Torture and rendition claims not barred by State immunity or ‘act of State’ doctrine

30/10/14

The Court of Appeal (Lord Dyson MR, Lloyd Jones and Sharp LJJ) today gave judgment in Belhaj & Anor v Jack Straw & Ors [2014] EWCA Civ 1394, holding that the claims brought by Abdul-Hakim Belhaj and Fatima Boudchar against a number of UK officials and departments were not barred by State immunity or by the act of State doctrine. The claims, which include false imprisonment, misfeasance in public office and conspiracy to injure, arose out of allegations that UK officials were involved in the unlawful abduction, detention and renditions of the appellants to Tripoli, Libya in March 2004 and the respondents’ subsequent acts and omissions while the appellants were unlawfully detained in Libya.

First, the Court determined whether State immunity may be invoked where the claim necessarily requires findings of illegality in respect of the acts of officials of foreign States for which they could claim immunity if they had been sued directly. The answer was no: such an unprecedented extension of State immunity would leave no room for the operation of the ‘act of State’ doctrine.

The Court noted the links and shared common rationales between the principles of State immunity and ‘act of State, but noted that “they operate in different ways, State immunity by reference to considerations of direct or indirect impleader and act of State by reference to the subject matter of the proceedings.”

Next, the Court held that the facts of the case engaged the act of State doctrine, rejecting the argument that the claims did not require a determination of the validity of the acts of the foreign officials, merely proof that the conduct took place (the so-called Kirkpatrick exception). However, it went on to hold that the claims fell within two exceptions to the act of State doctrine: first, they fell within the public policy exception applicable in cases of violation of international law and fundamental rights; second, it fell within the extra-territoriality exception as the impugned conduct was alleged to have taken place outside the United States.

The Court recognised that it was going beyond previous case law by applying the public policy limitation in a context where, if the court exercised jurisdiction, it would be required to conduct a legal and factual investigation into the validity of the conduct of a foreign state. In support of its conclusion, the court noted, amongst other things, the changed nature of public international law, which has expanded to include the regulation of human rights; the nature of allegations in this case, being particularly grave violations of human rights; and the stark reality that “unless the English Courts are able to exercise jurisdiction in this case, these very grave allegations against the executive will never be subjected to judicial investigation”. The Court considered that the risk that damage will be done to the foreign relations and national security interests of the United Kingdom did not outweigh the need for the courts to exercise jurisdiction.

The Court also briefly considered the application of Article 6 ECHR, holding that the act of state doctrine undoubtedly pursues a legitimate aim. However, on the particular facts of the case, it was not capable of outweighing the appellants’ Article 6 right of access to the court.

The judgment is here.