Monday 9 November 2015

The Belhaj and Rahmatullah cases ~ UK Supreme Court

Serious questions continue to remain unanswered regarding allegations that the UK government (or government agencies or government servants) were complicit in either the torture or ill-treatment of certain detainees during the global war on terror.  For example, see the House of Lords Committee on Human Rights 23rd report of Session 2008-9

From 9th November to 12th November, a seven judge Supreme Court (Lord Neuberger, Lady Hale, Lords Mance, Clarke, Wilson, Sumption and Hughes) is hearing appeals in two conjoined cases: Yunus Rahmatullah and Abdul-Hakim Belhaj and his wife Fatima Boudchar.  The UK government is strenuously resisting the claims.

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.

Rahmatullah case:

Rahmatullah (respondent) v Ministry of defence and another (appellants) - is an appeal to the Supreme Court from the November 2014 decision of Leggatt J -  Read High Court judgment

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.

R was detained by UK armed forces in Iraq in 2004 and transferred to the custody of US forces thereafter. He was detained in US custody for more than ten years without charge or trial during which time he alleges he was subject to torture and serious mistreatment. He was eventually released in Pakistan on 17 June 2014. He is now claiming damages in tort and under the Human Rights Act 1998 from the appellants.

Belhaj case:

Belhaj and another v Straw and others - is an appeal from the October 2014 decision of the Court of Appeal (Civil Division) - Lord Dyson MR, Lloyd-Jones LJ and Lady Justice Sharp.  Read the Court's decision.   See also the original judgment judgment of Simon J.

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:
  1. Whether the Court of Appeal correctly held that the public policy limitation applied and precluded the application of the foreign act of state doctrine.
  2. 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.
  3. Whether the Court of Appeal was wrong to hold that the doctrine of foreign act of state was engaged.
  4. 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.
The respondents, a former opponent of Colonel Gaddafi and his wife, allege that in February 2004 they were abducted and unlawfully taken to Libya, where they were both allegedly detained and tortured. The second respondent was released on 21 June 2004 but the first respondent was detained until 23 March 2010, during which time he alleges he was tortured and was sentenced to death following a flagrantly unfair trial. In their defences, the appellants have denied liability and the issues in this appeal have arisen by way of preliminary issues of law.

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 [2012] UKSC 48.

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