable presumption that the provision of information or sharing of information makes us complicit in an American policy.

Complicity implies responsibility. As per the International Criminal Tribunal for Yugoslavia (ICTY, in Tadic): “responsibility for a crime other than the one agreed upon  in the common plan arises only if, under the circumstances of the case, it was foreseeable that such a crime be perpetrated  by one or other members of the group and the accused willingly took that risk.” (para. 228) If GCHQ agents wish to bring forward a common defence they were left ignorant of the actions the CIA would undertake with the intelligence they helped gather, they should be invited to do so in a court of law. Aside from the politics of assisting the United States in the unfathomable concept that is the War on Terror.

(1) Simpson, Gerry. Law, War & Crime. Polity Press, 2007.

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