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In a landmark judgment handed down today, the Supreme Court concluded that certain private law claims concerning allegations of complicity of United Kingdom officials in allegedly tortious acts of the UK or other states overseas, could proceed to trial.

The joined cases concerned three claimants. Mr Belhaj and Mrs Boudchar allege that they were the victims of an extraordinary rendition from Malaysia to Libya, via Thailand, by virtue of the conduct of Malaysian, Thai and US agents. They also allege that the United Kingdom “arranged, assisted and encouraged” their rendition, in particular by informing the Libyan authorities of their whereabouts, and claim that the UK conspired in and assisted torture, inhumane and degrading treatment inflicted on them by the US and Libyan authorities. Mr Rahmatullah was detained by British forces in Iraq before being transferred to US custody in Iraq and then in Afghanistan, where he was detained without charge for ten years. He also alleges, in part, that British officials acted in combination with US authorities and/or assisted/encouraged his unlawful detention and mistreatment by them.

Based on assumed facts as set out above, the Appellants asserted that the claims were barred by state immunity and/or the doctrine of foreign act of state. The Supreme Court unanimously dismissed the appeals, carrying out a far-reaching review of the relevant authorities. In so doing, it concluded that:

  • The claims would not ‘implead’ – or legally affect - foreign States such as to engage state immunity (see, e.g. paras 39 per Lord Mance JSC and 197 per Lord Sumption JSC);
  • The doctrine of foreign act of state was not engaged by the allegations, as they did not correspond to the various scenarios recognised by the English common law for judicial abstention (see, e.g. paragraphs 96-105 per Lord Mance JSC, 167 per Lord Neuberger PSC and per Lord Sumption JSC); 
  • If the doctrine were engaged, the allegations would fall within a public policy exception for violations of international law or fundamental human rights (paragraphs 97-99 per Lord Mance JSC, 168 per Lord Neuberger PSC, 268, 278 and 285 per Lord Sumption JSC);
  • Lord Sumption JSC (with some support from other members of the Court see, e.g. Lord Mance at paragraph 107(ii) and Lords Neuberger & Wilson at 168) also concluded that the prohibition on arbitrary disappearances in international law had the status of jus cogens.

The full judgment can be read here.

James Eadie QC acted for two of the Appellants, the Ministry of Defence and the Secretary of State for Foreign and Commonwealth Affairs.

Ben Jaffey acted for the Respondents, Mr Belhaj and Mrs Boudchar.

Shane Sibbel and Ravi Mehta acted for the UN Interveners.

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