Supreme Court gives green light to illegal rendition claim

A legal claim alleging that former foreign secretary Jack Straw was unlawfully involved in the illegal rendition of a Libyan man and his pregnant wife to Libya in 2004 can be heard in a UK court, the Supreme Court has ruled.

Libyan politician Abdul-Hakim Belhaj, a political opponent of Colonel Gadaffi, and his pregnant wife, Fatima Boudchar, claim that they were both victims of illegal rendition to Libya in March 2004.

Mr Justice Simon in the High Court had previously ruled that English courts should not hear evidence or rule on the case due to the foreign act of state doctrine, as the rendition had allegedly taken place with the assistance of other nations including the US.

Today’s ruling follows a Supreme Court hearing in November 2015 at which the defendants – Straw, former senior MI6 officer Sir Mark Allen, and the security services – appealed a 2014 Court of Appeal judgment on two points of principle as to why English courts should not hear the case.

However, seven Supreme Court judges unanimously dismissed the government’s appeal, concluding that the claims of unlawful rendition and culpability for torture must be allowed to proceed in the courts.

The defendants had sought to dismiss the action under the state immunity principle, whereby foreign states or officials may not be sued in the English courts. Although no foreign states or officials are being sued in the proceedings, the defendants argued that this principle should still apply as the ‘interests’ of foreign states would be adversely affected by findings of unlawful conduct on their part.

The Supreme Court unanimously held that state immunity did not apply, with Lord Mance observing that ‘the appellants’ case on state immunity in this jurisdiction would preclude suit against them anywhere’.

‘English law recognises the existence of fundamental rights, some long-standing, others more recently developed. Among the most long-standing and fundamental are those represented in Magna Carta…’ Lord Mance added. ‘Further, torture has long been regarded as abhorrent by English law… and individuals are unquestionably entitled to be free of deliberate physical mistreatment while in the custody of state authorities.’

The defendants also argued that under the foreign act of state principle, UK courts will not adjudicate upon the lawfulness or validity of sovereign acts of foreign states.

Again, the Supreme Court unanimously held that, although the claims of Mr Belhaj and Mrs Boudchar would require findings to be made that officials of the US, Malaysia, Thailand, and Libya had acted unlawfully to succeed, their claims should nevertheless proceed in the English courts.

Lord Neuberger, the president of the Supreme Court, observed: ‘The mere fact that officials of more than one country cooperate to carry out an operation does not mean that the… rule can be invoked if that operation is said to give rise to a claim in domestic law. It would be positively inimical to the rule of law if it were otherwise.’

Lord Sumption said it would be ‘contrary to the fundamental requirements of justice administered by an English court to apply the foreign act of state doctrine to an allegation of civil liability for complicity in acts of torture by foreign states.’ He added: ‘In those circumstances, the only point of treating torture by foreign states as an act of state would be to exonerate the defendants from liability for complicity.’

Sapna Malik, a partner in the international team at Leigh Day which represents Belhaj and Boudchar, said: ‘The justices have clearly declared that the UK courts must not refrain from deciding such cases which may involve criticism of the conduct of foreign states, even when that foreign state is the US.

‘We hope that the defendants in this action now see fit to apologise to our clients and acknowledge the wrongs done, so that they may turn the page on this wretched chapter of their lives and move on.’

In a statement released through his solicitors, Kingsley Napley, Jack Straw said: ‘This judgment is about some important points of law, related to how far it is possible to bring into a court process in the UK actions of sovereign states abroad. However, at no stage so far have the merits of the applicants’ case been tested before any court.

‘That can only happen when the trial of the action itself takes place. I repeat what I said in the House of Commons in December 2013, that as foreign secretary I acted at all times in a manner which was fully consistent with my legal duties, and with national and international law. I was never in any way complicit in the unlawful rendition or detention of anyone by other states.’

John van der Luit-Drummond is deputy editor of Solicitors Journal

john.vanderluit@solicitorsjournal.co.uk | @JvdLD