English Court of Appeal rejects De Facto Immunity for UK officials & Act of State Doctrine in Torture Claims

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Following a number of high profile but ultimately failed inquiries into the UK’s ‘complicity’ in US extraordinary rendition, some further light may be shed on the matter by the UK courts. Such is the significance of the judgment given last week by the English Court of Appeal in Belhaj & Anor v Jack Straw & Ors [2014] EWCA Civ 1394, which reversed the decision of Simon J to strike out claims brought by Abdul-Hakim Belhaj and Fatima Boudchar against a number of UK officials for their alleged involvement in their unlawful abduction, detention and renditions. The claimants alleged that they were unlawfully detained and mistreated in China, Malaysia, Thailand and Libya, and on board a US registered aircraft, by agents of those states. Documents uncovered after the fall of Gaddafi allegedly show the complicity of UK officials in the kidnap of Belhaj and his then pregnant wife, Boudchar, and their rendition back to Libya. In a thorough and careful judgment, the Court of Appeal (Lord Dyson MR, Lloyd Jones and Sharp LLJ) held that the claims are not barred by state immunity and, while they did engage the act of state doctrine, the claims fell within the public policy limitation applicable in cases of violation of international law and fundamental rights.

Permission to appeal to the Supreme Court has been granted only in relation to the act of state doctrine. Whatever the Supreme Court decides to do, this judgment marks another bold stand for the rule of law in the context of events arising from the so-called global war on terror, as well as providing further clarification on the scope of both doctrines.

State immunity: indirect impleader

Seemingly emboldened by the recent decision of the European Court of Justice in Jones v the United Kingdom, the Respondents sought to argue that state immunity may be invoked where, as in the present case, the claims necessarily require findings of illegality in respect of the acts of foreign officials for which they could claim immunity if they had been sued directly. It was argued that the claims indirectly implead the states concerned because they affect their interests and that, accordingly, state immunity applies to bar the claims.

Interestingly, the Respondents sought to derive support for this submission from the reference to both “rights” and “interests” in Article 6(2)(b) of the UN Convention on Jurisdictional Immunities of State and their Property, which they argued has the effect that a state is indirectly impleaded where its interests are affected in a broad sense. In its judgment, the Court cited academic commentary in support of the contention that the final words of Article 6(2)(b) should be given a limited reading, such that “interests” of states is confined to legal interests as opposed to interests in some more general sense (O’Keefe, Tams and Tzanakopoulos, The United Nations Convention on Jurisdictional Immunities of State and their Property: A Commentary (2013) at pp. 109, 112; and Fox and Webb, The Law of State Immunity, 3rd Ed., (2013), 307). In any event, even if Article 6(2)(b) does have the effect for which the Respondents contend, the Court concluded that “it cannot be considered to be reflective of a rule of customary international law” in the absence of any international consensus supportive of the Respondents’ contention (at [47]).

The Court described the Respondents’ submission on state immunity as an “unprecedented extension” of state immunity (at [39]) noting the absence of any decided case in any jurisdiction where state immunity has been given such a wide application. The submission was ultimately rejected it as “lacking any foundation in law”, the Court holding that the substance of the appeal lies in the domain of the act of State doctrine [49].

Act of state: rationale and scope

The enduring confusion as to the rationale behind the act of state doctrine stems not only from the shifting explanations given to the doctrine in the United States, but could also be traced to Buttes Gas and Oil Co. v Hammer (Nos 2 and 3)[1982] AC 888, a casecommonlycited as establishing the doctrine in this jurisdiction. This case involved a refusal by the House of Lords to adjudicate on the lawfulness of a settlement reached by four sovereign states. Lord Wilberforce used the language of non-justiciability, famously stating that the courts would be in “judicial no-man’s land” if they were to exercise jurisdiction given the absence of manageable judicial standards (at p. 938 A-C). However, despite having expressed this as a principle of judicial restraint existing “not as a variety of ‘act of state’” (at p. 931 G-H), it nevertheless became the “paradigm restatement” of the act of state doctrine (as noted in Yukos at [66]).

