By Charlie de Rivaz:
At the end of October, buried deep in the middle pages of the newspapers, was a story about the UK Court of Appeal. The Court had ruled that a Libyan man and his wife could sue British officials for their alleged role in the couple’s kidnapping and ‘extraordinary rendition’ to Gaddafi’s Libya back in 2004, where the man was subsequently tortured.
You might wonder how such a case could end up going all the way to the Court of Appeal. Surely we don’t need the country’s second-highest court to tell us that British officials accused of complicity in kidnapping and torture should face justice, provide some kind of redress, or, at the very least, reveal the truth about what happened?
Well, actually we do. Since the start of the so-called ‘War on Terror’ allegations of torture and complicity in torture against UK and US officials have either been swept under the carpet – hidden by anti-terror rhetoric and legislation – or they have been dismissed by officials – chief among them Dick Cheney – who maintain that torture is justified when dealing with terrorists. The truth about torture has been hidden as a matter of policy.
The recent ruling in the Court of Appeal suggests that times are changing. The cloak of impunity may well be slipping from the shoulders of those UK officials who turned a blind eye to the worst excesses of the War on Terror. They may yet have to face up, and pay up, for their wrongdoings. And even more importantly: they may have to reveal the truth about what went on behind closed doors during the War on Terror.
The Belhaj case
The case before the Court of Appeal involved Abdul-Hakim Belhaj and his wife, Fatima Boudchar. Belhaj, an opposition commander during the Libyan armed conflict in 2011, claims that in 2004 UK officials colluded with the CIA and Libyan External Security Organisation (ESO) to abduct him and his wife from China and transfer them, via Malaysia and Thailand, to Libya. Belhaj says that he was about to fly to London to claim asylum when the MI6 tipped off the ESO, and subsequently helped the CIA to arrange his ‘extraordinary rendition’ into the hands of Gaddafi. Once in Libya, Belhaj spent six years in prison and was repeatedly tortured. His wife, who was 4 months pregnant at the time of their abduction, spent the 17-hour journey to Libya hooded and taped to a stretcher. She was released from prison a month before giving birth.
We now know that Belhaj was a pawn in the ‘deal in the desert’ of March 2004, made famous (or infamous) by the photo of Tony Blair and Gaddafi embracing in a tent. Bush and Blair sought to bring Gaddafi in from the diplomatic wilderness in exchange for his giving up chemical weapons and committing to the fight against terrorism. But in the small print were a few less savoury items, among them the promise of the USA to ‘render’ at least four detainees from US to Libyan custody, and for the British to help in one of these transfers: that of Belhaj. These details were not revealed until September 2011, after Human Rights Watch discovered incriminating documents in Tripoli, the Libyan captial. One of these was a letter from Mark Allen, at the time the Director of Counter-Terrorism at MI6, to his counterpart at the ESO, sent just 6 days before Blair arrived in Tripoli for the desert deal:
‘Most importantly, I congratulate you on the safe arrival of [Belhaj]. This was the least we could do for you and for Libya to demonstrate the remarkable relationship we have built up over recent years.’
A year after these documents came to light, Belhaj was trying to get his case heard in the High Court in London. He did not appear to be motivated by the promise of a massive compensation pay-out by the UK government, offering to settle the case in exchange for an apology and £1 each from the main defendants: Jack Straw (Foreign Secretary at the time of Belhaj’s abduction), Mark Allen and the UK government. Belhaj’s apparent motivation was the desire to hear the defendants admit what he believes to be the truth: that UK officials were complicit in his kidnap, imprisonment and torture.
But the British government knows ingenious ways to avoid taking responsibility. First, they have constructed a parallel system of secret justice, pushing any allegations against them into the world of shadows and darkness. The Justice and Security Act of 2013 extended the system of closed courts and changed the balance of power so that in civil proceedings the government’s national security concerns outweigh the rights and liberties of individuals. Victims of the government’s excesses during the War on Terror who try to sue the government may be denied access to the proceedings of their case, and can only be represented by a security-cleared lawyer. It goes without saying that very few facts – if any at all – about such cases filter through to the light of day.
