Legality of Drone Strikes in Pakistan to be Tested in English Courts?

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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?

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    Comments

    Mihai Martoiu Ticu says

    March 13, 2012

    People forget where the burden of proof lies. If it is proven that someone has killed me, that is a prima facie case for murder. The burden of proof is now on the killer. The killer should prove that some law permitted him to kill me. The killer should prove that there is a war and that he is legally participating in the armed conflict. If he cannot prove that any law permitted him to kill me, he should be punished for murder. And as a desert: his state should be found in violation of human rights. Moreover, my relatives should be able to sue that state in some kind of International Court for Human Rights. It's that simple.

    jpaust says

    March 13, 2012

    Dapo: correct, especially with respect to the fact that being an unprivileged fighter or a spy is not a war crime. Of course, the laws of war do apply to the internationalized and continuing armed conflict in Afghanistan and the theatre of war that has migrated into parts of Pakistan. CIA agents who are not also members of the regular armed forces of the U.S. would indeed not be "combatants" and would not have combatant immunity. However, in 19 J. Transnat'l L. & Pol'y 237, 278-79 (2010) it is recognized that general patterns of practice and expectations concerning such practice allow one to conclude that there is "[a]n implied self-defense immunity" exists for "those who engage in otherwise permissible measers of self-defense" under the self-defense paradigm but could be more clearly affirmed by states and non-state actors.

    Tobias Thienel says

    March 13, 2012

    One wonders why the claim in the High Court is not put in terms of human rights law. I don't think such a claim would necessarily succeed, but it does seem to have certain advantages.

    On the substance of the claim, it is surely not far-fetched to suppose that meaningful support to the CIA, putting persons at risk of being killed, would engage the responsibility of the UK. Such killings would presumably have to have been in violation of the laws of war, that lex specialis providing the standards for review under Article 2, but of course that is the claimants' central point.

    The territorial application of the ECHR (and HRA) could conceivably be taken care of under a broad reading of the new 'dividing and tailoring' approach from Al-Skeini v United Kingdom. This broad reading would suggest that 'effective control' under Article 1 now comes with a model of graded responsibilities, holding a state responsible for such control as it may have had in any one case.

    Also, on the procedural side, it would appear that a claim under the HRA cannot be resisted on grounds of justiciability (see R (Gentle) v Prime Minister), because the HRA provides a sufficient 'foothold' in domestic law for any review that traditionally would be a forbidden area for the courts. But of course, the ICC Act 2001 might conceivably have the same effect.

    As for the actual substance of the claim, I feel this blog may be heading for judicial approval...

    On a separate note, I'm slightly at a loss to understand jpaust's point. Is the suggestion that because the state has been acting in self-defence, any fighters on its side lacking combatant status benefit from a defence under international law, to a charge under domestic law? Even if that may be supported by practice (I don't currently have access to the article cited), it does seem to rather fly in the face of the distinction between jus ad bellum and jus in bello.

    The suggestion also - with respect - appears to again overstate the effect of a good claim of self-defence. Just as self-defence is not a full answer to a human rights claim of unlawful killing, it is unlikely to furnish state personell with any immunity over and above the traditional combatant immunity. The traditional immunity - quite rightly - attaches to the conduct of war, to the micro level of the conflict (so to speak). I fail to see why another immunity should attach to the lawfulness of the conflict as such, at the macro level. The only way this could be argued, it seems to me, is if it was said that a state defending itself should have more leeway in how it conducts itself than a state that is using force unlawfully. That I have always understood to be practically anathema to the IHL community.

    jpaust says

    March 13, 2012

    Tobias: The article addresses an implied immunity under international law for any person who engages in lawful acts of self-defense under UN 51, but "whether such an implied immunity under international law controls in a domestic legal process can depend on how international law is incorporated and whether it has a priority over ordinary domestic law. The general practice of states and evident patterns of expectation are opposed to prosecution of those engaged in lawful self-defense targetings, but self-defense immunity for lawful conduct engaged in as part of self-defense outside the context of war should be more clearly affirmed by the international community." see http://ssrn.com/abstract=1520717
    Do you know of any persons who have been prosecuted for lawful acts of self-defense under UN 51 outside the context of war? The focus on actual patterns of practice and evident patterns of expectation (oinio juris) is, of course, on the two elements of customary international law. The use of force under Art. 51 has a long history and those engaged in authorizing, ordering, facilitating, and participating in such have not always been members of the armed forces of a state. I doubt that anyone has been prosecuted for engaging in such conduct and I doubt that oinio juris is in favor of prosecution and it is evidently just the opposite.

