Belhaj v Straw
[2017] UKSC 3
Hilary Term
[2017] UKSC 3
On appeals from: [2014] EWCA Civ 1394 and [2014] EWHC 3846 (QB)
| JUDGMENT |
Belhaj and another (Respondents) v Straw and others (Appellants) Rahmatullah (No 1) (Respondent) v Ministry of Defence and another (Appellants)
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Mance
Lord Clarke
Lord Wilson
Lord Sumption
Lord HughesJUDGMENT GIVEN ON
17 January 2017
Heard on 9, 10, 11 and 12 November 2015
Appellants (Rt Hon Jack Respondents (Belhaj and Straw MP and 6 others) another) Rory Phillips QC Richard Hermer QC Sam Wordsworth QC Ben Jaffey Karen Steyn QC Maria Roche Sean Aughey
(Instructed by The (Instructed by Leigh Day) Government Legal Department)
Appellant (Ministry of Respondent (Rahmatullah) Defence and another) James Eadie QC Phillippa Kaufmann QC Karen Steyn QC Edward Craven Melanie Cumberland
(Instructed by The (Instructed by Leigh Day) Government Legal Department)
Respondent (Rahmatullah)
Richard Hermer QC
Nikolaus Grubeck
Maria Roche
(Instructed by Deighton
Pierce Glynn)
Interveners (UN Special Rapporteur on Torture
and another)
Nathalie Lieven QC
Ravi Mehta
Shane Sibbel
(Instructed by Bhatt
Murphy Solicitors)
Interveners
Martin Chamberlain QC
Oliver Jones
Zahra Al-Rikabi
(Instructed by The Redress
Trust)
Interveners:-
(1) International Commission of Jurists
(2) JUSTICE
(3) Amnesty International
(4) REDRESSLORD MANCE:
Table of Contents (page reference)
I Introduction ............................................................................................................ 1 II The claimants’ allegations ...................................................................................... 2 III Summary of conclusions ........................................................................................ 6 IV State immunity ........................................................................................................ 9 V Foreign act of state ............................................................................................... 19 VI Three types of foreign act of state ........................................................................ 21 VII Analysis of the case law ....................................................................................... 26 (i) Carr v Fracis Times & Co ............................................................................... 26
(ii) The United States authorities .......................................................................... 27
(iii) Buttes Gas v Hammer ........................................................................................ 32
VIII Application of the first and second types of foreign act of state .......................... 36
IX Application of third type of foreign act of state ................................................... 51 X Miscellaneous points ............................................................................................ 63 XI Overall Conclusion ............................................................................................... 64 I Introduction 1. The appeals now before the Supreme Court in Belhaj and Boudchar v Straw and Ministry of Defence v Rahmatullah concern the alleged complicity of United Kingdom authorities and officials in various torts, allegedly committed by various other states in various overseas jurisdictions. The torts alleged include unlawful detention and rendition, torture or cruel and inhuman treatment and assault. The defences include in both appeals state immunity and the doctrine of foreign act of state. The case of Rahmatullah also raises for consideration the inter-relationship of these concepts with article 6 of the European Convention on Human Rights. The meticulous but differing analyses of the Court of Appeal (Lord Dyson MR and Sharp and Lloyd Jones LJJ) in Belhaj and Leggatt J in Rahmatullah underline the difficulties. The Supreme Court has nonetheless benefitted greatly from their analyses, as well as that of a previous Court of Appeal (Rix, Longmore and Davis LJJ) in Yukos Capital Sarl v OJSC Rosneft Oil Co
(No 2) [2012] EWCA Civ 855; [2014] QB 458 (“Yukos v Rosneft”).
2. The issues come before the courts by way of challenges under CPR rule 11.1 to the existence or exercise by the court of jurisdiction over the appellants (the defendants in the proceedings), combined with applications for dismissal of the relevant claims under CPR rule 3.1. The issues have, necessarily, to be determined by reference to
allegations contained in the respondents’ (the claimants’) pleadings which have not
been investigated or tested. One of the appellants’ objections to their adjudication is
indeed that it is impermissible or inappropriate for a domestic court to investigate
allegations of the type advanced.
II The claimants’ allegations
3. Both cases originate with events in February/March 2004. In Belhaj, Mr Belhaj, a Libyan national and opponent of Colonel Gaddafi, and his wife, Mrs Boudchar, a Moroccan national, attempted (under, it seems likely, other names) to take a commercial flight from Beijing to London, but were instead and for whatever reason deported by the Chinese authorities to Kuala Lumpur. There they were detained. MI6 is alleged to have become aware of their detention and on 1 March 2004 to have sent the Libyan intelligence services a facsimile reporting their whereabouts. This is said to have led to a plan being developed to render them against their will to Libya. Thereafter, they allege, they were unlawfully detained first by Malaysian officials in Kuala Lumpur and then by Thai officials and United States agents in Bangkok, before being put on board a US airplane which took them to Libya. There they were further detained, in the case of Mrs Boudchar until 21 June 2004, in the case of Mr Belhaj until 23 March 2010.
4. Mr Belhaj and Mrs Boudchar allege that the United Kingdom procured this
detention in all these places “by common design with the Libyan and US authorities”.
They allege that they suffered mistreatment amounting to torture at the hands of US agents in Bangkok and in the airplane and at the hands of Libyan officials in Libya.
They allege that the United Kingdom “by common design arranged, assisted and
encouraged [their] unlawful rendition … to Libya”. They rely in this connection upon
a letter dated 18 March 2004 alleged to have been written by the second appellant, Sir
Mark Allen, allegedly a senior official of the Secret Intelligence Service (“SIS”) to Mr
Moussa Koussa, Head of the Libyan External Security Organisation. The letter
congratulated Mr Moussa Koussa “on the safe arrival of [Mr Belhaj]”. It said that “This
was the least we could do for you and for Libya to demonstrate the remarkable
relationship we have built over recent years”. It indicated that British intelligence had led to Mr Belhaj’s transfer to Libya, although the British services “did not pay for the
air cargo”. Mr Belhaj and Mrs Boudchar further allege that the United Kingdom
“conspired in, assisted and acquiesced in torture, inhumane and degrading treatment,
batteries and assaults inflicted upon [them] by the US and Libyan authorities”. Again,
it should be stressed that these are allegations, based inter alia on alleged awareness of the risks of torture of detainees in United States and/or Libyan hands. It is also pleaded
that “the renditions took place as part of a co-ordinated strategy designed to secure
diplomatic and intelligence advantages from Colonel Gaddafi”. The claims are framed
as claims for false imprisonment, trespass to the person, conspiracy to injure or to use unlawful means, misfeasance in public office and negligence. They are brought against Mr Jack Straw as Foreign Secretary, Sir Mark Allen, the SIS, the Security Service, the Attorney General, the Foreign and Commonwealth Office and the Home Office, all of whom are the appellants in Belhaj. The first and second appellants, Mr Straw and Sir Mark Allen, state that the Official Secrets Act makes it impossible for them to advance any positive case in response to the allegations against them. The remaining appellants
state that it is the position of Her Majesty’s Government that it would be damaging to
the public interest for them to plead to such allegations.
