Thursday 30 October 2014

Abdul-Hakim Belhaj and Fatima Boudchar v Jack Straw and others

The Court of Appeal (Civil Division) - Lord Dyson MR, Lloyd-Jones and Sharp LJJ - has affirmed the right of Mr Abdel-Hakim Belhadj – an opposition commander during the Libyan armed conflict of 2011 and now leader of the Libyan Al-Watan Party – and Ms Bouchar, his wife, to pursue a claim in the domestic courts against the UK officials allegedly involved in their abduction from China through Malaysia and Thailand and their transfer to Libya.  The Court stressed that a failure to allow UK courts to consider the complaint would unacceptably result in a denial of a legal remedy for very grave allegations of human rights violations. The Court dismisses the view that the risk of displeasing other States could outweigh the imperative of providing access to justice to victims of such alleged violations.

A summary of the court's judgment and the full judgment are available on the Judiciary website or Bailii at [2014] EWCA Civ 1394.  The appealed judgment of Simon J in the High Court is at [2013] EWHC 4111 QB.  

See also JUSTICE -  Court of Appeal confirms access to court in torture cases.  JUSTICE was one of six interveners in the case.  The submissions of the interveners may be seen via REDRESS.

The UK Government
had argued that "state immunity" (a principle of international law by which a
state can be protected from being sued in the courts of other states) and the “act of state” doctrine (a claim should not call into question activities of a foreign state) precluded British courts from hearing the case. The court's rejection of these arguments will permit examination by the courts of the very serious allegation that UK authorities and officials were directly implicated in the "extraordinary rendition" of these particular  claimants.  Of course, the courts would not be directly concerned with the wider question of extraordinary rendition in general. 

Whether this case will now be heard in the Supreme Court of the UK remains to be seen.  The government clearly does not wish it to go to trial and the legal moves thus far have been aimed at preventing that.  In the event that a trial eventually takes place, no doubt the "closed material procedures" in the Justice and Security Act 2013 will be invoked.

The Detainee Inquiry:

In July 2010, an Inquiry under the chairmanship of Sir Peter Gibson was announced.  This "Detainee Inquiry" was ended by Kenneth Clarke (then Secretary of State for Justice) in January 2012. Clarke's stated reason for ending the inquiry was that there was an on-going criminal investigation by the Police.  The Detainee Inquiry issued a report in December 2013 - see Watching the Law - Detainee Inquiry under Sir Peter Gibson scrapped (14th February 2012), Report of the Detainee Inquiry - concerns remain (23rd December 2013), Rendition and Torture - Report (by the Open Justice Society Initiative) implicates the UK (5th February 2013).

Other reading:

Joshua Rozenberg - The Guardian 30th October 2014 - Judges in Abdul Hakim Belhaj case right to call government's bluff 

International Commission of Jurists - Court of Appeal affirms role for domestic courts in UK torture claims

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