Habib v Commonwealth of Australia: A Twist on Actions Against State=20 Officials for Torture

Author: Ben Batros & Philippa Webb=20
Filed under: EJIL=20 Analysis, EJIL=20 Reports

Thursday
Mar 4,2010=20

Ben Batros is = Appeals=20 Counsel at the International Criminal Court and a former Senior = Legal=20 Officer, International Crime Branch, Australian = Attorney-General=E2=80=99s Department.=20 Philippa Webb, is Visiting Assistant Professor at Leiden University = and former=20 Special Assistant to President of the International Court of=20 Justice

Last week (on 25 February), the = Australian=20 Federal Court handed down its decision in Habib v. Commonwealth of Australia ([2010] = FCAFC=20 12). In some respects, this case is part of several emerging = trends=20 relating to immunities and human rights. First, it concerns allegations = of=20 torture by foreign State officials, including in Guantanamo Bay (see = previous=20 EJIL:Talk! posts here=20 and here) &n= bsp;=20 and Second, it involves an alleged victim claiming damages against = a=20 Government, which resonates with the practice in US courts under the = Alien=20 Torts Claims Act and the Torture Victim Protection Act = (including=20 the Samantar case being heard by the US Supreme Court this week = =E2=80=93 see=20 post by Julian Ku over on Opinio Juris). Third, a = Government=20 has asked the court to throw out the case, arguing that the courts of = one=20 country cannot sit in judgment on the acts of the government of another = =E2=80=93 echoes=20 of Al-Adsani v. United Kingdom at the ECtHR, Jones v. Saudi = Arabia in the UK House of Lords, and the pending Germany v. = Italy=20 case at the ICJ.

But even though Mr Habib=E2=80=99s = claim lies at the=20 intersection of these trends, it does not follow the = =E2=80=9Ctypical=E2=80=9D model of a=20 civil claim against the agents directly responsible for the alleged = abuses; nor=20 does it pursue a criminal prosecution, where questions of immunity have = recently=20 formed a less imposing barrier. Rather, Mr Habib=E2=80=99s lawyers = appear to have=20 considered the experience of similar claims abroad, and to have crafted = a case=20 which takes into account both the particular opportunities and obstacles = presented by Australia=E2=80=99s legislative regime. As a result, the = heart of dispute=20 is the scope of the act of state doctrine, not the applicability of = state=20 immunity.

Mr. Habib, an Australian citizen, was = detained by=20 Pakistani authorities in early October 2001, and transferred to Egypt in = November 2001, to Bagram airbase in Afghanistan in April or May 2002, = and then=20 to Guantanamo Bay where he was detained until his release (without = charge) in=20 January 2005. During these periods, Mr Habib alleged a range of=20 mistreatments amounting to torture and inhumane treatment which = Australian=20 federal criminal law criminalises with extraterritorial (and in most = cases=20 universal) jurisdiction (paras. 3, 15-21, 57-65 of the decision). = The=20 Criminal Code also makes it an offence to aid, abet or counsel = the=20 commission of a crime. Mr Habib=E2=80=99s allegations included = that Australian=20 police, intelligence and diplomatic officials had visited him during his = detention (which was not disputed), been present during questioning, and = may=20 even have provided information used in the interrogation (paras. 17-18, = 66-67),=20 and the facts if proved might thus found criminal cases against both the = foreign=20 agents who conducted the interrogations and the Australian officials who = assisted them.

To circumvent certain procedural = requirements for=20 prosecution of these particular crimes, Mr Habib=E2=80=99s lawyers = brought a civil=20 action. However, with the exception of claims under the Alien = Torts=20 Claims Act in the US, civil claims for alleged torture at the hands = of=20 foreign state officials have previously been held to be barred by state = immunity=20 (notably in the UK in Jones v Saudi Arabia), as Mr = Habib=E2=80=99s counsel=20 expressly conceded. So Mr Habib sued the Australian Government for = the=20 torts of misfeasance in public office and of intentional infliction of = indirect=20 harm by its officials when they aided and abetted his alleged = torture.

