The United Kingdom’s Court of Appeal has issued its judgment in Khan v. Secretary of State for Foreign and Commonwealth Affairs (full text). A Pakistani man brought a civil action in an attempt to hold British officials accountable for the death of his father who was allegedly killed in a US drone strike in North Waziristan. The applicant claimed that British intelligence agents provided information to the CIA, which the agency used to carry out the drone strike.
Mr. Khan’s application included a request for a “declaration that a UK national who kills a person in a drone strike in Pakistan is not entitled to rely on the defence of combatant immunity.” The court stated that this proposition differed from the US legal position: “The US view is that the engagement with Al-Qaeda is an armed conflict and that the defence of combatant immunity is in principle available to US officers who execute drone strikes in Pakistan. That view would not, of course, be binding on our courts” (para. 18). [For analysis of the status of CIA members in US drone operations, see my earlier post and Marty Lederman’s post.] The court concluded that “it is certainly not clear that the defence of combatant immunity would be available to a UK national who was tried in England and Wales with the offence of murder by drone strike” (para. 19).
Nevertheless, the court determined that it would not hear the complaint. The court stated that the applicant’s arguments could not “disguise the fact that in reality the court will be asked to condemn the acts of the persons who operate the drone bombs,” which, the court went on to explain, “would be seen as a serious condemnation of the US by a court of this country.” The court held:
“There is no escape from the conclusion that, however the claims are presented, they involve serious criticisms of the acts of a foreign state. It is only in certain established circumstances that our courts will exceptionally sit in judgment of such acts. There are no such exceptional circumstances here.”
Stay tuned for an analysis of the court’s decision by Shaheed Fatima.