Libyan dissident’s litigation against UK highlights Govt opportunism re dictatorships

UK and US adventures in Afghanistan and Iraq undoubtedly contributed to the war in Syria, to the rise of ISIS and to many of the subsequent tragic events, including the dreadful attacks in Paris yesterday (claimed by ISIS). Another of these ‘adventures’ was the courting by the UK of Gaddafi and the cooperation between Libyan intelligence and MI6/MI5/CIA. Two weeks ago the British Appeal Court ruled that Libyan dissident, Abdel Hakim Belhadj, can sue the former foreign secretary, Jack Straw, MI6’s former director of counter-terrorism, Sir Mark Allen, the Foreign Office, the Home Office and MI5 for their part in his alleged abduction and torture and that of his Moroccan wife, Fatima Bouchar. Belhadj – also known as Abdullah al-Sadiq – claims he and his wife were, with the knowledge of the UK Government, secretly flown to Tripoli, where Muammar Gaddafi’s security forces tortured him; further, that British intelligence officers took part in his interrogation. In summary, this litigation is not just about the moral legitimacy of British foreign policy, but the accountability of key players of the Blair Government, who were prepared to cosy up to dictators (just as the current UK Government, for example, turns a blind eye to Saudi barbarism). Below, we list the documents – see section C – and contextual evidence that appear to back Mr Belhadj’s claims.

A. Introduction

In January 2012 Abdullah al-Sadiq (Abdul Hakim Belhadj) and Sami al-Saadi sued Mark Allen, MI6’s former head of counterterrorism, for civil damages. In April 2012, al-Sadiq and his wife sued former Foreign Secretary Jack Straw, alleging his complicity in the torture and abuse they suffered at the hands of Thai, US and Libyan officials, as well as malfeasance in public office. In December 2012, the British government paid al-Saadi £2.23m to settle his lawsuit, without admitting liability. In November 2014 the UK Court of Appeal ruled that the case against the former foreign secretary Jack Straw and a senior MI6 officer alleging they were involved in the torture and rendition of a Libyan man and his pregnant wife – Abdel Belhadj and Fatima Bouchar – to Gaddafi’s Libya in 2004 can be heard in an English Court.

The more recent Court of Appeal ruling confirmed that the litigation can now proceed to the Supreme Court. The Appeal hearing stated “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 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.”

This landmark legal judgement could affect similar cases in the UK and elsewhere (including the USA).

Here is the original Letter of Claim Against UK Government
Abdel Hakim Belhadj and Fatima Bouchar (Leigh Day & Co.), November 2011.

Here is the original Letter of Claim Against Sir Mark Allen
Abdel Hakim Belhadj and Fatima Bouchar (Leigh Day & Co.), January 2012′.

Here is the notice of Legal Papers Served on Former Foreign Secretary, Jack Straw, by
Leigh Day & Co., April 2012.

Here is the 2014 ruling by the Court of Appeal (now confirmed by the more recent hearing)

B. Background to the case:

Abdel Hakim Belhadj left Libya in 1988 and during the 1990s became leader of the Libyan Islamic Fighting Group (LFIG), aimed at overthrowing Colonel Gaddafi’s regime. Throughout the 1990s, the LFIG was involved in an ongoing insurgency in Libya, although by 2001 this had been crushed and Belhadj was based in Afghanistan. After 9/11, Belhadj fled Afghanistan, marrying Fatima Bouchar in 2003 and settling first in Malaysia, before moving to China.

In early 2004, Belhadj and Fatima Boudchar tried to travel from China to the UK, where they planned to seek asylum. However, when attempting to leave China they were instead deported instead to Malaysia, where they were detained for a further two weeks. They were then put on a flight to Bangkok, where they were handed over to US intelligence and taken to a secret prison. There Belhadj claims he was stripped and hung by his wrists from hooks in his cell wall, with his legs together. He was blindfolded, hooded, made to wear ear defenders, and subjected to extremely loud music and to vicious beatings. He thinks he was drugged and at one point felt needles being inserted into his back. He was interrogated, mostly in English, and describes losing consciousness on many occasions.

Ms Bouchar describes being blindfolded and made to wear ear defenders. She had a plastic tie wound around her legs from her ankles to her knees and her wrists cuffed. She was transported in a truck for some 30 minutes and then carried on a stretcher to a cell where her restraints were removed. She describes personnel being dressed in black with balaclavas on, speaking English with American accents. Despite being several months pregnant, she was chained to the wall in her cell by her wrist and opposite ankle. She could just about sit or lie on the floor but this was painful. She was not given any food and describes extreme fluctuations of temperature.

The Americans then arranged for Belhadj and Bouchar to be rendered back to Libya. Here are the flight details. The aircraft departed at 23:30 GMT and flew first to Diego Garcia (British Overseas Territory) to take on fuel, before going on to Tripoli.

On the way to Libya Ms Bouchar was forced onto a stretcher and had tape wound around her body from her feet to the top of head, with one of her hands pressed tightly against her womb. As the tape was wound around her face, her right eye was taped open and kept that way for the duration of the 17-hour flight, which she describes as agony. On arrival at the airport in Bangkok, the tape was cut from her body, but left on her eyes, her clothes were cut off and someone pressed their finger sharply into her belly button, which she describes as excruciating. She was injected in her arm, and re-taped to a stretcher from her feet to her neck.

