Case Preview: Belhaj & Anor v Straw & Ors; Rahmatullah v Ministry of Defence & Anor
23 Tuesday Aug 2016
Belhaj & Anor v Straw & Ors; Rahmatullah v Ministry of Defence & Anor
The Supreme Court heard the appeals in these cases between 9-12 November 2015, considering, among other things, whether the claims of the respondent were barred by operation of either the foreign act of state doctrine or by state immunity.
Belhaj & Anor v Straw & Ors
Mr Belhaj, the first respondent, was a commander of the opposition during the Libyan armed conflict in 2011. He is now the leader of the Al-Watan Party. Both he and his wife, Ms Boucher, the second respondent, claim that they were abducted from China in February 2004 and tortured by the Gaddafi regime, under the US programme of ‘rendition’. The second respondent was released on 21 June 2004, but the first respondent was detained until 23 March 2010, during which time he alleges that he was sentenced to death following an unfair trial.
The claim was brought against the Foreign Office and named UK officials for a series of common law offences in connection with their involvement during the alleged periods of torture. The UK Government had argued that “state immunity” (a state can be protected from being sued in the courts of other states) and the “act of state” doctrine (a claim should not call into question activities of a foreign state) prevented British courts from hearing the case.
In the High Court, Simon J struck out Mr Belhaj’s action on the following grounds.
The claim does not implead China, Malaysia, Thailand, the United States or Libya. He held that their rights would not be affected and that they would not be put in the position of having to waive their right to immunity or have a judgment in default entered against them.
Act of state
The judge argued that there was clear evidence that a determination of the claim had the potential to jeopardise the UK’s international relations and national security interests. Apart from the claim in negligence, the causes of action depend upon allegations that agents or officials of foreign states acted tortuously. In relation to the acts alleged to have been carried out by officials of China, Malaysia, Thailand and Libya, the judge concluded that the act of state doctrine applied and that such claims were non-justiciable.
The appellants’ causes of action, insofar as they were not dismissed, were governed by the law of the place where the alleged conduct took place. Accordingly, to take one example, he considered that the law of China should apply to any cause of action based on alleged detention or mistreatment in or transfer from China.
Court of Appeal
The Court of Appeal overruled the decision of the High Court, on the following grounds.
The Court of Appeal held that the arguments made by the UK “lacked any foundation in law” [para. 49]. The Court ruled that state immunity does not prevent claims being brought against UK officials in UK courts simply because their actions have the potential to implead the acts of foreign states.
Act of state
The Court of Appeal ruled that the “act of state” doctrine cannot bar the claim, because of the human rights violations alleged by Mr Belhaj and the universal international condemnation of torture [paras. 114 – 121]. The Court emphasised that this claim concerns the accountability of UK officials and agencies, and unless the English courts exercise jurisdiction, these allegations would escape judicial investigation [para. 119].
The Supreme Court will make findings on the following issues:
- Whether the Court of Appeal correctly held that the public policy limitation applied and precluded the application of the foreign act of state doctrine.
- Whether the Court of Appeal correctly held that the territorial limitation of the foreign act of state doctrine applied to the alleged acts of the United States.
- Whether the Court of Appeal was wrong to hold that the doctrine of foreign act of state was engaged.
- Whether the Court of Appeal correctly held that foreign states were not indirectly impleaded in the Particulars of Claim and that the claim was not barred by state immunity.
Rahmatullah v Ministry of Defence & Anor
The respondent was detained by UK armed forces in Iraq in 2004 and transferred to the custody of US forces thereafter. He was detained in US custody for more than ten years without charge or trial during which time he alleges he was subject to torture and serious mistreatment. He was released in Pakistan on 17 June 2014. In the Supreme Court he claimed damages in tort and under the Human Rights Act 1998.
The High Court found in favour of the Mr Rahmatullah, on the following grounds:
The claims in tort were not barred by the doctrines of state immunity. The principles of state immunity recognised in public international law provide no justification for interpreting the State Immunity Act 1978 as granting immunity to the defendants in this case. Legatt J, in citing the judgement made by the Court of Appeal in Belhaj, held that because the defendants had accepted that there was no point of distinction on the issue of immunity in Belhaj and the present case, that he was bound by authority to reject the arguments made by the defendant.
Foreign act of state and Crown act of state
The claims in tort were not barred by reason of the doctrines of foreign act of state. The claims in tort would be barred by the doctrine of Crown act of state if the defendants were able to show that the arrest and detention by British forces had been authorised pursuant to a lawful policy.
The Supreme Court will consider whether the respondent’s claims in tort against the appellants in respect of alleged acts or omissions of US personnel while the claimant was in US custody in Iraq and/or Afghanistan are barred by operation of either the foreign act of state doctrine or doctrine of state immunity.