    Tobias Thienel says

    March 14, 2012

    Jordan,

    Thank you for your further explanations. I have to say I still doubt whether there is any opinio juris to support your 'self-defence immunity'.

    As I said in my earlier comment, such a rule would rather cut against the grain of the jus in bello, specifically the strict distinction between that law and the jus ad bellum. That being so, I feel that a rather strong showing would have to be made before it could be said that states had established an immunity straddling these two areas of law.

    Your test of 'evident patterns of expectation' may, depending on how it is applied, actually cloud the issue. 'Patterns of expectation' may be present even if there is no opinio juris, purely based on practice. Therefore, relying on 'patterns of expectation' may simply talk up the element of state practice, without really taking us anywhere regarding the element of opinio juris. What really matters - as I understand it - is whether the states that have refrained from prosecutions based on the lack of combatant immunity have done so out of a sense of legal obligation, or with the intention of creating law.

    I very much doubt if this has been the case to any sufficient extent. For one thing, the analysis of opinio juris is made difficult (but not altogether impossible) by the fact that we are talking about practice in the application of domestic law. Such practice will often turn on purely domestic considerations, either of law or - especially if there is prosecutorial discretion - of fact. Indeed, I suspect that the facts are very often the sole decisive criterion. To wit:
    - Irregular fighters will in most cases be shielded from prosecution by the simple fact that they do not fall into the hands of the adversary, but remain shielded by their own side.
    - While the conflict is ongoing, the adversary has a somewhat limited interest in prosecuting them anyway, because it doesn't matter very much whether fighters do damage as combatants (for instance, in uniform) or not. What matters is resisting them 'in the field', not putting them in the dock.
    - After a conflict has ended, the side with the better claim of self-defence has (in recent history) often won. The vanquished state in such a scenario will certainly not try anyone who has fought for the victor, whether a combatant or not.
    - As a political matter, it will often be unpalatable to prosecute someone from the side that had the law (the jus ad bellum) on its side for having fought at all (without combatant immunity). Even prosecutions for war crimes have been rare (though there is an element of victor's justice in that).

    In summary, I don't think the standard of sufficient indications of opinio juris has been met. That standard should be rather high, because the rule contended for is alien to the structure of the law of war. 'Patterns of expectation' are not helpful, and indications of a belief in being bound by international law are far from obvious.

    JordanPaust says

    March 14, 2012

    I agree, and was not clear here, that the patterns of expectation must be patterns of expectation that something is legally appropriate or required, i.e., opinio juris.
    I think that another point should be made for clarification. I understand Harold Koh's older speech at ASIL and the recent Erik Holder speech on targetings, etc. to reflect the U.S. position that targeted killings can be justified under two paradigms: (1) the law of war paradigm (when and where the laws of war are actually applicable), and (2) the self-defense paradigm (what I was addressing above and in much of the article). Of course, self-defense once an armed attack occurs or a continual process of armed attacks occur (which is what the U.S. is responding to in the case of continual al Qaeda non-state actor armed attacks) is inherent and without a geographic or contextual limitation -- e.g., lawful self-defense targetings can be lawful independently from the law of war paradigm even in the theatre of an actual war.
    I disagree with the Obam Administration's view that the U.S. is at war with al Qaeda (an entity that does not meet the traditional criteria for insurgent statuts, Geneva Protocol II, art. 1, etc.). Thus, from my viewpoint, self-defense targetings in Yemen (outside the threatre of the Afghan-Pak. war and of persons who do not directly participate in such war) should involve inquiry into the legitimate use of self-defense under UN 51 -- and, then, the point that no one seems to have been prosecuted for participating is such self-defense measures because they were not members of the armed forces of a state engaged in self-defense.
    Regarding opinio juris, one side of the coin would be: there is no opinio juris evident (or practice) that participation in lawful self-defense measures by civilians is proscribed.

    Tobias Thienel says

    March 14, 2012

    Jordan,

    I'm slightly flummoxed by your last statement, by which there is no evident state practice or opinio juris to the effect 'that participation in lawful self-defense measures by civilians is proscribed'. Surely, that has you in the same trap as the lawyers in Dapo's post? There doesn't need to be practice or opinio juris for the criminalisation of such participation, because such criminalisation is a matter of domestic law. All international could conceivably do - and does in your submission - is provide a defence to a charge under domestic law. But no-one is suggesting a prohibition under international law. (Dapo has really put this much better than I could.)