It’s been a really trying year

I saw the date approach in my calendar with a nostalgic reminder of the sense of loss I felt then. A year ago, I had landed back at Heathrow in a rush in the hours before the polls opened all across the then-united Kingdom, queuing with other European citizens in the European passports line, a little uncomfortable with the referendum being held in the first place, but otherwise confident. I walked passed several magazine and newspaper stands on my way out, glanced at issues celebrating an upcoming victory for the far-right: an “independence day”, according to Nigel Farage, “freedom” from an institution few understood as anything else but a regulatory body, and most of all, “control”.

Back in New York, expats and Americans alike kept asking for predictions. Of course, 2016 was the year I was constantly proven wrong: I was firmly convinced Donald Trump, for instance, would never win the Republican nomination. I knew Europe always journeyed through cyclical bursts of far-right approval. I wanted to be receptive to criticism of EU institutions – a pet peeve of mine are references to “the EU”, just like “the UN”, neither being homogenous entities – that I often emitted myself. I had been tested, like many Europhiles, by the Commission’s reaction to the refugee crisis. I had been in opposition to a secretive and adversarial EU Council, that Ian Dunt qualified as “shady”. But it was so painfully obvious to me, from the continent, that the Leave camp as lying, over and over again, that I felt confident the British public knew better. We had spent enough time correcting statements that a Brexit vote would mean a withdrawal from the ECHR for it to be understood.
Of all the things I hate (people calling Bushwick “East Williamsburg”, forgetting the h at the end of my first name, anything written by Alan Dershowitz): being wrong. Needless to say, June 23rd was not a good day.

I work in Strasbourg. It’s not Brussels, but close enough thanks to being another seat of the EU Parliament, that the shockwaves radiated all the way to the Rhine. My colleagues and I were at the office early that day, snacking, nervously drinking coffee and checking our phones. It’s not necessarily a strange scene for people working in counter-terrorism. But this vote was about something else. It was about dismantling something we all believed in, although with different degrees of devotion. We were, are, all Cold War kids, children of Mitterrand and Kohl, great-grandchildren of Verdun, Eurostar frequent passengers, some of us coming of age with the Good Friday Agreement, Erasmus-educated, border-hopping staffers. My reaction to Brexit continues to be bipolar. On one hand, I react to it as a lawyer, interpreting article 50, issuing concerns about the Northern Irish border, attacking the arrogance of a bespoke agreement with Europol. On the other hand, it feels deeply personal. It’s a betrayal of my identity, of one growing up thanks and through the European Project – an idea separate from the European Union, with the end goal being that the two should reconcile through democratic, progressive values, pro-immigration, pro-human rights, pro-workers’ rights, an evolution a political finger to De Gaulle and Thatcher and a legal assertion away from US exceptionalism.

I was given the opportunity to let my heart on my sleeve for the legal commentary blog Opinio Juris about Europe, the European Union, the European project, and the fears the referendum brought to light as a Northern Irish citizen. I still haven’t corrected the typos.

When the result was officially announced, my office fell quiet. Sure, the referendum was not legally binding. Sure, the margin was not significant enough to call it a political mandate. Sure, the question itself was vague enough not to give a time frame for withdrawal or how exactly the UK will divorce from the rest of us. There was barely time to grieve, really. Jean-Claude Juncker became aggressive, Donald Tusk chose the bleeding heart route, and all around me, lawyers were suddenly dragged in the spotlight, a place where we feel either really comfortable or really uncomfortable, having to respond to questions for which there was never supposed to be an answer at all. If anything, to me, the UK had entered a historic phase: as a long-time partner in the creation and construction of what would later become the European Union, a major player in its most destructive wars, and an unparalleled ally in security, seeing the island decide to float away on its own in the choppy, freezing waters in the North Sea and taking Northern Ireland with it was impossible to fathom. It wasn’t “control”. It was the sort of “freedom” that one can only achieve when they jump off a bridge, for a split second suspended outside of the laws of gravity, but inevitably about to hit the ground in free fall.