5. Upholding Simon J on the point, the Court of Appeal held, and it is now accepted, that all the claims depend upon proof that torts such as those alleged existed under the laws of the places where they were allegedly committed (subject only to any countervailing considerations of, in particular, public policy under section 14 of the Private International Law (Miscellaneous Provisions) Act 1995). The issues now before the Court relate to all the claims, save for three negligence claims which are independent of the alleged facilitation of and acquiescence in rendition to and detention in Libya and which arise from alleged failure by the appellants to take protective steps after they became aware that Mr Belhaj and Mrs Boudchar were in Libya.
6. In Rahmatullah, Mr Rahmatullah, a Pakistani citizen, was on 28 February 2004 detained by British forces in Iraq on suspicion of being a member of Lashkar-e-Taiba, a proscribed organisation with links to Al-Qaeda. The UK and the USA were at the time occupying forces in Iraq, where there was a situation of international armed conflict. Shortly after his original detention, within a matter of days at most, Mr Rahmatullah was transferred into the custody of US forces, and by the end of March 2004 they had transferred him to Bagram Airbase in Afghanistan, where he was detained for over ten years without charge or trial, until released on 15 May 2014. He alleges that he was subjected to severe mistreatment in both British and United States detention. His claims
are put under the like heads to Mr Belhaj’s and Mrs Boudchar’s, with assault and torture
as additions. Again, the claims allege in various terms that the relevant appellants acted in concert or combination with the United States authorities, or assisted, encouraged or were complicit in relation to the alleged unlawful detention and mistreatment by the United States authorities. Again, the tenor of the allegations is that the United States authorities were the actors, even if they were being encouraged or engaged, procured, or utilised by the appellants to do as they allegedly did. Leggatt J regarded the claims
relating to Mr Rahmatullah’s detention by British forces and transfer into the custody
of US forces as barred by the defence of Crown act of state, assuming that arrest and detention were authorised pursuant to lawful United Kingdom policy. The appeal from that aspect of his judgment was joined with the appeal in Mohammed (Serdar) v Ministry of Defence [2015] EWCA Civ 843; [2016] 2 WLR 247. The Court of Appeal allowed the appeal on the basis that Crown act of state is a nuanced defence, applicable
only where “there are compelling considerations of public policy which require the
court to deny a claim founded on an act of the Executive performed abroad” (para 359),
with the result that there must be a trial on the facts on the issue of Crown act of state.
In its separate judgment of today’s date from that decision of the Court of Appeal, the Supreme Court restores (though for different reasons) Leggatt J’s conclusions that
Crown act of state is in principle available in respect of the United Kingdom’s detention
and transfer to US custody of Mr Rahmatullah. The issues now before the Supreme
Court relate solely to Mr Rahmatullah’s claims in tort in respect of alleged acts or
omissions of US personnel while he was in US detention. The claims are brought against the Ministry of Defence and the Foreign and Commonwealth Office, both of which are the appellants in Rahmatullah.
7. The appellants’ case in both proceedings is that the issues now before the
Supreme Court are inadmissible or non-justiciable on their merits by reason of principles governing state immunity and/or foreign act of state. More specifically, the appellants submit that the claims are based on conduct where the prime actors were foreign state officials, and they either implead the foreign states or would require the
English courts to adjudicate upon foreign acts of state. I use the phrase “foreign act of
state” loosely at this point to cover various bases on which it is submitted that the
English court cannot or should not adjudicate upon proceedings against the United Kingdom, its authorities or officials when the proceedings would also involve adjudicating upon the conduct of a foreign state, even though state immunity is not established on the part of the United Kingdom and the relevant foreign state is not impleaded in the proceedings. The appellants submit that the principles governing foreign act of state dovetail naturally with those governing state immunity, and that underpinning both are conceptions of mutual international respect and comity. That said, there are, as will appear, also differences, not least that state immunity is firmly based on customary international law, whereas foreign act of state in most if not all of its strands has been developed doctrinally in domestic law. State immunity qualifies the jurisdiction of domestic courts. Foreign act of state in one sense requires a domestic court to accept without challenge the validity of certain foreign state acts, but in another sense it is a broader principle of non-justiciability, whereby the domestic court must simply declare itself incompetent to adjudicate. The difficulties which exist in separating or aligning these strands are considerable.
8. I note at this point that the appellants do not suggest that the tortious claims against them which are in issue on these appeals can or do attract a defence of Crown act of state. The leading authorities on Crown act of state are now Nissan v Attorney
General [1970] AC 179 and the Supreme Court’s separate judgment, delivered today in
the cases of Rahmatullah and Serdar Mohammed (para 6 above). In Nissan, Lord
Pearson said (at p 237F-G) that:
“it is necessary to consider what is meant by the expression ‘act of
state’, even if it is not expedient to attempt a definition. It is an
exercise of sovereign power. Obvious examples are making war and peace, making treaties with foreign sovereigns, and annexations and cessations of territory. Apart from these obvious examples, an act of state must be something exceptional. Any ordinary governmental act is cognisable by an ordinary court of law (municipal not international): if a subject alleges that the governmental act was wrongful and claims damages or other relief in respect of it, his claim will be entertained and heard and
determined by the court.”
