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.

 Ben Batros is Appeals Counsel at the International Criminal Court 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

Last week (on 25 February), the Australian Federal Court handed down its decision in Habib v. Commonwealth of Australia ([2010] FCAFC 12).  In some respects, this case is part of several emerging trends relating to immunities and human rights. First, it concerns allegations of torture by foreign State officials, including in Guantanamo Bay (see previous EJIL:Talk! posts here and here)   and  Second, it involves an alleged victim claiming damages against a Government, which resonates with the practice in US courts under the Alien Torts Claims Act and the Torture Victim Protection Act (including the Samantar case being heard by the US Supreme Court this week – see post by Julian Ku over on Opinio Juris). Third, a Government has asked the court to throw out the case, arguing that the courts of one country cannot sit in judgment on the acts of the government of another – echoes of Al-Adsani v. United Kingdom at the ECtHR, Jones v. Saudi Arabia in the UK House of Lords, and the pending Germany v. Italy case at the ICJ.

But even though Mr Habib’s claim lies at the intersection of these trends, it does not follow the “typical” model of a civil claim against the agents directly responsible for the alleged abuses; nor does it pursue a criminal prosecution, where questions of immunity have recently formed a less imposing barrier.  Rather, Mr Habib’s lawyers appear to have considered the experience of similar claims abroad, and to have crafted a case which takes into account both the particular opportunities and obstacles presented by Australia’s legislative regime. As a result, the heart of dispute is the scope of the act of state doctrine, not the applicability of state immunity.

Mr. Habib, an Australian citizen, was detained by Pakistani authorities in early October 2001, and transferred to Egypt in November 2001, to Bagram airbase in Afghanistan in April or May 2002, and then to Guantanamo Bay where he was detained until his release (without charge) in January 2005.  During these periods, Mr Habib alleged a range of mistreatments amounting to torture and inhumane treatment which Australian federal criminal law criminalises with extraterritorial (and in most cases universal) jurisdiction (paras. 3, 15-21, 57-65 of the decision).  The Criminal Code also makes it an offence to aid, abet or counsel the commission of a crime.  Mr Habib’s allegations included that Australian police, intelligence and diplomatic officials had visited him during his detention (which was not disputed), been present during questioning, and may even have provided information used in the interrogation (paras. 17-18, 66-67), and the facts if proved might thus found criminal cases against both the foreign agents who conducted the interrogations and the Australian officials who assisted them. 

To circumvent certain procedural requirements for prosecution of these particular crimes, Mr Habib’s lawyers brought a civil action.  However, with the exception of claims under the Alien Torts Claims Act in the US, civil claims for alleged torture at the hands of foreign state officials have previously been held to be barred by state immunity (notably in the UK in Jones v Saudi Arabia), as Mr Habib’s counsel expressly conceded.  So Mr Habib sued the Australian Government for the torts of misfeasance in public office and of intentional infliction of indirect harm by its officials when they aided and abetted his alleged torture.

An action based on aiding and abetting does not require that the principal has been convicted, or even prosecuted.  Yet to prove that any Australian official had acted beyond their authority and therefore in misfeasance of office by aiding and abetting torture required proof (in this case to the civil standard) that the crimes had been committed by the foreign officials.  There was thus a duality at the core of Mr Habib’s claim – on one hand, an Australian citizen sought redress from the Australian Government under Australian (procedural) law for alleged acts of Australian officials prohibited under Australian (substantive) law; but to resolve this, an Australian court would have to determine whether acts of foreign officials outside of Australia constituted crimes under Australian (extraterritorial) law (paras. 68-71, also 22-23). 

The decision addressed a discrete legal issue which asked the Federal Court to balance these two aspects – is the claim non-justiciable under the act of state doctrine because its resolution would require a determination of the unlawfulness of acts of agents of foreign states within their territory?  The Court answered “no” for varying reasons.

For Perram J, this question of balance was decisive:  the Court’s constitutional obligation to review whether Australian officials had acted beyond their authority under Commonwealth law trumped any common law principle of act of state (para. 24).  Jagot J, on the other hand, prioritised analysis of act of state, spending over half of her opinion discussing its origins, development, and the considerations informing the content of the doctrine (paras. 72-120).  Jagot J (with whom Black CJ agreed) was clear that the act of state doctrine cannot preclude the Court from making findings of fact regarding Mr Habib’s treatment at the hands of foreign officials when those officials are not subject to the jurisdiction of the Court.  Indeed, the Chief Justice emphasised that this is not a question where the authorities were finely balanced; but that even that if it was, the Court should give effect to the Parliament’s moral choice proscribing torture as offensive to the ideals of humanity and a crime even where committed outside of Australia and in an official capacity (paras. 7-11). 

Jagot J’s finding that the act of state doctrine did not bar consideration of this case was supported by the settled and consensual nature of international law prohibiting torture, and the clear judicial standards provided by the Australian legislation in question (paras. 108, 117-120).  And ultimately, in light of her assumption that state immunity would prevent an action against a foreign official, Jagot J appeared to be swayed by the logic that applying the act of state doctrine in this case would mean that the Australian officials could not be held accountable in any court (paras. 113-114).  Even without Perram J’s fixation on the Court’s constitutional role, this would have been a bridge too far.

In the Justices’ discussion of and engagement with decisions by a wide range of national and international courts, this case demonstrated the value and importance of judicial dialogue. However, while the decision is clear about what act of state does not cover, it does little to clarify the precise nature and content of the doctrine:  Perram J considered that “[b]eyond the certainty that the doctrine exists there is little clarity as to what constitutes it” (para. 38); and Jagot J referred repeatedly to authorities and submissions attesting to its “uncertain” nature and application (paras. 51-52).  This vagueness perhaps means that Habib v. Cth will not easily be drawn upon by courts in other jurisdictions engaged in analysing the act of state doctrine.

The future applicability of this case in other jurisdictions is also limited by the fact that the claim was brought in an Australian court against Australian officials:  it constitutes a rare example of human rights litigation involving act of state but not the applicability of state immunity. Nonetheless, the Federal Court still commented on state immunity, appearing to assume that foreign officials could successfully claim state immunity if sued in an Australian court and Australian officials if sued in a foreign court (para. 113).  Although this was obiter dicta, as this question was not before it, the Federal Court seems to have positioned itself alongside the House of Lords in Jones and against any exception to state immunity for jus cogens violations (at least in relation to civil claims), even before the ICJ judgment pronounces on this very question in Germany v Italy (see earlier post here).