At this stage, the argument concerns preliminary issues in the litigation about whether the appellants can be held liable as a matter of law. If the court so holds then it will become a matter for the trial judges to determine the facts and whether there is actual liability. The preliminary issues concern legal concepts of Act of State (both by the Crown and by Foreign States) and State Immunity. This post seeks to offer an overview of the litigation which has already produced several lengthy judgments containing in depth analysis of the legal concepts in issue. Links to the judgments and some other materials are provided.
The issue is whether the respondent's claims in tort against the appellants in respect of alleged acts or omissions of US personnel while the claimant was in US custody in Iraq and/or Afghanistan are barred by operation of either the foreign act of state doctrine or doctrine of state immunity.
The Incorporated Council of Law Reporting summary is a useful shortcut for the main points in the Court of Appeal's judgment.
The Supreme Court has to decide:
- Whether the Court of Appeal correctly held that the public policy limitation applied and precluded the application of the foreign act of state doctrine.
- Whether the Court of Appeal correctly held that the territorial limitation of the foreign act of state doctrine applied to the alleged acts of the United States.
- Whether the Court of Appeal was wrong to hold that the doctrine of foreign act of state was engaged.
- Whether the Court of Appeal correctly held that foreign states were not indirectly impleaded in the Particulars of Claim and that the claim was not barred by state immunity.
There are five interveners in the Belhaj case including the United Nations Special Rapporteur on Torture and the International Commission of Jurists. As such, the case will attract international interest.
ICJ and others intervene in UK rendition complicity case and see the ICJ's full submission. The ICJ submission argues that neither State Immunity nor Act of State are applicable to bar these claims.
This article by Owen Bowcott in The Guardian is helpful in looking at this litigation.
Previous Law and Lawyers post concerning the Belhaj case
The earlier Rahmatullah case:
For an earlier decision of the Supreme Court concerning Mr Rahmatullah see Secretary of State for Foreign and Commonwealth Affairs v Yunus Rahmatullah  UKSC 48.