Nissan concerned the Crown’s occupation of a hotel while assisting to maintain peace
under an agreement made between the United Kingdom and Cyprus. The doctrine of Crown act of state was held not to bar a claim for compensation. Lord Morris said (at p 217D) that the acts in question in that case (of feeding and housing troops in the hotel)
were “far removed from the category of transactions which by reason of being a part of
or in performance of an agreement between states are withdrawn from the jurisdiction
of the municipal courts.” And Lord Wilberforce indicated (pp 235H-236A) that between
the acts complained of and the pleaded agreement with the Government of Cyprus, the
link was “altogether too tenuous” for the Crown to be able to invoke Crown act of state
- “if accepted as sufficient to attract the description of act of state it would cover with
immunity an endless and indefinite series of acts, judged by the officers in command of
the troops to be necessary, or desirable, in their interest”.
9. On the other hand, in our concurrently delivered judgment, we have accepted
that the doctrine of Crown act of state is available in respect of the United Kingdom’s
detention and transfer to United States custody of Mr Rahmatullah. In these circumstances, two questions arise as to how that fits with the absence of any suggestion
that Crown act of state is or could be a defence in respect of the United Kingdom’s
alleged involvement in the wrongful detention, combined with mistreatment, by various
foreign states of Mr Belhaj, Mrs Boudchar and Mr Rahmatullah.10. First, one can understand why there is no plea of Crown act of state in respect of the allegations of severe mistreatment inflicted on the various respondents by various foreign state authorities. Further, in the cases of Mr Belhaj and Mrs Boudchar, the allegations of wrongful detention and mistreatment might well be regarded as inseparable. However, in the case of Mr Rahmatullah, the appellants deny the allegations of mistreatment, while admitting that he remained in United States custody for more than ten years. There has been no plea of Crown act of state in respect of any period of this detention, which is not necessarily linked with any mistreatment. If Crown act of state is available, as the court holds, in respect of detention by the United Kingdom, then one might have thought that it would logically be available in respect of detention by a third state in respect of which the Crown is alleged to have been complicit. The explanation may, however, lie in the length of the period of Mr
Rahmatullah’s detention and the considerations that he was never charged or tried, was
deprived of any access to a lawyer for the first six years and was unable to speak freely for the remainder of the period. A plea of Crown act of state in respect of detention of this nature might well have been considered unrealistic. Second, however, this leaves a tension between, on the one hand, apparent recognition that the nature of the acts is not
such as to justify a plea of Crown act of state in respect of the United Kingdom’s alleged
complicity in such acts and, on the other hand, the case now advanced that the alleged involvement of other states in such acts precludes any claim against the United Kingdom in respect of them on the grounds of foreign act of state. As I have said in my separate concurrent judgment (para 4), it is likely to be easier to establish that a domestic court should abstain from adjudicating on the basis of Crown act of state than on the basis of foreign act of state.
III Summary of conclusions 11. For the reasons which I shall set out, I have reached the following conclusions: State immunity (paras 12 to 31): (i) The appellants’ pleas of state immunity fail because the various foreign states (Malaysia, Thailand, the United States and Libya) are not impleaded, and their legal position is not affected, either directly or indirectly by the claims in tort advanced by the respondents solely against the appellants: para 31.
Foreign act of state (paras 32 to107): (ii) The concept of foreign act of state needs to be disaggregated, or broken down, and approached at a more particular level of enquiry: para 34.
(iii) Three types of foreign act of state can be identified under current English authority:
a) The first is the rule of private international law, whereby a foreign state’s legislation will normally be recognised and treated as valid, so far
as it affects movable or immovable property within the foreign state’s
jurisdiction: para 35.
b) The second is that a domestic court will not normally question the validity of any sovereign act in respect of property within the foreign
state’s jurisdiction, at least in times of civil disorder: para 38.
c) The third is that a domestic court will treat as non-justiciable - or, to use language perhaps less open to misinterpretation, abstain or refrain from adjudicating upon or questioning - certain categories of sovereign
act by a foreign state abroad, even if they occur outside the foreign state’s
jurisdiction: para 40.
(iv) The appellants’ case, to the effect that the second and/or third types should
be expanded or combined so as to cover all sovereign (jure imperii) acts by a foreign state anywhere abroad outside the jurisdiction of the domestic court whose jurisdiction is in issue, should be rejected:
a) To the extent that it exists at all, the second type of foreign act of
state is and should be limited to acts relating to property within the
jurisdiction of the foreign state: para 74 to 78.
b) If (contrary to a), the second type were to be viewed as covering acts directed against the person, it would be subject to a public policy exception, which would enable at least the allegations of complicity in torture, unlawful detention, enforced rendition and disappearance made in these cases to be pursued in the English courts: para 80.
c) The third type of foreign act of state is not limited territorially. Whether an issue is non-justiciable falls to be considered on a case-by- case basis. Considerations both of separation of powers and of the sovereign nature of foreign state or inter-state activities may lead to a conclusion that an issue is non-justiciable in a domestic court: paras 90 to 95. But in deciding whether an issue is non-justiciable, English law will have regard to the extent to which the fundamental rights of liberty, access to justice and freedom from torture are engaged by the issues raised: paras 98 and 101.
d) I see little attraction in and no basis for accepting a yet further doctrine whereby United Kingdom courts might be precluded from investigating acts of a foreign state, if the Foreign Office communicated
to it the Government’s view that this would embarrass the United
Kingdom in its international relations (though I accept that consequences for international relations may feed into the question of justiciability or abstention under the third type of foreign act of state): para 41.
e) In the present case, the circumstances as they are presently before
the Supreme Court do not lead to a conclusion that the issues are non-
justiciable in a domestic court: paras 96 to 105.
f) Had a contrary conclusion been reached, the result would have been that, although the relevant foreign states could, at least in theory, have been sued within their own jurisdictions for the torts alleged to have been directly committed by their own officers, the appellants could not have been sued anywhere for their alleged complicity in such torts, since they would be entitled to invoke state immunity in any foreign jurisdiction: para 102.
