Earlier this month, the UK Supreme Court unanimously ruled that claims against UK officials for complicity in torture, unlawful detention and rendition are not barred by State immunity or the act of State doctrine and can proceed to trial, despite allegations being made about unlawful conduct of US (and other) state agents. Substantive judgments were given by Lord Mance, Lord Neuberger and Lord Sumption. A remaining question is whether the Court’s holding will apply in future to legal violations beyond the severe abuses alleged in this case.
In the first appeal, Belhaj v Straw, Mr Belhaj and his wife were detained in Kuala Lumpur in 2004. They contend that MI6 informed the Libyan authorities of their whereabouts, leading to them being rendered to Libya against their will. They allege that they were unlawfully detained by Malaysian officials in Kuala Lumpur, Thai officials and US agents in Bangkok, and ultimately in Libya. They allege that UK officials arranged, assisted and encouraged their rendition, and conspired and assisted in torture, inhuman and degrading treatment inflicted upon them by the US and Libyan authorities.
In the second appeal, Rahmatullah v Ministry of Defence, Mr Rahmatullah was detained by British forces in Iraq in 2004 on suspicion of being a member of a proscribed organisation. He was then transferred into US custody, ultimately being detained in Bagram Airbase in Afghanistan. He was held there by the US authorities without charge for over 10 years and alleges that, during that detention, UK officials acted in combination with US officials and/or assisted or encouraged his unlawful detention and mistreatment by the US authorities.
The UK Government sought to strike out the claims on the basis that they were barred by principles of foreign State immunity and the act of State doctrine. That attempt was successful at first instance in Belhaj, but failed in Rahmatullah. Mr Belhaj’s appeal was allowed by the Court of Appeal, and permission was granted for the Government to appeal to the Supreme Court. A “leapfrog” certificate was granted in Ramatullah allowing the matter to come directly before the Supreme Court.
The Supreme Court clearly rejected the claim to State immunity. The foreign States involved had not been named as parties to the claims, and therefore were not “indirectly impleaded” by them. Nor could it be said that they were “indirectly impleaded” by the claims, because the claims, even if successful, would have no legal consequences for those States. The risk of reputational damage to the foreign States, or like disadvantage, was not enough. In so finding, the Court considered the impact of the United Nations Convention on the Jurisdictional Immunities of States and their Property on the domestic law of State immunity, and determined that it was consistent with this narrow interpretation of State immunity.
The claim of foreign act of State provoked greater debate between the members of the Court. Lord Mance, Lord Neuberger and Lord Sumption each broke down the act of State/non-justiciability principle, which they regarded as a domestic rule of English law, despite its interrelationship with US jurisprudence, into discrete components. These components are broadly equivalent across the different judgments.
Lord Mance identified two rules that have often been treated under the heading of act of State: first, a rule of private international law that a foreign state’s legislation will normally be recognised and treated as valid in so far as it affects moveable and immovable property within the state’s own jurisdiction; and secondly a rule that a sovereign act in respect of property within the foreign state’s jurisdiction will not normally be questioned. These were equivalent to Lord Neuberger’s first and second rules (although Lord Neuberger left open the question of the scope of the second rule) and what Lord Sumption labelled “municipal law act of state”.
Lord Mance also identified a third rule, namely one of judicial abstention in relation to “inter-state activities”. This was equivalent to Lord Neuberger’s third rule prohibiting the domestic court from considering “dealings between sovereign states” and Lord Sumption’s “international law act of state”.
The Court considered that the only conceivably relevant principle in the present appeals was the third rule, in that it could be said that trying the claims would require the Court to enter into an assessment of the transactions, on the international plane, between the UK and the foreign States involved. However the suggestion that this rule could apply on the alleged facts of the appeals was firmly rejected.
Lord Mance concluded that there had never been any suggestion in the case law on non-justiciability that the third rule could apply where allegations involved torture and unlawful detention. Rather, the existing cases were concerned with matters such as war and peace, the annexation or cession of territory, or the interpretation of unincorporated treaties. The prohibition on torture and unlawful detention were fundamental and long-standing principles of English law, upon which the English courts had always seen themselves capable of adjudicating. In Lord Mance’s view, the allegations fell outside the scope of the concept of act of State for that reason.
Lord Sumption cast the scope of his “international law act of state” doctrine wider than that of Lord Mance’s equivalent principle. As a consequence, the principle was engaged on the facts of the appeal. However Lord Sumption considered that the rule was subject to a public policy exception that applied in this case. Lord Sumption considered that the international law principle of jus cogens was an important tool in this context which – when aligned with fundamental principles of English law, such as the prohibition on torture and arbitrary detention – assisted in determining whether the exception was engaged. Lord Mance doubted the usefulness of the jus cogens principle in this context, as it would logically suggest that all breaches of jus cogens norms could be adjudicated upon by the English courts, including the prohibition on the use of force between states, and yet this was a core area into which both he and Lord Sumption were agreed the English courts would not tread.
The Court rejected a proposed further rule that the courts would not adjudicate on a particular dispute if doing would risk embarrassing the executive in its conduct of foreign relations. In this regard the Court noted a possible divergence in the approach of the UK courts and the US courts following the decision of the US Supreme Court in Banco Nacional de Cuba v Sabbatino 376 US 398 (1964).
The facts of Belhaj and Rahmatullah were extreme, involving as they did allegations of the most serious type against UK officials. If the UK Government’s attempts to block the claims had been successful, those UK officials would have escaped any consequences for their conduct, despite not themselves being entitled to any immunity. It is, perhaps, unsurprising that the Supreme Court would wish to avoid that outcome. It remains to be seen how far the English courts will be willing to go in other contexts where those same concerns are not engaged.
Martin Chamberlain QC and Oliver Jones represented the International Commission of Jurists, JUSTICE, Amnesty International and REDRESS, which were given permission to make written and oral submissions before the UK Supreme Court in this case.
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