Over the past few days, there has been discussion of whether the attempt to murder Sergei Skripal and his daughter, in the UK, by the use of a nerve agent amounts to an unlawful use force by Russia in breach of Art. 2(4) of the United Nations Charter and customary international law (see posts by Marc Weller, Tom Ruys, and Ashley Deeks). There is agreement that if the action was attributable to Russia, it would amount to a breach of at least some obligation under international law. Marc Weller, points out that the act would amount to an unlawful intervention and a violation of the territorial sovereignty of the UK. Marko argues that these acts would also be a violation of the human rights of the individuals concerned. However, the British Prime Minister characterised the act as an unlawful use of force. What I wish to do in this post is to ask why this categorisation might matter in international law. What exactly are the implications, as a matter of law, of characterising the act as a use of force? This was an issue that was raised in the comments to Marc Weller’s post and some of the points I make below have already been made in that discussion though I expand on them. As discussed below, this characterisation might have far reaching implications in a number of areas of international law, extending beyond the possibility of self-defence, to the possibility of countermeasures, the law relating to state responsibility, the qualification of a situation in the law of armed conflict, and international criminal law. I accept that many of the points discussed below are not clear cut, and some are even contentious. However, I think that having a catalogue of the possible consequences of the arguments relating to the use of force helps us to see more clearly what is at stake when we make these arguments.
The UK Supreme Court has resoundingly rejected the contention that state immunity and/or foreign act of state barred courts from hearing claims of UK complicity in abduction and torture. The judgment in Belhaj & Rahmatullah (No 1) v Straw & Ors  UKSC 3 – just one of three “blockbuster” decisions handed down in yesterday’s bonanza- has finally cleared the way for these important claims to be tried.
The facts of the cases are well known (and are set out in more detail in this post on the Court of Appeal’s judgment). In short, Abdul-Hakim Belhaj and his pregnant wife allege that UK security services cooperated with US and Libyan authorities in their unlawful rendition in 2004 and their subsequent detention and torture. Mr Rahmatullah, a Pakistani national, was detained by UK forces in Iraq, also in 2004, before being transferred to the custody of US forces, at whose hands he was allegedly tortured. Mr Belhaj was detained by the Gaddafi regime for six years; Mr Rahmatullah was held at Bagram air base for ten years.
There are many striking features of the Supreme Court’s judgment. These include Lord Sumption’s careful discussion of jus cogens; the surprisingly short shrift given to the government’s argument based on state immunity; and the strident dismissal of the argument that UK courts should refrain from adjudicating on foreign acts of state where doing so would embarrass the UK in its international relations (per Lord Mance at (iv)(d)]; Lord Neuberger at ; and Lord Sumption at ). In these brief initial comments, I focus on the doctrine of foreign act of state, which was characterised differently by each of Lord Mance, Lord Sumption and Lord Neuberger (notwithstanding that they agreed in the result).
To the extent that the opinions differ on foreign act of state, it is Lord Neuberger’s view that binds, since he attracted Lord Wilson, Lady Hale and Lord Clarke to his side. So, a majority, but by a hair’s breadth: in their brief, almost parenthetical opinion, Lady Hale and Lord Clarke described Lord Mance and Lord Neuberger as having reached “the same conclusion… for essentially the same reasons”. That word, “essentially”, is capable of masking quite a lot, as the discussion which follows will show. Read the rest of this entry…