Yesterday, lawyers acting for the son of a man killed by a US drone in Pakistan issued legal proceedings in the English High Court against the UK Foreign Secretary claiming that the UK is acting unlawfully in providing assistance to the US drones program (see here and here). The allegation is that the General Communications Headquarters (“GCHQ”), a UK intelligence agencies under the control of the Foreign Secretary, provides information to the CIA on the whereabouts of alleged militants. According to the lawyers acting for the claimant:
“The legal challenge states that the only persons entitled to immunity from ordinary criminal law in respect of armed attacks are those regarded under international law as “lawful combatants” participating in an “international armed conflict”.
As CIA and GCHQ employees, are civilians and not “combatants” they are not entitled to the benefit of immunity from ordinary criminal law. Even if they were there is also no “international armed conflict” in Pakistan. Indeed, there is no “armed conflict” of any sort.
GCHQ employees who assist CIA employees to direct armed attacks in Pakistan are in principle liable under domestic criminal law as secondary parties to murder and that any policy which involves passing locational intelligence to the CIA for use in drone strikes in Pakistan is unlawful.
Evidence suggests that drone strikes in Pakistan are being carried out in violation of international humanitarian law, because the individuals who are being targeted are not directly participating in hostilities and/or because the force used is neither necessary nor proportionate.
This suggests that there is also a significant risk that GCHQ officers may be guilty of conduct ancillary to crimes against humanity and/or war crimes, both of which are statutory offences under the International Criminal Court Act 2001″
To the extent that the claim raises issues of British complicity with violations of international law by the US, this case will be similar to those cases in which it is alleged that UK officials are complicit in torture committed by foreign States (see previous posts here, here and here). Claims that drone strikes amount to crimes against humanity seem a bit far fetched. Whether or not the drone strikes violate international humanitarian law and amount war crimes will depend on some of the issues raised in my post of last month on targeting practices employed in drones strikes in Pakistan. Readers will no doubt spot the contradiction in the present claim. It is said that not only is there no international armed conflict in Pakistan, there is actually no armed conflict of any sort. Nonetheless it is claimed that the drone strikes are carried out in violation of international humanitarian law and that there is a significant risk of UK personnel being guilty of war crimes. Without an armed conflict, IHL does not apply and there can be no war crimes!
The first part of the claim seems to take a completely different approach to the claims made at the end. The suggestion there is that even if the drone strikes are not themselves contrary to international law, the involvement of CIA and GCHQ personnel in those strikes is unlawful because those persons do not have combatants immunity under international law. First of all, it should be pointed out that absence of combatants immunity for acts in war does not mean that a person who does those acts is acting in violation of international law (as long as the acts don’t violate IHL). The person may be acting in violation of domestic law but international law itself does not prohibit such acts. This is why the charges in the US Military Commissions of “murder in violation of the laws of war” have been so controversial. I would direct readers to a post from a couple of years ago by Kevin Jon Heller at Opinio Juris where he makes this point. In that post he reports concerns by the US State Department that the formulation of this crime might come to bite the US in the backside and be used against those involved in the drones program. Well, it seems that those chickens are indeed coming home to roost (to use another metaphor). However, that erroneous US practice should not lead to the conclusion that international law forbids participation in hostilities by those without combatants immunity. If international law does not forbid such acts by CIA officers in Pakistan and in the US it is unclear on what basis UK domestic law might do so. This would be an excess of UK criminal jurisdiction.
The narrower claim that UK officials who do not have combatant immunity act unlawfully by assisting US officials is also difficult to follow. One has to assess whether the claim is that UK officials are acting unlawfully under international law or domestic law. Leaving aside the claim that UK officials are complict in war crimes and crimes against humanity, the argument that GCHQ officials are violating international law by passing on information seems misguided. The argument seems to be that because, under international law, only combatants in an international armed conflict have immunity from prosecution for lawful acts of war it is unlawful for anyone else to contribute to belligerent acts. With regard to intelligence agents in particular, it is correct to say that even in an international armed conflict, members of the intelligence agencies of a party are not combatants and therefore do not have combatants immunity. However, this is not to say that international law prohibits the activities of those persons. Indeed, while Articles 29-31 of the Hague Regulations on the Laws and Customs of War on Land (1907), and Article 46 of Additional Protocol I (1977) deal with the status of spies and how they are to be treated, these treaties do not actually prohibit espionage or any other intelligence activities. Those provision, particular the Hague Regulations simply assume that espionage will be contrary to domestic law. Such acts are not unlawful under the laws of war (though they may violate other principles of international law, depending on how they are carried out).
Presumably the claim being made here is that because international law provides no immunity, the individuals who are providing the intelligence are committing domestic crimes by assisting those who are also committing domestic crimes. But as mentioned above, one has to wonder whether CIA officials are violating UK law by engaging in the drone strikes. If UK domestic law does not extend to the acts of CIA officials in the US and Pakistan then the allegation with regard to GCHQ personnel must be that they are assisting foreign officials to commit crimes under foreign law. Of course, this raises issues as to whether CIA officials can actually be prosecuted in US law or other foreign law. Even though they may not have combatants immunity from foreign (eg Pakistani) prosecution, this is not to say they don’t have international law immunity at all. Tricky questions would arise as to whether the ordinary immunity ratione materiae of State officials would nonetheless apply. Even if they have no such immunity, can it be a crime in the UK to assist someone to commit an act which is a crime under some other domestic law?