As Abdel Hakim Belhaj appeals the ruling that barred him from suing MI6 for its role in his rendition and torture in 2004, his lawyer told a British court that UK government officials are trying to evade responsibility and prevent the case from continuing.
Richard Hermer QC, who represents Belhaj, told the judges of UK's high court on Monday that government officials want "immunity from accountability... irrespective of the illegality of the act."
"The [British] government is really scraping the legal barrel with this latest attempt to dodge accountability for the UK’s alleged part in one of the most notorious crimes of the rendition program. This makes a mockery of the law. How are courts ever to investigate allegations of rendition if governments are simply going to play the ‘act of state’ card?" —John Dalhuisen, Amnesty International
Belhaj is suing MI6, MI5, the Home Office, the Foreign Office, and other UK intelligence agencies and officials for their collusion in his and his wife's abduction and rendition to Libya, where they were tortured by security forces of Muammar Gaddafi. Belhaj's wife, Fatima Boudchar, was pregnant at the time. Belhaj, a prominent Libyan dissident, was a leader of the anti-Gaddafi Libyan Islamic Fighting Group and the Libyan al-Watan party.
The initial case was thrown out in December of last year when a high court ruled that pursuing legal action would damage Britain's "national interests" and its relations with the U.S. government. The judge in the case, however, said Belhaj had a "well-founded claim" and that he was giving his ruling "with hesitation." Belhaj won permission to appeal earlier this year.
Belhaj and Boudchar were seized in China in 2004 in an MI6/CIA operation, deported to Malaysia, and flown to Thailand. They were first tortured in a CIA "black site" in Bangkok and then finally taken to Tripoli, where they were jailed for six years. Throughout that time, Belhaj was regularly chained, hung from walls, and beaten, while Boudchar was punched, bound, and denied medical care.
Also named in the case is former Foreign Secretary Jack Straw, who was in office at the time and allegedly involved in authorizing Belhaj's kidnapping. Lawyers for Straw have said that he and the other accused agencies should be protected under the "foreign act state of doctrine."
The lawyers claim the doctrine protects the UK government from prosecution when it acts in coordination with foreign governments — that because Belhaj's rendition and torture happened outside of the UK, Straw and the British intelligence agencies involved should not be held responsible.
Legal charities such as Reprieve, Justice, and Amnesty International have joined the case as well. "The UK government is desperately trying to make sure its role in the Belhaj-Boudchar renditions never sees the light of day," Reprieve strategic director Cori Crider said in a statement. "The Prime Minister was once fond of saying ‘sunlight is the best disinfectant’ — is this really what he had in mind?”
Amnesty International director John Dalhuisen said, "The government is really scraping the legal barrel with this latest attempt to dodge accountability for the UK’s alleged part in one of the most notorious crimes of the rendition program. This makes a mockery of the law. How are courts ever to investigate allegations of rendition if governments are simply going to play the ‘act of state’ card?"
The UK-based human rights organization Justice called the "state of doctrine" ruling overly broad and a violation of other international laws, such as the right to a fair trial. "The doctrine has previously been applied in limited circumstances," the organization wrote in a press release. "In those circumstances where it applies, clear exception has been made for claims involving clear violations of fundamental human rights law."
Hermer told the court that Belhaj's case has "profound and far-reaching implications for the rule of law," and that the government is seeking "impunity from its own courts." Simon's ruling last year determined that UK officials "can participate in a conspiracy to abduct and torture but avoid liability," Hermer said.
The case became more complicated earlier this month when the Foreign Office claimed that several key documents on the government's involvement in the rendition program were destroyed due to "water damage" from heavy rainfall in June. The announcement came as the U.S. Senate prepares a report likely to identify Diego Garcia, a British-controlled island in the Indian Ocean, as a location of a secret CIA prison built with "full cooperation" of the UK government. Belhaj and Boudchar's plane to Libya may have landed at the site.
The UK was first found to be involved in Belhaj's abduction in 2011 after the fall of Gaddafi's regime. A cache of government documents showed MI6's head of counterterrorism, Sir Mark Allen, mentioning Belhaj and Boudchar's arrival in Libya and arranging the now-infamous Bedouin "tent meeting" between Gaddafi and former Prime Minister Tony Blair in 2004.