The former foreign secretary Jack Straw, MI6 and the government will have to defend claims that they participated in the 2004 kidnapping of a Libyan dissident and his wife, the supreme court has ruled.



Claims that the rendition and torture of Abdel Hakim Belhaj breached rights enshrined in the Magna Carta should be put before an English court, a unanimous judgment by seven justices concluded.

In a series of linked judgments, the UK’s highest court ruled that ministers could not claim “state immunity” or escape trial on the grounds of the legal doctrine of “foreign acts of state”.

The justices did, however, rule in favour of the government in overseas detention cases brought by a Pakistani, Yunus Ramatullah, and an Afghan, Serdar Mohammed, declaring that claims based on Iraqi or Afghan law could be resisted due to the principle of “crown act of state”.



In a case brought by a former Iraqi detainee, Abd Ali Hameed Ali Al-Waheed, it also found that capturing and detaining “enemy combatants” was permissible. That decision may affect the prospects of hundreds of other claimants who are taking action against the Ministry of Defence.



Dismissing the government’s appeal in the Belhaj case, Lord Mance said the use of torture “has long been regarded as abhorrent by English law”, because individuals must be protected from deliberate physical mistreatment while in custody. “The critical point in my view is the nature and seriousness of the misconduct alleged … at however high a level it may have been authorised,” he said.

Quoting from Magna Carta, Mance said: “No free man shall be taken, or imprisoned, or dispossessed, of his … liberties … or be outlawed, or exiled, or in any way destroyed … excepting by the legal judgment of his peers, or by the laws of the land.”

He added that the letter – which Sir Mark Allen, then head of counter-terrorism at MI6, sent to Muammar Gaddafi’s intelligence chief, Moussa Koussa, provided a “hint of the underlying reasons” why the UK may have provided the tipoff that led to the couple being captured.

Another justice, Lord Sumption, said the conduct of other governments involved were sovereign acts, and that if the US, Malaysia, Thailand and Libya were being sued, they would have enjoyed immunity. “However, they have not been sued. Only the government and agents of the United Kingdom have been.” Belhaj and his wife, Fatima Bouchar, must therefore be permitted to sue the government.

Belhaj and Bouchar were abducted in Bangkok in March 2004 and flown by the CIA from Bangkok to Gaddafi’s interrogation and torture cells in Tripoli.

Two weeks later, Tony Blair paid his first visit to the country, embracing Gaddafi and declaring that Libya had recognised “a common cause, with us, in the fight against al-Qaida extremism and terrorism”. At the same time, in London, the Anglo-Dutch oil company Shell announced that it had signed a £110m deal for gas exploration rights off the Libyan coast.

Three days after that, a second Libyan dissident, Sami al-Saadi, was bundled on to a plane in Hong Kong and taken to Tripoli in a joint British-Libyan rendition operation. Saadi’s wife and four children were also kidnapped and taken to Libya. The youngest was a girl aged six. The family was incarcerated. Saadi and Belhaj were held for more than six years, and say they were subjected to torture throughout their detention.

Evidence of MI6 involvement in the Libyans’ ordeal emerged in correspondence with Allen that was found inside the abandoned office of Koussa, Gaddafi’s foreign minister and former intelligence chief, after the regime fell.

Among the papers was a fax signed by Allen, then head of counter-terrorism, in which he made clear that the agency had supplied the intelligence that made it possible for the couple to be located and detained.

Last July, the Crown Prosecution Service decided there was insufficient evidence to prosecute Allen, despite concluding that he had been in contact with the US and Libya and that he had “sought political authority for some of his actions”.

The Scotland Yard officers who investigated the affair were said to be furious at the decision, and Belhaj’s lawyers said they would be seeking permission to mount a judicial review.

Saadi and his family settled their claim in 2012 when the British government paid them £2.2m.

Belhaj and Boucher have refused to settle unless they also receive an apology from the British government. This would amount to an admission of involvement in a grave human rights abuse.

Commenting on the ruling, Straw, who is one of the respondents in the Belhaj claim, said: “This judgment is about some important points of law, related to how far it is possible to bring into a court process in the UK actions of sovereign states abroad. However, at no stage so far have the merits of the applicant’s case been tested before any court. That can only happen when the trial of the action itself takes place.

“I repeat what I said in the House of Commons in December 2013, that as foreign secretary I acted at all times in a manner which was fully consistent with my legal duties, and with national and international law. I was never in any way complicit in the unlawful rendition or detention of anyone by other states.”

