Belhaj & Anor v Straw & Ors

Judgment

TABLE OF CONTENTS Para I. INTRODUCTION 1 The proceedings 2 The factual assertions forming the basis of the claim 7 The appellants’ pleaded case 8 The respondents’ pleaded cases 18 The legal basis of the claim 20 The judgment of Simon J. 25 The grounds of appeal and respondents’ notice Act of state 28 Applicable law 29 State immunity 30 Summary of conclusions on this appeal 31 II. STATE IMMUNITY 32 Direct and indirect impleader 33 The respondents’ case on their notice to affirm 37 The UN Convention on Jurisdictional Immunities of States and their Property 43 State immunity and act of state 48 III. ACT OF STATE / NON-JUSTICIABILITY Act of state in the law of England and Wales 51 The rationale of the act of state doctrine 56 Is the act of state doctrine engaged in the present case? The Kirkpatrick limitation Do the alleged acts have the character of sovereign acts? 69 A limitation on grounds of public policy: violation of international law or fundamental human rights 78 English jurisprudence 81 Other common law jurisdictions 94 Potential to disrupt international relations 103 Decision on the act of state issue 114 Article 6, ECHR 122 Article 14, UN Convention against Torture 124 The territoriality limitation 127 IV. APPLICABLE LAW 134 V. CONCLUSION 161

THE MASTER OF THE ROLLS:

I. INTRODUCTION

This is the judgment of the court to which all its members have contributed but which has been drafted principally by Lloyd Jones L.J.

The proceedings

In these proceedings the appellants seek a declaration of illegality and damages arising from what they contend was the participation of the respondents in their unlawful abduction, kidnapping and removal to Libya in March 2004. The claim includes allegations that they were unlawfully detained and/or mistreated in China, Malaysia, Thailand and Libya, and on board a US registered aircraft. It is alleged that their detention and mistreatment was carried out by agents of China, Malaysia, Thailand, Libya and the United States of America. The claim pleads the following causes of action: false imprisonment, trespass to the person, conspiracy to injure, conspiracy to use unlawful means, negligence and misfeasance in public office.

The first appellant, Mr. Belhaj, is a Libyan citizen who is also known as Abu Abdallah Assadaq and Abdullah Sadeq. The second appellant, Mrs. Boudchar, is a Moroccan citizen and is married to Mr. Belhaj. The first respondent was the Secretary of State for Foreign and Commonwealth Affairs