The cases of Belhaj and Rahmatullah involved litigation of UK involvement in the US-led extraordinary rendition system. Image credit: Arun Kundnani. All rights reserved.
The timing could not have been better. Days before the inauguration in the US of a president whose ambitions include bringing back CIA ‘black site’ secret prisons and the torture of terrorist suspects, the UK Supreme Court clarified beyond doubt that British officials - and ministers - would be held accountable in the UK courts for complicity in foreign states’ human rights violations, in private law actions in tort.
The judgment followed the joined cases of Belhaj and Rahmatullah which had been heard by a seven-judge court in November 2015. Both cases involved allegations of British officials’ complicity in rendition and torture.
The UK Supreme Court clarified beyond doubt that British officials - and ministers - would be held accountable in the UK courts for complicity in foreign states’ human rights violations.
In 2004, as the Blair government sought diplomatic and commercial rapprochement with Libya, Abdel Hakim Belhaj and his pregnant wife Fatima Bouchar, on their way to the UK to seek asylum, were abducted in Bangkok by Thai and US officials and taken to Colonel Gaddafi’s prisons, where they were detained – in Mr Belhaj’s case for several years – and tortured. British officials sometimes questioned him, and some of the questions asked by his Libyan torturers had been formulated by MI6. But in 2011, a chance find of letters between MI6 established the UK’s involvement in the rendition operation itself.
The Met police began a criminal investigation into possible charges of kidnap, false imprisonment and conspiracy to torture and passed a 28,000-page dossier of evidence to the Crown Prosecution Service (CPS). But in June 2016 the CPS announced that there was "insufficient evidence" to prosecute.
Abdel Hakim Belhaj and his pregnant wife were detained and tortured in Colonel Gadaffi's prisons in 2004. Photo credit: Reprieve. All rights reserved.Back in June 2012 the families had also initiated civil proceedings against former foreign secretary Jack Straw and a number of British intelligence agencies seeking a declaration of illegality and damages for participation in abduction, false imprisonment, and torture.
The case of Yunus Rahmatullah began in 2004, during the Iraq war. Rahmatullah, a Pakistani national, was captured by British forces in Iraq and transferred to US custody. From there he was rendered to Bagram in Afghanistan where he was held for a decade and severely mistreated. On his release, he sued the MoD and the FCO for damages for complicity detention and ill-treatment in Bagram. Rahmatullah also had a direct claim against British officials for his brief detention and transfer to the custody of US officials.
In both cases, the defendants put forward no substantive defence, claiming that the Official Secrets Act prevented them. They argued that the claims were barred by 'state immunity' and by the two limbs of the 'act of state' doctrine. The Supreme Court dealt at length with these doctrines and their applicability to these kinds of cases.
State immunity is a principle of common and international law based on the sovereign equality of states. It not only makes diplomatic premises inviolable, but also protects government members and agents abroad from legal liability for anything done during their term of office. It’s why diplomats don’t pay parking fines and why police could not enter the Libyan embassy, from where PC Yvonne Fletcher was fatally shot in 1984.
Since the immunity is conferred on the diplomat or official representing their state abroad, the gravity of the acts done, even their characterisation as breaches of fundamental norms of international law does not confer jurisdiction. Although a state does have the ability to waive immunity to allow another to prosecute one of its officials or diplomats.
The Supreme Court ruled that the defendants could not rely on the doctrine of state immunity. No foreign state or foreign official was a defendant, and although a decision on British officials’ complicity in these activities would necessarily involve deciding whether Thai, Malaysian, Libyan and US officials committed such acts, a court’s ruling on British complicity would have no legal effects for these foreign officials.
Foreign act of state doctrine
British courts can refuse to examine the validity or legality of sovereign acts of foreign states in their own territory under what is called the ‘foreign’ limb of the ‘act of state’ doctrine. This is more ill-defined than state immunity and is a doctrine of judicial restraint based on recognition of the sovereign nature of certain acts such as concluding treaties or making war. It is the quality of the act, not the person who performs it, which prevents courts from adjudicating on its legality. The courts’ problem has always been to try to define precisely which acts should be described as ‘sovereign’ so that the doctrine applies.
