UK Appeals Court Rules Abdel Hakim Belhaj, Rendered to Torture in Gaddafi’s Libya, Can Sue British Government

2.11.14

What a long road to justice this is turning out to be. Back in December 2011, Abdel Hakim Belhaj (aka Belhadj), a former opponent of the Gaddafi regime, who, in 2004, in an operation that involved the British security services, was kidnapped in China with his pregnant wife and delivered to Colonel Gaddafi, first attempted to sue the British government — and, specifically, the former foreign secretary, Jack Straw, MI6’s former director of counter-terrorism, Sir Mark Allen, the Foreign Office, the Home Office and MI5.

Since then, the government has fought to prevent him having his day in court, but on Thursday the court of appeal ruled, as the Guardian described it, that the case “should go ahead despite government attempts to resist it on grounds of the ‘act of state doctrine’, arguing that the courts could not inquire into what happened because it involved a foreign state.” The Guardian added that the ruling “establishes a significant precedent for other claims,” although it is possible, of course, that the Foreign Office will appeal to the Supreme Court.

The Guardian also noted that the British government had “maintained that the UK’s relations with the US would be seriously damaged if Belhaj was allowed to sue and make his case in a British court.” However, the judgment said that “while the trial relating to the couple’s rendition was likely to require a British court to assess the wrongfulness of acts by the CIA and Libyan agents, that was no reason to bar the claim.”

The judges said that the respondents (Jack Straw et al.) “are not entitled to any immunity before the courts in this jurisdiction … Their conduct, considered in isolation, would not normally be exempt from investigation by the courts. There is a compelling public interest in the investigation by the English courts of these very grave allegations. The risk of displeasing our allies or offending other states … cannot justify our declining jurisdiction on grounds of act of state over what is a properly justiciable claim.”

The judges added, “The stark reality is that unless the English courts are able to exercise jurisdiction in this case, these very grave allegations against the executive will never be subjected to judicial investigation.”

In response to the ruling — which represents a well-deserved victory not only for Mr. Belhaj and his wife, but also for his lawyers at Leigh Day & Co. and Reprieve, who have worked so hard on their behalf — Andrea Coomber of Justice, the all-party law reform and human rights organization (which contributed to the case), said, “The government’s case would fundamentally undercut the international rule of law and undermine the global commitment to remedies for victims of human rights violations. The ‘they did it too’ defence traditionally hasn’t worked in the playground. Yet, the UK government would — in expanding the ‘act of state’ doctrine and the scope of state immunity — seek to enshrine it in common law. States cannot be encouraged to supplement the international law of state immunity with their own pick and mix patchwork of domestic rules on justiciability.”

John Dalhuisen of Amnesty International (also involved in the case) had some thoughts about the ruling as well. “The court of appeal has,” he said, “set the stage for real accountability in the UK, which has been a long time in coming. Other states implicated in the CIA rendition and secret detention programmes — e.g. Poland, Lithuania, Romania — must also commit to conducting effective investigations that reveal the whole truth about Europe’s complicity in these appalling crimes, hold perpetrators accountable, and give victims access to justice.”

Speaking to the Guardian from Libya, Mr. Belhaj, who is now the head of Libya’s Al-Watan political party, said, “I always had faith in the British justice system. The right decision has been made. I feel I am getting closer to realizing justice in my case.”

He also stated that he would be talking to his lawyers about the possibility of giving evidence in a future trial. “It would be great if I and my wife could be present at the hearing in order to explain exactly what the impact of these events has been,” he said, adding, “There’s still a large effect, especially when I catch myself thinking about what happened to my wife, who was pregnant at the time. We were subject to a long period of bad treatment.”

