UK supreme court docket guidelines Guantánamo ‘without end prisoner’ can sue the federal government underneath English legislation – this is why it issues

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The UK supreme court docket has dominated {that a} detainee in Guantánamo Bay can sue the UK authorities underneath English legislation over its alleged involvement in his detention and torture. That is the primary case in regards to the UK authorities’s legal responsibility for its participation in abuses dedicated by the CIA in the course of the “battle on terror”.

Abu Zubaydah introduced a declare for damages in opposition to the UK authorities in 2020. The court docket has not but dominated on the deserves of this declare. Fairly, it has dominated on an necessary, although obscure, a part of the case to do with which nation’s legislation applies – English legislation, or these of international international locations. The reply, in keeping with the court docket, is English legislation.

This implies the case can now proceed to trial. It additionally has implications ought to the UK ever determine to chop ties with worldwide authorized mechanisms just like the European conference on human rights (ECHR).

Zubaydah’s case in opposition to the UK authorities

After September 11 2001, the CIA constructed and operated a world community of secret services to detain and interrogate terror suspects. These clandestine “black websites” operated outdoors the authorized techniques of the US and different nations the place they had been positioned.

Detainees had been subjected to what the CIA calls “enhanced interrogation methods” – however what the UN human rights council, rightfully, classifies as torture. Some detainees, regardless of by no means dealing with expenses or standing trial for any crime, stay in Guantánamo with no foreseeable prospect of launch.

Mugshot of Abu Zubaydah, a young man with a thick beard and an eyepatch over his left eye
Abu Zubaydah is a ‘without end prisoner’ at Guantánamo.
Sipa US/Alamy

One in all these “without end prisoners”, Abu Zubaydah, was captured by the CIA in Pakistan in March 2002 on suspicion of being an al Qaeda member. Over the following 4 years, he was held in black websites in Afghanistan, Guantánamo, Lithuania, Morocco, Poland and Thailand. Since 2006, he has been held in Guantánamo.

Zubaydah is arguing that MI5 and MI6 officers made requests, from their London places of work, to their CIA counterparts to interrogate him in circumstances the place they knew or should have recognized of his rendition, illegal imprisonment and torture.

Which legislation applies to the case?

The supreme court docket judgment addresses a preliminary query that needed to be answered earlier than it may be decided whether or not, and to what extent, the UK authorities is responsible for Zubaydah’s illegal imprisonment and torture. That is the query of relevant legislation – whether or not English legislation or international legal guidelines apply to the declare.

When a public officer commits a improper, there are two most important home authorized avenues for compensating the sufferer: the Human Rights Act 1998, which implements the ECHR into UK legislation, and tort legislation.

Tort legislation is the legislation of civil wrongs, and applies when somebody causes hurt or loss to a different particular person. If discovered liable, they need to compensate the sufferer. As a result of there isn’t any allegation that the UK hosted a CIA black web site, this case falls outdoors the ECHR’s scope. This left Zubaydah solely with the choice of suing the UK authorities in tort.

Close up photo of a statue of Justice, holding the scales of justice
The query of which legislation governs this declare has necessary implications for future instances.

Tort claims are sometimes ruled by the legislation of the nation the place the hurt occurred. At first look, Zubaydah’s declare might be ruled by the legal guidelines of the international locations the place he was held. Nevertheless, as a result of the case issues the train of UK sovereign energy by UK officers sending requests to the CIA from their London places of work, it was not sure whether or not English legislation or international legal guidelines ought to apply.

The excessive court docket held that international legal guidelines utilized. The court docket of attraction disagreed. In a four-to-one choice, the supreme court docket has now dismissed the attraction.

With the preliminary query out of the way in which, the case will proceed to trial. Zubaydah must show that he was unlawfully imprisoned and tortured, and that the UK authorities is liable underneath English legislation.

Why does this matter?

This case is a crucial instance of “satellite tv for pc litigation”. Authorized frameworks in the US and different international locations forestall detainees like Zubaydah from suing the US in US and international courts. As an alternative, they’ll solely carry proceedings in opposition to complicit states. Zubaydah has already efficiently sued Lithuania and Poland (two places of CIA black websites) on the European court docket of human rights.

Whereas it might seem like a technical concern, the query of relevant legislation is important. There’s an inherent peculiarity in making use of international legal guidelines to acts dedicated by UK officers of their London places of work.

That is notably true due to the international locations concerned. Afghanistan’s authorized system is formed by the Taliban. Guantánamo is a part of sovereign Cuban territory, leased to the US in 1903 and at present the topic of a world dispute. We subsequently have no idea which system of legislation applies there – pre-communist Cuban legislation, present Cuban legislation, or US legislation.

There’s another excuse why this case is necessary. The UK authorities has mentioned the opportunity of withdrawing the UK from the European conference on human rights. The now-withdrawn invoice of rights invoice aimed, amongst different issues, to exclude the applying of the conference to abroad army operations.

Ought to this ever grow to be legislation, tort claims could be the one authorized avenue to compensate victims of British army and safety providers’ wrongs dedicated abroad. This supreme court docket judgment underscores the significance of English legislation in such instances. In different phrases, it’s a reminder that English legislation continues to be a viable avenue to pursue human rights instances.


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