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Libyan dissident wins right to sue UK government over rendition Jack Straw and UK government should face kidnap and torture claims, court rules
(about 1 hour later)
The British government’s attempts to avoid being being sued for the 2004 kidnapping of a Libyan dissident and his wife, organised when Jack Straw was foreign secretary, have been dismissed by the supreme court. The former foreign secretary Jack Straw, MI6 and the government will have to defend claims that they participated in the 2004 kidnapping of a Libyan dissident and his wife, the supreme court has ruled.
Devastating claims that the rendition and torture of Abdel Hakim Belhaj breached rights enshrined in the Magna Carta should be put before an English court, a unanimous judgment by seven justices concludes.Devastating claims that the rendition and torture of Abdel Hakim Belhaj breached rights enshrined in the Magna Carta should be put before an English court, a unanimous judgment by seven justices concludes.
In a series of linked judgments, the UK’s highest court has ruled that ministers cannot claim “state immunity” or escape trial on the grounds of the legal doctrine of “foreign acts of state”.In a series of linked judgments, the UK’s highest court has ruled that ministers cannot claim “state immunity” or escape trial on the grounds of the legal doctrine of “foreign acts of state”.
But the justices did rule in favour of the government in related overseas detention cases brought by a Pakistani, Yunus Ramatullah, and an Afghan, Serdar Mohammed, declaring that claims based on Iraqi or Afghan law could be resisted due to the principle of “crown act of state”.But the justices did rule in favour of the government in related overseas detention cases brought by a Pakistani, Yunus Ramatullah, and an Afghan, Serdar Mohammed, declaring that claims based on Iraqi or Afghan law could be resisted due to the principle of “crown act of state”.
That decision may affect the prospects of hundreds of other claimants who are taking action against the Ministry of Defence. All of the cases, including that of Belhaj, will now have to return to the high court for trial. It also found, in a case brought brought by a former Iraqi detainee, Abd Ali Hameed Ali Al-Waheed, that capturing and detaining “enemy combatants” is permissible.
Dismissing the government’s appeal in the Belhaj case to the supreme court, Lord Mance said the use of torture “has long been regarded as abhorrent by English law”, as individuals must be protected from deliberate physical mistreatment while in custody. That decision may affect the prospects of hundreds of other claimants who are taking action against the Ministry of Defence. All of the cases, including that of Belhaj, will have to return to the high court for trial.
“The critical point in my view is the nature and seriousness of the misconduct alleged … at however high a level it may have been authorised.” Dismissing the government’s appeal in the Belhaj case, Lord Mance said the use of torture “has long been regarded as abhorrent by English law”, as individuals must be protected from deliberate physical mistreatment while in custody.
“The critical point in my view is the nature and seriousness of the misconduct alleged … at however high a level it may have been authorised,” he said.
Quoting from the Magna Carta, Mance said: “No free man shall be taken, or imprisoned, or dispossessed, of his … liberties … or be outlawed, or exiled, or in any way destroyed … excepting by the legal judgment of his peers, or by the laws of the land.”Quoting from the Magna Carta, Mance said: “No free man shall be taken, or imprisoned, or dispossessed, of his … liberties … or be outlawed, or exiled, or in any way destroyed … excepting by the legal judgment of his peers, or by the laws of the land.”
Mance added that the letter – which Sir Mark Allen, then head of counter-terrorism at MI6 sent to Muammar Gaddafi’s intelligence chief, Moussa Koussa, provided a “hint of the underlying reasons” why the UK may have provided the tip-off that led to the couple being captured. He added that the letter – which Sir Mark Allen, then head of counter-terrorism at MI6, sent to Muammar Gaddafi’s intelligence chief, Moussa Koussa, provided a “hint of the underlying reasons” why the UK may have provided the tip-off that led to the couple being captured.
Lord Sumption said that the conduct of the other governments involved were “sovereign acts”, and that if the US, Malaysia, Thailand and Libya were being sued, they would have enjoyed immunity. “However, they have not been sued. Only the government and agents of the United Kingdom have been.” Belhaj and his wife, Fatima Bouchar, must therefore be permitted to sue the government. Another justice, Lord Sumption, said conduct of the other governments involved were sovereign acts, and that if the US, Malaysia, Thailand and Libya were being sued, they would have enjoyed immunity. “However, they have not been sued. Only the government and agents of the United Kingdom have been.” Belhaj and his wife, Fatima Bouchar, must therefore be permitted to sue the government.
