Ahead of a legal intervention by Amnesty International and others in the rendition case of the Libyan national Abdul-Hakim Belhaj, Amnesty International is warning that the UK government is “scraping the legal barrel” with its arguments in the case.
The intervention comes in Abdul-Hakim Belhaj's Court of Appeal case - due to start this week - against senior British politicians and officials, including former Foreign Secretary Jack Straw and former MI6 senior intelligence officer Mark Allen, relating to their alleged complicity in his abduction, illegal transfer to Libya and torture and other ill-treatment.
The UK government has argued that Belhaj’s case cannot be heard at all on the grounds that the “act of state” doctrine means that UK courts are precluded from judging the actions of foreign states in their own country. In December a High Court judge accepted this argument, though he expressed his “hesitation” at its use.
Along with the International Commission of Jurists, Justice and Redress, Amnesty International is intervening in the case to warn that the “act of state” doctrine must not be used to shield UK officials from accountability over their alleged complicity in the affair. This would have the effect of denying the claimants access to a legal remedy.
“The government is really scraping the legal barrel with this latest attempt to dodge accountability for the UK’s alleged part in one of the most notorious crimes of the rendition programme," said John Dalhuisen, Europe and Central Asia Programme Director at Amnesty International.
“This makes a mockery of the law. How are courts ever to investigate allegations of rendition if governments are simply going to play the ‘act of state’ card?
“In the past David Cameron and his ministers have talked of getting to the bottom of this and other allegations of UK complicity in torture and rendition. Instead of combing the statute books for get-out clauses, the government should be allowing this important case to run its course.”
In February Abdul-Hakim Belhaj and his wife Fatima Boudchar were given permission to appeal the High Court ruling concerning the act of state doctrine, while the UK government cross-appealed contesting that, in addition to this doctrine, state immunity also precluded the claims from being heard. Amnesty is concerned that the High Court’s judgment may act as an absolute bar on litigation against the UK government and its officials in cases where agents from other states are involved, effectively precluding accountability in this and similar cases.
The Belhaj rendition case
Abdul-Hakim Belhaj - currently head of Libya’s al-Watan Party though formerly a high-ranking opposition commander during the armed conflict in Libya - has been pursuing a claim that British officials were complicit is his alleged abduction, illegal transfer to Libya and torture as part of the CIA’s rendition programme in 2004. During his six-year detention in Libya, he was allegedly beaten, hung from walls, cut-off from human contact and daylight, and sentenced to death. Meanwhile, his wife - Fatima Boudchar - was also rendered to Libya, detained and denied proper medical care despite being pregnant at the time.
The December High Court ruling
In December the High Court held that the act of state doctrine, a rule of common law, prevented a court from judging the acts of foreign states conducted on their own territory. The court rejected, however, the UK government’s arguments that state immunity (a principle of international law by which a state is protected from being sued in the courts of other states) operated as a bar to the claim.
High Court judge Mr Justice Simon found “with hesitation” that the case could not go ahead and expressed his concern that “what appears to be a potentially well-founded claim that the UK authorities were directly implicated in the extraordinary rendition of the claimants, will not be determined in any domestic court; and that Parliamentary oversight and criminal investigations are not adequate substitutes for access to, and a decision by, the Court.”