Detention dilemma

From the government’s point of view, it could have been a lot worse. The Ministry of Defence was facing a plethora of claims from foreign nationals who had been detained abroad by UK officials or troops. Government lawyers had tried to head off these claims with a series of preliminary objections. Some were accepted by the Supreme Court last week when it delivered three judgments covering 326 pages. But the MoD’s most unjustifiable defence was rejected.

The first claim was brought by suspected insurgents. They had been held by UK forces taking part in UN-approved peacekeeping operations in Iraq and Afghanistan. One of them was Serdar Mohammed, a suspected Taliban commander who was captured by troops in Afghanistan and then transferred to Afghan custody. Another was Yunus Rahmatullah, who was briefly detained by British forces in Iraq and then held by the US in Afghanistan for 10 years. Many similar claims were brought by Iraqis.  

The UK relied on a little-used doctrine known as Crown act of state. That doctrine had to be narrowly confined, the Supreme Court said. Crown servants could claim immunity only if their acts were committed abroad and closely connected to the conduct of the Crown’s foreign relations. The doctrine did not permit mistreatment of detainees. But, allowing the government’s appeal, Lady Hale said it extended to acts that were necessary in the conduct of lawful military operations. ‘Put simply’, she added in her oral summary, ‘it would be absurd if the government could not be held liable for killing people in battle but could be held liable for detaining them.’

Mohammed was more successful on the second issue decided by the Supreme Court. He argued that his detention breached article 5 of the human rights convention, which is designed to prevent people being deprived of their liberty except in accordance with the rule of law.

Article 5 could permit peacekeepers to detain insurgents, the justices held. But the court was not persuaded that Mohammed’s detention was justified. That question would have to be tried on the evidence.

To avoid similar claims in the future, UK forces will have to devise procedures so that detainees held during what’s called a non-international armed conflict can challenge their continued detention before an independent military authority. But even if such a review had been available to Mohammed, his detention might still have been upheld. In that event, he would not be entitled to damages. So perhaps he may be willing to settle his claim if the MoD offers to introduce a suitable review mechanism for future conflicts.

The third judgment is the one that will worry the government the most. It was a victory for Abdul-Hakim Belhaj, a Libyan dissident who was abducted with his pregnant wife Fatima Boudchar in 2004 and sent back to face torture by Colonel Gaddafi’s regime. A separate claim by Rahmatullah was also allowed on similar grounds.

All the claimants had accused British officials of complicity in their unlawful detention and mistreatment by the US or its allies. The UK government relied on two related defences: state immunity and foreign act of state.

State immunity, in this case, means the immunity of the foreign government to legal action in the UK courts. That is not in doubt. But the UK argued that its own officials were also entitled to immunity in a case that turned on alleged breaches by foreign officials of their laws – in other words, where the foreign state would suffer damage to its reputation as the result of a hearing. That argument was rightly dismissed by the Supreme Court. Foreign states would not be affected in any legal sense by proceedings to which they were not a party, the court said.

Under the foreign act of state doctrine, the UK courts will not normally adjudicate on the lawfulness of sovereign acts taken by foreign states. But that did not help the UK authorities either. Lord Neuberger found that the rule was subject to exceptions on grounds of public policy. Lord Mance was admirably robust, pointing out that fundamental rights had been recognised since the days of Magna Carta and torture had ‘long been regarded as abhorrent by English law’.

Belhaj and his wife offered to settle for nominal damages and an apology from the government. But that would be seen as acceptance of his allegation that Sir Mark Allen, a senior MI6 officer, answerable to the then foreign secretary Jack Straw, had sent him back to Libya to face torture. And it would involve the intelligence service confirming an individual operation, something it goes to enormous lengths not to do. The alternative is a full hearing, perhaps behind partly closed doors, to establish the UK’s involvement in a human-rights abuse. So what is the betting on the government establishing a limited public inquiry instead?