As lawyers, we then had to find a way out, a legal answer to a political question. Immediately, what came to mind was a simple truth, a statement of fact: it was not legally binding, so why do anything? But David Cameron had resigned, and “mandate” and “will of the people” became such imposing terms we outlined Article 50 for everyone else. Article 50 says nothing. It provides a time frame. I started writing a few paragraphs everyday, a mock-diary of post-referendum news coverage, that I titled “Weimar Britain”. Every morning, I would call the hour in GMT, list a few highlights of the absurd positions taken by Theresa May or Michael Gove the day before, mention if Juncker or Barnier had gone for a round of golf, and finish with the weather forecast, the last sentence being, “the UK is still in the European Union”. I did that for a few months, the ritual becoming quite popular in my circles, so convinced I was that Article 50 would never be triggered. It just was inconceivable to me. Repealing every EU provision in British common law? Alienating the country from security agreements at a time of heightened security threats? What was that constant logorrhea about a sovereignty that was never questioned nor eroded in the first place? Everything was baffling, incorrect at best, surreal most of the time. And then I was told, in December if I remember correctly, by a certain British journalist, that I was delusional if I believed Article 50 would never be triggered. A few months later, he was proven right, and I was once again proven wrong.

The otherwise excellent Remainiacs podcast, started a few weeks ago, used the term “trauma” to refer to the feeling many experienced in the aftermath of the referendum. I won’t use the term, because my field of work reserves it for a different type of experience. I will continue to say what I feel is loss: a sense of unity, that was never there in terms of EU-wide political consensus; a sense of togetherness, certainly not correct considering how many opt-outs the UK placed on many EU treaties; a sense of belonging, that never extended to many immigrants much like my parents. The European project remains an idea, but it is an idea I firmly believe can translate if we empower the Parliament to oppose the Commission more and if, really, the Council conducts its work in a less shady manner. The role of EU Courts, so often maligned by UK politicians, is paramount. Brexit will not affect the UK’s membership of the Council of Europe, and the country remains part of the ECHR, at least for now. But the days are numbered: leaving the EU was never about renegotiating trade agreements or “taking control” of agricultural regulations. It was about shutting down immigration, about refusing to implement ECJ rulings on civil liberties, about the immaturity and irresponsibility of removing one state from transnational regulations that provide for medical progress and housing safety, among other things. It was a vote not based on concern for the lack of reform in the EU: it was about misplaced and misunderstood British identity, that was placed as superior to other states, and perfectly capable of raising the flag of the Empire after centuries of outward progress.

It’s been a year. It’s been a year of we, in Belfast, Derry, Newry, Enniskillen, having to remind everyone that our region has always been fragile and precarious, that our peace process was ongoing and needed attention. It’s been a year of sharing and re-issuing reports compiled by EU officials on the dire effects of a EU withdrawal on devolved administrations. It’s been a year of my colleagues publishing paper after opinion on the impact of Brexit on the 1998 Good Friday Agreement. Mostly, it’s been a year of reading about the fear, anxiety, and panic at the prospect of the border being raised. Typing this, I found myself capitalizing the word – Border – out of habit. It’s not just any border; it’s a border that symbolized a civil war. It’s a fault line I had known my entire life and that I still shudder, even if it is now disembodied, whenever I ride what is now a commuter train between Dublin and Belfast. It’s a border we were told we were never going to see again, one that Theresa May apparently just found out about, one that Secretary of State James Brokenshire discusses to provide assurances of our safety but without the necessary presence or authority required by the position of neutrality the UK is supposed to hold. There is nothing neutral about Brexit and its complete lack of interest in Northern Ireland. And so, we are entering our sixth month without a government or a Speaker of the Assembly; Dublin finds itself having to be a buffer between London and Brussels while being the key player on the chessboard, without its consent, without it having a say in the referendum being carried out in the first place. Northern Ireland voted to stay, because, as I wrote at the time, it is survival for most of us. It is for many others across the Union.

