The Court of Appeal (CoA) has thrown out a claim challenging the legality of British involvement in US drone strikes because any judgment would be a condemnation of US foreign policy.
Master of the Rolls Lord Dyson, Lord Justices Laws and Elias said that they could not determine whether UK officials’ role in aiding drone strikes amounted to “encouraging or assisting murder” because that judgment would impugn sovereign US acts.
The appeal was brought by Noor Khan, a resident of Waziristan, whose father was one of 40 killed in a drone strike in 2011. His first claim was dismissed in December 2012 (21 December 2012) but Khan was granted an appeal.
Brick Court Chambers’ silk Martin Chamberlain QC, representing Khan at the CoA, argued that the UK’s reported practice of providing locational intelligence for strikes was unlawful because it was contrary to the Serious Crime Act 2007. Khan instructed Leigh Day partner Richard Stein and lawyer Rosa Cerling.
He faced off against a team of silks including Blackstone Chambers’ James Eadie QC, 1 Hare Court’s Andrew Edis QC and Essex Court Chambers’ Malcolm Shaw QC. They were instructed by Treasury Solicitor Piers Doggart.
Chamberlain argued that UK intelligence officers should be found liable for “soliciting, encouraging, persuading or proposing a murder…or for aiding, abetting, counselling or procuring murder”. As there is currently no official “armed conflict” in Pakistan according to interniational law, he contended that UK officers should not be able to rely on the defence of combatant immunity.
He added that even if the principle act was committed by a CIA officer who was not a UK national, the UK would be liable under schedule 4 of the Serious Crime Act.
The ruling said Chamberlain’s arguments were persuasive and that it was “certainly not clear that a defence of combatant immunity would apply”.
But in a judgment with implications for ruling on UK activity in global conflicts, the judges refused to adjudicate the case due to the risk of criticising the US. The court found the case was not justiciable because to rule on the actions of GCHQ officials would constitute a threat to the independence of sovereign states.
Dyson MR said: “Mr James Eadie QC in a careful and cogent series of submissions argues that, even if Mr Chamberlain’s construction of the 2007 Act is correct, there are powerful reasons why the court should refuse permission in this case.”
Quoting from Underhill v Hernandez, he said: “Every sovereign state is bound to respect the independence of every other sovereign state and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory.”
Even though Chamberlain said he was not asking the courts to adjudicate over whether or not a CIA official executing a drone strike was guilty of murder, the court decided that proving secondary guilt by GCHQ officials depended on proving primary guilt by the US.
Chamberlain was commended by Dyson MR for arguing a “persuasive” case “with considerable skill”, but, he said, “none of this can disguise the fact that in reality the court will be asked to condemn the acts of the persons who operate the drone bombs”.
He added: “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 inevitably be understood (and rightly understood) by the US as a condemnation of the US.
In reality, it would be understood as a finding that (i) the US official who operated the drone was guilty of murder and (ii) the US policy of using drone bombs in Pakistan and other countries was unlawful.”
The legal lineup
For the appellant, Noor Khan
Brick Court Chambers’ Martin Chamberlain QC, Oliver Jones and Robert McCorquodale instructed by Leigh Day & Co partner Richard Stein and lawyer Rosa Kerling
For the respondent the Secretary of State for Foreign and Commonwealth Affairs
Blackstone Chambers’ James Eadie QC, 1 Hare Court Andrew Edis QC, Essex Court Chambers’ Malcolm Shaw QC and 11 KBW’s Karen Steyn instructed by Treasury Solicitor Piers Doggart