The long arm of the law: Belhaj and Rahmatullah (No.1)
20 January 2017
This blog is the first covering the series of three important judgments given on Tuesday by the Supreme Court on issues arising out of the War on Terror and the United Kingdom’s interventions in Iraq and Afghanistan. Belhaj and another v Straw and others) and Rahmatullah (No 1) v Ministry of Defence and another  UKSC 3 involved the alleged complicity of United Kingdom officials in allegedly tortious acts of the UK or other states overseas. The torts alleged include unlawful detention and rendition, torture or cruel and inhuman treatment and assault.
The Supreme Court unanimously dismissed the Government’s appeals and ruled that the doctrine of state immunity was no bar to the claims, and that the Government and the various officials sued had not, on the assumed facts, shown any entitlement to rely on the doctrine of foreign act of state so as to defeat the claims brought against them.
Mr Belhaj, the first claimant in Belhaj, was a commander of the opposition during the Libyan civil war in 2011. He is now the leader of the Al-Watan Party. Both he and his wife, Ms Boucher, the second claimant in Belhaj, were detained in Kuala Lumpur in 2004. They alleged that the SIS informed the Libyan authorities of their whereabouts, leading to them being unlawfully ‘rendered’ to Libya. They alleged that they were unlawfully detained by Malaysian officials in Kuala Lumpur, Thai officials and US agents in Bangkok, and finally in Libya, having been taken to Libya in a US plane. They alleged that the United Kingdom “arranged, assisted and encouraged” their rendition, as well as conspired in and assisted, torture, inhumane and degrading treatment inflicted on them by the US and Libyan authorities. Mr Belhaj was detained until 2010.
Mr Rahmatullah was detained by British forces in Iraq on 28 February 2004 on suspicion of being a member of the proscribed organisation Lashkar-e-Taiba. Within a few days he was transferred into US custody. By the end of March 2004 the US authorities had transferred him to Bagram Airbase in Afghanistan, where he was detained by such authorities without charge for over ten years. Part of his claim is that, in relation to this ten year period, British officials acted in combination with the US authorities and/or assisted or encouraged his unlawful detention and mistreatment by the US authorities. Rahmatullah was said to be representative of other claims currently before the High Court.
The claims in Belhaj were framed as claims for false imprisonment, trespass to the person, conspiracy to injure or to use unlawful means, misfeasance in public office and negligence. They were brought against Mr Jack Straw as Foreign Secretary, Sir Mark Allen (allegedly a senior SIS officer), the SIS, the Security Service, the Attorney General, the Foreign and Commonwealth Office and the Home Office, (all appellants in Belhaj).
The claims in Rahmatullah were similarly framed, with the addition of assault and torture. In its separate judgment of the same date the the Supreme Court held that Crown act of state was in principle available in respect of the United Kingdom’s detention and transfer to US custody of Mr Rahmatullah. The issues before the Supreme Court in Belhaj therefore related solely to Mr Rahmatullah’s claims in tort in respect of alleged acts or omissions of US personnel while he was in US detention. The claims were brought against the Ministry of Defence and the Foreign and Commonwealth Office.
The issues before the Court were whether, assuming for present purposes that the allegations made were true, the claims of UK complicity for unlawful detention and mistreatment overseas at the hands of foreign state officials were inadmissible or non-justiciable on their merits by reason of the principles governing state immunity and/or foreign act of state. The appellants argued that the claims were based on conduct where the prime actors were foreign state officials, and they either implead the foreign states or would require the English courts to adjudicate upon foreign acts of state.
Lord Mance (with Lords Neuberger, Clarke, Wilson and Lady Hale) held that the principle of state immunity (as provided for in both customary international law and the State Immunity Act 1978) was based on the sovereign equality of states and international comity. He held that state immunity was a personal immunity possessed by the state in respect of its sovereign activities so far as these do not fall within any of the exceptions listed in the Act. When state immunity exists, the nature and gravity of the alleged misconduct were irrelevant. Even the admitted illegality of the acts complained of does not alter the characterisation of those acts as acta jure imperii.
Lord Mance noted that the appellants argued that state immunity covered (under the concept of ‘indirect impleading’) cases where it was “integral to a claim” against United Kingdom authorities to prove that foreign officials acted contrary to their own laws, before any claim against the United Kingdom authorities and individuals sued can get off the ground; while the claimants argued that nothing in the present proceedings could or would involve any form of judgment against, or in any way affect any legal interests of, the relevant foreign states or their officials.
Lord Mance held that the two appeals involved no issues of proprietary or possessory title. All that can be said is that establishing the appellants’ liability in tort would involve establishing that various foreign states through their officials were the prime actors in respect of the alleged torts. However, that would have no second order legal consequences for the relationship between the respondents and the foreign states in question or their officials. None of the domestic and international cases cited by the appellants regarding the concept of “interests” that should be protected by the doctrine covered any reputational or similar disadvantage that could result to foreign states or their officials from findings made in an English court between the appellants and respondents. He concluded that the legal position of the foreign states, the conduct of whose officials is alleged to have been tortious in the places where such conduct occurred, will not be affected in any legal sense by proceedings to which they are not party. Accordingly, the doctrine of state immunity did not apply.
