This morning the United Kingdom’s High Court issued its judgment in a case brought by Abdel-Hakim Belhaj and his wife Fatima Boudchar against the UK’s government and intelligence services over their alleged role in the US abduction, rendition and mistreatment of Belhaj and his wife in 2004. These proceedings involved the determination of two preliminary questions: (1) Whether the claims should be dismissed on the basis that the Court lacks jurisdiction; and (2) In so far as the claims are not dismissed, what are the applicable laws for determining the claimants’ causes of action? The judge, Mr. Justice Simon ruled (with some “hesitation,” see below) that the claims should be struck out on the basis that they are not justiciable, despite acknowledging the “potentially well-founded claim that the UK authorities were directly implicated in the extra-ordinary rendition of the Claimants.”

By way of background, Belhaj, a Libyan national, was a political opponent of the former Libyan leader, Col. Gaddafi. He led the battle for Tripoli in 2011, served as the Commander of the Tripoli Military Council and is now the leader of a political party in Libya. Boudchar, his wife, is a Moroccan national and was pregnant at the time of the alleged incidents.

In late February 2004, the claimants were living in China. According to the claimants, they were detained by Chinese authorities at an airport in Beijing (while attempting to travel to the UK to claim asylum). They were removed to Kuala Lumpur, Malaysia, where they were detained for two weeks. The claimants were then informed they could only travel to the UK via Bangkok, where upon arrival they were detained by Thai officials and separated. Belhaj was taken to a “black site” operated by US agents where he was seriously ill-treated. Boudchar was taken to a cell being operated by two US agents and she was also mistreated. Both claimants were subsequently transferred to a CIA-controlled aircraft and flown to Tripoli, stopping once for fuel in Diego Garcia (a British Indian Ocean Territory). They were taken to Tajoura prison, a detention facility operated by the Libyan intelligence services, where they (and Belhaj, in particular) suffered prolonged and severe ill-treatment.

The Court recognized that while many of the facts relied on by the claimants are neither admitted nor denied by the defendants, “unusually, some appear to be supported by documents which have come into the Claimants’ hands as a result of the change in political fortunes in Libya.” Particular reference is made to the following documents:

  • A fax sent by MI6 to the Libyan intelligence services informing them that the claimants were being detained in Malaysia.
  • A fax sent by US officials to the Libyan authorities indicating they were “working energetically to effect the extradition” of Belhaj with the cooperation of Malaysia.
  • Two faxes sent by US authorities to the Libyan authorities regarding the transfer to Bangkok and the provisions for subsequent detention and transfer.
  • A letter from Sir Mark Allen, former head of the MI6’s counter-terrorism unit, congratulating the head of the Libyan External Security Organisation on the successful transfer of Belhaj. The letter stated: “I congratulate you on the safe arrival of [the First Claimant]. This was the least we could do for you and for Libya to demonstrate the remarkable relationship we have built over recent years … The intelligence about [the First Claimant] was British. I know I did not pay for the air cargo. But I feel I have the right to deal with you direct on this and am very grateful to you for the help you are giving us.”

On this assertion of facts, the claimants were seeking “declarations of illegality and damages arising out of the Defendants’ participation in the unlawful abduction, detention and rendition” in March 2004, and the defendants’ “subsequent acts and omissions whilst they were unlawfully detained” in Libya.

The Court proceeded, however, on the basis that the causes of action–including false imprisonment; conspiracy to injure and trespass to the person; and conspiracy in torture, inhumane and degrading treatment–could not succeed unless it was shown that the foreign officials carrying out the acts had acted unlawfully.

In order to determine the preliminary issue of justiciability, the Court examined the extent and application of the doctrines of (a) state immunity and (b) act of state. [Issue (2) on the applicable law was argued as a matter of principle, but is not discussed in this post; see paragraphs [119]-[144] of the judgment for full discussion.]