Miscellaneous points (paras 108 to 110):
(v) It is unnecessary to reach any final determination of the respondents’ case:
a) that, in so far as what is alleged amounts to complicity in torture, the United Nations Convention against Torture (Treaty Series No 107 (1991)) obliges states to provide a universal civil remedy in respect of torture wherever committed in the world, at least when (allegedly) committed by or with the connivance of United Kingdom citizens, and that any otherwise applicable type of foreign act of state should be modified accordingly. It suffices to say that I would as at present advised see no basis for differing from the rejection of this argument in Jones v
Ministry of the Interior of the Kingdom of Saudi Arabia (Secretary of State
for Constitution Affairs intervening) (“Jones v Saudi Arabia”) [2006]
UKHL 26; [2007] 1 AC 270.
b) that article 6 of the Convention rights scheduled to the Human Rights Act 1998 is engaged by and renders impermissible in the present circumstances any reliance by the appellants on either state immunity or foreign act of state. Again, this would face a difficulty raised by the House of Lords’ conclusions in Holland v Lampen-Wolfe [2000] 1 WLR 1573
and Jones v Saudi Arabia, paras 14 and 64, that article 6 is not engaged by a plea of state immunity. The European Court of Human Rights has reached a contrary conclusion (see eg Al-Adsani v United Kingdom (2001) 34 EHRR 11; Sabeh El Leil v France (2011) 54 EHRR 14), and it would have been necessary to consider this disagreement. Foreign act of state, on the other hand, operates, even under the case law of the European Court of Human Rights, as a substantive bar to liability or adjudication (see Roche v United Kingdom (2005) 42 EHRR 30; Markovic v Italy (2006) 44 EHRR 52), and so would not, if applicable, engage article 6. Further, even if article 6 were engaged, the question would then have arisen whether it rendered impermissible any reliance on either state immunity or foreign act of state. But, since I would hold that the appellants cannot rely on either in any event, it is unnecessary to go further into this.
Conclusion:
(vi) These conclusions lead to the conclusion that the appellants are not entitled to rely on state immunity or the doctrine of foreign act of state to defeat the present proceedings, and the appeals must accordingly be dismissed and the cases proceed to trial. The detailed reasoning supporting them follows.
IV State immunity 12. State immunity is, as indicated, a principle of customary international law recognised at common law, but now provided for by the State Immunity Act 1978. The
International Court of Justice has described state immunity as occupying “an important
place in international law and international relations” and as deriving from “the
principle of sovereign equality of states, which, as article 2, para 1 of the United Nations Charter makes clear, is one of the fundamental principles of the international legal order”: Jurisdictional Immunities of the State, Germany v Italy, judgment of 3 February
2012 [2012] ICJ Rep, p 99. The “absolute independence of every sovereign authority” and the “international comity which induces every sovereign state to respect the
independence and dignity of every other sovereign state” were similarly identified as
the bases of state immunity by Brett LJ in the seminal common law case of The
Parlement Belge (1880) 5 PD 197, 214-215.13. Section 1 of the 1978 Act provides:
“General immunity from jurisdiction.
(1) A state is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act.
(2) A court shall give effect to the immunity conferred by this section even though the state does not appear in the proceedings in
question.”
The Act specifies various exceptions to state immunity, including, but not limited to, submission to the jurisdiction (section 2), commercial contracts and contracts to be performed in the United Kingdom (section 3), personal injuries and damage to property (section 5) and ownership, possession and use of property (section 6). Sections 5 and 6 read:
“5. Personal injuries and damage to property. A state is not immune as respects proceedings in respect of -
(a) death or personal injury; or (b) damage to or loss of tangible property,
caused by an act or omission in the United Kingdom.
6. Ownership, possession and use of property.
(1) A State is not immune as respects proceedings relating to -
(a) any interest of the state in, or its possession or use of, immovable property in the United Kingdom; or
(b) any obligation of the state arising out of its interest in, or its possession or use of, any such property.
(2) A state is not immune as respects proceedings relating to any interest of the state in movable or immovable property, being an interest arising by way of succession, gift or bona vacantia.
(3) The fact that a state has or claims an interest in any property shall not preclude any court from exercising in respect of it any jurisdiction relating to the estates of deceased persons or persons of unsound mind or to insolvency, the winding up of companies or the administration of trusts.
(4) A court may entertain proceedings against a person other than a State notwithstanding that the proceedings relate to property -
(a) which is in the possession or control of a state; or (b) in which a state claims an interest,
if the state would not have been immune had the proceedings been brought against it or, in a case within para (b) above, if the claim
is neither admitted nor supported by prima facie evidence.”
14. It follows that state immunity is a personal immunity, ratione personae, possessed by the state in respect of its sovereign activities (acta jure imperii) so far as these do not fall within any of the exceptions. When state immunity exists, the nature and gravity of the alleged misconduct are irrelevant. Even the admitted illegality of the
acts complained of “does not alter the characterisation of those acts as acta jure
imperii”: Jurisdictional Immunities, para 60; see also Jones v Saudi Arabia [2007] 1 AC 270, where the House rejected “the argument that torture or some other
contravention of a jus cogens cannot attract immunity rationae materiae because it
cannot be an official act”: per Lord Hoffmann at para 85.
15. The classification does not appear in the 1978 Act, but the situations in which state immunity applies are commonly described as involving either direct or indirect impleading of the state. A state is (directly) impleaded by legal proceedings taken
against it without its consent: Cia Naviera Vascongado v SS Cristina (The “Cristina”)
[1938] AC 485, 490, per Lord Atkin. Lord Atkin also identified a second situation of immunity in which, even though the state may not be a party, the proceedings relate to state property. In so far as the state is put in a position where it must either forego or appear to defend its property interest, this situation can readily be described as one of indirect impleading: see eg The Parlement Belge (1880) 5 PD 197, 217-219, where the Court of Appeal did just that. On the other hand, immunity exists, as will appear, in
some situations where a state’s property interests are affected in ways which it may not
be so natural to identify as indirect impleading, and these are sometimes therefore treated separately: see eg United States of America v Dollfus Mieg et Cie SA [1952] AC
582, where Lord Porter at pp 612 and 614 referred to an action “impleading the two governments or affecting their rights” and to the foreign governments being “implicated
or their rights invaded”, while Lord Radcliffe in contrast at p 616 treated it as a suit
which might affect a sovereign’s interest in property under the head of proceedings
which “amount in one way or another to a suit against the sovereign”; and see recently
in Canada Khadr v The Queen 2014 FC 1001, para 35 per Mosley J.
16. The appellants submit that the immunity is wide enough to cover cases such as the present where it is integral to the claims made that foreign states or their officials must be proved to have acted contrary to their own laws, before any claim against the United Kingdom authorities and individuals sued can get off the ground. The respondents submit the contrary, on the basis that nothing in the present proceedings can or would involve any form of judgment against, or in any way affect any legal interests of, the relevant foreign states or their officials.