After the ruling, Belhaj said: “Years ago I asked the British government to apologise for what it had done. I have always said I was prepared to forgive, but that first Britain needed to accept that to abduct me and my wife and send us to Gaddafi is, and always was, wrong.

“The government refused this basic plea for justice. So I am gratified that we will have a trial. We have been waiting for justice for years. I continue to hope justice will one day be done – not just for my family, but in the name of everyone wrongly kidnapped in the war on terror.”

His wife said: “We have waited so long for this result that I had four more children in the meantime. I was five months pregnant with my first son, Abdurahim, when the CIA took us. After the terror of the abduction and the CIA prison he was born weighing only four pounds.”

Sapna Malik of the law firm Leigh Day, which is representing Belhaj, said it was “an emphatic judgment upholding the rule of law, particularly in the face of breaches of rights recognised as fundamental by English statute and common law, in which British defendants are alleged to have been complicit.”



The Conservative MP Andrew Tyrie, who chairs the all-party parliamentary Group on extraordinary rendition, said: “ Today’s ruling takes the public a step closer to the truth about Britain’s role in extraordinary rendition, the programme of kidnap and torture developed during the Bush administration and facilitated by the UK government.



“The risk now is that the new laws on secret hearings in the Justice and Security Act could nonetheless thwart efforts to get to the truth, and undermine the ability of the courts to demonstrate that justice is being done. It would be bad for British justice if most of this case ends up buried in closed material proceedings.”

Cori Crider from the human rights charity Reprieve, which is supporting the case, said:“We enter the Trump era with not a soul held to account for Britain’s role in rendition. No official has condemned Trump’s torture boasts. Our intelligence agencies may well be pressured to help America torture again.

“The risks are real. Theresa May should apologise to this family, draw a line in the sand against torture, and restore British honour once and for all.”

In a joint statement, the human rights groups Redress, Amnesty International, the International Commission of Jurists and Justice welcomed the court’s ruling that the government must be held accountable for human rights abuses, and said it should never have attempted to prevent the case being heard.

Martha Spurrier, the director of Liberty, said: “All Mr Belhaj and his wife have asked for, after suffering the most unimaginable abuse, is for those responsible to face up to what they did and apologise. Instead, our government dragged them through years of needless litigation, trying everything in their power to shut them down at every turn.”



Prof Mads Andenas, who as chair of the UN working group on arbitrary detention, intervened in the Belhaj case, said: “Lord Mance’s impressive lead judgment on the so-called foreign act of state doctrine will be followed internationally.

“Such doctrines are invented all the time by lawyers for the state, and need to be firmly rejected as done by the supreme court. They have made use of the UN authorities in the way that international law requires.”

The Foreign Office declined to explain how it might settle the Belhaj case. A spokesperson said: “The government notes the supreme court’s judgment. It would be inappropriate to comment further on this case due to the ongoing legal proceedings.”

The government won its argument that the UK’s obligation to tackle terrorism under a 2003 UN security council resolution prevailed over protections normally conferred by article five of the European convention on human rights, which guarantees the right to liberty.

Delivering judgment in relation to claims brought by Mohammed and Waheed, Sumption said: “This Court decides that capture and detention of enemy combatants are not inconsistent with … the human rights convention … the capture and detention of hostile forces is a necessary feature of the conduct of lawful military operations.”

British troops captured Mohammed, a suspected Taliban leader, in Helmand province, Afghanistan, in April 2010, and held him for interrogation until the following July. Regulations required his transfer within 96 hours. He was then handed over to the Afghan authorities, who held him for a further four years.

Waheed was captured in Basra in February 2007 and held for six-and-a-half weeks. His case is one of several hundred brought before the UK high court in which Iraqi civilians have sought damages for allegedly unlawful detention and, in some cases, unlawful treatment by British forces.

A Ministry of Defence spokesperson said: “We have always been clear that our troops were right to detain Serdar Mohammed, a Taliban commander involved in the production of explosive devices on an industrial scale, so we welcome today’s judgment.



“It is vital that our troops have the ability to detain enemy forces when they are engaged in conflict, and today’s judgment is a significant step in clearing up the legal fog that has surrounded this issue.

“While it does not of itself dispose of all the claims against the MoD by Iraqi and Afghan nationals, it will help the courts bring them to a conclusion in a way which takes proper account of military realities.”