A big day for international law in the Supreme Court

Yesterday the Supreme Court handed down, as its first three judgments of 2017, decisions in three cases which were long overdue (as we noted in our round-up of 2016):

1. Rahmatullah (No 2) v Ministry of Defence; Mohammed v Ministry of Defence [2017] UKSC 1 [Judgment; press release]
2. Al-Waheed v Ministry of Defence; Serdar Mohammed v Ministry of Defence [2017] UKSC 2 [Judgment; press release]
3. Belhaj v Straw; Rahmatullah (No. 1) v Ministry of Defence [2017] UKSC 3 [Judgment; press release]

Each of the cases involves allegations of wrongful acts by UK armed forces or government officials in the context of military operations or so-called ‘rendition’ to torture, or alleged complicity by the UK in the wrongful acts of other States.

These are three immensely important decisions on the application of various aspects of international law in the domestic courts, and this blog and others will analyse them in detail in the coming weeks (see initial posts by the UKSCblog and EJIL:Talk!). As an initial summary:

Rahmatullah (No 2)

This case concerns a number of claims brought against the UK Government by people who claim to have been wrongfully detained or mistreated by UK or US forces during the conflicts in Iraq and Afghanistan. These included tort claims, based on Iraqi or Afghan law. The Government argued that the doctrine of ‘Crown act of state’ is a defence to a tort claim arising out of the UK’s conduct of foreign affairs. The Supreme Court agreed, holding that, in so far as the tort claims were based on acts of a governmental nature in the conduct of foreign military operations, the ‘Crown act of state’ doctrine applies and the Government cannot be held liable in tort. This is a much broader interpretation of the act of state doctrine than the decision of Legatt J at first instance.

Al-Waheed and Serdar Mohammed

This case concerns the detention of individuals in Iraq and Afghanistan following their capture by British armed forces. The Court decision is by a majority of 7 to 2. The majority decided that it was unnecessary to express a concluded view on whether customary international law permits the detention of combatants in a non-international armed conflict. They considered that, whatever the answer to that question, authority to detain was conferred implicitly by the relevant Security Council resolutions. In a complex analysis of the relationship between Security Council resolutions and Article 5 of the ECHR (the right to liberty), the majority held that there was legal authority for the UK armed forces to detain prisoners for more than 96 hours if this was necessary for imperative reasons of security, but that the procedures for doing so did not comply with Article 5(4) because they did not give a detained person an effective right to challenge his or her detention.

Belhaj v Straw; Rahmatullah (No 1) v Ministry of Defence

Both claimants allege that UK officials were complicit in their unlawful detention, torture and mistreatment at the hands of foreign authorities: in Libya in Mr Belhaj’s case, and in Afghanistan in Mr Rahmatullah’s case. The Government argued that the claims are barred by the doctrines of state immunity and/or ‘foreign act of state’, because in order to decide the cases, the English courts would have to decide on the legality of the acts of foreign States. The Court unanimously found against the Government, on the basis that:

1. State immunity did not apply: the foreign States were not parties to the proceedings in the UK and were not affected in any legal sense by the claims, despite the fact that they could lead to harm to their reputation. State immunity is not broad enough to cover cases where a claimant alleges wrongful conduct by a foreign State if he or she does not seek to make that State a party to the case.
2. Nor did the doctrine of foreign act of state: in so far as any of the various strands of the doctrine potentially applied to the alleged facts, the doctrine is subject to an important public policy exception where fundamental rights are engaged, including the prohibition on torture.