17. Some uncertainty exists about the appropriate classification of the undoubted immunity which exists in relation to proceedings directed against state officials for acts done in their official capacity, in circumstances where the state itself would if sued have had state immunity. That immunity is firmly established: see Propend Finance Pty v Sing (1997) 111 ILR 611 and Jones v Saudi Arabia, cited above. But the two leading speeches in Jones v Saudi Arabia, with both of which all other members of the House expressed their agreement, explain it on differing bases. Lord Bingham in para 31 said:
“It is, however, clear that a civil action against individual torturers
based on acts of official torture does indirectly implead the state since their acts are attributable to it. Were these claims against the individual defendants to proceed and be upheld, the interests of the Kingdom would be obviously affected, even though it is not a
named party.”
In contrast, Lord Hoffmann at para 69 said that:
“… ‘state’ in section 1(1) of the [State Immunity Act] and
‘government’, which the term ‘state’ is said by section 14(1)(b) to
include, must be construed to include any individual representative of the state acting in that capacity, as it is by article 2(1)(b)(iv) of the Immunity Convention. The official acting in that capacity is
entitled to the same immunity as the state itself.”
It is unnecessary to consider which of these two formulations may be preferable,
although Lord Hoffmann’s should not be misunderstood as suggesting that a state
official possesses his own personal immunity which he can waive. His immunity
depends upon the state’s, and can only be waived by the state. The immunity in respect
of acts done in the course of their office extends to state officials ratione materiae even after they have left office (as well as to heads of state, who enjoy an additional immunity ratione personae while in office): see eg R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3) [2000] 1 AC 147, 202G-H, 269F and 281C- G, per Lords Browne-Wilkinson, Millett and Phillips, citing Hatch v Baez (1876) 7 Hun 596.
18. Whatever classification be adopted, the property cases are instructive as to the boundaries of state immunity. They originate in the context of admiralty proceedings in rem: see eg The Parlement Belge, an action in rem against a mail ship belonging to the King of the Belgians in his public capacity, and The Cristina itself. In the light of modern understanding of the nature of an action in rem, it might be argued that such an action involves from the outset direct impleading: see Republic of India v India Steamship Co Ltd (The Indian Grace) [1997] UKHL 40; [1998] AC 878. Be that as it may be, the House in The Cristina approved a number of previous authorities indicating that a state might be impleaded by proceedings against a vessel of which it had de facto
possession, or “such rights of direction and control, without possession, as arise from
requisitioning” (referring to The Broadmayne [1916] P 64), when those proceedings
would, “if successful … result in an order of the court affecting that possession or those
other rights”: see United States of America v Dollfus Mieg et Cie SA [1952] AC 582,
617, per Lord Radcliffe.
19. United States of America v Dollfus Mieg et Cie SA was concerned with property, but in a very different context. The Bank of England held for safe custody 64 numbered bars of gold which had in 1944 been forcibly and wrongfully removed by German troops from a French bank holding them on behalf of Dollfus Mieg. The bars were recovered from Germany by Allied forces and lodged with the Bank of England, to be held to the order of a Tripartite Commission for the Restitution of Monetary Gold established by the American, British and French governments to deal on their behalf
with gold taken from Germany. The Commission was “no more than three sovereigns
joined in a particular relation”: p 615, per Lord Radcliffe. The Bank of England by
mistake sold 13 of the bars, retaining 51. Dollfus Mieg claimed delivery up alternatively damages against the Bank of England. The action was stayed at the instance of the United States and France as regards the 51 bars, on the basis that the claim indirectly impleaded the three states as bailors in respect of their immediate possessory rights as against the Bank. It was allowed to continue as regards the 13 bars, on the basis that the Bank had terminated any bailment by their sale.
20. Lord Radcliffe faced squarely the problem that title was what was in issue,
saying: “But certainly a special difficulty begins when he [the sovereign]
is not actually named but the suit is one which may result in a judgment or order that will affect his interest in some piece of property. Even to say that much begs one important question, for it assumes that he has a valid interest in that property: whereas a stay of proceedings on the ground of immunity has normally to be granted or refused at a stage in the action when interests are claimed but not established, and indeed to require him to establish
his interest before the court (which may involve the court’s denial
of his claim) is to do the very thing which the general principle
requires that our courts should not do.”
21. Lord Radcliffe resolved the problem by reference to the three states’ possessory
rights as bailors of the goods to the Bank of England, concluding at pp 618-619 that:
“The property of a sovereign state, which is an abstraction, must
be in the physical possession of some actual person, and I do not see any distinction of substance in a matter of this kind between the possession of a servant of the state and the possession of its bailee when the bailment is of such a nature as that of the bank in
this case. Indeed, I think that the Commission’s ‘possession and control’ of the gold bars in the hands of the bank amounted to a
form of property more substantial than that which HM
Government acquired by requisitioning the Broadmayne. …
The suit began as a claim in detinue. That means that the court was going to be asked or at any rate could be asked to make an order upon the bank to hand over the bars to the plaintiffs. Such an order
would unquestionably interfere with the Commission’s possession
of them and compel the Commission, if they wished to recover possession, to come to court and try to get them back from the plaintiffs. I cannot feel any doubt that such a suit offends against
the principle of sovereign immunity.”
In short, the Commission would no longer be entitled to look to the Bank as bailees, but would have as owners to establish title by proceedings against Dollfus Mieg.
22. Addressing an argument that Dollfus Mieg could avoid the problem by limiting itself to a claim in conversion for damages, Lord Radcliffe found the point one of considerable difficulty, but in the end concluded that a claim on this basis was also precluded by state immunity:
“… when I consider the real nature of a claim for damages for
conversion I come to the same conclusion. Subject to the payment of costs and special damages (if there are any) an action for damages for conversion can always be stayed if the defendant offers to hand over the property in dispute. In that sense a suit for
damages for conversion is an attempt to use the court’s process to
interfere with the existing possession of the chattel the title to which is in dispute. If the defendant continues to resist and damages are awarded against him he may keep the chattel and pay the damages; but if he does he becomes entitled, if he is a bailee,
to set up the plaintiffs’ title to the goods, which he has thus paid
for, against his own bailor. In other words the court’s judgment in
the personal action against him would materially affect the existing right of his bailor in respect of the possession and disposal of the chattel. The result of a judgment in damages has thus some analogy to a sale by the court of a chattel which is in the possession or under the requisition of a foreign sovereign: if the sale cannot be ordered
in the one case because to order it would be to use the court’s
process against the sovereign, then the judgment cannot be
rendered in the other.”
