Belhaj & Anor v Straw & Ors [2017] UKSC 3

Two cases concerned UK officials' alleged complicity in unlawful detention, rendition and torture by foreign states. Belhaj and Boudchar were rendered to Libya; Rahmatullah was detained by US forces for ten years. The Supreme Court unanimously held that neither state immunity nor the foreign act of state doctrine barred the claims, allowing them to proceed to trial.

Facts

Two conjoined appeals concerned allegations that UK government officials and departments were complicit in torts committed by foreign states against the claimants. In Belhaj, Mr Belhaj (a Libyan opponent of Colonel Gaddafi) and his wife Mrs Boudchar alleged that, in 2004, UK intelligence services tipped off Libyan authorities about their whereabouts in Kuala Lumpur, leading to their detention in Malaysia and Thailand, rendition by US agents to Libya, and subsequent detention and torture in Libya. Reliance was placed on a letter allegedly written by Sir Mark Allen to Moussa Koussa congratulating him on Mr Belhaj’s “safe arrival” and noting the “remarkable relationship” built between the services. In Rahmatullah, a Pakistani national was detained by UK forces in Iraq in 2004 on suspicion of links to Lashkar-e-Taiba, transferred to US custody pursuant to an MoU, removed to Bagram airbase in Afghanistan, and detained for over ten years without charge or trial, allegedly being severely mistreated.

Issues

The Supreme Court had to determine, on the assumed facts, whether the claims were barred by: (i) state immunity, on the basis that they indirectly impleaded the foreign states (Malaysia, Thailand, Libya, USA) whose officials were the prime actors; and (ii) the doctrine of foreign act of state, which the appellants submitted required English courts to abstain from adjudicating upon the sovereign acts of foreign states. A subsidiary issue concerned the engagement of Article 6 ECHR.

Arguments

The appellants argued that state immunity extended to cases where adjudication would require findings that foreign states or their officials had acted unlawfully, even where those states were not parties, relying on the UN Convention on Jurisdictional Immunities and ICJ authorities such as Monetary Gold and East Timor. They further argued that the foreign act of state doctrine should be expanded to cover all sovereign acts by foreign states abroad. The respondents argued that the foreign states’ legal positions were not affected by these proceedings and that the doctrine of foreign act of state did not apply to acts against the person committed outside the foreign state’s own territory, or alternatively that a public policy exception applied given the gravity of the alleged violations.

Judgment

State Immunity

The Court unanimously held that state immunity did not apply. The foreign states were not impleaded, directly or indirectly, since the proceedings would not affect their legal rights or interests in any legal sense. Lord Mance held that the property cases (e.g. Dollfus Mieg, Rahimtoola) establish that indirect impleader requires some legal consequence for the foreign state’s rights, not merely reputational disadvantage. Article 6 of the UN Convention on Jurisdictional Immunities, properly understood in its drafting context, was confined to cases affecting property or analogous legal interests.

Foreign Act of State

Lord Mance identified three types of foreign act of state: (i) a private international law rule recognising foreign legislation affecting property within the foreign state’s jurisdiction; (ii) a rule (assuming it exists) that domestic courts will not question executive acts affecting property within the foreign state’s jurisdiction; and (iii) a principle of judicial abstention or non-justiciability in respect of certain sovereign acts. The second type, if it exists, is limited to acts affecting property and does not extend to acts against the person. The third type is not territorially limited but must be applied case-by-case, having regard to the engagement of fundamental rights of liberty, access to justice, and freedom from torture.

Lord Sumption, with whom Lord Hughes agreed, took a somewhat different analytical approach, distinguishing between “municipal law act of state” and “international law act of state”, but recognised a public policy exception drawing on jus cogens norms, particularly the prohibition of torture and arbitrary detention without legal basis or recourse to courts. Lord Neuberger (with whom Lord Wilson agreed) preferred a fourfold analysis but reached the same conclusion. Lady Hale and Lord Clarke agreed with Lord Neuberger.

The Court unanimously held that the doctrine did not bar these claims. The allegations of complicity in torture, unlawful detention, enforced disappearance and rendition engaged fundamental rights long recognised by English law (traced to Magna Carta article 29) and could not be precluded from judicial scrutiny. A contrary conclusion would render the UK defendants immune from suit anywhere in the world, since foreign states would enjoy state immunity in their own courts.

Implications

The decision clarifies and limits the doctrine of foreign act of state in English law. It confirms that the doctrine cannot be invoked to shield UK officials from civil liability for alleged complicity in serious violations of fundamental rights by foreign states, including torture, arbitrary detention without legal basis, and extraordinary rendition. State immunity does not bar claims merely because they require findings that foreign states acted unlawfully, where those states are not parties and their legal interests are not affected. The judgment affirms the constitutional role of English courts in upholding the rule of law and fundamental rights, even where the executive may prefer that such allegations not be scrutinised. The reasoning grounds the limits of the doctrine in domestic public policy, informed but not dictated by international law norms. Practitioners should note that the case proceeded only on assumed facts; the substantive merits remain for trial. The decision is of significance for human rights litigation, accountability of intelligence and security services, and the proper boundaries between judicial and executive functions in the conduct of foreign relations.

Verdict: The Supreme Court unanimously dismissed both appeals. The defences of state immunity and foreign act of state were held not to bar the claims, which were permitted to proceed to trial.

Source: Belhaj & Anor v Straw & Ors [2017] UKSC 3