The United Kingdom Supreme Court heard arguments this week in two critical cases concerning the UK’s role in the United States’ rendition, detention, and interrogation efforts in the years after 9/11. In both cases, the UK government is arguing that the claims cannot be considered by English courts. If the government succeeds, one potential practical implication would be to limit the extent to which individuals could seek redress for wrongs done against them, including torture, where the alleged wrongs involve other States.
The first case, Belhaj & another v. Straw & others, involves one of the most controversial claims of rendition involving the UK. The government has appealed against the lower court’s ruling, which found against the government for its alleged role in the 2004 abduction of Libyan national, Abdul-Hakim Belhaj, and his wife, and their subsequent rendition to Libya and mistreatment at the hands of US and other foreign officials. In December 2013, the High Court dismissed a civil suit brought by Belhaj on the basis that it lacked jurisdiction because of the act of state doctrine (a rule of English law which prevents courts from considering claims where the court would have to examine the acts of a foreign state).
But in October 2014, the UK Court of Appeal ruled that the act of state doctrine did not preclude Belhaj’s claim against the British government, citing, among other reasons, the universal condemnation of torture and the “stark reality” that these allegations would escape judicial investigation unless the English courts were able to exercise jurisdiction over the case. Specifically, the Court found that:
[T]he present case falls within the established limitation on the act of state doctrine imposed by considerations of public policy on grounds of violations of human rights and international law and that there are compelling reasons requiring the exercise of jurisdiction.
The Court of Appeal also rejected the government’s controversial attempt to invoke the domestic law on immunity of foreign states from domestic proceedings as a bar to any claim against the UK government whenever the conduct of foreign states may be called into question, a concept known as the doctrine of indirect impleader in state immunity.
The government’s appeal against the Court of Appeal’s decision in Belhaj is being heard jointly with the appeal in another case, Ministry of Defense and the Foreign and Commonwealth Office v. Yunus Rahmatullah, involving a Pakistani citizen captured by British forces in Iraq. In 2004, Rahmatullah was transferred from UK to US custody in Iraq and thereafter rendered to Bagram air base in Afghanistan, with UK knowledge and in breach of Article 45 and Article 49 of the Fourth Geneva Convention. Held by the US without trial for more than a decade, Rahmatullah was denied access to a lawyer and subjected to numerous acts of torture and mistreatment before being repatriated to Pakistan and released without charge in May 2014. He now seeks to sue the British government for damages.
The main thrust of the UK government’s argument, in both cases, is that the litigation will most likely damage the UK’s relationship with the United States. If accepted by the Supreme Court, this argument may lead the Court to find that it lacks jurisdiction to hear the claims. The far-reaching implications of such a ruling would be to protect individual states and their institutions from the scrutiny of British courts in cases where it is alleged that they acted in concert with other states, even if their actions were unlawful. Such an expansive interpretation of a “but they did it too” excuse would constitute a notable limitation on British courts’ jurisdiction in the context of events arising from the so-called global war on terror. Since Belhaj and Rahmatullah, and others like them, are unlikely to secure redress directly in a US court, a ruling in favor of the government would essentially preclude them from securing redress in any forum.
You can find the full Court of Appeal judgment here and below.