Again, the Commission would no longer be able to look to the Bank of England as simple bailees, but would face the issue that the Bank now stood, at least in theory, in the same position as Dollfus Mieg.
23. It seems clear that Lord Radcliffe viewed the facts in Dollfus Mieg as close to the outer parameters of state immunity. Ultimately, the decision focused on the
existence of a bailment, and on the second order consequences for the three States’ and the Bank of England’s legal positions as bailors and bailee if Dollfus Mieg’s claim could
be pursued and was successful. Five years later the House confirmed in Rahimtoola v Nizam of Hyderabad [1958] AC 379 that a similar position applied where the issue was title to a chose in action, consisting of monies transferred without authority from an account of the Nizam and his government at the Westminster Bank Ltd to an account opened by that bank in the name of Mr Rahimtoola, the High Commissioner for Pakistan, in his capacity (as the House held) as agent for the state of Pakistan. The
Nizam’s suit was barred by state immunity. Viscount Simonds put the matter as follows
at p 395:
“A suit by a third party, the Nizam, is calculated and intended to
interfere with the title of Rahimtoola and his principals, the Government of Pakistan, and with their possession or control of their property. It can only be maintained if the Government of Pakistan take a course which their sovereign dignity entitles them
to reject and descend into the arena.”
The appellants argue on the present appeals that state immunity was recognised as existing in Rahimtoola, although the State of Pakistan would not have been bound by a
judgment in proceedings involving a “third party”. But that was not how Viscount
Simonds saw the matter - unsurprisingly since Mr Rahimtoola was acting in his official capacity and proceedings against him therefore involved, on their face, state property.
24. The special treatment in section 6(4) of the State Immunity Act 1978 of claims against third parties in respect of property cases also suggests that such cases represent
a particular head of immunity, based on a state’s possession or control of or claim to
some (legal) interest in the property in question. However, the appellants rely upon the United Nations Convention on Jurisdictional Immunities of States and Their Property
(2004) as being based on a broader conception of “interests”, which, they submit, should
inform the domestic understanding of indirect impleading. Articles 5 and 6 provide:
“Article 5 State immunity
A state enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another state subject to the provisions of the present Convention.
Article 6 Modalities for giving effect to state immunity
1. A state shall give effect to state immunity under article 5 by refraining from exercising jurisdiction in a proceeding before its courts against another state and to that end shall ensure that its courts determine on their own initiative that the immunity of that other state under article 5 is respected.
A proceeding before a court of a state shall be considered to have been instituted against another state if that other state:
a. is named as a party to that proceeding; or b. is not named as a party to the proceeding but the proceeding in effect seeks to affect the property, rights,
interests or activities of that other state.”
By article 2(1)(b), “State” is defined in broad terms, as meaning: (i) the State and its
various organs of government; (ii) constituent units of a federal State or political subdivisions of the State, which are entitled to perform acts in the exercise of sovereign authority, and are acting in that capacity; (iii) agencies or instrumentalities of the State or other entities, to the extent that they are entitled to perform and are actually performing acts in the exercise of sovereign authority of the State; and (iv) representatives of the State acting in that capacity.
25. The appellants rely on the words “interests or activities” in article 6(2)(b) which,
they submit, indicate that state immunity should be understood as extending beyond claims affecting property or other rights. The Convention is not yet in force, lacking a sufficient number of ratifications, including any from the United Kingdom. But in Jones v Saudi Arabia, at para 26, Lord Bingham referred to the Convention as being,
“[d]espite its embryonic status, … the most authoritative statement available on the
current international understanding of the limits of state immunity in civil cases”, going
on to say that “the absence of a torture or jus cogens exception [in it was] wholly
inimical to the claimants’ contention”. This was a statement made expressly about the
“limits” of state immunity in the context of an issue whether the legal liability of a state
official for torture fell outside the scope of such immunity. That was a fundamental question which the Convention, however embryonic, could be expected to cover. To attach equivalent relevance to the use in a Convention with no binding international
status of the ambiguous terminology of article 6(2)(b) is to take Lord Bingham’s words
out of context. The appellants’ reliance on the further passage in Lord Bingham’s
speech quoted at para 17 above, with its adoption of the word “interests” is open to the
same objection. The appellants note that the International Court of Justice has referred to the “adoption” of the Convention (see eg Jurisdictional Immunities, paras 77 and 89).
Again, this was in the context of the issue, very different from the present, whether state immunity was subject to any exception in the case of violations of human rights, the law of armed conflict or jus cogens.
26. The drafting history locates article 6 firmly in the context of the case law concerning the arrest of vessels, such as The Parlement Belge, and property in which states claim an interest, such as Dollfus Mieg: see eg the Report of the International Law Commission (Yearbook 1991, Vol II, (2), pp 23-25). The Report also explains the focus of article 6 as avoiding the exercise of State jurisdiction in a way which would put any foreign sovereign in the position of having to choose between being deprived of
property or otherwise submitting to the jurisdiction; and it explains the words “to affect”
as having been introduced to replace the prior draft wording “to bear the consequences
of a determination by the court which may affect”, in order to avoid “unduly broad interpretations” of article 6(2)(b). Even so, concerns were expressed at the drafting stage
by both Australia and the United States about the potential width of article 6(2)(b): see the Report of the Secretary General of the United Nations A/47/326 of 4 August 1992. But academic commentators have concluded that any uncertainty in its scope should be
addressed by recognising that “‘interests’ should be limited to a claim for which there
is some legal foundation and not merely to some political or moral concern of the State in the proceedings”: Fox and Webb, The Law of State Immunity, 3rd ed (2015 revision),
p 307; and O’Keefe, Tams (eds), The United Nations Convention on Jurisdictional
Immunities of States and Their Property (2013), pp 110-111, indicating that some specifically legal effect should be required as distinct from a social, economic or political effect.