As I explained in an article in December 2011, “evidence of the UK’s role in the rendition of Abdel Hakim Belhadj and Fatima Bouchar was revealed in a number of fawning, and previously classified documents that came to light in Tripoli, in September, as the Gaddafi regime fell, and which were discovered by Human Rights Watch. These documents reveal that the British government told the Libyan government that the couple were in Malaysia in early March 2004, and Sir Mark Allen, who was then the director of counter-terrorism at MI6, wrote to the notorious torturer Moussa Koussa, the head of Libyan intelligence, who … fled Libya as the regime began tumbling and was briefly welcomed in the UK.”

As I also explained in my article, Abdel Hakim Belhaj was “not the first former opponent of Gaddafi to sue the British government.” In October 2011, Sami al-Saadi (also known as Abu Munthir), another prominent opponent of Gaddafi, who was rendered from Hong Kong with his wife and four children, “launched an action to claim damages from the British government after the documents discovered in Tripoli revealed the key role played by MI6 in his rendition as well. The Tripoli documents revealed a fax the CIA sent to Moussa Koussa, just two days before Tony Blair’s visit to Gaddafi [to welcome him as an ally in the “war on terror”], which, as the Guardian put it, ‘shows that the agency was eager to join in the Saadi rendition operation after learning that MI6 and Gaddafi’s government were about to embark upon it.'”

In December 2012, Mr. al-Saadi and his family accepted a settlement of £2.23m from the British government. Mr. Belhaj, however, has refused to negotiate a settlement. As the Guardian described it, he “is seeking nominal damages of £1 and an apology from the British government.”

“I’m not interested in taking revenge for the past,” Mr. Belhaj said. “I want to build relations with the UK afresh. It’s natural for people to want to have justice to right their wrongs. We are very thankful for the way the British stood by us when we rid ourselves of the regime of Gaddafi. My faith in British justice has been restored.”

In their hearing, Mr. Belhaj and his wife submitted the following account of their ordeal, as described by their lawyers:

In the 1990s Mr. Belhaj was involved in a Libyan group opposed to Colonel Gaddafi and in 1998 he was forced to flee to Afghanistan. In 2003 he moved to China to evade detection by the Libyan intelligence agencies. In about June 2003 Mr. Belhaj married Mrs. Boudchar [aka Bouchar], who subsequently moved to China to live with him. In early 2004 they became concerned that they were no longer safe in China and decided to seek asylum in the United Kingdom. In February 2004, at which time Mrs. Boudchar was approximately four months pregnant, they tried to take a commercial flight from Beijing to London. They were detained at Beijing airport by Chinese border authorities for two days before being deported to Kuala Lumpur. On arrival in Malaysia they were taken by Malaysian officials to the Sepang Immigration Detention Centre where they were detained for approximately two weeks.

It is alleged that the respondents became aware that the appellants were being detained in Malaysia. On 1 March 2004 the Secret Intelligence Service informed the Libyan intelligence services where the appellants were being held. On 4 March 2004 the US Government became aware of the appellants’ detention in Malaysia and a plan was then formulated to abduct the appellants and transfer them to Libyan custody without any form of judicial process. On 4 March 2004 US officials sent two faxes to the Libyan authorities. The first stated that US authorities were working with the Malaysian Government to effect the extradition of Mr. Belhaj from Malaysia and to arrange his transfer to US custody. It stated that once they had Mr. Belhaj in custody “we will be very happy to service your debriefing requirements and we will share the information with you”. The second fax indicated that US officials were committed to rendering Mr. Belhaj to Libyan custody. It is alleged that on the 6 March the US sent two further faxes to the Libyan authorities. The first was entitled “Planning for the Capture Rendition of [Mr. Belhaj]”. It explained that the Malaysian Government had informed the US authorities that they were putting the appellants on a commercial flight from Kuala Lumpur to London via Bangkok on the evening of 7 March 2004. It stated that the US authorities were planning to arrange to “take control” of the appellants in Bangkok and place them on “our aircraft for a flight to your country”.

