Rendition to Libya an “act of state” and therefore non-justiciable
14 January 2014
Belhaj and another v Straw and Others  EWHC 4111 (QB) 20 December 2013 – read judgment
Peter Skelton of 1 Crown Office Row acted for the defendants in this case. He has nothing to do with the writing of this post.
The High Court has struck out claims against British establishment defendants for “unlawful rendition”. The doctrine of immunity attaching to an act of state is total bar to that such claims and is not limited by the gravity of the alleged violation of rights.
The first claimant, an opponent of the Gaddafi regime, and his wife, the second claimant, had been apprehended in Bangkok in 2004 whilst trying to travel from Beijing to the UK to claim asylum. They were held in a detention centre in Kuala Lumpur for two weeks and whilst they were there the UK authorities, along with the US, the Malaysians and the Chinese, worked together to secure their extradition to Libya (this was a time when friendly relations were maintained between the UK and the Libyan government). After another journey to Bangkok, where they were detained in a US “black site”, they were flown to Tripoli and transported to Tajoura prison, a detention facility operated by the Libyan intelligence services. The second claimant was released later in 2004, but the first claimant was transferred to another prison and held until 2010.
In the main action, the claimants sought damages and declarations of illegality, alleging that they had been subject to unlawful rendition from Bangkok to Libya by agents of the US, which the defendants participated in by providing information and intelligence. Amongst the defendants named were the former head of MI6 counter-terrorism, the Attorney General, the SIS, the FCO and the Home Office.
The claimants based their case on conspiracy to injure, trespass to the person and conspiracy to use unlawful means as well as misfeasance in public office. The negligence claim was based on the defendants’ alleged duty of care to the claimants not to expose them to a risk of unlawful rendition or torture. The claimants further contended that the defendants had breached their duty not to disclose any information about the first claimant in circumstances where they should have known his health was jeopardised by the inhuman conditions to which he was exposed, and that they had failed to ensure that adequate interrogation protocols were in place. The action against the defendants was framed in terms of joint liability, where the person who can be termed the actual perpetrator (the defendants in this case) is the agent of another (the US intelligence services).
This hearing was a determination of the issues preliminary to the trial, namely whether the UK courts had jurisdiction to hear these applications for declarations of illegality and damages, given that the rendition complained of was an act of state, which is covered by the doctrine of state immunity.
State, or sovereign, immunity is grounded in a rule of International law, and governed in domestic law by the State Immunity Act 1978. This immunity attaches to the actor. The doctrine of “act of state” on the other hand applies to the subject matter of the act itself – in this case, the executive acts of foreign states. Behind this particular pillar of “act of state” immunity lies the more general principle that the courts will not adjudicate upon the transactions of foreign states. Even though this country (and others) are free to produce governmental reports critical of the actions of other governments, such as the Report of the Intelligence and Security Committee on Rendition (presented to Parliament in July 2007), referring to a history of illegal rendition by organs of the US Government,
there was a qualitative difference between this type of report and a domestic Court making an adverse finding in relation to the actions of a foreign state in its own territory.
This does not mean that the UK courts have refrained from commenting on the legality or otherwise of the acts of foreign states: the domestic courts frequently express views about the conduct of foreign states where they are required to do so. In R v. Mullen  QB 520 at 535E, the Court of Appeal, when considering an appeal based on an abuse of process, was prepared directly to impugn the conduct of state officials (in Zimbabwe) acting in complicity with the British authorities:
In so acting they were not only encouraging unlawful conduct in Zimbabwe, but they were also acting in breach of public international law.
But the facts of Mullen were very distant to those of the instant case. Furthermore, it has been established by the House of Lords that there is no way the immunity of acts of state can be said to stand while the actors are made liable:
The state can only act through servants and agents; their official acts are the acts of the state; and the state’s immunity in respect of them is fundamental to the principle of state immunity. This error [of the Court of Appeal] had the effect that while the Kingdom was held immune, and the Ministry of Interior, as a department of the government, was held to be immune, the Minister of the Interior (the fourth defendant in the second action) was not, a very striking anomaly . (Jones v. Ministry of the Interior of the Kingdom of Saudi Arabia and another  1 AC 270.
