Ben Batros is Legal Officer at the Open Society Justice Initiative and a former Senior Legal Officer, International Crime Branch, Australian Attorney-General’s Department. Philippa Webb is Visiting Assistant Professor at Leiden University and former Special Assistant to President of the International Court of Justice.
It was reported late last week that the Australian government has settled a claim brought against it by one of its citizens, Mahmoud Habib, arising out of his detention, rendition and torture by US and other foreign authorities (link). The government will not disclose how much it paid Mr. Habib. Over a three-and-a-half year period, Mr. Habib had been detained by Pakistani authorities, then transferred by the US to Egypt, to a military base in Afghanistan, and finally on to Guantanamo Bay where he was detained until his release (without charge) in January 2005. Mr Habib alleges that he suffered a range of mistreatments amounting to torture and inhumane treatment. Instead of suing the foreign agents directly responsible for the alleged abuses or pursuing a criminal prosecution, Mr. Habib brought a civil action against the Australian government for the acts of Australian officials who he claims knew of and aided in his mistreatment. On 25 February 2010, the Full Court of the Australian Federal Court ruled that Mr. Habib’s claim could proceed, as it was not barred by the act of state doctrine (see our previous post and article on the case and that ruling)
The Australian’s government’s settlement of the case follows the British government’s decision to settle similar cases brought by 16 British citizens or residents claiming that MI5 and MI6 had colluded with the CIA in their rendition and detention at Guantanamo Bay (links here, here and here). It’s tempting in a case like this to assume that the case was settled because the government recognised that the allegations were true, and because it did not want damaging facts to be proven in Court regarding the conduct of its officials. And that may well be the case – before the ink was dry on the settlement deal, the Australian Prime Minister requested the Inspector-General of Intelligence and Security to open an inquiry into the Habib case (link) in the light of witness statements that Australian authorities knew of Mr. Habib’s rendition to Egypt and were even present during interrogations there. This new evidence apparently precipitated the settlement deal (link).
The settlement of the case and launching of an inquiry, on the one hand, might seem diametrically opposed to the Australian government’s previous fierce opposition to this case. But while the reported new evidence may account for some of this change, it must also be remembered that the Australian government’s original application to dismiss the case was on the basis of the act of state doctrine, which was directed at shielding foreign agents and governments from judicial scrutiny by Australian courts. It submitted that the act of state doctrine applied because Mr Habib’s claim depended on a determination of the illegality of the acts of agents of foreign states in a foreign territory. The Federal Court rejected this argument. In doing so, they drew a distinction between that doctrine and the principle of state immunity. The Court accepted that state immunity would prevent a claim against either the US or its officials for torture in Australian courts (though potentially controversial, this point was conceded by Mr Habib’s lawyers). However, in rejecting the application of the act of state doctrine to prevent an Australian court from judging the legality of the conduct of Australian officials (albeit acts which merely assisted the primary conduct of foreign officials), the Court saw itself as preserving a functional distribution of jurisdiction: Australian courts may proceed with claims against Australian officials while US, Egyptian or Pakistani courts may consider any claims against their respective officials and governments.
Holding foreign governments accountable in their own courts is exactly what Mr Habib says that he intends to do. According to the reports, Mr. Habib has stated that he “will take this money and use it to sue the Egyptian and United States governments.” Such litigation will not be barred by state immunity, but will still face significant challenges. In Egypt, emergency laws in place for almost 30 years were extended again in 2010, and provide for arrest without charge, indefinite detention and special security courts (link). And in the United States, both the government and the courts have refused to provide accountability or redress to victims of rendition and torture (link). A recent study by the ICTJ (link) has found that civil claims for compensation by non-US citizens are often stymied by procedural obstacles. A number of cases have been dismissed without reaching the merits because courts have been persuaded by government assertions that state secrets, classified evidence, evaluations of foreign policy, or national security concerns are implicated.
The slight prospect of success in either Egypt or the US makes it even more significant that Mr. Habib has had some success in Australia. In Habib v. Cth (2010), the Australian Federal Court recognised the importance of government accountability for its agents in its own courts. And now the inquiry into whether Australian agencies were complicit in his 2001 CIA rendition to Egypt has the potential to make that government accountability a reality.