In response to the appellants’ repeated requests that they be allowed to travel to the United Kingdom they were told by the Malaysian authorities that they could travel to the United Kingdom only via Bangkok. On the evening of 7 March 2004 they boarded a commercial flight from Kuala Lumpur bound for London via Bangkok. Upon arrival at Bangkok they were removed from the plane by Thai officials and separated. Mrs. Boudchar alleges that she was taken to a van containing US agents who pulled her into the van, forced her onto a bench, blindfolded and bound her. Later she was forced out of the van into a building where she was placed in a cell where she was bound to two hooks. She alleges ill treatment during her detention. After a period of time she was hooded and bound in a painful manner and taped tightly to a stretcher. She was driven to a nearby building where she was released from the stretcher but her eyes and ears remained covered. She was punched in the belly. She was then injected with something which caused her to feel very weak. She was again taped onto a stretcher and driven to an aircraft.

Mr. Belhaj alleges that on arrival in Bangkok he was taken by two Thai officials to a van on the airport runway which contained US agents. They pulled him into the van and strapped him onto a stretcher, shackled and hooded him. He was taken in the van to a building and placed in a cell where he was chained to two hooks on the wall. Whilst still hooded he was repeatedly slammed into the wall. He was interrogated and subjected to loud music blasts. He was prevented from sleeping. He was beaten on arrival, when moved from one cell to another and before leaving the building. He was intermittently interrogated by two American men. After about a day he was injected with something which caused him to feel sleepy and confused. He was handcuffed, shackled and hooded and strapped onto a stretcher in a position which was extremely painful.

It is alleged that at sometime between 7 and 9 March 2004 Mr. Belhaj and Mrs. Boudchar were carried on stretchers onto an aircraft. They both allege further ill treatment during the flight. Shortly before landing in Tripoli Mr. Belhaj alleges that he was beaten again. Mrs. Boudchar was concerned that as a result of the ill treatment she suffered she had lost her baby. They were separated and driven to Tajoura Prison where they were placed in cells.

It is alleged that on 18 March 2004 Sir Mark Allen sent a letter to Mr. Mousa Kousa, the Head of the Libyan External Security Organisation, congratulating him on the successful rendition of Mr. Belhaj. The letter states:

“Most importantly, I congratulate you on the safe arrival of [Mr. Belhaj]. This was the least we could do for you and for Libya to demonstrate the remarkable relationship we have built up over recent years. I am so glad…[Mr. Belhaj’s] information on the situation in this Country is of urgent importance to us. Amusingly, we got a request from the Americans to channel requests for information from [Mr. Belhaj] through the Americans. I have no intention of doing any such thing. The intelligence about [Mr. Belhaj] was British. I know I did not pay for the air cargo. But I feel I have the right to deal with you direct on this and am very grateful to you for the help you are giving us.”

Mrs. Boudchar was detained in Tajoura Prison where she alleges further ill-treatment. She was released from prison on 21 June 2004 and gave birth to her son on 14 July 2004.

It is alleged that on his arrival at Tajoura Prison Mr. Belhaj was met by Mr. Kousa. Mr. Belhaj alleges that after approximately four months in Tajoura Prison his treatment by the Libyans became worse. He was kept in isolation without any natural light. He was subjected to intensive interrogations lasting for several days at a time. He was deprived of sleep by being chained by his wrist to a window in the interrogation room. He was beaten by guards, hung from walls and kept in solitary confinement, including being denied family visits, for much of 2005 and 2006.

Mr. Belhaj alleges that whilst detained in Tajoura Prison he was interrogated by British Intelligence Officers on at least two occasions. Mr. Belhaj alleges that he gestured to the British agents that he was being beaten and hung by his arms and showed them his scarred wrists. On another occasion, when he refused to sign a statement in relation to whether a group of Libyans in the United Kingdom had sent money to an armed group in Libya, he was told by a Libyan interpreter that the British team was in Libya waiting for this information and he was threatened with torture by being placed in a mechanical box with an adjustable ceiling that would restrict his movement. He signed the papers. There are further allegations of complicity by agents of the Security Service in interrogations in March and October 2004 and in February 2005.

