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Supreme court rulings open door to future ‘war on terror’ litigation in Britain

The Libyan rebel leader Abdel Hakim Belhaj who has won the right to sue former British foreign secretary Jack Straw. Mohamed Messara/EPA

The UK Supreme Court has handed down three landmark judgements relating to the activities of UK authorities and officials in the fight against terrorism. The court ruled on January 17 that cases could now proceed against UK officials accused of involvement in detention and rendition operations – even if foreign states and their officials were the “prime actors” of alleged human rights violations. This means that cases can now proceed against, among others, the former foreign secretary Jack Straw.

Another key element of the rulings relates to the authority to detain people in armed conflict, and the interplay between the law of armed conflict and international human rights law.

The Supreme Court’s rulings will have a significant impact on future litigation in relation to the activity of UK authorities and officials abroad. As a number of the claims relate to the extraterritorial application of the Human Rights Act and its application to UK armed forces, these cases are particularly sensitive in the current political climate.

The cases at stake

The rulings relate to four specific cases, with many joined legal issues:

  • The UK’s alleged involvement in the 2004 detention, rendition to Libya, and subsequent torture of Abdul Hakim Belhaj, a former Libyan dissident, and his wife.

  • The detention by UK forces in Iraq of Yunus Rahmatullah, a Pakistani citizen. Rahmatullah was transferred to US custody, and was detained by US forces first in Iraq and then for over ten years at Baghram airbase in Afghanistan. He alleges severe mistreatment in both UK and US detention.

  • The detention in Afghanistan of Serdar Mohammed, a suspected senior Taliban commander. He was detained by UK forces for three and a half months, and it is alleged that there was no legal basis authorising this detention.

  • The detention in Iraq of Abd Ali Hameed Ali Al-Waheed on suspicion of involvement in insurgent activity, relating to the discovery of a store of improvised explosive devices and other weapons. Al-Waheed was detained for six and a half weeks and released after an internal review held that a successful prosecution was unlikely. His claim is joined with Mohammed’s.

Although the complexity involved in the rulings mean that they require considerable further consideration, they impact on two key areas of law.

State immunity and foreign acts of state

Some of the most significant elements of the rulings relate to state immunity and foreign acts of state. Both these principles are related to the principle of sovereign equality of states established under the UN Charter. Essentially they mean that domestic courts cannot judge the acts of foreign states.

The Supreme Court has now ruled that state immunity does not provide a defence in cases directed against a government official, despite the fact that foreign states may have been the prime actors in causing the alleged harm. As foreign states and their officials would suffer only reputational – and not legal – harm from such a case, the principle of state immunity is protected. The Supreme Court also held that due to the alleged facts of the cases at hand – which constituted severe human rights violations – the government was not entitled to rely on the foreign act of state doctrine.

These findings mean that the Belhaj and Rahmatullah cases against UK officials – including former foreign secretary Jack Straw – can proceed. This is both a political and a legal landmark that will have concrete knock-on effects regarding the joint military and intelligence operations conducted by the UK with other states.

The Supreme Court has confirmed that if, in the course of these activities UK authorities or officials are involved in human rights violations, they may be brought to court in the UK. This will focus attention on how military and intelligence partners are complying with human rights law.

British soldiers – not involved in these cases – in Iraq in 2004. PA Archive/PA Images

Detention in armed conflict

The key issue in the Al-Waheed and Mohammed cases was the extent to which the European Convention on Human Rights (ECHR) – to which the UK is a signatory – applied to military detention operations abroad.

The court held that human rights law continued to apply in situations of armed conflict, even though human rights law had to be “adapted” to fit with the requirements of the law of armed conflict. In this case, this meant that internment (security detention to prevent future harm) was regarded as compatible with international human rights law. This is despite the fact that in normal circumstances a formal “derogation” – or waiver – from the ECHR would be required. This ruling presents a positive approach to the relationship between human rights law and the law of armed conflict, and it means that Mohammed and Al-Waheed cannot sue the UK government regarding the legal basis of their detention.

However, this case is complex and beneath this broadly positive trend lie a number of important – and controversial – legal issues that are likely to be played out in future decisions. In particular, a key issue in the oral hearings of these cases before the Supreme Court was whether the law of armed conflict provided an explicit legal basis for detention in conflicts involving non-state actors. For example, was the UK government within its rights to detain a suspected member of the Taliban.

The Supreme Court dodged the heart of this issue by examining the relevant UN Security Council resolutions, rather than the law of armed conflict. The court’s arguments here were somewhat convoluted, and appear difficult to reconcile with the previous Al-Jedda ruling by the European Court of Human Rights. So it is likely that this issue will be pursued further before the European Court of Human Rights, either on appeal or in future cases.

Although this part of the ruling constitutes a “win” for the British government, as noted by the legal scholar Marko Milanovic, the victory may be hollow. It may mean that in the absence of a UN Security Council resolution, the UK will need to establish explicit legal authority to detain during military operations under national law. A waiver from the ECHR modifying the normal human rights standards, and permitting such detention, will almost certainly be necessary. Legal uncertainty persists.

The Supreme Court’s three judgements are likely to be scrutinised by lawyers in great detail. But it is already clear the rulings will pave the way for significant future litigation and could open the door to a number of detention and rendition cases arising from the “war on terror”.

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