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Belhaj v. Straw & Rahmatullah (NO 1) v. Ministry of Defence (U.K. Sup. Ct.)

Published online by Cambridge University Press:  23 November 2017

Natasha Simonsen
Natasha Simonsen*
Affiliation:
Natasha recently completed her D.Phil. in Law at the University of Oxford and is now a barrister at Blackstone Chambers in London. Her doctoral thesis was entitled “Rethinking Torture in International Law.”
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Extract

In Belhaj & Rahmatullah (No 1) v. Straw & Ors, the Supreme Court of the United Kingdom cleared the way for claims against British forces for complicity in acts of rendition and torture abroad to proceed to trial. The judgment in Belhaj was one of a trio of important judgments handed down on January 17, 2017, the other two concerning the doctrine of Crown act of state and the right to detain in noninternational armed conflicts. This Note considers only Belhaj, in which the Supreme Court rejected the arguments that the doctrines of state immunity and/or foreign act of state precluded U.K. courts from hearing the claims.

Type
International Legal Documents
Information
International Legal Materials , Volume 56 , Issue 5 , October 2017 , pp. 951 - 1040
Copyright
Copyright © 2017 by The American Society of International Law 

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References

ENDNOTES

1 Belhaj & Rahmatullah (No 1) v. Straw & Ors, [2017] UKSC 3 [hereinafter Belhaj].

2 See Rahmatullah (No 2) & Mohammed & Ors v. Ministry of Defence & Ors [2017] UKSC 1; Al-Waheed & Serdar Mohammed v. Ministry of Defence [2017] UKSC 2.

3 Belhaj, supra note 1, ¶ 31 (Lord Mance), ¶ 197 (Lord Sumption).

4 Id. ¶ 116 (Lord Neuberger, with whom Lord Wilson agreed).

5 Exceptions to state immunity may derive from customary or conventional international law (see, for example, the 2004 UN Convention on Jurisdictional Immunities, which has not yet entered into force) whereas in municipal law the exceptions to state immunity are often codified by statute (as in the State Immunity Act 1978).

6 Belhaj, supra note 1, ¶ 15 (Lord Mance).

7 Id. ¶ 15 (Lord Mance).

8 Id. ¶ 196 (Lord Sumption).

9 See Jones v. Saudi Arabia [2006] UKHL 26, [2007] 1 AC 270, ¶ 31 (Lord Bingham).

10 Jones v. Saudi Arabia [2006] UKHL 26, [2007] 1 AC 270, ¶ 31 (Lord Bingham), ¶ 69 (Lord Hoffmann), noted in Belhaj, ¶ 17 (Lord Mance).

11 Belhaj, supra note 1, ¶ 31 (Lord Mance), ¶ 197 (Lord Sumption).

12 Id. ¶ 11(iv)(d) (Lord Mance), ¶ 134 (Lord Neuberger), ¶ 241 (Lord Sumption).

13 Id. ¶ 228 (Lady Hale and Lord Clarke).

14 Id. ¶ 11(iv)(a) (Lord Mance).

15 Id. ¶ 40 (Lord Mance), ¶ 123 (Lord Neuberger).

16 Id. ¶ 98 (Lord Mance).

17 Id. ¶ 97 (Lord Mance).

18 Id. ¶ 97 (Lord Mance).

19 Id. ¶ 167 (Lord Neuberger).

20 Id. ¶ 168 (Lord Neuberger).

21 Id. ¶ 168 (Lord Neuberger).

22 Id. ¶ 228 (Lord Sumption).

23 Id. ¶ 231 (Lord Sumption).

24 Id. ¶ 233 (Lord Sumption).

25 Id. ¶ 234 (Lord Sumption).

26 Id. ¶ 238 (Lord Sumption).

27 Id. ¶ 240 (Lord Sumption).

28 Id. ¶ 262 (Lord Sumption).

29 Id. ¶ 268 (Lord Sumption).

30 Id. ¶¶ 272, 278 (Lord Sumption).

31 Id. ¶ 280 (Lord Sumption).

32 See Belhaj and Boudchar v. Straw & Ors [2017] EWHC 1861 (QB); Rahmatullah & Ors v. Ministry of Defence & Ors [2017] EWHC 547 (QB).

33 See Jamie Doward, MI6 Chief's Role in Abduction of Gaddafi Foe Belhaj Set to Be Revealed, The Guardian (Feb. 19, 2017), available at https://www.theguardian.com/world/2017/feb/19/mi6-mark-allen-review-role-gaddafi-libya-abdel-hakim-behaj.

34 See Steve Swann, Government Lawyers Consider Belhaj Rendition Damages, BBC News (May 21, 2013), at http://www.bbc.co.uk/news/uk-22614662; Cori Crider, Why Can't Britain Apologise to These Victims of Rendition?, The Guardian (Jan. 19, 2017), available at https://www.theguardian.com/commentisfree/2017/jan/19/britain-apologise-rendition-mi6-abdel-hakim-belhaj-gaddafi.