After about three or four years in Tajoura Prison Mr. Belhaj was brought into a room which he was told was a court. Thirteen charges against him were read out. Mr. Belhaj attempted to defend himself against the charges. His defence lawyer simply repeated what Mr. Belhaj had said. Mr. Belhaj was then returned to his cell, the whole process having taken around fifteen minutes. Mr. Belhaj was later transferred to Abu Salim Prison where he was told that he had been found guilty and sentenced to death. At Abu Salim Prison he was kept in total isolation for a year. Conditions were insanitary. He was subjected to beating at the whim of the guards and medical treatment was non-existent. He was eventually released on 23 March 2010.

Speaking about the visits of British intelligence agents while he was in Tajoura Prison in Libya, Mr. Belhaj has stated, “On two or three occasions, delegations of MI6 officers visited me in Tajoura. They asked me various questions but while that was going on I made every attempt to indicate to them that I was subject to ill treatment in prison. I’m certain they understood but I didn’t see any response from them. The Libyan security services were very keen for the British to send other [Libyan exiles] back to Tripoli. The Libyan intelligence agencies were trying to force me to testify against other people, including Libyans who were living in Britain and had UK citizenship — which is appalling.”

It is indeed appalling, but as I explained in December 2011, Mr. al-Saadi was subjected to similar experiences. He stated that “he was interrogated about Libyans living in the UK, shown photographs of a number of them, and on one occasion questioned by two British intelligence officers while one of his Libyan interrogators was present,” and, as I explained, “what is clear from the experience of Libyan dissidents in the UK, who had claimed asylum, is that, after Gaddafi’s miraculous volte-face [in March 2004], his enemies were subjected to arbitrary imprisonment in the UK (in prisons, and also under house arrest) and shameful attempts to repatriate them, in contravention of the UN Convention Against Torture and the European Convention on Human Rights.”

As I also explained in December 2011, although a can of worms was being prised open in the UK, the Obama administration was “studiously avoiding having to answer any questions about the Bush administration’s involvement in the rendition and torture not only of Abdel Hakim Belhaj and Sami al-Saadi, but also of several other Libyans, some of whom I profiled for the United Nations” in a report on secret detention in 2010.

I added:

Most significant, however, is Ibn al-Shaykh al-Libi, the former emir of the Khaldan training camp in Afghanistan. Seized by the US crossing from Afghanistan to Pakistan [in December 2001], he was sent to Egypt to be tortured, where he came up with a false confession that al-Qaeda operatives had met with Saddam Hussein to discuss obtaining chemical and biological weapons. Al-Libi recanted his claim, but it was, nevertheless, used to justify the US-led invasion of Iraq, and al-Libi himself, after a tour of US torture prisons, was also returned to Libya, where he too was imprisoned and tortured. Unlike Belhaj, al-Saadi and others, however, al-Libi never survived. In May 2009, it was reported that he had committed suicide in his cell at Abu Salim prison, a story that no one with knowledge of Gaddafi — or, for that matter, the CIA — believed, especially as the US embassy in Tripoli reopened just three days after his death.

Andy Worthington is a freelance investigative journalist, activist, author, photographer and film-maker. He is the co-founder of the “Close Guantánamo” campaign, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

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8 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    In my latest article, I look at some good news from the UK, where the court of appeal has ruled that Abdel Hakim Belhaj, rendered from China to ‪‎torture‬ in Col. Gaddafi’s Libya in 2004 with significant UK involvement, can sue the British government. For nearly three years the UK authorities have been doing all they can to avoid being held responsible, so thanks again to judges refusing to cave in to political pressure.

