ICJ and others intervene in UK rendition complicity case

On 30 June, the International Commission of Jurists, together with JUSTICE, Amnesty International and REDRESS, filed a third party intervention with the Court of Appeal in the case Abdul-Hakim Belhaj and Other v. Jack Straw and Others.  

The case involves the appeal of an action brought by a Libyan national and his spouse against the UK authorities for their alleged role of complicity in the rendition and torture of the complainants. The appeal is from a decision of the High Court, which had determined that the case could not go ahead because the courts could not adjudicate the complaint since it was an “act of States” not subject to judicial review.

The four organizations, represented by Martin Chamberlain QC and Zahra Al-Rikabi at Brick Court Chambers, argued that application of the act of state doctrine, in the manner accepted by the High Court, was not consistent with national and international human rights law.

In their brief, the human rights organizations have submitted that:

  • The High Court’s approach is inconsistent with previous domestic law on the scope of the foreign act of state doctrine; the requirements of the Human Rights Act 1998; and comparative law on the scope of the foreign act of state doctrine;
  • The foreign act of state doctrine does not derive from any accepted international law standard or norm. On the contrary, the expansion of the doctrine so as to create, in effect, an immunity for UK officials whenever they act in tandem with officials from other States is inconsistent with the UK’s obligations under accepted domestic and international law standards on the right of access to a court, the right to an effective remedy and specific rights accorded to torture victims to secure redress – remedy and reparation – pursuant to the European Convention on Human Rights, the UN Convention against Torture and the International Covenant on Civil and Political Rights. The construction of domestic bars to jurisdiction based on comity  – beyond the requirements of state immunity – serves to undermine not only the domestic law commitment to remedies for common law wrongs, but also fatally weaken the global commitments made by states to ensure access to an effective remedy and reparation for gross violations of human rights.
  • In circumstances where the foundation or scope of a domestic law doctrine which limits access to a court are uncertain, a narrow interpretation is required; the comparative and international law framework also points in this direction.
  • So far as the Government’s cross-appeal is concerned, while the principle of state immunity is a principle of international law, it does not justify – let alone require – an over-broad concept of “indirect impleading” which shields the actions of UK officials from the jurisdiction of the Court.  This approach would, again, be inconsistent with domestic law and the international obligations of the United Kingdom.
  • The practical implication of a broad interpretation of the foreign act of state doctrine would be to undermine the international law framework which governs both the right to access to a court and to an effective remedy. The application of the state immunity rule to facts such as these would confer an immunity considerably wider than that required by international law.  An order striking out the claim on either basis, would set a precedent unparalleled in other jurisdictions.

UK-ICJ&others-AmicusBrief-Belhadj_v_Straw-CA-legalsubmission-2014 (download the amicus brief)

Background information

On 20 December, the High Court of Justice dismissed the claim for civil damages of Abdul-Hakim Belhaj, a Libyan opposition member during the rule of Muammar Gaddafi, and of his wife Fatima Boudchar. They sought civil compensation from the UK government for complicity of the UK secret services in their US-led rendition to Libya in 2004, including their unlawful detention and torture in China, Malaysia, Thailand and Libya. Fatima Boudchar was pregnant at the time of the rendition. Abdul-Hakim Belhaj was released from detention in Libya only in 2010. The Court, although it rejected Government claims of immunity, held that the action was barred on the basis of the doctrine of “act of state” according to which “domestic court exercises judicial restraint in order to avoid adjudicating upon the actions of foreign sovereign states, ‘in the area of transactions between states’”. The Court held that it could not assess the lawfulness of actions committed by officials of China, Malaysia, Thailand and Libya in those countries according to their laws. It also declined “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”.

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