It’s been a year and I’m swimming against the tide of colleagues and friends leaving the UK to head to the continent, where their legal status is ensured, where they will not be asked for a visa and where their children can stay with their parents: I am moving to London. As I flew back to Europe a few days ago, once again from New York, but this time into Switzerland, I realized my biggest privilege wasn’t the most obvious necessarily. It wasn’t my education that the EU subsidized. It wasn’t my safety from war that the EU launched and protected. It wasn’t my health coverage that the EU ensured and funded. It is my freedom of movement. It’s the two passports – I am a citizen of nowhere – I hold, two EU citizenships, two possibilities of fast-tracking at airports, two possibilities of visa waivers. One is a Schengen nationality, the other is a Common Travel Area one. European citizens are trading this freedom at quite a cost: first the Schengen Information System (SIS II) database, and the Passenger Name Record (PNR) agreement with the US. Those will need work, reform, scrutiny, checks. We have a Parliament, we have Courts. UK citizens may lose their freedom of movement. They may be restricted, suspended, will have to re-negotiate. Education, family life, work, internships, travel, tourism, experience, all of this is dangling off the edge of a cliff.

It’s been one year. Imagine. One year, and no answer.

Advertisements

The Long (Dirty) War

FullSizeRender

 

When counter-terrorism is fought as a proxy war, the scope of application of international law falls second to political legitimacy. The accountability of ground forces is debated in memorandums of understanding supposed to grant belligerent parties immunity. Counter-terrorism powers are extended domestically, diminishing the power of judicial authority and shrinking any attempt at a legislative check on the executive. Secrecy becomes a blanket under which no one can emerge nor breathe. If today’s speech at the General Assembly, coupled with John Kerry’s comment and the authorisation of strikes against ISIS are to be believed, we are continuing a war we can barely remember when it started.

The war against the unseen

The issue of defining one’s enemy in conflict – war, terrorism, insurgency – as “uncivilised” and “only understanding force” the way Obama did with ISIS at the General Assembly implies that jus ad bello not only will not be observed, but should not be observed. As the rule of law was intended to preserve order between nations – most of them empires – that understood each other’s objectives and used diplomacy as a tool of realpolitik, the current, modern wars are more repression than expansion; preemption rather than reaction; and displays of lethal use of force as a supposed deterrent. All of these concepts can be easily debunked by military strategists and political analysts. The problem being the application of international law as a two-tier system: the upper level demands UN sanctioned actions, briefings, arbitration and support; it concerns high stake multinational talks – the Iran deal, the Ukraine conflict – and fails to gain popular support, a people weary of the constant tension of the Cold War and the belief that it is now possible to avoid violence. Diplomacy in lieu of war is seen as a grown up, mature, respectful decision. In many respects, it is. But it only highlights the lack of concern for the lower level, which is othering insurgency, rejecting the cause of terrorism, and abolishing fundamental rights of occupied peoples. Those being addressed in the terms used by Obama will never benefit from the protection of a UN resolution, or perhaps an ex post facto one after it is universally acknowledged disaster is imminent (UNSC res. 1483); they will never face a “courteous enemy” using conventional weapons and registered troops; the territorial and chronological frontiers of this war won’t ever be set in legal stone. Those are wars of annihilation and of utmost control. Those are wars existing outside of the boundaries we set for ourselves over a hundred years ago, because the enemy is not us. The Geneva Convention can’t possibly have been written to fight barbaric terrorists, animals, sociopathic “death cults” roaming villages with M-16s stolen from western powers once arming the local forces. What the law creates is an order to preserve authority and save the political face; counter insurgency and counter terrorism are by political nature dirty. Those dirty wars, as they came to be known in South America in the 1970s, served as the basis to make current and potential insurgents understand their place: below the firepower and arrogant self-righteousness of western states contentedly engaging in state terror, but hiding it under the ubiquitous and semantic concept of existential threat. Semantic – because it’s substantially empty.

