On 30 October 2014, the Court of Appeal in Belhaj v Straw and Others  EWCA Civ 1394 ruled that state immunity and the act of state doctrine did not prevent claims against the British government for alleged involvement in the illegal rendition of a Libyan man and his wife to Gaddafi’s Libya in 2004. The case is significant because the Court found that the act of state doctrine may not apply to alleged breaches of international law or human rights obligations, even in cases where the court would be required to conduct an investigation into the validity of the conduct of a foreign state.
Abdul-Hakim Belhaj and his wife Fatima Boudchar (the “Appellants“) brought a claim for declarations of illegality and damages in relation to their alleged unlawful rendition to Libya in 2004. The Respondents to the claims were a number of British government officials and agencies, including the Foreign & Commonwealth Office, the Secret Intelligence Service, Jack Straw (the Foreign Secretary at the time) and Sir Mark Allen (allegedly the Director of Counter-Intelligence at the Secret Intelligence Service at the time).
The Appellants alleged that they were unlawfully abducted in Thailand whilst en route from Malaysia to the United Kingdom and rendered illegally to the custody of the Libyan authorities. They alleged that they were detained and mistreated in China, Malaysia, Thailand and Libya, and on board a US registered aircraft, carried out by agents of those states. The Appellants alleged that some of these activities were carried out to secure information for the British government and that Mr Belhaj was visited by British intelligence agents whist detained in Libya. They also alleged that the Respondents negotiated, arranged, facilitated, aided and abetted their unlawful rendition to Libya. All of the acts were alleged to have taken place outside the United Kingdom.
The Appellants brought tortious claims against the Respondents, including claims for false imprisonment, conspiracy to injure and trespass, misfeasance in public office and negligence.
At first instance, the High Court found that the doctrine of state immunity did not apply to bar the Appellants’ claims. However, it found that the claims were non-justiciable by reason of the act of state doctrine. This was on the basis that the claims called into question the activities of foreign states without reference to any judicial or manageable standards by which such acts could be judged, in circumstances where there was evidence that such an enquiry would be damaging to national security interests. Both the Appellants and the Respondents appealed to the Court of Appeal.
The Respondents submitted that the doctrine of state immunity applied to bar the Appellants’ claims, on the basis that the claims indirectly impleaded China, Malaysia, Thailand, the United States and their servants or agents. It was common ground that China, Malaysia, Thailand, the United States and their servants or agents would all be entitled to plead state immunity if they were the subject of the proceedings. The issue here was that the claim did not directly implead those countries or their servants or agents (i.e. they were not defendants and there was no claim against their property), but the Court would necessarily have to consider the legality of their actions when deciding the claim.
The Court rejected this submission, stating that that this would involve an unprecedented extension of state immunity. It held that proceedings will not be barred on grounds of state immunity simply because they will require the court to rule on the legality of the conduct of a foreign state. No support for the proposition could be found in the State Immunity Act 1978 or in the case law of the English courts. The Court held that the arguments in this case properly fell within the domain of the act of state doctrine.
Act of state
The Respondents contended that the Court of Appeal should uphold the High Court’s decision, and decline jurisdiction on the basis of the act of state doctrine. The Appellants, however, submitted that the act of state doctrine did not apply because (i) the claim concerned the acts and omissions of British officials, (ii) there were proper judicial and manageable standards by which to try the claim, namely ordinary claims for common law torts; and (iii) a number of well-recognised limitations to the act of state doctrine applied.
The act of state doctrine is founded on the principles of the sovereign equality of states and international comity. It provides that a court will not adjudicate upon the acts of a foreign state or their agents where the validity or legality of those acts is directly challenged. Though the doctrine is expressed in wide terms, it has a number of significant limitations relating to territory (the acts must generally be committed within the territory of the foreign state), acts contrary to public policy, judicial acts, commercial acts, and the establishment of facts (as opposed to adjudication).
The limitation of most relevance to Belhaj was established by the cases of Oppenheimer v Cattermole  AC 249 and Kuwait Airways Corporation v Iraqi Airways Corp. (Nos. 4 and 5)  2 AC 883. These cases established that acts which are in breach of clearly established rules of international law, or where there are grave infringements of human rights, are contrary to principles of English public policy and the act of state doctrine will not apply to prevent the courts from taking jurisdiction.
In both Oppenheimer and Kuwait Airways, the violations of human rights and international law were established beyond doubt and in neither case was it necessary for the courts to conduct an investigation into the conduct of the foreign state concerned. The central issue for determination in Belhaj was whether the Court of Appeal should go beyond Oppenheimer and Kuwait Airways and apply the public policy limitation in a case where the court, if it exercised jurisdiction, would be required to conduct a legal and factual investigation into the validity of the conduct of a foreign state.
The Court of Appeal held that the limitation was not confined to cases in which an investigation was unnecessary, that there were compelling reasons for concluding that the case fell within the limitation, and that it should therefore take jurisdiction. In particular:
- The Court identified a fundamental change within public international law to include the regulation of human rights of which individuals are “rightly considered to be subjects“. This was reflected in an increased willingness of UK courts to address and investigate the conduct of foreign states, in particular regarding whether such conduct is compliant with international law and international standards of human rights (for example in asylum, deportation and torture cases).
- The allegations at issue were particularly grave violations of human rights in the form of torture and unlawful rendition.
- The Respondents were either current or former officers or officials of state in the United Kingdom or government departments or agencies. They were not entitled to immunity before the courts in the United Kingdom and there was a compelling public interest in the investigation by the English courts of the very grave allegations.
- The case was not one in which there was a lack of judicial or manageable standards – the applicable principles of international law and English law were clearly established.
- Unless the English courts were able to exercise jurisdiction, there was a risk that the allegations would go uninvestigated nd the Appellants would be left without legal recourse or remedy.
- Considerations of foreign relations and national security interests of the United Kingdom, did not, in the particular circumstances of the case, outweigh the need for the courts to exercise jurisdiction.
The case is significant because the Court found that the act of state doctrine will not apply to alleged breaches of international law or human rights obligations, even in cases where such breaches were not clearly established and the court would be required to conduct an investigation into the validity of the conduct of a foreign state.
The Court appears to have been strongly influenced by the very serious nature of the allegations being made. It endorsed the description of the act of state doctrine as “a form of immunity ratione materiae, closely connected with analogous doctrines of sovereign immunity” (Yukos Capital Sarl v. OJSC Rosneft Oil Co. (No. 2)  QB 458). In this regard, the decision may be seen as further recognition of the trend towards limiting immunities in cases of torture, begun with the House of Lords’ judgment in Pinochet No. 3 in relation to criminal (though not civil) proceedings.
Had the Appellants brought civil claims before the English courts for torture against China, Malaysia, Thailand, Libya and the United States, such claims would likely have been barred by the decision of the House of Lords in Jones v Saudi Arabia  1 AC 270, which held that there is no exception to immunity in respect of civil claims for alleged torture committed in a foreign State. In this regard, the decision of the Appellants to bring tortious claims against the British government, but not foreign governments, was therefore successful. It bears noting that the Court of Appeal also upheld the High Court decision that the applicable law for each cause of action will be the law of the place where the alleged conduct took place, a ruling which will provide an additional challenge to the claimants in the next phase.
For further information, please contact Andrew Cannon, Partner, Harry Ormsby, Associate, or your usual Herbert Smith Freehills contact.
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