An action based on aiding and abetting = does not=20 require that the principal has been convicted, or even prosecuted. = Yet to=20 prove that any Australian official had acted beyond their authority and=20 therefore in misfeasance of office by aiding and abetting torture = required proof=20 (in this case to the civil standard) that the crimes had been committed = by the=20 foreign officials. There was thus a duality at the core of Mr = Habib=E2=80=99s=20 claim =E2=80=93 on one hand, an Australian citizen sought redress from = the Australian=20 Government under Australian (procedural) law for alleged acts of = Australian=20 officials prohibited under Australian (substantive) law; but to resolve = this, an=20 Australian court would have to determine whether acts of foreign = officials=20 outside of Australia constituted crimes under Australian = (extraterritorial) law=20 (paras. 68-71, also 22-23).

The decision addressed a discrete legal = issue=20 which asked the Federal Court to balance these two aspects =E2=80=93 is = the claim=20 non-justiciable under the act of state doctrine because its resolution = would=20 require a determination of the unlawfulness of acts of agents of foreign = states=20 within their territory? The Court answered =E2=80=9Cno=E2=80=9D = for varying reasons.

For Perram J, this question of balance = was=20 decisive: the Court=E2=80=99s constitutional obligation to review = whether=20 Australian officials had acted beyond their authority under Commonwealth = law=20 trumped any common law principle of act of state (para. 24). Jagot = J, on=20 the other hand, prioritised analysis of act of state, spending over half = of her=20 opinion discussing its origins, development, and the considerations = informing=20 the content of the doctrine (paras. 72-120). Jagot J (with whom = Black CJ=20 agreed) was clear that the act of state doctrine cannot preclude the = Court from=20 making findings of fact regarding Mr Habib=E2=80=99s treatment at the = hands of foreign=20 officials when those officials are not subject to the jurisdiction of = the=20 Court. Indeed, the Chief Justice emphasised that this is not a = question=20 where the authorities were finely balanced; but that even that if it = was, the=20 Court should give effect to the Parliament=E2=80=99s moral choice = proscribing torture as=20 offensive to the ideals of humanity and a crime even where committed = outside of=20 Australia and in an official capacity (paras. 7-11).

Jagot J=E2=80=99s finding that the act = of state doctrine=20 did not bar consideration of this case was supported by the settled and=20 consensual nature of international law prohibiting torture, and the = clear=20 judicial standards provided by the Australian legislation in question = (paras.=20 108, 117-120). And ultimately, in light of her assumption that = state=20 immunity would prevent an action against a foreign official, Jagot J = appeared to=20 be swayed by the logic that applying the act of state doctrine in this = case=20 would mean that the Australian officials could not be held accountable = in any court (paras. = 113-114). Even=20 without Perram J=E2=80=99s fixation on the Court=E2=80=99s = constitutional role, this would have=20 been a bridge too far.

In the Justices=E2=80=99 discussion of = and engagement=20 with decisions by a wide range of national and international courts, = this case=20 demonstrated the value and importance of judicial dialogue. However, = while the=20 decision is clear about what act of state does not cover, it does little to = clarify=20 the precise nature and content of the doctrine: Perram J = considered that=20 =E2=80=9C[b]eyond the certainty that the doctrine exists there is little = clarity as to=20 what constitutes it=E2=80=9D (para. 38); and Jagot J referred repeatedly = to authorities=20 and submissions attesting to its =E2=80=9Cuncertain=E2=80=9D nature and = application (paras.=20 51-52). This vagueness perhaps means that Habib v. Cth = will not=20 easily be drawn upon by courts in other jurisdictions engaged in = analysing the=20 act of state doctrine.

The future applicability of this case = in other=20 jurisdictions is also limited by the fact that the claim was brought in = an=20 Australian court against Australian officials: it constitutes a = rare=20 example of human rights litigation involving act of state but not the applicability of = state=20 immunity. Nonetheless, the Federal Court still commented on state = immunity,=20 appearing to assume that foreign officials could successfully claim = state=20 immunity if sued in an Australian court and Australian officials if sued = in a=20 foreign court (para. 113). Although this was obiter = dicta, as=20 this question was not before it, the Federal Court seems to have = positioned=20 itself alongside the House of Lords in Jones and against any = exception=20 to state immunity for jus cogens violations (at least in = relation to=20 civil claims), even before the ICJ judgment pronounces on this very = question in=20 Germany v Italy (see earlier post here).

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Habib v Commonwealth of Australia: A Twist on Actions Against State=20 Officials for Torture

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