Armed Reaper drone belonging to the Royal Air Force being prepped at a RAF airbase in Afghanistan. (c) 2013 dronewars.net

The idea that the lawful conduct of war belongs to the civilized nation-state dates back to the Oxford Manual, a 1880 text following the very first Geneva Convention of 1864. The Preamble of the Oxford Manual presents war as an inevitability, a necessity, something that is impossible to avoid, therefore should be codified and regulated to minimize an idea of what’s needless blood spillage, and waste of human life and potential. Many critics have since derided the concept of a Just War. The Oxford Manual is not about peace; it is about setting limits and binding states to clear boundaries that would be otherwise penalised. If there is such a thing as civilised war, it is a legal concept; it is definitely not a political one, a difference with which Obama has become well acquainted. Per the Preamble,

War holds a great place in history, and it is not to be supposed that men will soon give it up — in spite of the protests which it arouses and the horror which it inspires — because it appears to be the only possible issue of disputes which threaten the existence of States, their liberty, their vital interests. But the gradual improvement in customs should be reflected in the method of conducting war. It is worthy of civilized nations to seek, as has been well said (Baron Jomini), “to restrain the destructive force of war, while recognizing its inexorable necessities”.(…) In fact so long as the demands of opinion remain indeterminate, belligerents are exposed to painful uncertainty and to endless accusations. A positive set of rules, on the contrary, if they are judicious, serves the interests of belligerents and is far from hindering them, since by preventing the unchaining of passion and savage instincts — which battle always awakens, as much as it awakens courage and manly virtues, — it strengthens the discipline which is the strength of armies; it also ennobles their patriotic mission in the eyes of the soldiers by keeping them within the limits of respect due to the rights of humanity.

A two-tier system doesn’t mean the conflict is necessarily disproportionate in terms of the violence inflicted by belligerent parties. But quotes such as this one – “America will be a respectful and constructive partner. We will neither tolerate terrorist safe-havens, nor act as an occupying power” indicates the creation of a blurred, dangerous zone of mingled politics in which the US will claim not to interfere with self-determination, while deciding – with various degrees of forced input – how said determination should be achieved. It isn’t defined per se by ancient standards of warfare. It isn’t marked by clear boundaries written in treaties. It has become acceptable that, not only counter terrorism belonged to the law of armed conflict – a concept convenient for the imperialist nature of foreign intervention – but that said armed conflict was to be governed outside of said laws, possibly justified legally ex post facto and often retroactively. In fact, counter terrorism belongs to the realm of domestic law and answers to the same jus gentium that has always existed. Unless, of course, the authorization for the use of military force has given way to a frustrated, exasperated and exhausted Special Rapporteur who, in March of this year, rhetorically asked the U.S. if international law had to be amended or perhaps rewritten to remove possible obstacle to whatever the U.S. believed should and could be done outside of their realm to answer a potential, hypothetical and hardly eventual “threat” to the nation.

So far, nothing. It is convenient and comfortable to act in a realm that is presented as new, and keep journalists, lawyers and commentators of all corners guessing. The more questions are raised and the less answers given, transatlantic executive powers are gaining in strength and unilateral authority. The leeway granted by their own approved lawyers is outstanding, but not unprecedented. It is shocking, mostly due to factors that should never be implemented simultaneously: the lack of transparency and the shortness of collective memory.

Inter armas silent leges

The first has proved to be the most impressive tool of war. Secrecy is as useful to an administration at war with an undefined and unlimited enemy as are Humvees and sol-air missiles. It has permeated every governmental agency; it has even kept the legislative at bay by relegating its members to a bottom-tiered personnel that shouldn’t be burdened with the nauseous details of military tribulations. It has created a domestic conflict between the executive and its fourth estate, to the extent of turning the latter into an enemy itself, subjected to the same punishment as those foreign threats. The state of hyper vigilance has become the state itself. It is inflated, overgrown, unkempt yet fearfully respected. To maintain appearances, the character of a “reluctant warrior” has been created to fit the era: authority and power no longer lie in the ability of going to war as it once did, but in the possibility that one might do so if they unilaterally decided it could. Ultimately, the result is the same: what is considered strong and worthy of respect can only translate into use of force. The old mechanisms of blood and iron that characterized the imperialist nature of Europe throughout the post-enlightenment centuries has once again covered the west in a blanket of fearful speeches and conservation of pseudo-democracy. Secrecy is only there to stop inquisitive eyes from realising little has changed since the Cold War. Secrecy is there so the horrors inflicted in the name of safety are never weighed against it, in case the people would decide their safety isn’t worth that much pain. Secrecy keeps everything at bay: human rights, democratic principle, popular consultation, and political normalcy, which is, the daily running of government in peacetime. Secrecy favors a permanent state of war. Because we hardly get to see those in theater deployment, we can only trust those in power and hope for the best. We can only speculate and go to bed hoping the elite is right.