27. Reliance was also placed by the appellants on two decisions of the International Court of Justice, the first the Case of The Monetary Gold removed from Rome in 1943 (judgment of 15 June 1954) ICJ Reports 1954, P19 and the second the Case concerning East Timor (Portugal v Australia) (judgment of 30 June 1995) ICJ Reports 1995, P90. In Monetary Gold an arbitrator had held that certain gold removed from Rome by the Germans had belonged to Albania, but France, the United Kingdom and the United States agreed that it would be delivered up to the United Kingdom in partial settlement
of the International Court’s judgment of 15 December 1949 against Albania in the Corfu
Channel case [1949] ICJ Rep, p 244, unless either Albania or Italy applied to establish
a claim. Albania did not so apply. Italy did, but objected to the court’s jurisdiction in the absence of Albania. The court held that, since Italy’s claim would involve
determining the legal position as between Albania and Italy, it could not adjudicate
without Albania’s consent. It said, inter alia, that “Albania’s legal interests would not
only be affected by a decision, but would form the subject-matter of the decision” (p 32). Addressing an argument that, as a third party, Albania would not under the court’s
rules be bound, the court responded:
“This rule, however, rests on the assumption that the court is at
least able to render a binding decision. Where, as in the present case, the vital issue to be settled concerns the international responsibility of a third state, the court cannot, without the consent of that third state, give a decision on that issue binding upon any
state, either the third state, or any of the parties before it.”
The case is distinct from the present. The International Court was, above all and as in the domestic case of Dollfus Mieg, being asked to determine the immediate destination of specific property. In the courts below, Leggatt J at para 78 distinguished East Timor and the Court of Appeal at para 42 distinguished Monetary Gold as cases about international jurisdiction, required in the case of the International Court to be based upon consent, in contrast with which domestic courts exercise compulsory jurisdiction
over those within their reach. That is correct as far as it goes, but states’ domestic
jurisdiction also depends on consent in contexts where state immunity otherwise exists. The situation is therefore nuanced. Nevertheless, Monetary Gold is not about state immunity, and does not on its facts assist on the issue now before the court, even by way of analogy.
28. The same applies to the East Timor case. By United Nations Resolution 1514 of 15 December 1960, East Timor was under Portuguese administration as a non-self- governing territory. Following internal disturbances in 1975, the Portuguese authorities withdrew to an island, and the armed forces of Indonesia intervened, after which the Portuguese withdrew entirely. In 1978 Australia recognised the fact that East Timor was
part of Indonesia “but not the means by which this was brought about”, and in 1989
Australia negotiated a Treaty with Indonesia, to create a “Zone of Cooperation” in “an area between the Indonesian Province of East Timor and Northern Australia”. Portugal
claimed that, in entering into this Treaty, Australia had acted unlawfully and in violation of the obligation to respect the status both of Portugal as the administering power and of East Timor as an area under such administration. The court accepted the erga omnes character of this obligation, but declined jurisdiction to rule on the lawfulness of
Australia’s conduct, when any judgment “would imply an evaluation of the lawfulness
of the conduct of another State [viz Indonesia] which is not a party to the case” (p 102). It stressed that, as in Monetary Gold, “Indonesia’s rights and obligations would … constitute the very subject-matter of such a judgment made in the absence of that party’s consent”, contrary to the well-established principle that the Court can only exercise
jurisdiction over a state with its consent. The subject matter of any judgment would have been, in essence, whether Portugal or Indonesia had the right to administer, and so enter into treaties relating to, East Timor, an issue about territorial title.
29. The present appeals involve no issues of proprietary or possessory title. All that can be said is that establishing the appellants’ liability in tort would involve establishing
that various foreign states through their officials were the prime actors in respect of the alleged torts. But, unlike the position in Dollfus Mieg, that would have no second order legal consequences for the relationship between the respondents and the foreign states in question or their officials. None of the above domestic and international cases carries
the concept of “interests” so far as to cover any reputational or like disadvantage that
could result to foreign states or their officials from findings as between the appellants and respondents. On the contrary, the pains which the House of Lords took in Dollfus Mieg and Rahimtoola to identify a potential legal effect of the litigation on the relevant state rights point against any broader conception of interest.
30. Some consequences of the appellants’ case are also worthy of note. The present
proceedings in which they are sued as ancillary parties would be incapable of being maintained in this jurisdiction against them or against the states (Malaysia, Thailand, Libya and the United States) alleged to be primarily responsible for the physical conduct complained of by the respondents. Each such other state would, on conventional principles governing state immunity, be capable of being pursued in its own courts in respect of the particular conduct complained of in its case. But the claims could also not be pursued against the appellants in the courts of any of such other states, since the appellants would there enjoy state immunity against any direct impleading. The
appellants’ case on state immunity in this jurisdiction would preclude suit against them
anywhere.
31. For the reasons given, I consider that the issues now before the Supreme Court do not attract state immunity, because the legal position of the foreign states, the conduct of whose officials is alleged to have been tortious in the places where such conduct occurred, will not be affected in any legal sense by proceedings to which they are not party. The decisions reached by the Court of Appeal in Belhaj and by Leggatt J in Rahmatullah were correct and the appeals should be dismissed on the issue of state immunity.
V Foreign act of state 32. The starting point of the appellants’ case is that adjudication of the issues now before the court in favour of the claimants would necessarily involve a finding by the English courts that foreign states had acted illegally under the laws of the places where
the conduct complained of occurred. With regard to Mr Belhaj’s and Mrs Boudchar’s
alleged detention and mistreatment, that would mean in Kuala Lumpur by Malaysian officials, in Bangkok by Thai officials as well as United States officials, in the airplane by United States officials and in Libya by Libyan and United States officials. With
regard to Mr Rahmatullah’s detention and alleged mistreatment, that would mean by
United States officials in Iraq and Afghanistan. So much can be accepted as the premise to what follows.
33. In the opening words of his introduction to the chapter entitled The Foreign Act
of State in his book Foreign Affairs in English Courts (1986), Dr Francis Mann wrote
that:
“Public policy dominates one of the most difficult and most
perplexing topics which, in the field of foreign affairs, may face the municipal judge in England: the doctrine of the foreign act of State displays in every respect such uncertainty and confusion and rests on so slippery a basis that its application becomes a matter of
speculation.”
In Yukos v Rosneft the Court of Appeal suggested (para 115) that, in view of the limitations on foreign act of state recognised in the case law:
“The important thing is to recognise that increasingly in the
modern world the doctrine is being defined, like a silhouette, by its limitations, rather than to regard it as occupying the whole ground
save to the extent that an exception can be imposed.”