Thus, in the present case, the Appellants sought to argue that the rationale of the act of state doctrine is the separation of powers under the United Kingdom constitution, placing reliance on the judgment of the Supreme Court in Shergill v. Khaira [2014] UKSC 33, which described Buttes Gas as falling within a category of cases “where the issue in question is beyond the constitutional competence assigned to the courts under our conception of the separation of powers” (at [42]). The Court of Appeal rejected this argument, pointing to cases such as Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5)[2002] 2 AC 883, in which the House of Lords felt constrained to consider whether the proceedings could be brought within an exception of the act of state doctrine despite there being no lack of judicial competence arising from the separation of powers or any lack of manageable standards. The Court stated that “more fundamentally, there could be no exception to the act of state doctrine, for example on grounds of violations of human rights or international law, if its basis is a lack of judicial competence” [67].

Rather, the Court endorsed the description of the development and current status of the act of state doctrine by the Court of Appeal in Yukos Capital Sarl v OJSC Rosneft Oil Co. (No. 2) [2014] QB 458, which described the act of state doctrine as “a form of immunity ratione materiae, closely connected with analogous doctrines of sovereign immunity and … is founded on analogous concepts of international law, both public and private, and of the comity of nations” (at [66]).

The Court went on to hold that the facts of the case engaged the act of State doctrine, rejecting the argument that the claims did not require a determination of the validity of the acts of the foreign officials, merely proof that the conduct took place (the so-called Kirkpatrick exception). The Court once again adopted the reasoning in Yukos, where it was held that the act of state doctrine is not limited to circumstances where the validity of foreign law is in issue but extends to challenges to the legality of a state’s conduct.

The public policy limitation

Having found that the claims fell within the scope of the act of state doctrine, the Court went on to hold that they fell within the public policy limitation applicable in cases of violation of international law and fundamental rights. A powerful statement of this limitation was laid down by the House of Lords in Kuwait Airways but, as the Court noted, this was a case in which the unlawfulness of Iraq’s conduct was beyond dispute, having been condemned in a number of Security Council resolutions binding on the United Kingdom under the UN Charter.

In determining whether it is appropriate to go beyond Kuwait Airways, the Court drew support from the willingness of the courts in cases such as A v Secretary of State for the Home Department (No 2)[2006] 2 AC 221 to investigate violations of international law committed by foreign states, in particular in the context of human rights. Further, it considered cases in other common law jurisdictions. In particular, the Court described as compelling the judgment of Jagot J. in Habib v Commonwealth of Australia[2010] FCAFC 12 (see previous EJIL:Talk! post here).

The Court concluded that it is appropriate in this case to go beyond Kuwait Airways by applying the public policy limitation in a context where a legal and factual investigation into the validity of the conduct of a foreign state is required. The Court noted that Kuwait Airways did not confine the limitation to cases where such an investigation is unnecessary, and premised its bold conclusion on a number of “compelling reasons”, including the fundamental change that has occurred in public international law through its expansion into the regulation of human rights, “a system of which individuals are rightly considered to be subjects”; the nature of the allegations in this case, including allegations of torture and other grave violations of human rights; the “compelling public interest in the investigation by the English courts of these very grave allegations” and the stark reality that “unless the English Courts are able to exercise jurisdiction in this case, these very grave allegations against the executive will never be subjected to judicial investigation” (at [114 – 119]). Thus, the Court rejected the de facto immunity given to UK officials by virtue of the High Court judgment, which clearly troubled Simon J even as he concluded that the claims were barred. Finally, the Court considered that the risk that damage will be done to the foreign relations and national security interests of the United Kingdom did not outweigh the need for the courts to exercise jurisdiction (at [120]).

Other observations on the act of state doctrine

The Court also went on to endorse the restatement of the territoriality limitation in Yukos, which held that “the act of state must generally speaking, take place within the territory of the foreign state itself” (at [68]). The exceptions were explained by the Court on the basis that “to the extent that a plea of non-justiciability relates to a subject matter which is essentially concerned with the transactions of states on the international place, questions of territoriality will not always be material” (at [131]). Given that the allegations made against officials of the United States relate to their extra-territorial acts, the Court held that such acts fell within the territoriality limitation to the act of state doctrine.

The Court also briefly considered Article 6 ECHR, holding that while the act of state can be readily held to pursue a legitimate aim, it did not, in the present circumstances, outweigh the Appellants’ right of access to a court.

Finally, in light of its conclusions in relation to the public policy exception, the Court did not find it necessary to determine the question whether Article 14 of the UN Convention against Torture impose an obligation on the United Kingdom

Zahra Al-Rikabi made written submissions, in support of the appeal discussed above, on behalf of the International Commission of Jurists, Justice, Amnesty International and REDRESS (with Martin Chamberlain QC).

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