Comment: UK supreme court rules Guantánamo ‘forever prisoner’ can sue government under English law

The UK supreme court has ruled that a detainee in Guantánamo Bay can sue the UK government under English law over its alleged involvement in his detention and torture. This is the first case concerning the UK government’s liability for its participation in abuses committed by the CIA during the “war on terror”.

Abu Zubaydah brought a claim for damages against the UK government in 2020. The court has not yet ruled on the merits of this claim. Rather, it has ruled on an important, though obscure, part of the case to do with which country’s law applies – English law, or those of foreign countries. The answer, according to the court, is English law.

This means the case can now proceed to trial. It also has implications should the UK ever decide to cut ties with international legal mechanisms like the European convention on human rights (ECHR).

Zubaydah’s case against the UK government

After September 11 2001, the CIA built and operated a global network of secret facilities to detain and interrogate terror suspects. These clandestine “black sites” operated outside the legal systems of the US and other nations where they were located.

Detainees were subjected to what the CIA calls “enhanced interrogation techniques” – but what the UN human rights council, rightfully, classifies as torture. Some detainees, despite never facing charges or standing trial for any crime, remain in Guantánamo with no foreseeable prospect of release.

One of these “forever prisoners”, Abu Zubaydah, was captured by the CIA in Pakistan in March 2002 on suspicion of being an al Qaeda member. Over the next four years, he was held in black sites 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 offices, to their CIA counterparts to interrogate him in circumstances where they knew or ought to have known of his rendition, unlawful imprisonment and torture.

Which law applies to the case?

The supreme court judgment addresses a preliminary question that had to be answered before it can be determined whether, and to what extent, the UK government is liable for Zubaydah’s unlawful imprisonment and torture. This is the question of applicable law – whether English law or foreign laws apply to the claim.

When a public officer commits a wrong, there are two main domestic legal avenues for compensating the victim: the Human Rights Act 1998, which implements the ECHR into UK law, and tort law.

Tort law is the law of civil wrongs, and applies when someone causes harm or loss to another person. If found liable, they must compensate the victim. Because there is no allegation that the UK hosted a CIA black site, this case falls outside the ECHR’s scope. This left Zubaydah only with the option of suing the UK government in tort.

Tort claims are typically governed by the law of the country where the harm occurred. At first glance, Zubaydah’s claim could be governed by the laws of the countries where he was held. However, because the case concerns the exercise of UK sovereign power by UK officers sending requests to the CIA from their London offices, it was not certain whether English law or foreign laws should apply.

The high court held that foreign laws applied. The court of appeal disagreed. In a four-to-one decision, the supreme court has now dismissed the appeal.

With the preliminary question out of the way, the case will proceed to trial. Zubaydah will have to prove that he was unlawfully imprisoned and tortured, and that the UK government is liable under English law.

Why does this matter?

This case is an important example of “satellite litigation”. Legal frameworks in the US and other countries prevent detainees like Zubaydah from suing the US in US and foreign courts. Instead, they can only bring proceedings against complicit states. Zubaydah has already successfully sued Lithuania and Poland (two locations of CIA black sites) at the European court of human rights.

While it may appear to be a technical issue, the question of applicable law is significant. There is an inherent peculiarity in applying foreign laws to acts committed by UK officials in their London offices.

This is particularly true because of the countries involved. Afghanistan’s legal system is shaped by the Taliban. Guantánamo is part of sovereign Cuban territory, leased to the US in 1903 and currently the subject of an international dispute. We therefore do not know which system of law applies there – pre-communist Cuban law, current Cuban law, or US law.

There is another reason why this case is important. The UK government has discussed the possibility of withdrawing the UK from the European convention on human rights. The now-withdrawn bill of rights bill aimed, among other things, to exclude the application of the convention to overseas military operations.

Should this ever become law, tort claims would be the only legal avenue to compensate victims of British military and security services’ wrongs committed overseas. This supreme court judgment underscores the importance of English law in such cases. In other words, it is a reminder that English law is still a viable avenue to pursue human rights cases.

Links

• The full article in The Conversation
• Dr Ugljesa Grusic's academic profile
• UCL Laws