High court rejects challenge over UK link to drone strikes in PakistanOwen Bowcott |
A US Predator drone. Reprieve says drone strikes in Pakistan 'terrorise entire communities of innocent civilians in a country with which the UK is not at war'. Photograph: Kirsty Wigglesworth/AP
Drone strike victim's son to appeal against court's refusal to bar British officials from sharing targeting intelligence with US December 21 , 2012
A Pakistani man whose father was killed in a US drone strike has failed to persuade the UK courts that British officials should be prevented from sharing targeting intelligence with the CIA.
Noor Khan said he would appeal against the high court's refusal to issue a declaration that support for US drone operations over Pakistan may involve acts of assisting murder or even war crimes.
His landmark challenge, backed by the human rights organisation Reprieve and the solicitors Leigh Day, was based on reports that the government's signal intelligence centre, GCHQ, passes on information about the location of Taliban suspects to the CIA.
Khan's father, Malik Daud Khan, was killed on 17 March 2011, the court was told. He had been presiding over an outdoor meeting of local elders to settle a commercial dispute when a missile was fired from a drone. Altogether 49 people perished in the attack.
Martin Chamberlain, counsel for Khan, told the court that a newspaper article in 2010 reported that GCHQ was using telephone intercepts to provide the US authorities with locational intelligence on leading militants in Afghanistan and Pakistan. The report suggested that the Cheltenham-based agency was proud of this work, which was said to be "in strict accordance with the law".
In its judgment the high court noted: "By assisting US agents to direct armed attacks in Pakistan, GCHQ employees are said to be at risk of committing offences under the criminal law of England and Wales, as secondary parties to murder. The claimant submits that there is no armed conflict in Pakistan, as it is recognised under international law, still less an international armed conflict, and thus GCHQ employees are not entitled to combatant immunity.
"The response of the secretary of state has been to invoke the consistent and conventional policy of neither confirming nor denying the assertions; to do so would risk damaging the important public interest in preserving the confidentiality of national security and 'vital' relations with international partners."
The two judges, Lord Justice Moses and Mr Justice Simon, said the real purpose of the legal action was "to persuade a court to do what it can to stop further strikes by drones operated by the United States. In this country, however, that presents the claimant with a formidable difficulty. His legal advisers acknowledge, as they have to acknowledge, that they cannot seek from this court a declaration that the United States' drone strikes are unlawful. They recognise that a domestic court would refuse to make such a declaration.
"Since an employee [of GCHQ] is unlikely to be in a position to know whether or how intelligence is disseminated, no sensible guidance could possibly be given as to the circumstances when intelligence may lawfully be passed on and when it may not. Merely passing on intelligence could not amount to an offence under the Serious Crime Act 2007 unless a particular state of mind could be proved against the provider [at that time]. So how is the declaration to be drafted to have any meaningful utility?"
Leigh Day confirmed that Khan would appeal against the decision. He is also involved in a parallel case in Peshawar's high court asking the Pakistani government to disclose its involvement – if any – in the drone strikes.
Rosa Curling, of Leigh Day, who represents Khan, said: "We are disappointed that the court has decided not to engage in this very important issue, leaving our client no option but to appeal the decision.
"This claim raises very serious questions and issues about the UK's involvement in the CIA drone attacks in Pakistan. This case seeks to determine the legality of intelligence sharing in relation to GCHQ assistance in CIA drone strikes. Those providing such information could be commiting serious criminal offences, including conspiracy to murder."
Kat Craig, legal director of Reprieve, said: "CIA drone attacks in Pakistan terrorise entire communities of innocent civilians in a country with which the UK is not at war. By avoiding judicial scrutiny over drone attacks, combined with its ongoing attempts to push through secret courts, this government is showing a disturbing desire to put itself above the law. We should not be involved in secret, dirty wars, where civilian casualties are ignored or hushed up. If the government is supporting the CIA's campaign of drone strikes which are illegal, the British public have the right to know."
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