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Litigating complicity in torture

On the UN’s International Day in Support of Victims of Torture, Mary Westmacott reflects on the Belhaj case and the difficulties and the importance of litigation for torture survivors.

International day in support of victims of torture
Mary is an associate solicitor in the international department who specialises in international human rights and corporate accountability. Mary worked with international and group claims partner Sapna Malik on the Belhaj case which resulted in a public apology from the UK Government, recognising its contribution to their rendition.
Last month, Abdul-Hakim Belhaj and Fatima Boudchar received the apology from the UK Government they had spent six years fighting for. It marked the end of the couple’s lengthy legal battle over the UK’s role in a rendition operation that saw them tortured at a CIA black site in Thailand and delivered into the hands of Gaddafi.  As a result of the rendition, which occurred in 2004, Mr Belhaj was tortured and detained in Libyan jails for six years, and Ms Boudchar, who was five months pregnant at the time of her capture, was detained until shortly before the birth of her first child. 

The apology, when it finally came on 10 May 2018, was unprecedented in its acknowledgment of the UK’s failings regarding the couple’s treatment.  The UK Government told them it was “profoundly sorry” for its role in their ordeal, acknowledging it had contributed to their “detention, rendition and suffering”. In Parliament that afternoon, MPs on either side of the House were unanimous in their recognition that such an apology was not only fitting, it was of key importance in upholding the rule of law and in sending the clear signal that complicity in torture will always be a red line for the UK. 

Of course, the apology also raised more questions than it answered - what exactly was known and authorised within the Government regarding this rendition operation, and by whom? The comments by Mr Straw and Mr Blair in the days that followed did little to clarify the situation. 

However, although there has been a general clamour for answers following the apology, less coverage has been given to the six year legal battle it took to obtain it.  The Government had on previous occasions denied any involvement in rendition operations involving “third countries” or the risk of torture. (In 2005 Jack Straw dismissed such allegations as mere “conspiracy theories”, and in 2006, MI6 categorically denied any involvement in such operations when it gave evidence before the Intelligence and Security Committee).  It is significant that for four years, the Government attempted to have the couple’s claims struck out on legal grounds, essentially arguing that the English Courts should not deal with the case, for fear of causing embarrassment to the USA.  The case went all the way to the Supreme Court on these arguments alone. In short, it is only due to the extraordinary strength and conviction of Mr Belhaj and Ms Boudchar - who were adamant that an apology was more important than a monetary settlement - that we have, fourteen years after their rendition, the UK’s public acknowledgment of any involvement.  

Further, by their very nature, claims involving allegations of complicity in rendition and torture are difficult for the survivors of such acts to litigate. Leaving aside the considerable costs of claims involving multiple jurisdictions, where claimants allege complicity in torture by the UK Government, they almost inevitably face the prospect that much of their case will be heard in secret, under the ‘closed material procedure’ introduced by the Justice and Security Act 2013.  In the case of Mr Belhaj and Ms Boudchar, despite the huge wealth of evidence regarding the claim that was already in the public domain, the Government pleaded almost all aspects of its case in ‘closed’ court, leaving the Claimants and their lawyers, including Leigh Day their instructed solicitors, to prepare for trial with almost no knowledge of the Defendants’ case.

When the Justice and Security Act was introduced, fears were raised that closed material proceedings would be used not only to prevent disclosure of information damaging to national security, but to avoid matters coming to light that the Government would find uncomfortable or awkward to disclose.  It is Leigh Day’s experience in litigating cases involving closed proceedings that there is justification for these concerns, and all the more so where allegations of complicity in torture arise.  Closed material proceedings can also be used to give the Government a tactical advantage and draw out arguments over information that should have rightfully been openly disclosed. Given that we are obliged to work within the new framework provided by the Justice and Security Act 2013, it must be the difficult but crucial role of judges, historically deferential to the Government whenever national security interests are pleaded, to ensure that closed material procedures are not abused, and that claimants’ fair trial rights are upheld.  

As the Belhaj case has shown, effective litigation in this area is crucial to uphold the rule of law and to ensure claimants have an effective remedy, even where national security interests are raised. Despite the difficulties of the litigation, a court case finally secured for Mr Belhaj and Ms Boudchar what no previous public inquiry or amount of media attention over the preceding years had managed to achieve: a public apology from the UK Government, recognising its contribution to their rendition.  For survivors of torture, such recognition can be hugely restorative. 

However, while Mr Belhaj and Ms Boudchar have accepted the Government’s apology, it remains to be seen whether the Prime Minister will follow through on the commitment made by David Cameron back in 2010 to establish a judge-led inquiry into the UK’s role in rendition.  We still have no answer as to where within Government accountability lies.  Mr Belhaj and Ms Boudchar fought for six years for their apology; it seems the British public will need to wait a good while longer for an answer to that key question.

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