Since the claims alleged complicity in gross violations of human rights, the doctrine could not be used to prevent English courts hearing them.
The defendants argued that the claims of Belhaj and Rahmatullah, although against British officials, should not be allowed to proceed since they called into question the sovereign actions of foreign states (Thailand, Malaysia, Libya and the US) in respect of which there were no clear and identifiable judicial standards. It was also argued that allowing the case to proceed would damage the UK’s national security interests. This argument persuaded the High Court in Belhaj’s case, but the Supreme Court held that the foreign act of state doctrine could not defeat the claim.
The court found that when the act in question breaches fundamental rights or norms of international law, such as the prohibition of arbitrary detention or torture, the courts will not recognise them as sovereign and will not abstain from judgment. Since the claims alleged complicity in gross violations of human rights, the doctrine could not be used to prevent English courts hearing them. If the English courts barred the claims, there would be no remedy against British officials anywhere since they would be able to rely on state immunity if sued in the courts of the countries where the wrongs took place.
The judges emphatically rejected the government’s attempt to apply the ‘foreign act of state’ doctrine to any case where the foreign secretary claimed that proceeding with a claim would cause the UK government embarrassment in its foreign relations. That, they ruled, would give the government a blanket power over court proceedings.
Crown act of state doctrine
Despite this, the ‘direct tort’ claim of Rahmatullah, for his detention by British troops in Iraq, was defeated by a further doctrine called the ‘Crown act of state’, which prevents British courts from adjudicating on certain claims which arise out of sovereign acts committed abroad by British officials or agents against non-nationals.
The upshot is that Belhaj and his wife, and Rahmatullah, can sue British officials for complicity in their unlawful detention and ill-treatment by foreign states – but Rahmatullah cannot challenge the actions of the British soldiers who detained him.
The Court of Appeal had ruled that principles of legality and access to justice should allow the claim to proceed unless:“in the particular factual circumstances … there are any compelling considerations of public policy which would require the court to deny a claim …founded on an act of the Executive performed abroad.” (para 359 of the judgment).
Rahmatullah’s detention involved an exercise of power inherently governmental in nature, committed abroad, with the prior authority of the Crown. Rahmatullah’s detention was part of the pursuit of government policy to deal with insurgents during foreign military operations. His treatment at the hands of British officials, unlike that of the Americans into whose custody he was delivered, did not involve prolonged or arbitrary detention, torture or ill-treatment; if it had done, as the government accepted, the doctrine would not operate to defeat the claim.
The upshot of the judgment is that both Belhaj and his wife, and Rahmatullah, can sue British officials for their complicity in their unlawful detention and ill-treatment by foreign states – but Rahmatullah cannot challenge the actions of the British soldiers who detained him.
In an age of international human rights law, it seems extraordinary that doctrines such as ‘act of state’ still exist.
The half-life of an anachronism
In the age of international human rights law, which supposedly regulates a states conduct, it seems extraordinary that doctrines such as ‘act of state’ still exist. And whilst there may still be a few inherently sovereign actions, the Supreme Court’s ruling on Crown acts of state muddies the waters when it comes to policy decisions and the individual acts undertaken in implementation of these decisions. In the domestic context the distinction between government policy and its implementation (judicially reviewable) is clear. Why should it be otherwise abroad?
Whilst human rights have made big inroads in challenging old ideas of absolute state sovereignty, the government proposes to close that avenue down by routine derogation from the European Convention on Human Rights in war zones, to protect British soldiers and officials from "vexatious claims". This will leave individuals vulnerable to the act of state doctrine. Whilst the Supreme Court’s confirmation that serious human rights violations cannot be protected from judicial scrutiny by the act of state doctrine is welcome, it is a shame that it did not affect the Crown’s untouchability for actions abroad.
For Belhaj and Rahmatullah the next step will be to defeat the argument for secret evidence which the government is bound to make when their cases come to court.