Second, the government hands over inquiries into the dark side of the UK’s role in the War on Terror to the inept Intelligence and Security Committee (ISC). It was the ISC that concluded in a report in 2007 – three years after Belhaj was abducted – that there was ‘no evidence that the UK Agencies were complicit in any “Extraordinary Rendition” operations’. Made up of MPs and peers appointed by the Prime Minister, it was the ISC who in December 2013 were given the task of investigating allegations of British involvement in torture and kidnapping, despite the government’s 2012 pledge to hold a genuinely independent, judge-led inquiry. Last Saturday leading human rights groups announced that they will boycott the investigation.
The third way that the government avoids taking responsibility for its sins is through legal alchemy. In the case of Belhaj they employed their two favourite strategies to attempt to bar the case from even being heard: the principle of state immunity and the ‘Act of State doctrine’.
State immunity is based on the principle that all states are equal and one state cannot sit in judgement on the conduct of another. Of course, in terms of their respect for human rights, all states are obviously not equal: the idea of affording Gaddafi’s Libya the same respect and dignity as, say, Sweden, simply because of its status as a state, is distasteful at best. Yet the law is often not to our taste, and before the law all states are equal.
In the Belhaj case the government argued that in order for the court to establish that the British government was complicit in the rendition and torture of Belhaj, then the court must ‘sit in judgement on the conduct of other states’ – that is, the court must judge the lawfulness of the conduct of China, Malaysia, Thailand and Libya in their own territory. To do that, the government argued, you must make them parties to the case; you must have them sitting in the dock alongside Jack Straw and Mark Allen.
This first attempt at legal skulduggery was unsuccessful. The Judge rejected the government’s argument, saying that you don’t need to bring Libya et al. into the dock just to be able to talk about their actions. State immunity would only become an issue if those states’ rights and interest were ‘obviously affected’ by the case, but in the Belhaj case they wouldn’t be; the only thing affected would be their reputation.
When the state immunity gambit didn’t work, the government turned to their other favourite legal tool: the ‘Act of State doctrine’. This is similar but different to state immunity, and very few people actually understand the relationship. One of those who does is Geoffrey Robertson QC. For him, the main difference between the two principles is this:
Sovereign immunity is a limit on the court’s power imposed by international law and ‘Act of State’ derives from the court’s own nervousness about its competence to decide a foreign political issue.
The government got their way back in December 2013, when the High Court ‘got nervous’ and refused to admit the Belhaj case on the basis of the ‘Act of State’ doctrine. As with state immunity, it was understood that the case called into question the actions of foreign states both on their own territory and outside of their territory, and required the court to judge the lawfulness of those actions. But the court didn’t know by what legal code to judge those actions – British law? International Law? Chinese law? In particular, the British judge didn’t know by what legal code to judge the actions of US officials operating outside of the USA (those CIA officials involved in Belhaj’s abduction and rendition [and even torture] who were hopping from airport to airport and black site to black site).
The judge concluded that an inquiry into the lawfulness of the actions of those US officials would be ‘damaging to the national interest’, since it would allegedly require the detailed examination of intelligence-sharing arrangements between the MI6 and the CIA, thereby putting an unacceptable strain on US-UK relations. The court got nervous and barred the case, and so the government’s dirty secrets remained hidden.
Justice strikes back
The ruling, however, was clearly unsatisfactory. As several NGOs (including Amnesty, REDRESS, the ICJ, Justice and Reprieve) pointed out, torture is a particularly grave violation of human rights, and there is no question about its legal status: it is forbidden. All the countries involved in the case (except Malaysia) are parties to the UN Convention against Torture, and customary international law recognises that in absolutely no context is torture permissible.
The Court of Appeal in their recent judgement accepted this reasoning. They also recognised that if British courts didn’t investigate these issues, no-one would, and that there was a compelling public interest that the allegations be investigated. This is obvious: it is clearly in the interest of the British public to know if the people wielding the power in the country have been kidnapping those they don’t like and flying them off to be tortured.
Importantly, the Court of Appeal decided that the risk of damaging our relationship with the USA was outweighed by the importance of getting to the bottom of what happened to Belhaj and to what extent UK officials were involved:
In this particular context, the risk of displeasing our allies or offending other states, and even the risk of the consequences of varying severity which it is said are likely to follow, cannot justify our declining jurisdiction on grounds of act of state over what is a properly justiciable claim.
The Court of Appeal had the sense to look through the fog of legal trickery conjured up by the government’s lawyers and see the real issue: that this is a case that simply has to be heard – it is too important to be swept under the carpet. Belhaj’s victory at the Court of Appeal suggests that maybe, just maybe, the truth will be heard, and Jack Straw, Mark Allen and the government will have to admit their part in some of the most despicable excesses of the War on Terror.
