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the justiciability of torture claims: uk version October 30, 2014

Posted by Bradley in : Uncategorized , trackback

In Belhaj v Straw the English Court of Appeals (the Master of the Rolls, Lord Dyson, Lord Justice LLoyd Jones (who was the principal drafter of the judgment of the court) and Lady Justice Sharp) have allowed a range of claims that Jack Straw, Mark Allen, the FCO and the Home Office were involved in unlawful renditions to Libya (involving allegations of torture) to proceed. The Court rejected arguments (which had succeeded in the court below, although the Judge, Simon J. expressed some concern) that the acts complained of implicated the act of state doctrine which makes acts of a foreign state on its own territory non-justiciable in English courts. The Court of Appeal found that the act of state doctrine did not prevent the litigation because it involved claims of violations of international law and fundamental human rights and because the alleged acts perpetrated by the US took place outside the US. The Court of Appeal noted that English law did not require deference to the views of the executive as to the likely impact of exercising jurisdiction on foreign relations (in contrast to the situation in the US). The question was whether the court should go beyond precedent and hear a case which would require an investigation into the validity of the conduct of a foreign state (all of the claims would involve an assessment of acts of foreign states).

The Court said:

a fundamental change has occurred within public international law. The traditional view of public international law as a system of law merely regulating the conduct of states among themselves on the international plane has long been discarded. In its place has emerged a system which includes the regulation of human rights by international law, a system of which individuals are rightly considered to be subjects. A corresponding shift in international public policy has also taken place… These changes have been reflected in a growing willingness on the part of courts in this jurisdiction to address and investigate the conduct of foreign states and issues of public international law when appropriate….The abhorrent nature of torture and its condemnation by the community of nations is apparent from the participation of states in the UN Convention against Torture (to which all of the States concerned with the exception of Malaysia are parties) and the International Covenant on Civil and Political Rights (to which Libya, Thailand, the United States and the United Kingdom are parties) and from the recognition in customary international law of its prohibition as a rule of jus cogens, a peremptory norm from which no derogation is permitted. While it is impermissible to draw consequences as to the jurisdictional competence of national courts from the jus cogens status of the prohibition on torture… it is appropriate to take account of the strength of this condemnation when considering the application of a rule of public policy….there is a compelling public interest in the investigation by the English courts of these very grave allegations. The only ground on which it could be contended that there is any exemption from the exercise of jurisdiction in the present case is because of the alleged involvement of other states and their officials in the conduct alleged. Notwithstanding our view that the present proceedings would entail an investigation of the legality of the conduct of those foreign officials, the fortuitous benefit the act of state doctrine might confer on the respondents is a further factor supporting the application of this public policy limitation.

I’d like to know whether this is the sort of issue on which Cameron would think that a British Human Rights Act should take the same, or a different, approach.

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