The assertion that GCHQ officers could be complicit in the killing of civilians in Pakistan was made at the beginning of a two day hearing brought by lawyers for Noor Khan, whose father was killed in an attack by an unmanned aerial vehicle (UAV) in March 2011.
Malik Daud Khan, the High Court was told, had been attending a peaceful commercial jirga to discuss chromite mining rights in North Waziristan when he was among up to 50 people killed by a missile strike.
The poverty stricken community now lived in terror of the drones that "hover" over their skies day and night, Mr Khan, 27, said in a statement to the court, with tribal elders fearful of gathering together lest they become a target.
"The mothers and wives plead with the men to not congregate together for fear that they will be targeted. They do not want to lose any more of their husbands, sons, brothers, and nephews," he wrote, adding: "The younger generation has been especially affected. The children almost all suffer from mental illness and live in constant fear of the drone. The children no longer attend school and because of the constant humming of the drones they've become mental patients."
Lawyers for Mr Khan are challenging Foreign Secretary William Hague to clarify the British Government's position on sharing intelligence with the CIA – a matter it says it will neither confirm nor deny – and challenge the lawfulness of such cooperation.
During a two day permission hearing seeking a judicial review into the matter, Martin Chamberlain – for Mr Khan – quoted the Bureau Investigative Journalism as saying that by August last year, 2,347 people had been killed in UAV attacks in Pakistan, of which at least 392 were civilians and 175 children.
While the British government has refused to confirm any involvement in the UAV strikes, Mr Chamberlain read from press reports, quoting GCHQ sources as saying the agency was "proud" of the work it had done with the Americans and it was in "strict accordance" with the law.
While insisting that the application did not seek to "embarrass" the US administration or question the lawfulness of the attacks, he said it questioned the legality of UK officers sharing information on individuals and whether that made them "a secondary party to murder".
Mr Chamberlain said he would not seek to claim that CIA officers – as American citizens – were committing any crime under English law, but that: "Participation by UK officers in US drone strikes by passing on locational intelligence may amount to an offence of encouraging or assisting murder as a matter of English domestic law."
According to domestic law a UK national who assists a foreigner to murder overseas can be tried in England, he said, even if the foreign national cannot.
He continued: "We say the offence of murder is triable in England where the defendant is a subject of Her Majesty even where the killing takes place abroad."
"The only persons entitled to immunity from domestic criminal law in respect of armed attacks are those regarded under international law as 'lawful combatants' participating in an 'international armed conflict'," Mr Chamberlain said, claiming that civilian GCHQ officers could not be considered combatants while there was no acknowledged international armed conflict in Pakistan.
The barrister added that while his primary argument was that they could be breaching domestic law, an alternative was to consider whether they were in violation of international humanitarian law and, therefore, guilty of war crimes or crimes against humanity.
Lawyers for the Foreign Secretary will argue that the case raises issues relating to sovereign foreign states that cannot be determined by the English courts and, therefore, Lord Justice Moses and Mr Justice Simon should not give permission for it to go to a full hearing.
They argue that the case invites the court into "territory of extreme sensitivity" concerning military operations and the activities of the intelligence services in both the UK and the US. It would be against the public interest for the Foreign Secretary to confirm or deny any alleged activities, they argue, adding: "It would be prejudicial to the national interest for the Government even to explain its understanding of the legal position".
They also say that adjudicating on Mr Khan's claim would plainly have a "significant impact" on the conduct of the UK's relations with the US and Pakistan in an "acutely controversial, sensitive and important" context, and also impact on relations between the US and Pakistan. The hearing continues today.
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