Leggatt J observed (para 134) that, when a rule is said to be defined by its absence, there is reason to wonder whether there is in fact such a rule. That aphorism goes too far. As Dr Francis Mann has suggested, quoting Cardozo J (Mann, Conflict of Laws and Public Law [1971] 1 Recueil des Cours 107, pp 148-149, 151-156 and Foreign Affairs in English Courts (1986) p 164), what is required is to approach the concept of foreign act of state at a more particular level of enquiry, by enunciating principles - rather than
maxims which, “starting as devices to liberate thought, … often end by enslaving it”.
Or, to adopt a phrase from Professor Campbell McLachlan’s Foreign Relations Law
(CUP, 2014), para 12.129, what is required is a “much more fine-grained approach -
disaggregating the general category in order to achieve the ‘specialization of the
principle’ in its application to particular classes of case”.
34. Happily, there is a very substantial measure of common ground within the Supreme Court about the broad framework or structure of the relevant principles. Addressing briefly at this point such differences as there are between Lord Sumption and myself, Lord Sumption in para 227 distinguishes between (i) cases concerned with
the applicability or examinability of foreign municipal legislation within a state’s own
territory (which he calls municipal law act of state) and (ii) cases concerning the transactions of foreign states (which he calls international law act of state). This distinction corresponds generally with the distinction which I have identified in para 11(iii) above between the first type of foreign act of state (which I consider is better viewed as a rule of private international law, a view with which Lord Sumption expresses sympathy in the first four sentences of his para 229) and the third type of foreign act of state (which I describe as a rule of non-justiciability or judicial abstention). What Lord Sumption does in para 228 is enlarge the first of his two categories, to embrace the second potential type of foreign act of state identified in para 11(iii) above), that is executive acts by a foreign state within its own territory. Apart from differences in the terminology we prefer, the differences between us lie in the ambit assigned to the second and third type of foreign act of state. Lord Sumption includes within the second acts against the person as well as property, and he gives the third type of foreign act of state (non-justiciability or judicial abstention, or in his terminology international law act of state) a wider scope than I do, but then cuts that back by a domestic public policy qualification drawing inter alia on the international law concept of jus cogens.
VI Three types of foreign act of state 35. Three types of foreign act of state are in my opinion identifiable under current English authority. First, there is a well-established rule of private international law,
according to which a foreign state’s legislation will be recognised and normally
accepted as valid, in so far as it affects property, whether movable or immovable, situated within that state when the legislation takes effect: Dicey, Morris and Collins, The Conflict of Laws, 15th ed (2012), rule 137; and see Carr v Fracis Times & Co [1902] AC 176 (seizure of ammunition by British officers in Muscat under the authority of a proclamation of the absolute ruler, the Sultan of Muscat, whose word was law), Luther v Sagor [1921] 23 KB 532 (seizure by decree of Russian revolutionaries later recognised as the government), Princess Paley Olga v Weisz [1929] 1 KB 718 (seizure by similar decrees) and Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd [1986] AC 368 (compulsory purchase of shares in Spain).
36. Movable and immovable property is thus subject to a territorial principle. So too is domestic trade mark protection based on a reputation acquired domestically, which cannot therefore be affected by foreign legislation: Lecouturier v Rey [1910] AC 262, cited by Warrington LJ in Luther v Sagor, pp 548-549. Under familiar conflict of laws principles, different connecting factors govern the recognition of foreign state legislation in other spheres. For example, foreign legislation affecting contractual rights will be recognised if enacted by the state whose law governs the contract: Dicey, Morris
likely to be a very narrow one.
Article 6 of the European Convention on Human Rights
281. The conclusion that I have reached on the ambit of the exceptions to the act of state doctrine means that article 6 is only marginally relevant to the present appeals. It could not apply to the detentions themselves. It could apply only so far as the treatment of the claimants while they were detained amounted to cruel, inhuman or degrading treatment but fell short of torture. I will therefore deal with it briefly.
282. Article 6 might in principle apply so far as the application of the foreign act of
state doctrine would constitute a denial of the claimants’ right to a court: Golder v
United Kingdom (1975) 1 EHRR 524. There are circumstances in which an immunity from liability or adjudication will engage article 6. In these cases, it must be justified by reference to the legitimacy of the objective and the proportionality of the means. State immunity is a controversial but well established example in the jurisprudence of the Strasbourg Court: Fogarty v United Kingdom (2002) 34 EHRR 12; Al-Adsani v United Kingdom (2002) 34 EHRR 11; Cudak v Lithuania (2010) 51 EHRR 15; Sabeh El Leil v France (2012) 54 EHRR 14. But, except in rare cases where there are no judicial or manageable standards by which to determine an issue, the foreign act of state doctrine is not an immunity. It is a rule of substantive law which operates as a limitation on the subject-matter jurisdiction of the English court. In Roche v United Kingdom (2005) 42 EHRR 30 the European Court of Human Rights held that the right to a court protected by article 6 was not engaged by a substantive rule of domestic law excluding liability, but only by a bar which was procedural in nature.
283. The most pertinent illustration is Markovic v Italy (2006) 44 EHRR 52. The applicants in this case were relatives of persons who had been killed in the NATO air- raid on Belgrade in 1999. The raid was said to be an act of war in violation of international law. It had been launched from bases in Italy. The Corte de Cassazione had held that by a rule of substantive law the Italian courts had no jurisdiction over acts of war or indeed over any acts of the Italian state which were impugned on the sole ground that they violated international law. The Strasbourg court applied the distinction between substance and procedure that they had formulated in Roche. They agreed that the limitation on the jurisdiction of the Italian court was substantive. It followed (para
114) that the decision of the Corte de Cassazione, “does not amount to recognition of
an immunity but is merely indicative of the extent of the courts’ powers of review of
acts of foreign policy such as acts of war.”
284. To the limited extent that the foreign act of state doctrine might apply in these cases, it does not in my opinion engage article 6.
Disposition
285. For these reasons I would declare (i) that the claimants’ claims are not barred by
state immunity, and (ii) that on the facts pleaded the claimants’ claims are not barred by
the foreign act of state doctrine so far as they are based on allegations of complicity or participation in torture or in detention or rendition otherwise than by legal authority. I would affirm the decision of the Court of Appeal in Belhaj that no part of the claim is struck out.
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