The Supreme Court held that claims alleging United Kingdom complicity in torture, unlawful detention and rendition by foreign states are not barred by state immunity or the foreign act of state doctrine. The proceedings brought by Mr Belhaj, Mrs Boudchar and Mr Rahmatullah against British officials and government departments may therefore continue to trial on the pleaded allegations.
The claims and the issues
The appeals arose from two sets of proceedings determined on the claimants’ untested pleadings. In Belhaj, Mr Belhaj, a Libyan opponent of Colonel Gaddafi, and his wife Mrs Boudchar alleged that in 2004 they were detained by Malaysian and Thai officials, rendered by United States agents to Libya, and there detained and mistreated, including by torture. They claimed that United Kingdom authorities, including the then Foreign Secretary and intelligence officials, procured or assisted this by common design. The claims included false imprisonment, trespass to the person, conspiracy, misfeasance in public office and negligence. Three negligence claims independent of the alleged rendition were not before the Court.
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In Rahmatullah, Mr Rahmatullah, a Pakistani citizen, was detained by British forces in Iraq in February 2004 and shortly transferred into United States custody. He was held at Bagram Airbase for over ten years without charge or trial and alleged severe mistreatment. His claims against the Ministry of Defence and the Foreign and Commonwealth Office concerned alleged complicity in acts of United States personnel. The separate claim concerning his initial detention and transfer by British forces raised a different question, dealt with in Rahmatullah v Ministry of Defence [2017] UKSC 1.
The defendants argued that the claims were inadmissible because they indirectly impleaded foreign states or required adjudication of foreign sovereign acts, engaging state immunity and the foreign act of state doctrine.
State immunity
State immunity, recognised by customary international law and given effect by the State Immunity Act 1978, is a personal immunity of a state from jurisdiction in respect of its sovereign acts, subject to statutory exceptions. It may also apply where proceedings indirectly implead a state by affecting its property or legal interests, as in earlier authorities concerning ships and bailments. The appellants contended that establishing unlawful conduct by officials of Malaysia, Thailand, Libya and the United States would affect those states’ interests.
The Court rejected the plea. The foreign states were not parties, and no order would bind them, affect their property, or alter their legal rights or obligations. Reputational disadvantage was not enough. Lord Mance and Lord Sumption both concluded that the claims, brought solely against United Kingdom defendants, did not implead the foreign states directly or indirectly. State immunity therefore failed.
Foreign act of state
The foreign act of state doctrine is a domestic rule limiting adjudication of certain sovereign acts of foreign states. The members of the Court analysed its scope differently but agreed that it did not bar the claims on the pleaded facts.
Lord Mance identified three types under existing authority. The first recognises foreign legislation affecting property within the legislating state’s territory as a rule of private international law. The second, assuming it exists, prevents questioning of sovereign acts concerning property within the foreign state’s jurisdiction. The third requires case-by-case abstention from certain sovereign acts abroad, informed by separation of powers and by fundamental rights. He held that the second type does not extend to personal wrongs, and that allegations of torture, unlawful detention, rendition and disappearance engaged long-standing English protections of liberty and freedom from torture. The circumstances did not call for abstention, and a public-policy qualification would in any event have permitted the claims to proceed. Practical difficulties of proof did not make the issues non-justiciable.
Lord Neuberger, with whom Lord Wilson, Lady Hale and Lord Clarke agreed, reached the same result. The alleged conduct involved harm to individuals rather than property, occurred in circumstances that did not engage a rule of non-justiciability merely because officials of more than one state cooperated, and fell within a public-policy exception for grave violations of fundamental norms. A possible fourth rule based on executive embarrassment was not established and was not relied on as decisive.
Lord Sumption, with whom Lord Hughes agreed, distinguished municipal-law act of state, concerning the lawfulness under its own law of a state’s sovereign acts within its territory, from international-law act of state, concerning extraterritorial sovereign dealings with other states. He held that English public policy, influenced by international norms including the prohibition of torture and the core prohibition of arbitrary detention without legal basis or access to a court, prevented the doctrine from defeating allegations of complicity in torture or in detention and rendition lacking legal authority. Allegations of ill-treatment falling short of torture were less clearly excepted, but should not be struck out before the facts were tried. He considered that article 6 of the European Convention on Human Rights was not engaged by this substantive limitation.
The judges noted that the position might appear differently once evidence was heard, and that some questions, including the precise reach of any public-policy qualification and the effect of article 6, did not require final decision because the defences failed in any event.
Verdict: The Court unanimously dismissed the Government’s appeals. Neither state immunity nor foreign act of state barred the two claims on the facts pleaded. Both could proceed. The Court made no findings about whether the alleged events occurred or anyone was liable.
