After Noor Khan

This week the Court of Appeal handed down judgment in the case of Noor Khan v The Foreign Secretary. Khan was denied leave to appeal his claim which sought a declaration that a GCHQ official may be liable for under domestic (and international) criminal law for passing ‘locational intelligence’ to the CIA. Liability would arise, Khan argued, where the UK official foresaw a ‘serious risk’ that the information would be used for targeted killing. If the targeted killing took place outside armed conflict, it was tantamount to murder in UK law and the UK official would be ‘encouraging or aiding’ a crime. The key to this part of Khan’s claim was that civilian GCHQ officials would not be entitled to the defence of ‘combat immunity’ for supporting operations outside armed conflict, unlike their military colleagues in Afghanistan.

Khan also sought a declaration requiring the FCO to write and publish a lawful policy on when ‘targeting intell’ could properly be transferred to the US. This seems to have hit a spot: 3 leading QCs were employed by the FCO to defend the claim.

The case rested on the construction of a ‘topsy turvy’ hypothetical scenario: a UK drone operator killing a person in Pakistan. The conduct of the notional principal would fall within the jurisdiction of the UK courts because the operator was a UK national working from the UK. In this way, Khan stayed clear of asking the Court of Appeal to make a finding about the lawfulness of any US act or practice. The case was about the application of UK law to UK officials, not the lawfulness of drone strikes under US law. The Master of the Rolls found Khan’s argument ‘persuasive’ but declined to express a view. Ultimately – whatever the correct legal analysis – the legal fiction created by the claim would give the impression that a UK court was presuming to judge US foreign policy. Without exceptional circumstances, a UK court would not do this.

In its short judgment, the Court of Appeal was careful to distinguish the case of Rahmatullah v Secretary for Defence, and did not make any factual findings to contradict Khan’s claim. This may leave the door open for a less hypothetical case or a different analysis and challenge to data sharing practices.

There may be no appeal, but the Khan case has contributed significantly to the debate on lethal drone use. The 17 March CIA strike in which Khan’s father, a tribal elder, was killed with more than 40 others at a Jirga in Datta Khel, North Waziristan, is now well known as a cautionary tale. The case has shone a spotlight on the UK-US data relationship, and complications that may arise from it. Khan’s request for a published policy – which would require the UK government to face different interpretations of the key words ‘combatant’ and ‘armed conflict’ – has been picked up and developed by others, including Professor Michael Clarke Director of RUSI who called for a declaration on UK-US information sharing at the last APPG meeting on 5 Dec. This call is unlikely to end.

The APPG has invited Noor Khan and other strike victims to speak to APPG members and other parliamentarians next month.

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