The UK Supreme Court has resoundingly rejected the contention that state immunity and/or foreign act of state barred courts from hearing claims of UK complicity in abduction and torture. The judgment in Belhaj & Rahmatullah (No 1) v Straw & Ors [2017] UKSC 3 – just one of three “blockbuster” decisions handed down in yesterday’s bonanza- has finally cleared the way for these important claims to be tried.
The facts of the cases are well known (and are set out in more detail in this post on the Court of Appeal’s judgment). In short, Abdul-Hakim Belhaj and his pregnant wife allege that UK security services cooperated with US and Libyan authorities in their unlawful rendition in 2004 and their subsequent detention and torture. Mr Rahmatullah, a Pakistani national, was detained by UK forces in Iraq, also in 2004, before being transferred to the custody of US forces, at whose hands he was allegedly tortured. Mr Belhaj was detained by the Gaddafi regime for six years; Mr Rahmatullah was held at Bagram air base for ten years.
There are many striking features of the Supreme Court’s judgment. These include Lord Sumption’s careful discussion of jus cogens; the surprisingly short shrift given to the government’s argument based on state immunity; and the strident dismissal of the argument that UK courts should refrain from adjudicating on foreign acts of state where doing so would embarrass the UK in its international relations (per Lord Mance at [11](iv)(d)]; Lord Neuberger at [134]; and Lord Sumption at [241]). In these brief initial comments, I focus on the doctrine of foreign act of state, which was characterised differently by each of Lord Mance, Lord Sumption and Lord Neuberger (notwithstanding that they agreed in the result).
To the extent that the opinions differ on foreign act of state, it is Lord Neuberger’s view that binds, since he attracted Lord Wilson, Lady Hale and Lord Clarke to his side. So, a majority, but by a hair’s breadth: in their brief, almost parenthetical opinion, Lady Hale and Lord Clarke described Lord Mance and Lord Neuberger as having reached “the same conclusion… for essentially the same reasons”. That word, “essentially”, is capable of masking quite a lot, as the discussion which follows will show.
Lord Mance and Lord Neuberger identified three types of foreign act of state:
- The rule of private international law that a foreign state’s legislation is normally treated as valid insofar as it affects movable or immovable property within the foreign state’s jurisdiction;
- The rule that a domestic court will not normally question the validity of a foreign governmental act in respect of property within the foreign state’s jurisdiction (both Lord Mance and Lord Neuberger expressed reservations as to the existence of this second rule. If it did exist, the rule “is and should be limited to acts relating to property within the jurisdiction of the foreign state” (per Lord Mance) [§11(iv)(a)]);
- The rule of non-justiciability or judicial abstention whereby a domestic court will not adjudicate upon sovereign acts committed by a foreign state abroad (per Lord Mance at [40]; per Lord Neuberger at [123]).
The third rule was the critical issue in this case, and it was here that the differences between Lord Mance and Lord Neuberger were most pronounced.
For Lord Mance, detention in the context of an armed conflict overseas could in some circumstances constitute a foreign act of state. However, the arbitrary rendition, detention and severe mistreatment at issue in these cases “goes far beyond any conduct previously recognised as requiring judicial abstention” (at [97]). In view of “the nature and seriousness of the infringements of individual fundamental rights involved”, the fact that the appellants were allegedly complicit, rather than the prime actors, in the conduct alleged, did not constitute a basis on which domestic courts should abstain from adjudicating (per Lord Mance at [102]).
For Lord Neuberger, the acts alleged in these cases would never have been within the scope of the third rule. In contrast to cases requiring judicial abstention, here there was “no suggestion that there was some sort of formal or high-level agreement or treaty between any of the states involved which governed the cooperation between the executives of the various countries concerned” (at [167]). But even if the third rule had applied, that rule was subject to a public policy exception. Lord Neuberger did not define the scope of that exception, but noted that “any treatment which amounts to a breach of jus cogens or peremptory norms would almost always fall within [it]” (at [168]). While Lord Neuberger described Lord Sumption’s analysis of jus cogens as “impressive” (at [168]), he fell short of a full-throated endorsement. In Lord Neuberger’s view, the domestic origin of foreign act of state rendered it unnecessary for claimants to show that their treatment contravened a jus cogens norm to fall within the public policy exception.