State immunity is an absolute and preliminary bar, precluding any examination of the merits. A state is either immune from the jurisdiction or it is not. There is no “half-way house” and no scope for the exercise of discretion (per Lord Bingham, at 33).
Furthermore, Simon J was not persuaded by arguments based on the right of access to justice under Article 6 (a similar claim has just failed in the Strasbourg Court: see Jones v United Kingdom 14 January 2014). In the House of Lords ruling in Jones, Lord Bingham and Lord Hoffmann cast doubt on the decision of the Strasbourg Court in Al-Adsani v. United Kingdom  34 EHRR, where the majority held that Article 6 was engaged and the rule of state immunity needed to be justified. As Lord Hoffmann put it [at 64],
… On the question of whether article 6 is engaged at all, I am inclined to agree with the view of Lord Millett in Holland v. Lampen-Wolfe  1 WLR 1573, 1588 that there is not even a prima facie breach of article 6 if a state fails to make available a jurisdiction which it does not possess. State immunity is not, as Lord Millett said, a ‘self-imposed restriction on the jurisdiction of [the] courts’ but a ‘limitation imposed from without’.
The only exception to the act of state doctrine is that based on the principle of public policy of upholding the rule of law, a rare example being the 1941 decree of the National Socialist Government of Germany which deprived Jewish émigrés of their German nationality and, consequentially, of their property; this was considered “so grave an infringement of human rights that the courts of this country ought to refuse to recognise it as a law at all”: Oppenheimer v Cattermole  AC 249. But such an extreme situation does not often arise. Where it does, conceded Simon J, the court can, by reference to ‘established norms’ or ‘judicial or manageable standards’, determine that the application of the act of state doctrine is inconsistent with principles of public policy. However, doubts on the matter should be resolved in favour of the application of the act of state doctrine.
Before he could reach his final conclusion on the justiciability question, Simon J had to determine was the issue over what law applied to the alleged mistreatment of the claimants. To the extent that it was alleged that the events occurred in more than one country, the UK statute on private international law applied. This has the effect that where injury caused to an individual, the applicable law is the law of the country where he or she was when he or she sustained injury. On this basis, the applicable law for determining the allegations of false imprisonment was the law of the country in which the claimants alleged they had been unlawfully detained. Thus the laws of China would apply to allegations in relation to the events which occurred in China; and the laws of Malaysia in relation to the events which occurred in Malaysia. Against this, the claimants argued that it would be ‘substantially more appropriate’ to apply the law of England and Wales since the matters of complaint were carried out in purported exercise of state authority and it is probable that the acts and omissions relied upon occurred while the first and second defendants were in the United Kingdom.
This argument found no traction with the judge.
none of the locations where the Claimants allege they were detained, or from where they allege they were transferred, was under British control. The alleged detentions and transfers are said to have involved, or to have resulted from, the actions of agents of foreign states. Even in respect of the two causes of action which might be said to have a real link to the United Kingdom (misfeasance in public office and negligence) the basis of the claims is the allegation of unlawful detention in and transfer from various foreign states. This is not a case in which it would be ‘substantially more appropriate’ to apply English law.
Conclusion on the act of state doctrine
In the light of his findings on applicability of law, Simon J pointed out that the court was being asked, in effect, to judge the actions of foreign states by the standards of their own law. It would be extremely difficult, if not to say inappropriate for the court to judge the acts of, for example, China, by Chinese law. There was no doubt therefore that in relation to the acts alleged to have been carried out by officials of China, Malaysia, Thailand and Libya in those countries, the act of state doctrine applied and such claims were non-justiciable:
The claims (a) call into question the activity of a foreign state on its own territory; (b) without reference to any ‘judicial or manageable’, or ‘clear and identifiable’ standards by which such acts may be judged; and (c) relate to the legal validity of those acts within the states’ own territory.
The defendants were correct in their submission that the case pleaded against them depended 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 was “incontestable evidence” that such an enquiry would be damaging to the national interest.
Simon J therefore concluded that the act of state doctrine operated as a bar to the claim; and accordingly, that the claims should be struck out on the basis that they were non-justiciable.
The allegations of negligence, against which the defendants did not argue immunity, were allowed to proceed.
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Oops! it should be: “Al-Adsani v. United Kingdom (2002) 34 EHRR 11″
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