  2. Andy Worthington says...

    Thanks to everyone who has been liking and sharing this article. It was a really important ruling, and I’m very glad that we have judges like Lord Justice Lloyd Jones, the Master of the Rolls and Lady Justice Sharp – the judges in this case – who, as I mentioned in my intro above, refuse to bow to political pressure. Without them, it seems likely that the government would be able to shroud all their wrong-doing in secrecy, as they intend. On this, the transition from the Labour government to the Tory-led coalition has been pretty seamless. William Hague promised an investigation into British complicity in torture, but that was effectively stifled, and then the Tories began pushing for an increase in the use of secret courts, first proposed in November 2010: http://www.theguardian.com/world/2010/nov/16/guantanamo-uk-kenneth-clarke

  3. Andy Worthington says...

    On Facebook, after Neill Le Roux shared this article, I wrote:

    Thanks for sharing, Neill. Much appreciated.

  4. Andy Worthington says...

    Neill Le Roux wrote:

    It’s the very least I can do Andy. All thanks go to you for all your incredibly hard work, fighting the good fight.

  5. Andy Worthington says...

    Thanks again, Neill, for the supportive words.

  6. Anna says...

    Thanks Andy for this wonderful piece of news.
    Every once in an -all too rare – while,there is some progress. Great too that Mr. Belhaj sues to get an official apology.
    For whatever that’s worth in the public eye after so many years, it still is the very least one needs to get rehabilitated.

    And after all those years, I still get shocked by the language those *#&$^ use:
    will be happy to “service your debriefing requirements” … How cynical can you get?

    In the meantime the Polish government as was expected has appealed the Strasbourg Human Rights Tribunal verdict. The morons -I feel entitled to say. The original seven judge verdict was unanimous. Do they really expect that six more judges -even if per chance they all would disagree with the initial seven – will make a difference?
    Not unless the government will hand over much more information than they did sofar, which is highly unlikely as it would only incriminate them even further.
    I do hope and reasonably expect that the tribunal will not be bothered and will simply dismiss the appeal.

  7. Andy Worthington says...

    Lovely to hear from you, Anna. I haven’t generally been following the British counter-terrorism story as closely under the Tories as under the Labour government – mainly because there are so many other aspects of the Tories’ policies that I haven’t been able to avoid (the whole class war “age of austerity” that has been, and continues to be so corrosive) – so I was glad to find the opportunity to write about Mr. Belhaj’s success after so many years in which it was beginning to look like the government was mounting a successful campaign against all accountability for its own crimes and those of the security services.
    Thanks for the update from Poland. I suppose it’s not surprising that the Polish government would appeal as it’s such an obvious delaying tactic, but I agree that they can’t really expect a different verdict. The next step, as in the UK, would be to seriously propose leaving the EU – but I can’t see that happening, unlike here, where our rightward isolationist drift seems to making it a very real possibility. It is, of course, quite alarming to be living in a country where the government states, with a straight face and the anticipation of widespread support, that it wants to get rid of a piece of legislation called the Human Rights Act.

  8. Andy Worthington says...

    Here’s an update from Reprieve. On Friday, the Metropolitan Police confirmed that they had “sent an ‘initial’ file to British prosecutors” regarding the rendition of Abdel Hakim Belhaj and his wife and Sami al-Saadi and his famiy to Gaddafi’s Libya in what was described by Reprieve as “a joint MI6-CIA operation.” The BBC’s Gary O’Donoghue tweeted, “MET confirm to me that they have sent a file to CPS on crim inquiry into Belhaj rendition,” adding that “MET says initial file no indication that investigation is at an end.”
    In response to the news, Cori Crider of Reprieve stated, “This is a welcome sign that Met investigators are treating the abuse of pregnant women and children by the state with the seriousness it deserves – we wish the same could be said for the government’s approach to the Belhaj civil case. Up to now, the gears of British justice have ground slowly for the men, women and children who were subjected to UK-sponsored rendition and torture. But these families still have hope that, one way or another, a UK court will get to the bottom of their case. Let us hope the approach to this case vindicates the principle that no one – however high he may be – stands above the law.”
    See: http://www.reprieve.org.uk/press/2014_10_31_Police_Libya_rendition_CPS/

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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