Torts in UK Foreign Relations – Post Scriptum Following the UKSC’s Judgment in Zubaydah v FCDO

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In my post introducing the symposium, I provided three reasons why I believed the discussion in my book was timely. Little did I know, at the time of writing, that the UK Supreme Court would deliver its judgment in Zubaydah v Foreign, Commonwealth and Development Office right in the middle of the symposium, on 20 December 2023, between the publication of Professor Webb’s and Professor Mills’ posts. Since the case addresses the law applicable to a tort claim arising out of the external exercise of British executive authority, I want to explain its relevance to the arguments that I make in my book through a post scriptum.

Abu Zubaydah, the first detainee in a CIA black site and the first subject of what the CIA euphemistically refers to as ‘enhanced interrogation techniques’, but what the United Nations Human Rights Council, rightfully, recognises as torture and cruel, inhuman or degrading treatment, is currently a ‘forever prisoner’ in Guantánamo Bay. He was captured by the CIA in Pakistan in March 2002 on suspicion of being an al Qaeda member. Over the next four years, he was held in black sites in Afghanistan, Guantánamo Bay, Lithuania, Morrocco, Poland and Thailand. Since 2006, he has been held in Guantánamo Bay.

US law, coupled with the law of state immunity, prevents detainees like Zubaydah (persons captured in the war on terror and detained in CIA black sites) from suing the US in US and foreign courts. Instead, such detainees can only bring proceedings against complicit states, a phenomenon Roach calls “substitute justice”. Readers of EJIL Talk! will know that Zubaydah has already successfully sued Lithuania and Poland, two states that hosted CIA black sites, before the European Court of Human Rights. In Zubaydah v FCDO, he is suing the UK government for its alleged complicity in the CIA’s wrongful conduct.

Because there is no allegation that the UK hosted a CIA black site, Zubayda’s case falls outside the territorial scope of the European Convention on Human Rights. This left him only with the option of suing the UK government in tort. He is advancing five causes of action: misfeasance in public office, conspiracy to injure, trespass to the person, false imprisonment and negligence.

The crux of the claim is that the Security Service and the Secret Intelligence Service (better known as, respectively, the MI5 and the MI6) knew or ought to have known that Zubaydah was being arbitrarily rendered to, detained in, and subjected to extreme mistreatment and torture by the CIA at black sites, but nevertheless sent numerous questions with a view to the CIA eliciting information from him, expecting and/or intending (or at any rate not caring) that he would be subjected to such treatment. The defendants are neither confirming nor denying these allegations. This aspect of the case was decided on the basis of assumed facts.

The UKSC addressed the preliminary issue of the law applicable to Zubaydah’s claim. Zubaydah pleaded his case by reference to English law. The defendants argued that the laws of Afghanistan, Lithuania, Morrocco, Poland and Thailand and the law in force in Guantanamo Bay (“Six Countries”) should govern. The focal point of the choice-of-law dispute was the application of the “escape clause” from section 12 of the Private International Law (Miscellaneous Provisions) Act 1995.

Lane J held that foreign laws applied. The Court of Appeal (Dame Sharp P, Thirlwall and Males LJJ) unanimously allowed the appeal. Despite finding that the Court of Appeal erred in its approach to section 12, the Supreme Court, in a 4 to 1 decision (Lord Lloyd-Jones, Lord Kitchin, Lord Burrows and Lord Stephens; Lord Sales dissenting), dismissed the appeal.

The Court of Appeal erred by focusing solely on the defendants’ conduct said to have occurred in England. It should have also taken into account the CIA’s conduct [81]. Hence, the Supreme Court conducted its own choice-of-law analysis.

The connections between the torts and the Six Countries were held to be weak for five reasons. First, Zubaydah was involuntarily present in the Six Countries [93]. Second, the defendants were entirely indifferent to Zubaydah’s location [94]. Third, Zubaydah was rendered to and detained in de facto black legal holes [95]. Fourthly, he was held in six such facilities in six countries [96]. Fifth, his gaolers and torturers were not agents of the Six Countries, but of a third country, ie the US [97].

Conversely, the connections between the torts and England were deemed strong for three reasons. First, the defendant is the UK government [99]. Secondly, the relevant events occurred partly in England [100]. Third, the defendants acted “in their official capacity in the purported exercise of powers conferred under the law of England and Wales… The defendants are all emanations of the UK Government and were at all material times subject to the criminal and public law of England and Wales.” [101]

Considering all these factors, the Supreme Court held that it was substantially more appropriate for the applicable law to be English law.

The Supreme Court’s judgment strongly supports the central argument of my book. As I explain in my post introducing the symposium, I argue that there are no compelling theoretical justifications for the application of foreign law in general to tort claims arising out of the external exercise of British executive authority. I further argue that the English courts should apply English law to tort claims arising out of the external exercise of British executive authority and reserve the application of foreign law only for certain issues, such as the lawfulness of the relevant conduct. As I explain in my response to Professors Mills, Ryngaert and Webb, the main reason for advocating the application of English tort law is that, together with English criminal and public law, it is fine-tuned for assuring the accountability of British public authorities. Foreign tort law is unlikely to be able to substitute for English tort law.

The Supreme Court essentially adopts this argument by placing decisive weight on the connections between the torts and England. It reinforces this point in relation to the misfeasance claim by noting, at [62], that “there is scope for suggesting, for example, that on the presumed facts of this case, it is a constitutional imperative that the applicable law in relation to the tort of misfeasance in public office in relation to the acts and omissions of the UK Services should be the law of England and Wales”.

I, therefore, welcome the Supreme Court’s judgment, as it underscores the importance of English law in this context. In doing so, it promotes access to justice and the role of English law as a mechanism for vindicating fundamental rights and controlling the exercise of British executive authority.

The author declares that he provided pro bono advice to the claimant’s legal team in this case.

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