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.
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 judgement by seven justices concludes.
In a series of linked judgements, 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 Mohamed, declaring that claims based on Iraqi or Afghan law could be resisted due to the principle of “crown act of state”.
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. 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.
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 judgement of his peers, or by the laws of the land.”
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 tipoff that led to the couple being captured.
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.
Jack Straw
