In a landmark judgment the Supreme Court has today ruled that the legal case against the former Foreign Secretary Jack Straw and former senior MI6 officer, Sir Mark Allen, alleging that they were both unlawfully involved in the illegal rendition of a Libyan man and his pregnant wife to Gaddafi’s Libya in 2004, can be heard in a UK Court.
Libyan politician Abdul-Hakim Belhaj, a political opponent of Colonel Gadaffi, and his pregnant wife Fatima Boudchar were both victims of illegal rendition to Libya in March 2004.
Today’s ruling follows a Supreme Court hearing in November 2015 at which the defendants – Jack Straw, Sir Mark Allen and the Security Services - were appealing a Court of Appeal judgment from October 2014 on two points of principle as to why English Courts should not hear the case.
However, in today’s unanimous decision the seven Supreme Court judges unanimously dismissed the Government’s appeal, concluding that the claims that they were unlawfully involved in the rendition of Mr Belhaj and Mrs Boudchar, and are culpable for the torture they allegedly suffered, must be allowed to proceed in the English courts.
The defendants had sought to get the legal action dismissed on the grounds of ‘State Immunity’ and ‘Foreign Act of State’. Under the principle of State Immunity, foreign states or foreign officials may not be sued in the English courts.
Although no such foreign states or officials are being sued in the English proceedings brought by Mr Belhaj and Mrs Boudchar, the defendants argued that this principle should still apply and bar the claims, arguing that the ‘interests’ of foreign states would be adversely affected by findings of unlawful conduct on their part.
The Supreme Court Justices unanimously held that the principle of State Immunity does not apply in this case since the legal position of the foreign states will not be affected in any legal sense by proceedings to which they are not party.
Lord Mance concluded “[t]he appellants’ case on state immunity in this jurisdiction would preclude suit against them anywhere.” (Paragraph 30)
Under the principle of Foreign Act of State, UK courts will not readily adjudicate upon the lawfulness or validity of sovereign acts of foreign states. The principle applies to claims which, while not made against the foreign state concerned, involve an allegation that a foreign state has acted unlawfully.
The Supreme Court Justices unanimously held that, although the claims of Mr Belhaj and Mrs Boudchar would require findings to be made that officials of the US, Malaysia, Thailand and Libya had acted unlawfully to succeed, their claims should nevertheless proceed in the English courts.
Sapna Malik, from the international team at law firm Leigh Day said: “The Supreme Court today has delivered an emphatic judgment upholding the rule of law, particularly in the face of breaches of rights recognised as fundamental by English statute and common law, in which British Defendants are alleged to have been complicit.
“The Justices have clearly declared that the UK courts must not refrain from deciding such cases which may involve criticism of the conduct of foreign states, even when that foreign state is the US.
“We hope that the Defendants in this action now see fit to apologise to our clients and acknowledge the wrongs done, so that they may turn the page on this wretched chapter of their lives and move on.”
Cori Crider from the human rights charity Reprieve, who are supporting the case, said: "In 72 hours, a would-be torturer will take the reins of Earth’s most powerful security state. So this case isn’t ‘just' about history - the stakes couldn’t be higher. The government bought years of delay by wasting hundreds of thousands of pounds on this appeal, when a simple apology would have closed the case.
"Where does Britain stand on torture today? We enter the Trump era with not a soul held to account for Britain’s role in rendition. No official has condemned Trump’s torture boasts. Our intelligence agencies may well be pressured to help America torture again. The risks are real. Theresa May should apologise to this family, draw a line in the sand against torture, and restore British honour once and for all.”
In their strongly worded individual judgments, the following Justices held:
Lord Sumption “In my opinion, it would be contrary to the fundamental requirements of justice administered by an English court to apply the foreign act of state doctrine to an allegation of civil liability for complicity in acts of torture by foreign states….. In those circumstances, the only point of treating torture by foreign states as an act of state would be to exonerate the defendants from liability for complicity. The defendants are not foreign states. Nor are they the agents of foreign states. They are or were at the relevant time officials and departments of the British government.… they would be protected by state immunity in any other jurisdiction, with the result that unless answerable here they would be in the unique position of being immune everywhere in the world. Their exoneration under the foreign act of state doctrine would serve no interest which it is the purpose of the doctrine to protect.” (paragraph 262)
“In my opinion the foreign act of state doctrine cannot be applied to the detention alleged to have been inflicted on these claimants by US and Libyan officials, for substantially the same reasons as it cannot be applied to the allegations of torture. They exhibit the same combination of violation of peremptory norms of international law and inconsistency with principles of the administration of justice in England which have been regarded as fundamental since the 17th century. The fact that if the pleaded allegations are correct the claimants were forcibly transported across international borders without any lawful process of extradition is a significant aggravating factor engaging the same considerations of public policy.” (paragraph 278)
Lord Mance “The critical point in my view is the nature and seriousness of the misconduct alleged in both cases before the Supreme Court, at however high a level it may have been authorised…. English law recognises the existence of fundamental rights, some long-standing, others more recently developed. Among the most long-standing and fundamental are those represented in Magna Carta… Further, torture has long been regarded as abhorrent by English law… and individuals are unquestionably entitled to be free of deliberate physical mistreatment while in the custody of state authorities.” (paragraph 98)
Lord Neuberger “..the mere fact that officials of more than one country cooperate to carry out an operation does not mean that the…rule can be invoked if that operation is said to give rise to a claim in domestic law. It would be positively inimical to the rule of law if it were otherwise.” (paragraph 167)
In 2004 Mr Belhaj was leader of the Libyan Islamic Fighting Group, opposing Colonel Gaddafi when he was detained in Malaysia then Thailand, before being illegally rendered back to Libya.
Mr Belhaj states that he was hooded and shackled to the floor of the plane in a stress position, unable to sit or lie during the entire 17-hour flight back to Libya where he was detained for six years in some of the country’s most brutal jails.
He claims to have been interrogated by foreign agents, including some from the UK.
The allegations against the security services and Mr Straw arise from documents discovered after the fall of Colonel Gaddafi's regime, when documents were discovered in the headquarters of the fallen regime’s intelligence agency. In a fax apparently sent from MI6 to the Libyan intelligence services on 1 March 2004, MI6 informed the Libyans of the couple’s then whereabouts in Malaysia.
The couple were rendered to Libya, via a tortuous stay in a secret detention facility in Thailand, approximately one week later.
Then, in a letter from Sir Mark to Moussa Koussa, head of Gaddafi's intelligence agency, dated March 18 2004, Sir Mark passes on thanks for helping to arrange Tony Blair's visit to Gaddafi, writing: "Most importantly, I congratulate you on the safe arrival of Abu Abd Allah Sadiq [Mr Belhaj]."
He continues: "This was the least we could do for you and for Libya to demonstrate the remarkable relationship we have built over the years…. The intelligence about [Mr Belhaj] was British. I know I did not pay for the air cargo."
He was eventually released in 2010.
Ms Boudchar was imprisoned in Libya for four months. She was released just three weeks before giving birth, by which time her health, and that of her baby, was in a precarious state.
Lawyers for Mr Straw and Sir Mark denied any unlawful conduct on their part and applied to have the claims dismissed on the basis that the English courts could not hear the claims due to the doctrines of State Immunity and Foreign Act of State.
A High Court judgment in December 2013 ruled that English courts should not hear evidence or rule on the case due to the Foreign Act of State doctrine, as the rendition had allegedly taken place with the assistance of other states including the US.
The judgment by Mr Justice Simon was appealed by Mr Belhaj and his wife, and in October 2014 the Court of Appeal, agreed that the case could be heard in an English Court.