In relation to (a), the Court examined the UK’s State Immunity Act 1978, and precedents established in the UK (e.g. Jones v. Saudi Arabia) and the ICJ (e.g. Germany v. Italy). On this basis, the Court rejected the government’s arguments that state immunity operates as a bar to the claim. The Court explained:

62. It is clear that the doctrine of state immunity is an absolute jurisdictional bar which, if it applies, admits of no exceptions: even crimes against humanity and the most extreme breaches of human rights …

65. The question then is whether foreign states or the agents and officials of those states have been impleaded by the claim. In this context the term “impleading” means that the claim requires the foreign state to adopt a position of either having to defend itself and forgo its immunity or have a judgment entered against it, so that it is bound by the judgment.

66. In my view the present claim does not implead either those countries or their agents or servants. Their rights and interests will not be “obviously affected” in the sense understood by the doctrine of state immunity …

67. … What must be affected for the state immunity doctrine to constitute a preliminary bar to proceedings is something more tangible than a state’s reputation.

The Court then considered the act of state doctrine, in particular, the principle that judicial restraint must be exercised when concerned with the legislative or executive acts of foreign states. The judgment identified those limitations to the act of state doctrine that were relevant to Belhaj’s claim: the territorial limitation; the extent to which public policy considerations apply; and the Kirkpatrick exception (expounded in the US Supreme Court decision), which distinguishes between adjudicating on the legal effect or validity of an act of a sovereign state (to which the doctrine applies) and proving an act of a sovereign state within its own jurisdiction as a factual matter (to which the doctrine does not apply).

In examining the scope of these limitations, the Court relied upon (in addition to recent UK precedents) substantial comparative jurisprudence, including the Australian decision in Habib v Commonwealth of Australia and the US decision in Doe v. Unocal concerning public policy considerations. On the public policy issue, the Court stated:

115. One of the most important circumstances will be the extent to which the Court is being asked to investigate and express a view about the legality of the conduct of a foreign state and another will be whether there are incontrovertible (or at least clear and established) standards which can form the basis for such an investigation and determination.

On the facts, the Court held that there was “clear evidence that the determination of this claim has the potential to jeopardise this country’s international relations and national security interests.” The arguments in relation to national security were geared particularly toward the United States. The judgment also held that the causes of action related to activities in a foreign state on its own territory and called into question the legal validity of those acts, which raised a “difficult and inappropriate” task for the Court.

The difficulties in ruling on these foreign acts, according to the Court, were arguably less problematic in relation to the “black site” or the air transfer, as these acts did not take place in the sovereign territory of the United States; and the public policy exception could potentially apply given the “grave infringement of human rights.” However, the Court did not consider that there were “judicial or manageable standards by which to judge the conduct in question” as the UK government was not itself “implicated in the use of torture, which enjoys the enhanced status of a jus cogens or peremptory norm of International law, which may be regarded for the purposes of the act of state doctrine, if not the state immunity doctrine, as the subject of universal jurisdiction, and from which no derogation is permitted.”

The Court ultimately concluded that the claims should be struck out as they were barred by the act of state doctrine. This is a significant defeat for the claimants. While they may be entitled to proceed with their separate claim based on negligence, which was excluded from the determination of the preliminary issues, such a claim is similarly likely to fail. This appears to be recognized by the Court in its concluding paragraphs:

150. I have concluded, with hesitation, that the Defendants are correct in their submission that the case pleaded against them depends on the Court having to decide that the conduct of US officials acting outside the United States was unlawful, in circumstances where there are no clear and incontrovertible standards for doing so and where there is incontestable evidence that such an enquiry would be damaging to the national interest …

151. My hesitation arises from a residual concern that … what appears to be a potentially well-founded claim that the UK authorities were directly implicated in the extra-ordinary rendition of the Claimants, will not be determined in any domestic court; and that Parliamentary oversight and criminal investigations are not adequate substitutes for access to, and a decision by, the Court. Although the act of state doctrine is well-established, its potential effect is to preclude the right to a remedy against the potential misuse of executive power and in respect of breaches of fundamental rights, and on a basis which defies precise definition. It is a doctrine with a long shadow but whose structure is uncertain.

The decision is likely to be appealed, and we will have to wait and see how this case is ultimately decided.