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Supreme Court rules on rendition and Afghan detention claims

17 January 2017

Actions against the UK Government based on allegedly tortious acts in the course of operations overseas or through complicity in the actions of foreign governments have been given a partial go-ahead in a series of rulings by the UK Supreme Court.

In three appeals involving several named claimants and a large number of Iraqi citizens, heard by benches of up to nine Justices, the court ruled:

  • unanimously by seven Justices, that the doctrine of Crown act of state could apply to acts of an inherently governmental nature in the conduct of foreign military operations by the Crown, and the Government could not be liable in tort; 
  • by a seven-two majority, that British forces had power to take and detain prisoners for periods exceeding 96 hours if this was necessary for imperative reasons of security, but that its procedures for doing so did not comply with ECHR article 5(4) because they did not afford prisoners an effective right to challenge their detention;
  • unanimously by seven Justices, that the plea of state immunity did not cover reputational disadvantage that could be suffered by foreign states, and those states would not be affected in any legal sense by proceedings to which they were not party.

One of the claims permitted to go ahead is against ex-Foreign Secretary Jack Straw over allegations of abduction and torture brought by former Libyan dissident Abdul-Hakim Belhaj, who claims that MI6, which Mr Straw was then responsible for, helped the US kidnap him in Asia in 2004 to return him and his wife to Tripoli. Mr Straw, who is sued along with a former MI6 official and Government departments, denies that he was aware of the rendition.

A related but separate case brought by a Pakistani man, Rahmatullah, who claims the UK illegally handed him over to US forces in Iraq, was also allowed to go ahead.

On state immunity, the court said that English law would take into account whether issues of fundamental rights were engaged, including liberty, access to justice and freedom from torture as part of the assessment of whether a case was justiciable.

The detention cases involved individuals, Mohammed and Al-Waheed, detained for periods of weeks by British forces in Afghanistan. Al-Waheed was eventually released and his appeal was dismissed; Mohammed was handed over to Afghan authorities and his claim was allowed to proceed on ECHR grounds.

The various judgments and other papers can be accessed under the names Rahmatullah and Al-Waheed.

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