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UK Courts do not have jurisdiction on drone strike legal case to 'spare US blushes'

Court of Appeal rules drone legal challenge cannot continue

Posted on 20 January 2014

In a judgment handed down today (Monday 20th January 2014) the Court of Appeal has held that a Pakistani man cannot continue his legal challenge against the UK government for its alleged involvement in US drone attacks in Pakistan which killed his father, as the findings “…would be understood by the US authorities as critical of them.” (para. 37)

The legal action was brought on behalf of Noor Khan, a 28-year-old Pakistani man whose father was killed in a drone strike on a Jirga, or council of elders, in North West Pakistan in 2011.

Leigh Day, the lawyers acting on behalf of Mr Khan, were denied permission to continue his legal action by the High Court in December 2012; it is this decision that was upheld in the Court of Appeal today.

The legal action sought to determine the legality of intelligence sharing in relation to GCHQ assistance in CIA drone strikes, which have killed hundreds of civilians in Pakistan over previous years.

Mr Khan asked the Foreign Secretary to clarify the Government’s position on sharing intelligence for use in CIA strikes, and challenging the lawfulness of such activities.

However today’s judgment states that the UK Courts should not have jurisdiction is such matters as “…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. “ (para. 37)

The judgment goes on to say:

“What matters is that the findings would be understood by the US authorities as critical of them.  Although the findings would have no legal effect, they would be seen as a serious condemnation of the US by a court of this country.” (para. 37)

Noor Khan lives in Miranshah, North Waziristan Agency, in the Federally Administered Tribal Areas of Pakistan. His father, Malik Daud Khan, was a member of the local Jirga, a peaceful council of tribal elders whose functions included the settling of commercial disputes.

On 17 March 2011, Malik Daud Khan attended and presided over a meeting of the Jirga, held outdoors at Datta Khel, NWA, which had been called to settle such a dispute.

During the course of the meeting a missile was fired from an unmanned aircraft or “drone”, which is believed to have been operated by the US Central Intelligence Agency.

Malik Daud Khan was one of more than 40 people killed in the strike.

Several reports have stated that British intelligence agencies have provided information on the whereabouts of alleged ‘militants’ targeted by the CIA.

The legal challenge stated 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”.

Rosa Curling from Leigh Day said:

“The court’s decision not to determine the lawfulness of our government’s involvement in CIA drone strikes in Pakistan, deadly strikes which have killed many civilians over recent years including my client’s father, simply to spare the US government embarrassment is not only disappointing but also deeply worrying.

The courts must have jurisdiction over the legality of our government’s action irrespective of whether they act alongside a foreign state or not.”

Kat Craig, legal director at human rights charity Reprieve, which is supporting Mr Khan, said: “It is shameful that the risk of embarrassing the US has trumped British justice in this case.  It now appears that the UK Government can get away with murder, provided it is committed alongside an ally who may be sensitive to public criticism.  It is a sad day when the rights of civilian victims of drone strikes take second place to the PR concerns of the US Government.”
Noor Khan said: “I used to think that Britain stood for justice, but now it seems as though the Government has put itself above the law.  However, I am still determined to get answers from the UK Government about the part they have played in the death of my father.  The CIA’s drone programme has not only killed hundreds of civilians, but is turning people in Pakistan against the US and its allies.  This is why I was so upset to hear that Britain is helping the CIA to carry out these killings, and even more upset when the government refused to respond to my questions.”