On Tuesday, the UK Supreme Court issued two important judgments, which will affect the power of the British government to carry out certain national security policies and, in turn, its ability to cooperate with the United States in intelligence and military efforts.
On UK participation in the CIA’s interrogation and rendition programs and the power of courts to exercise jurisdiction: The Court unanimously dismisses the government’s appeal which had argued that state immunity and/or the doctrine of “foreign act of state” barred British courts from hearing the cases. The Court held that the plea of immunity failed because the relevant foreign states will not be affected in any legal sense by proceedings to which they are not party and that the Government had failed to show, on the assumed facts, that they were entitled to rely on the “foreign act of state” doctrine. The case may now proceed to trial.
On the power to detain individuals in non-international armed conflict (e.g., Afghanistan): The Court holds that UN Security Council resolutions implicitly authorized UK forces to engage in detention operations, and that detention in wartime is permitted by Article 5 of the European Convention on Human Rights. On the other hand, the Court held that it was unlawful to detain the individual solely for the purpose of interrogation, and that he was denied procedural rights guaranteed by the European Convention on Human Rights.
Just Security has tracked the litigation in both cases (and the UK Court of Appeals excerpted one of our posts). Watch this space: We will have in-depth coverage of both Supreme Court judgments soon. First up will be Shaheed Fatima QC on the judgement in Serdar Mohammed [now available here].
This piece was originally published at 5:25am EST.
Image: The UK Supreme Court – Getty/Chris Ratcliffe