Belhaj and Bouchar were abducted in Bangkok in March 2004 and flown by the CIA from Bangkok to Gaddafi’s interrogation and torture cells in Tripoli.Belhaj and Bouchar were abducted in Bangkok in March 2004 and flown by the CIA from Bangkok to Gaddafi’s interrogation and torture cells in Tripoli.
Two weeks later, Tony Blair paid his first visit to the country, embracing Gaddafi and declaring that Libya had recognised “a common cause, with us, in the fight against al-Qaida extremism and terrorism”. At the same time, in London, the Anglo-Dutch oil giant Shell announced that it had signed a £110m deal for gas exploration rights off the Libyan coast.Two weeks later, Tony Blair paid his first visit to the country, embracing Gaddafi and declaring that Libya had recognised “a common cause, with us, in the fight against al-Qaida extremism and terrorism”. At the same time, in London, the Anglo-Dutch oil giant Shell announced that it had signed a £110m deal for gas exploration rights off the Libyan coast.
Three days later, a second Libyan dissident, Sami al-Saadi, was bundled on board a plane in Hong Kong and taken to Tripoli in a joint British-Libyan rendition operation. Saadi’s wife and four children were also kidnapped and taken to Libya. The youngest was a girl aged six. The family was incarcerated; Saadi and Belhaj were held for more than six years, and say they were subjected to torture throughout this time. Three days after that, a second Libyan dissident, Sami al-Saadi, was bundled on board a plane in Hong Kong and taken to Tripoli in a joint British-Libyan rendition operation. Saadi’s wife and four children were also kidnapped and taken to Libya. The youngest was a girl aged six. The family was incarcerated; Saadi and Belhaj were held for more than six years, and say they were subjected to torture throughout this time.
Evidence of MI6 involvement in the Libyans’ ordeal emerged in correspondence with Allen that was found inside the abandoned office of Koussa, Gaddafi’s foreign minister and former intelligence chief, after the regime fell.Evidence of MI6 involvement in the Libyans’ ordeal emerged in correspondence with Allen that was found inside the abandoned office of Koussa, Gaddafi’s foreign minister and former intelligence chief, after the regime fell.
Among the papers that were discovered was a fax signed by Allen, then head of counter-terrorism, in which he made clear that the agency had supplied the intelligence that made it possible for the couple to be located and detained.Among the papers that were discovered was a fax signed by Allen, then head of counter-terrorism, in which he made clear that the agency had supplied the intelligence that made it possible for the couple to be located and detained.
Last July, the Crown Prosecution Service decided there was insufficient evidence to prosecute Allen, despite concluding that he had been in contact with the US and Libya and that he had “sought political authority for some of his actions”.Last July, the Crown Prosecution Service decided there was insufficient evidence to prosecute Allen, despite concluding that he had been in contact with the US and Libya and that he had “sought political authority for some of his actions”.
The Scotland Yard officers who investigated the affair were said to be furious at the decision, and Belhaj’s lawyers said they would be seeking permission to mount a judicial review.The Scotland Yard officers who investigated the affair were said to be furious at the decision, and Belhaj’s lawyers said they would be seeking permission to mount a judicial review.
Saadi and his family settled their claim in 2012 when they were paid £2.2m by the British government.Saadi and his family settled their claim in 2012 when they were paid £2.2m by the British government.
However, Belhaj and Boucher have refused to settle, unless they also receive an apology from the British government. The government has declined to do this, as this would amount to an admission of involvement in a grave human rights abuse.However, Belhaj and Boucher have refused to settle, unless they also receive an apology from the British government. The government has declined to do this, as this would amount to an admission of involvement in a grave human rights abuse.
Commenting on the ruling, Straw said: “This judgment is about some important points of law, related to how far it is possible to bring into a court process in the UK actions of sovereign states abroad. Commenting on the ruling, Straw, who is one of the respondents in the Belhaj claim, said: “This judgment is about some important points of law, related to how far it is possible to bring into a court process in the UK actions of sovereign states abroad.
“However, at no stage so far have the merits of the applicant’s case been tested before any court. That can only happen when the trial of the action itself takes place. I repeat what I said in the House of Commons in December 2013, that as Foreign Secretary I acted at all times in a manner which was fully consistent with my legal duties, and with national and international law. I was never in any way complicit in the unlawful rendition or detention of anyone by other states.” “However, at no stage so far have the merits of the applicant’s case been tested before any court. That can only happen when the trial of the action itself takes place. I repeat what I said in the House of Commons in December 2013, that as foreign secretary I acted at all times in a manner which was fully consistent with my legal duties, and with national and international law. I was never in any way complicit in the unlawful rendition or detention of anyone by other states.”
