The Supreme Court handed down the first three judgments of 2017 today, featuring three members of 11KBW. All three judgments concerned important issues of public international law.
Rahmatullah (No 2) v Ministry of Defence, Mohamed v Ministry of Defence [2017] UKSC 1 concerned the nature and content of the doctrine of Crown act of state in the context of claims relating to detention in Iraq and Afghanistan.
The Supreme Court unanimously allowed the Ministry of Defence’s appeal, holding that insofar as the respondents’ tort claims are based on acts of an inherently governmental nature in the conduct of foreign military operations by the Crown, these were Crown acts of state for which the Government cannot be liable in tort. Prior to this judgment, the doctrine was last applied in the 19th Century.
Al Waheed v Ministry of Defence, Mohammed v Ministry of Defence [2017] UKSC 2 concerned allegations that persons in Iraq and Afghanistan were unlawfully detained in breach of article 5 of the European Convention on Human Rights by HM armed forces acting under mandates from the United Nations Security Council.
By a majority of 7 to 2, the Supreme Court dismissed Mr Al-Waheed’s appeal, and allowed the Government’s appeal in Serdar Mohammed in part. The majority held that British forces had power to take and detain prisoners for periods exceeding 96 hours if this was necessary for imperative reasons of security, but that its procedures for doing so did not comply with ECHR article 5(4) because they did not afford prisoners an effective right to challenge their detention.
Belhaj and another v Straw and Others, Rahmatullah (No 1) v Ministry of Defence[2017] UKSC 3 concerned whether claims of complicity in unlawful detention and mistreatment overseas at the hands of foreign state officials are properly triable in the English courts.
The Supreme Court unanimously dismissed the Government’s appeals. The Court concluded that the relevant foreign states would not be affected in any legal sense by proceedings to which they were not a party and that, accordingly, the plea of state immunity failed. Furthermore, the appellants had not, on the assumed facts, shown any entitlement to rely on the doctrine of foreign act of state.
Karen Steyn KC, Julian Blake and Sean Aughey appeared for the Ministry of Defence in the case of Mohammed. Karen Steyn KC and Julian Blake appeared for the Ministry of Defence in the case of Rahmatullah. Karen Steyn KC and Sean Aughey appeared for the Appellants in the case of Belhaj and Others.