Foreign Act of State
Lord Mance noted that the starting point of the appellants’ case was that adjudication of the issues now before the court in favour of the claimants would necessarily involve a finding by the English courts that foreign states had acted illegally under the laws of the places where the conduct complained of occurred. With regard to Mr Belhaj’s and Mrs Boudchar’s alleged detention and mistreatment, that would mean in Kuala Lumpur by Malaysian officials, in Bangkok by Thai officials as well as United States officials, in the airplane by United States officials and in Libya by Libyan and United States officials. With regard to Mr Rahmatullah’s detention and alleged mistreatment, that would mean by United States officials in Iraq and Afghanistan
Lord Mance identified three types of foreign act of state. The first was a rule of private international law, whereby a foreign state’s legislation will normally be recognised and treated as valid, so far as it affects movable or immovable property within that state’s jurisdiction. The second rule precluded a domestic court from questioning the validity of a foreign state’s sovereign act in respect of property within its jurisdiction. Lord Mance held that the second type of foreign act of state should be limited as a matter of principle to sovereign acts seizing or affecting property only, and did not have any application to sovereign conduct against the person within the relevant foreign state. Lord Neuberger (with whom Lords Wilson and Clarke, and Lady Hale agreed) described the first and second rules as being that English courts would recognise, and would not question, the effect of a foreign state’s legislation or other laws in relation to any acts which take place or take effect within the territory of that state; and secondly that English courts would recognise, and would not question, the effect of an act of a foreign state’s executive in relation to any acts which take place or take effect within the territory of that state. Lord Neuberger noted that the first and second rules were supported by judicial authority in relation to property. Both Lord Mance and Lord Neuberger held that even if the second rule did extend more generally to acts directed against the person, it would be subject to a public policy exception which would permit the allegations of complicity in torture, unlawful detention and enforced rendition in this case to be pursued in the English courts.
Thirdly, a domestic court will treat as non-justiciable – or will refrain from adjudicating on – certain categories of sovereign act by a foreign state abroad, even if outside the jurisdiction of that state. This was described by Lord Neuberger as:
“issues which are inappropriate for the courts of the United Kingdom to resolve because they involve a challenge to the lawfulness of the act of a foreign state which is of such a nature that a municipal judge cannot or ought not rule on it.”
Whether an issue is non-justiciable under the third rule falls to be considered on a case-by-case basis, having regard to the separation of powers and the sovereign nature of activities. English law will take into account whether issues of fundamental rights are engaged, including liberty, access to justice and freedom from torture. The international relations consequences of a court adjudicating on an issue may also feed into the assessment under the third rule.
Lord Mance held that:
“here we are concerned, in Belhaj, with allegations of apparently arbitrary rendition with a view to forcible handing over to an arbitrary ruler and, in Rahmatullah, with allegations of what again appears to have been arbitrary detention without any of the usual forms of legal or procedural protection accompanied by severe mistreatment. Even if one could say that such treatment reflects some policy of the various foreign states involved, or indeed of the United Kingdom, it goes far beyond any conduct previously recognised as requiring judicial abstention…The critical point in my view is the nature and seriousness of the misconduct alleged in both cases before the Supreme Court, at however high a level it may have been authorised… Sovereign states who without justification and without permitting access to justice detain or mistreat individuals in the course or in relation to their conduct of foreign relations or affairs have sovereign immunity in foreign domestic courts. But I see no reason why English law should refrain from scrutinising their conduct in the course of adjudicating upon claims against other parties involved who enjoy no such immunity here, where the alleged conduct involves almost indefinite detention, combined with deprivation of any form of access to justice and, for good measure, torture or persistent ill-treatment of an individual”
Lord Neuberger similarly held that:
“even if the third rule otherwise applied, I would still hold that this was a case where, assuming that the claimants were detained, kidnapped and tortured as they allege, the public policy exception would apply.” He also held that “As to the second rule, I consider that it cannot be relied on because (i) the alleged wrong-doing involves harm to individuals and not property, and (ii) the public policy exception would anyway apply, as it would in relation to the third rule.”
With regards to the claimants in Rahmatullah Lord Neuberger held that
“even if … [the] third rule was engaged, I consider that Mr Rahmatullah could rely on the public policy exception..To be held without charge or trial for ten years, particularly when coupled with significant mistreatment (even if it did not amount to torture) is sufficient to take Mr Rahmatullah’s case into the public policy exception, bearing in mind the severity and flagrancy of the alleged interference with his rights, and the length of time for which it allegedly lasted.”
When taken together with the linked judgment handed down in Rahmatullah No 2, the Supreme Court has now given authoritative guidance as to how far English Courts should be constrained in their willingness to entertain claims involving allegations of fundamental human rights breaches on the part of foreign states, and the complicity of English officials in such breaches.