Sapna Malik, of law firm Leigh Day which is representing Belhaj said: “The supreme court today has delivered an emphatic judgment upholding the rule of law, particularly in the face of breaches of rights recognised as fundamental by English statute and common law, in which British defendants are alleged to have been complicit. After the ruling, Belhaj said: “Years ago I asked the British government to apologise for what it had done. I have always said I was prepared to forgive, but that first Britain needed to accept that to abduct me and my wife and send us to Gaddafi is, and always was, wrong.
“The justices have clearly declared that the UK courts must not refrain from deciding such cases which may involve criticism of the conduct of foreign states, even when that foreign state is the US. We hope that the defendants in this action now see fit to apologise to our clients and acknowledge the wrongs done, so that they may turn the page on this wretched chapter of their lives and move on.” “The government refused this basic plea for justice. So I am gratified that we will have a trial. We have been waiting for justice for years. I continue to hope justice will one day be done – not just for my family, but in the name of everyone wrongly kidnapped in the war on terror.”
His wife added: “We have waited so long for this result that I had four more children in the meantime. I was five months pregnant with my first son, Abdurahim, when the CIA took us. After the terror of the abduction and the CIA prison he was born weighing only four pounds.
“I want a better world for my kids, a world where this kind of thing does not happen. And I will fight until I see it or until officials admit that what was done to me was wrong.”
Cori Crider from the human rights charity Reprieve, which is supporting the case, said: “The government bought years of delay by wasting hundreds of thousands of pounds on this appeal, when a simple apology would have closed the case.
“We enter the Trump era with not a soul held to account for Britain’s role in rendition. No official has condemned Trump’s torture boasts. Our intelligence agencies may well be pressured to help America torture again. The risks are real. Theresa May should apologise to this family, draw a line in the sand against torture, and restore British honour once and for all.”
In a joint statement, the human rights groups Redress, Amnesty International, the International Commission of Jurists and Justice welcomed the court’s ruling that the government must be held accountable for human rights abuses, and said it should never have attempted to prevent the case being heard.
Martha Spurrier, the director of Liberty, said: “All Mr Belhaj and his wife have asked for, after suffering the most unimaginable abuse, is for those responsible to face up to what they did and apologise. Instead, our government dragged them through years of needless litigation, trying everything in their power to shut them down at every turn.”
The Foreign Office declined to explain how it might settle the Belhaj case, when the couple were insisting upon an apology rather than damages. A spokesperson said: “The government notes the supreme court’s judgment. It would be inappropriate to comment further on this case due to the ongoing legal proceedings.”
But the government won its argument that the UK’s obligation to tackle terrorism, under a 2003 UN security council resolution, prevailed over protections normally conferred by article 5 of the European convention on human rights, which guarantees a right to liberty.
Delivering judgment in relation to claims brought by Serdar Mohammed and Al-Waheed, Sumption said: “A power to capture and detain enemy combatants was implicitly conferred by the relevant UN security council resolutions in any case where this was necessary for imperative reasons of security, that is to say for the security of the armed forces themselves or the civilian population.
“.. this Court decides that capture and detention of enemy combatants are not inconsistent with ... the human rights convention...... the capture and detention of hostile forces is a necessary feature of the conduct of lawful military operations.”
British troops captured Serdar Mohammed, a suspected Taliban leader, in Helmand province, Afghanistan, in April 2010, and held him for interrogation until the following July, although regulations required his transfer within 96 hours. He was then handed over to the Afghan authorities, who held him for a further four years.British troops captured Serdar Mohammed, a suspected Taliban leader, in Helmand province, Afghanistan, in April 2010, and held him for interrogation until the following July, although regulations required his transfer within 96 hours. He was then handed over to the Afghan authorities, who held him for a further four years.
Mohammed is seeking damages under the Human Rights Act, alleging breaches of the European convention on human rights Al-Waheed was captured in Basra in February 2007 and held for six and a half weeks. His case is one several hundred brought before the UK high court in which Iraqi civilians have sought damages for their allegedly unlawful detention and, in some cases, unlawful treatment by British forces.
Separately, British armed forces captured Abd Ali Hameed Ali al-Waheed, an Iraqi citizen, in Basra in February 2007 and held him until the end of the following month.
His case is among several hundred brought before the UK high court in which Iraqi civilians have sought damages for their allegedly unlawful detention and, in some cases, unlawful treatment by British forces.
In the case of both Mohammed and Waheed, the court will be deciding whether the UK’s obligation to tackle terrorism, under a 2003 UN security council resolution, prevails over article 5 of the European convention on human rights, which protects individuals’ rights to liberty.