The UK Supreme Court has decided that a case accusing Jack Straw, the former Foreign Secretary, and other UK officials of being complicit in kidnap and torture could go to trial.
Here we explain this important case in plain English.
So what’s this case about?
Kidnap, torture, held without trial for ten years. with the knowledge and possible assistance of the UK Government. No legal remedy. These were the claims in a major case in the Supreme Court this week, where the court decided (in part due to the importance of protecting human rights) that such cases must be heard.
Mr Belhaj is a Libyan national, and was a well-known opposition activist against the Gaddafi regime. He and his wife Mrs Boudchar got on a flight in China. Chinese officials insisted they flew by Malaysia. In Malaysia, they were arrested and tortured, and then sent to Libya where they were tortured further. They say UK officials knew they’d been detained in Malaysia, and passed that on to Libya. They rely on a fax found in Libya after the fall of Gaddafi, in which a senior intelligence officer congratulated Libya on the ‘safe arrival’ of Mr Belhaj.
Mr Rahmatullah’s case is slightly different. He was arrested in Iraq by the UK, and transferred to US custody. He was detained for over ten years without charge. He claims the UK is responsible for assisting and encouraging this. But as Jack Straw has pointed out in a statement after the decision, so far these facts have never been tested in court.
How has there been a case, if the facts haven’t been considered by a court?
The defendants said that the courts should not hear the case at all, and so have not yet responded to the allegations themselves for these reasons.
State Immunity
In international law, there is an idea that states can’t be made to answer to the court of another state. States are immune from being tried in each other’s courts. It makes sense: you wouldn’t expect French courts to be able to judge the British prime minister. In this case, no foreign states were directly involved – only British officials and departments were defendants – but the argument was that foreign states were indirectly involved.
Foreign Act of State Doctrine
The second argument is a home-grown principle that the courts won’t judge cases where that involves ‘sitting in judgment on the acts of foreign states’. Although it sounds similar to the first, it is different: it’s not that the courts can’t hear the case, but that they will voluntarily not do so.
What was decided?
The Supreme Court said neither applied. It didn’t require foreign states to come and defend themselves, so international law wasn’t engaged. As for the second argument, the allegations were so serious and involved such serious breaches of human rights that the courts should not refrain from hearing such cases. English law has recognised fundamental rights since Magna Carta. Torture and arbitrary detention are among the gravest abuses of human rights. Either the principle doesn’t apply at all in these cases, or (given the importance of human rights) there is an exception to it. The judges disagreed which of those it is, but agreed that it doesn’t make much difference: the courts should decide cases where the government is accused of such things.
Now what happens?
Probably back to court, where the facts will be tested – Mr Belhaj has said he will keep fighting until he gets an apology, and £1 in damages from each of the Defendants.
Why is this case so important for human rights?
As the Supreme Court pointed out, the Government’s case effectively meant that these issues couldn’t be heard anywhere. But now, where the government is accused of serious human rights violations, there’s at least a chance the case can be heard. The court emphasised that potential embarrassment for the government and damage to foreign affairs don’t outweigh the importance English law gives to protecting fundamental rights. It’s important for the rule of law that such cases can come before the courts.
