In 2012, Abdul Hakim Belhaj and his wife brought an action against the British government and its intelligence agencies, alleging that ministers had participated in Belhaj’s unlawful abduction and rendition.
In 2004, Belhaj was kidnapped in China and transported to Libya where he was subsequently tortured – with his wife forced to watch – further to his status as a leader in the uprisings against the Gaddafi-regime during 1994-1998.
Following a preliminary hearing in 2013, the High Court last December ruled that, although Belhaj had a good claim, pursuing it in English courts would jeopardise national security. It held that because the claims were necessarily related to the actions of US, Chinese, Malaysian, Thai and Libyan officials, the allegations were non-justiciable in the UK.
Belhaj has appealed that decision.
Rendition Damages Claim in the Court of Appeal
The appeal hearing, heard by a three-member Court of Appeal, will first sit to determine whether Belhaj’s case is justiciable.
Notably, Belhaj and his wife are not seeking substantive damages in their claim. The claimants seek an apology from the British government as well as an explanation as to what exactly happened, regarding the reasons for the British government’s alleged complicity.
They seek a token £1 award, following a necessary admission or finding of liability.
Why are the British Government Defending the Claim?
Government lawyers will be doing everything they can to prevent a precedent being established whereby the courts can examine and reveal the extraterritorial actions of British agents. This is particularly sensitive in the ‘high-politics’ of national security measures and decisions taken in coordination with foreign agents and governments.
This has led to allegations, from the claimants’ lawyers and intervening party Reprieve, that the Government is placing itself above the law, insofar as the substantive merits of the case are not as yet being allowed to be heard. Mr Hermer, representing Belhaj, made clear that the court was the “only forum in which remedies could possibly be obtained for those acts…of the UK executive”.
A Motivation for Closed Courts
The case is notable, also, for its involvement of former Foreign Secretary Jack Straw and former MI6 intelligence officer Mark Allen.
Reportedly, the case and its original claim were key motivators in the Government’s decision to create the highly controversial closed material procedure (CMP) for sensitive (when in the public interest) material divulgences in court, following passage of the Justice and Security Act last year.
The closed court procedure has been dubbed the effective creation of “secret courts”, or a return to the Star Chamber, by human rights campaigners.
If the Court of Appeal were to rule Belhaj’s claims as justiciable, not only would a landmark precedent be established but the “well-founded” – in the words of the High Court – substantive merits of the case would in all likelihood see the claimants being awarded the token damages they seek.