Reasons to be pessimistic
But we should not celebrate just yet. The truth might still fail to reach the light of day. The government, as I have shown, really do not want the British public and the world at large to discover the full extent of their sins. So they will no doubt appeal the decision of the Court of Appeal and try to get Belhaj’s case dismissed at the highest court in the land, the Supreme Court.
In addition, if the threat from terrorist groups like ISIS continues to consume the British collective imagination, then we might see a growing appetite for the kind of draconian policies that marked the wildest years of the War on Terror. We must ensure this does not happen. Kidnapping and then beheading British and American citizens is unquestionably barbaric, but we should not react to such barbarism by lowering our own standards of morality. ‘An eye for an eye’ has always been a dangerous saying, repeated unthinkingly by those who would justify human rights abuses ‘because the bad guys do it’.
Reasons to be optimistic
There is also cause for optimism. The British public have approached the threat from ISIS in a far more nuanced and critical way than they did the threat from al-Qaeda in the wake of 9/11. And they are now far more sceptical of the motives of politicians when they call for extraordinary measures to tackle terrorism, mainly as a result of the bits of truth that managed to seep through about the excesses of the War on Terror, including Abu Ghraib, Guantanamo Bay, Baha Mousa, and the various Wikileaks videos. This scepticism will likely deepen as new reports surface detailing human rights abuses by British and US officials during the War on Terror.
There is also a willingness on the part of some politicians to distance themselves from the methods used during the War on Terror. At the beginning of August US President Barack Obama admitted for the first time that the CIA ‘tortured some folks’. But, again, we should be restrained in our optimism: like the British government, Obama’s administration is not keen on revealing the extent of this torture. The publication of the 6000-page CIA ‘Torture Report’, detailing the organisation’s use of torture during the War on Terror, has been delayed again and again as Obama’s administration looks for ways to redact large chunks of it. Incredibly, Obama put the CIA itself in charge of the redaction process.
The ruling by the Court of Appeal in the Belhaj case is significant. The Court dismissed the government’s attempts to bamboozle it with legal alchemy, and declared unequivocally that the protection of basic human rights outweighs considerations about reputations and ‘special relationships’. Belhaj might yet get his day in court. We must hope that if he does, then the truth will finally be heard. We will learn just how low our government stooped during the War on Terror, and we will learn if they are ready to take responsibility for what they did.
Charlie is an MA student on the Conflict, Security and Development programme at King’s College, London. For three years he worked in Argentina and Colombia as an English teacher and journalist. His main interests include the political economy of war, international human rights law, conflict resolution, and state-failure and state-building. Charlie is currently the Managing Editor of the Strife blog.
 For a full account of what allegedly happened to Belhaj and Boudchar read paragraphs 8-17 of the Judgement of the Court of Appeal (30/10/2014).
 Note that in the documents themselves Belhaj is referred to as Abdullah al-Sadiq. This was the name he used as commander of the now defunct Libyan Islamic Fighting Group (LIFG).
 See para.13 of the Judgement in the Court of Appeal (30/10/2014).
 In the Al-Skeini / Baha Mousa case, brought against the UK government by relatives of six Iraqi civilians killed by UK soldiers in 2003, the government paid out £2.83 million to settle the case in 2008.
 Another pawn in the ‘deal in the desert’, Sami al-Saad, an anti-Gaddafi dissident abducted and ‘rendered’ from Hong Kong to Libya, preempted Belhaj in suing Jack Straw, Mark Allen & co. In December 2012 he accepted a settlement of £2.2 million from the British government. Importantly, the government said that there had been ‘no admission of liability’, and the truth remained hidden.
 For a much more detailed analysis, read this article by Rod Jones published on the OpenDemocracy website.
 Intelligence and Security Committee Report on Rendition, July 2007, p. 64
 Geoffrey Robertson, Crimes Against Humanity (London: Penguin, 2006), p. 370
 This is called ‘indirectly impleading’ a foreign state. A foreign state is indirectly impleaded when it is not named as a party to the tort, yet is required to adopt a position of either having to defend itself and forgo its immunity or have a judgment entered against it, so that it is bound by the judgment.
 Robertson (2006), p. 342
 Para.150 of the Judgement in the High Court (20/12/2013).
 Para.120 of the Judgement in the Court of Appeal (30/10/2014).