In an article commenting Obama’s speech on September 10th authorizing air strikes against ISIS, Spencer Ackerman wrote:

In the space of a single primetime address on Wednesday night, Barack Obama dealt a crippling blow to a creaking, 40-year old effort to restore legislative primacy to American warmaking – a far easier adversary to vanquish than the Islamic State. Obama’s legal arguments for unilaterally expanding a war expected to last years have shocked even his supporters.

Ahead of Wednesday’s speech the White House signaled that Obama already “has the authority he needs to take action” against Isis without congressional approval. Obama said he would welcome congressional support but framed it as optional, save for the authorisations and the $500m he wants to use the US military to train Syrian rebels. Bipartisan congressional leaders who met with Obama at the White House on Tuesday expressed no outrage. (…)

Taken together with the congressional leadership’s shrug, Obama has stripped the veneer off a contemporary fact of American national security: presidents make war on their own, and congresses acquiesce. (…)

John Yoo, architect of the AUMF 2001, pagan servant to the god of Perpetual War

What’s considered questionable now, and still yet by what amounts to a fringe of commentators, has however been taken place for quite a while. It was fashionable, in the early stages of the Obama counter-terrorism strategy, to conflate legitimacy with legality, and consider lawful what was necessary – politically. It had become a fixture of American legal commentary to justify overinflated use of executive power for the simple reason that in times of war, the President ought to have the authority to do what it takes to protect the realm – a concept that is easily politically understood, but just as easily judicially curbed for all history tried to teach mankind since the dawn of empires. Because counter-terrorism powers are by nature an exaggerated version of normalcy, they are meant to be limited both in scope (subjected to judicial and legislative review) and in time (there is no such thing as a permanent derogation). Arguing counter-terrorism under law of armed conflict belongs to another more detailed and more focused article; but in short, in extends war time powers – limited only in time by military strategy – to what should and ought to be confined for the preservation of the rule of law and democratic principle. Because a terror threat is elusive and can take place at any time, this is arguing in favor of human rights law derogation as a permanence. The only possible review we could hope for are the limitations of international humanitarian law, often finding themselves violated before it even reaches our eyes and ears.

Same Preamble to the Oxford Manual quoted above continues in the same vein; arguing that the universality of what would become customary international humanitarian law must be agreed upon so all are bound by the same rules. By creating coalitions outside of international organisations created specifically for that purpose, or seeking the help of local governments far from acquiescing to any sort of human rights order but motivated by gaining the spoils of war, the idea of proxy intervention for a threat neither imminent nor existential removes the guarantees of jus ad bello, in which the peoples suffering from the strikes and those suffering from having to support those strikes would be somewhat protected. There is no telling when and where the strikes would begin nor end; we will be told what the executive will tell, and rely on those with security clearance to provide information, provided they do want to do so.

But in order to attain this end it is not sufficient for sovereigns to promulgate new laws. It is essential, too, that they make these laws known among all people, so that when a war is declared, the men called upon to take up arms to defend the causes of the belligerent States, may be thoroughly impregnated with the special rights and duties attached to the execution of such a command.

When it comes to making the rules “known among all people”, the issue of secrecy becomes paramount to ensure relative support for the use of force. Chelsea Manning, the whistleblower enduring a 35-year prison sentence after years in solitary confinement for having revealed information relative to the Iraq and Afghanistan war that the government deemed not appropriate for the general public, raised her hand in the days before the strikes to doubt the presidential strategy.

I believe that Isis is fueled precisely by the operational and tactical successes of European and American military force that would be – and have been – used to defeat them. I believe that Isis strategically feeds off the mistakes and vulnerabilities of the very democratic western states they decry. The Islamic State’s center of gravity is, in many ways, the United States, the United Kingdom and those aligned with them in the region. When it comes to regional insurgency with global implications, Isis leaders are canny strategists. It’s clear to me that they have a solid and complete understanding of the strengths and, more importantly, the weaknesses of the west. They know how we tick in America and Europe – and they know what pushes us toward intervention and overreach. This understanding is particularly clear considering the Islamic State’s astonishing success in recruiting numbers of Americans, Britons, Belgians, Danes and other Europeans in their call to arms.