In contrast to Lord Mance and Lord Neuberger, Lord Sumption considered the doctrine of foreign act of state to be comprised of two principles (at [227]):
- The first principle, which he labelled “municipal law act of state”, comprises the first two types of foreign act of state identified by Lord Mance, and it is necessarily limited territorially (at [235]-[236]). Municipal law act of state is the rule that “English courts will not adjudicate on the lawfulness or validity of a state’s sovereign acts under its own law” (at [228]). Unlike Lord Mance and Lord Neuberger, Lord Sumption considered that “personal injury and other wrongs against the person inflicted by the agents of a foreign state are as much capable of being acts of state as the destruction or detention of property” (at [231]). This rule (subject to any exceptions) applies to the acts of Malaysia and Thailand against Mr Belhaj and Mrs Boudchar insofar as those acts were taken within their respective jurisdictions (at [233]).
- The second principle, which Lord Sumption labelled “international law act of state”, broadly corresponds to Lord Mance’s third type of foreign act of state. It is the rule that “English courts will not adjudicate on the lawfulness of the extraterritorial acts of foreign states in their dealings with other states or the subjects of other states” (at [234]). This principle applies “wherever the relevant act of the foreign state occurs” and is not territorially limited (at [237]). This rule (subject to any exceptions) applies to the acts alleged against US officials in the present cases (at [238]).
For Lord Sumption, both limbs of the doctrine were capable of application “only where the invalidity or unlawfulness of the state’s sovereign acts is part of the very subject matter of the action in the sense that the issue cannot be resolved without determining it” (at [240]). In the present case, the unlawfulness of the acts alleged against foreign states was “essential to the pleaded causes of action” (at [242]). Prima facie, then, the doctrine applied.
However, Lord Sumption held that there was an exception. Neither limb of the doctrine could apply where it “would be contrary to the fundamental requirements of justice administered by an English court” (at [262]). This exception covered allegations of torture and complicity in torture (at [268]), and detention without legal basis or recourse to the courts (at [272], [278]). However, it does not necessarily apply to ill-treatment falling short of torture, which does not have the same claim to jus cogens status (at [280]).
In view of their conclusion that the foreign act of state doctrine did not apply to these claims, it was not necessary for Lord Mance or Lord Neuberger to decide whether that doctrine was inconsistent with Article 6 ECHR (per Lord Mance at [11(v)(b)]; Lord Neuberger did not expressly say as much, but it follows from his reasoning).
However, Lord Sumption’s conclusion that ill-treatment falling short of torture was outside the scope of the exception to foreign act of state, meant that the question of the compatibility of that doctrine with Article 6 did arise. Nevertheless, he quickly rejected that contention: applying Roche v United Kingdom (2005) 42 EHRR 30 Lord Sumption held that foreign act of state was “a rule of substantive law which operates as a limitation on the subject-matter jurisdiction of the English court” (at [282]).
The unanimous rejection of foreign act of state in Belhaj & Rahmatullah (No 1) makes the related judgment on Crown act of state in Rahmatullah (No 2) all the more surprising. In that judgment, which was also handed down yesterday, a different panel of seven judges unanimously held that the doctrine of Crown act of state is in principle available as a defence to tort claims arising from the detention and transfer of the claimants by UK forces in Iraq and Afghanistan. The reasoning in that judgment—which is in many respects unsatisfactory—I will leave for another day.
Nevertheless, it is 12 years since Mr Belhaj, Mrs Boudchar and Mr Rahmatullah allege they were detained, abducted and tortured. If UK secret services, and/or the then foreign secretary, were complicit in those abuses, it is high time that they were hauled before the courts. Yesterday’s judgment brings that outcome closer. To that extent at least, it should be applauded.
