Belhaj & Anor v Straw & Ors  EWCA Civ 1394
MrBelhaj was an opposition commander during the Libyan armed conflict of 2011 and is now leader of the Libyan Al-Watan Party. This claim involves allegations by Belhaj that he and his pregnant wife, MsBouchar, were abducted from China to Libya where they were subjected to torture by the Gaddafi regime, as part of the US programme of ‘rendition’. The claim was brought against the Foreign Office and named UK officials for a series of common law offences in connection with their involvement in the episode.
In the High Court, Simon J struck out MrBelhaj’s action, holding that the “foreign act of state” doctrine precludes the court from adjudicating upon the transactions of foreign states. He held that it was beyond the jurisdiction of the court:
“to decide that the conduct of US officials acting outside the United States was unlawful, in circumstances where there are no clear and incontrovertible standards for doing so and where there is incontestable evidence that such an enquiry would be damaging to the national interest”
The Appellants sought to reverse that decision and reinstate their claim. The Respondents issued a cross appeal, seeking to overturn the High Court’s rejection of their argument that State Immunity operates as a bar to justiciability in cases where third States are “indirectly” impleaded in litigation.
The Court affirmed the right of MrBelhaj,and 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 of Appeal held that the UK argument on state immunity would be an “unprecedented extension” of the law on state immunity , which lacks “any foundation in law” . The Court found that state immunity does not prevent claims being brought against UK officials in UK courts, simply because their actions are said to be connected to the acts of foreign states.
The Court confirmed that the ‘act of state’ doctrine is subject to a geographical limitation (territoriality principle), and so is generally only applicable to the activities of a third state within its jurisdiction . As such, the activities or interests of the US could not affect the role of the domestic court in this case.
The Court concluded that the “act of state” doctrine cannot bar the claim in any event, because of the grave violations of human rights alleged by MrBelhaj and the universal international condemnation of torture [114-121]. The Court emphasised that this claim concerns the accountability of UK officials and agencies, and unless the English courts exercise jurisdiction, these very grave allegations would escape judicial investigation .
JUSTICE intervened jointly with the International Commission of Jurists, Amnesty International and REDRESS in this case, kindly represented pro-bono by Martin Chamberlain QC and Zahra Al-Rikabi of Brick Court Chambers.
The joint intervention was brought on the basis that the strike out in this case was based on an overly broad interpretation of the common law rule of justiciability based on the foreign act of state.The decision of the Court of Appeal enables the very serious contention that UK authorities and officials were directly implicated in the “extraordinary rendition” of the claimants to be properly assessed by courts in the UK.
Permission to appeal the decision to the Supreme Court has been granted but only in relation to the act of state doctrine, not state immunity. The Respondents have applied to the Supreme Court for permission to appeal on both issues.
Read the Belhaj JUSTICE Press release.
Zahra Al-Rikabi provides commentary on the decision for the EJIL Talk Blog.
Angela Patrick, Director of Human Rights Policy, summarises the judgment for the UK Constitutional Law Blog.
Read the Court of Appeal Belhaj Judgment
Read the High Court Judgement.
Read the Belhaj joint NGO intervention