Terrorism is meant to scare. It is meant to paralyse, to halt, to stall the course of daily political, social and legal activities. It is intentionally disruptive. By rooting itself into a refusal of the so-called “values” – a very much subjective concept that is more moral than ethical and doomed to fail in times of political instability – of a given state or alliance of states, terrorist groups succeed in recruiting those marginalised by those states. Ethnic minorities, targeted political groups, disenfranchised social categories are all susceptible to join the ranks of the disruption by violence. Most importantly, terrorism never happens in a vacuum. It is a reaction to a state of affairs. By provoking the West in an appalling, repellant, barbaric and bloodthirsty way – the beheadings of James Foley and Steven Sotloff are stomach-churning – ISIS is calling onto the West to face a monster it is worried it has created. And it might as well have: intelligence agencies from both sides of the Atlantic are trying to assess how many of their own nationals are currently fighting along side the pseudo caliphate in Iraq and in Syria. Hysteria has now corrupted the West to the point that presumptions of guilt are being discussed, confiscation of passports are frequent, and fruitless police raids are conducted under the pretense it is keeping us safe.

President Barack Obama, accepting his Nobel Peace Prize in 2009.

Yet we become a failed state. We become a state that is so at war within itself and within those dissenting with the policy, the value, the belief, the ingrained doctrine, the political spectrum that we fight fire with fire, and we wage war in a way that is unlikely to end, because the violence is fed through this action. Calling on the illegality of the strikes on Syria is a step forward to restore accountability, but it might be too late. The framework for evading Congressional support or constitutionality of action has been set in motion a while ago, and we have internalised the terror, from both ISIS and the state; the fear, from both ISIS and the state; the violence, the surveillance, the torture, the raids, the political fire drills, the defense budgets and the ever so frequent NATO meetings. Gregory Johnsen tracked down the precedence for this politics of use of force as a default setting, an emotional knee-jerk reaction against something we can barely name and have no information on.

This is about prevention and preemption, exactly the sort of thing that candidate Obama said presidents were not authorized to do without congressional approval. But Congress seems to have little desire to vote on military action ahead of midterm elections in November, and, after last year’s confused approach to military strikes in Syria, Obama seems to have just as little interest in asking permission. Instead, whether out of expediency or outlook, he appears to have altered his views on constitutional power, and in doing so found himself relying on the same theories he once criticized. (…) In an apparent attempt to elide some of these inconsistencies in constitutional interpretation, the White House is also considering what amounts to a backdoor authorization that, according to the New York Times, would have Congress appropriate money for Obama’s military plans. A sort of gentleman’s agreement that gets around direct congressional authorization, the plan would allow for deniability on both sides. Obama could claim he has congressional authorization without ever asking for a vote, while Congress could signal its support without individual members being forced to take a stand. President Bill Clinton retroactively used a similar maneuver in 1999 for airstrikes in Kosovo.

Militarism was never the sole component of imperialism. It involved egotism on the part of the power-hungry elites; it demanded silence and acquiescence from the press and authors; it requested the life of sons and the submission of daughters. Terrorism is not a new threat. It was never born with 9/11 and will not end once ISIS is over and done with. The counter-terrorism laws devised by the United Kingdom to keep the Irish insurgency under its boot has expanded to the point it can hardly be stopped. The framework is that military action shouldn’t be authorized without legislative approval and without knowledge of an imminent threat. In the last decade, intelligence has been manufactured, and constitutions have been bypassed. At the time this is being written, the UK Parliament is about to be recalled to discuss their own involvement in Syria. Looking at a globe right now is staring at a million red flashes of emerging and ongoing conflicts. This is the real security threat that is menacing global safety: the blatant insecurity of a power that doesn’t know how to restrict itself. If politics are a discipline of control, counter-terrorism is an exercise in restraint and strategy. Granting extensive counter-terrorism powers and planting it on the throne of war is unleashing a force that will take years to be restrained again.

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.