UK: ICJ and others intervene in UK rendition complicity case before Supreme Court

Nov 9, 2015

The ICJ, together with JUSTICE, Amnesty International and REDRESS, filed a third party intervention with the Supreme Court 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 argued that application of the act of state and of the sovereign immunity doctrines, in the manner accepted by the High Court and rejected by the Court of Appeal, was not consistent with national and international human rights law.

In their brief, the human rights organisations addressed the following topics:

• The scope of the doctrine of State immunity in English law, in particular the circumstances in which a foreign State is directly or indirectly “impleaded”;
• Whether the act of State doctrine in English law reflects international law, and the scope of the principle that the act of State doctrine cannot be invoked in cases where serious breaches of international law (including international human rights law) are alleged;
• The nature of the prohibition of torture and the right to a remedy for serious human rights violations in international law.

UK-ICJ&others-AmicusBrief-Belhadj_v_Straw-SC-legalsubmission-2015 (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”.