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 ( 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).