Judgment was handed down in the Court of Appeal on 30 October 2014. The Court affirms the right of Mr Belhaj – 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 High Court (see below) had struck out his claim, arguing that “act of state” doctrine barred domestic judges from hearing the claim.
The Court of Appeal holds that the UK argument on state immunity to lack “any foundation in law” [para. 49]. Today, the Court finds 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 concludes that the “act of state” doctrine cannot bar the claim, because of the grave violations of human rights alleged by Mr Belhaj and the universal international condemnation of torture [paras. 114 – 121]. The Court emphasises 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 [para. 119].The claim involves allegations by a Libyan national and political opponent of the Gaddafi regime, that he and his family, including his pregnant wife, were abducted from China to Libya where they were subjected to torture, as part of the US programme of ‘rendition.’ The claim is brought against the Foreign Office and UK officials in the previous Government for a series of common law offences in connection with their involvement in the episode.In the High Court, Simon J struck out Mr Belhaj’s action, holding that the ‘foreign act of state doctrine’ precludes the court from adjudicating upon the transactions of foreign states. He held that ‘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’ was beyond the jurisdiction of the court.The Respondents have issued a cross appeal, asking the Court of Appeal to reverse the High Court determination that the law of State Immunity was not relevant in this case. If the claim is not struck out on the basis of ‘foreign act of state’ doctrine, the Respondents’ argue that State Immunity operates as a bar to justiciability.The joint intervention is 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 interveners argue that the High Court’s judgment acts as an absolute bar on litigation against the United Kingdom Government and its officials in circumstances where the agents of other states are involved (as is often the case where allegations of torture are made) and effectively immunises the state against accountability for breaches of fundamental rights. The Interveners consider that:
JUSTICE and the other NGOs are kindly represented pro-bono by Martin Chamberlain QC and Zahra Al-Rikabi of Brick Court Chambers.
Read the Belhaj joint NGO intervention.
Read the Belhaj JUSTICE Press release.
Zahra Al-Rikabi provides commentary on the decision for the EJIL Talk Blog, here.
Angela Patrick, Director of Human Rights Policy, summarises the judgment for the UK Constitutional Law Blog, here.
Read the Court of Appeal Belhaj Judgment.