Belhadj says that he was handcuffed and blindfolded for the flight, and that his hands were tied to his legs in such a way that he had to crouch for entire journey, unable to stand up or lie down. He was then detained in Tajoura prison, just outside of Tripoli. There, he claims, he was chained to a window, deprived of sleep, beaten, hung from the walls and kept in solitary confinement. He also alleges he was interrogated by British intelligence officers who visited his cell. According to a report by Human Rights Watch the prison in Libya where Belhadj and his family were held, routine torture included chaining prisoners to a wall for hours; clubbing; applying electric shock; applying corkscrews to the back; pouring lemon juice in open wounds; breaking fingers and allowing the joints to heal without medical care; suffocating with plastic bags; deprivation of food and water; hanging by the wrists; suspension from a pole inserted between the knees and elbows; cigarette burns; threats of being attacked by dogs; and beating on the soles of the feet.

On arrival in Tripoli, Belhadj and Bouchar were driven to Musa Kusa’s ‘external security’ prison in Tajoura. There Bouchar was kept blindfolded and bound for several more hours on arrival. Within four days, her interrogations began, twice per day for 2-3 hours at a time. She was psychologically tortured and refused a medical examination for two months. The doctor explained that she and the baby were very weak and that her womb was too dry to allow proper movement for the baby. She was finally released on 21 June 2004, although was not permitted to leave the country, and gave birth to her son on 14 July.

During his detention Mr Belhadj was tortured repeatedly, including beatings, sleep deprivation to the point of delirium, being hung from walls and subjected to psychological torture. He was held in solitary confinement, in a tiny dark cell, and refused permission to bathe for three years. Moreover, he says he was interrogated by American and British agents, and those from other European countries.

In an interview with The Independent, Belhadj described being interrogated by three British agents over two sessions. The two men and a woman would question him for two hours at a time, and would focus on members of the LIFG based in the UK (see Section ‘D’, below, and image of ‘Secret’ document listing these questions) and their links with al Qaeda, which he denied. He describes trying to alert them to his torture at the hands of the Libyans: “I hoped they would do something about it. I was too terrified during the meeting to say out loud what was being done to me because I thought the Libyans were taping what was going on. When the Libyan guards left I made sign movements with me hands. The British people nodded, showed they understood. They showed this understanding several times. But nothing changed, the torture continued for a long time afterwards.”

After about four years in Tajoura prison, Belhadj was convicted for armed insurrection against the Gaddafi regime. He was transferred to the Abu Salim prison, where he was held in isolation and continued to be beaten.

Mr Belhadj was finally released in March 2010, six years after his initial capture, under an amnesty. He subsequently alleged that MI6 knew he was being tortured; also that on a number of occasions he was interrogated by US and British officials.

C. Documents:

Documents later found in Tripoli in 2011 confirmed that the British Government had been directly involved in assisting the Gaddafi regime to take custody of Mr al-Sadiq (Belhadj). A memorandum dated March 4, 2004, from the CIA to the Libyan government states “[w]e are working energetically with the Malaysian government to effect the extradition of Abdullah al-Sadiq from Malaysia. The Malaysians have promised to cooperate and arrange for Sadiq’s transfer to our custody.”

In March 2004, Sir Mark Allen, the former head of counterterrorism at MI6 (also known as ‘M’), wrote to Libya’s notorious spy chief Moussa Koussa, as follows: “Most importantly, I congratulate you on the safe arrival of Abu Abd Allah Sadiq [Mr Belhadj]. This was the least we could do for you and for Libya to demonstrate the remarkable relationship we have built over the years. I am so glad. I was grateful to you for helping the officer we sent out last week…Amusingly, we got a request from the Americans to channel requests for information from Abu ‘Abd Allah through the Americans. I have no intention of doing any such thing. The intelligence on Abu ‘Abd Allah 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 for the help you are giving us.” (The letter really is signed ‘M’!)

Other documents, sourced in 2011, relate to the rendition arrangements of Mr Belhadj and his wife.

Marked “UK Secret”, one document – see extract in image below – included ‘long lists of questions and background intelligence that MI5 and MI6 asked Libyan interrogators to put to Mr Belhadj during sessions where he claims he was being tortured’.

Memos between Western intelligence agencies and that of the Gaddafi regime provide an insight into how enemies became allies: click here to see these documented exchanges. The documents found in Tripoli also reveal how the CIA were keen to speak to Belhadj (a-Sadiq). The first document to mention him is dated 4 March 2004, and is a memo to Tripoli from the CIA. It states: “Our service is committed to rendering the terrorist Abu Abdullah al-Sadiq to your custody.”

Two days later, there is further correspondence between the CIA and Libyan intelligence:

“Subject: Planning for the Capture and Rendition of Abdullah Al-Sadiq.,,,

The Malaysian government has informed us that they are putting Libyan Islamic Fighting Group (LIFG) leader Abdullah al-Sadiq and his pregnant (four months) wife on a commercial flight from Kuala Lumpur to London via Bangkok on the evening of 7 March, 2004.

We are planning to arrange to take control of the pair in Bangkok and place them in an aircraft for a flight to your country. It is vital that one of your officers accompany al-Sadiq and his wife … in order to provide legal custody of al-Sadiq’s spouse. We request that your officers in Kuala Lumpur and Bangkok refrain from making further requests of the Malaysians on this matter.

We also appreciate your allowing our service direct access to Al-Sadiq for debriefing purposes once he is in your custody. Please be advised that we must be assured that al-Sadiq will be treated humanely and that his human rights will be respected.

It is our standard practice that our officers cannot condone any significant physical or physiological aspects, such as direct physical contacts, unusual mental duress, unusual physical restraints or deliberate environmental deprivations beyond those reasonably required to ensure the security and safety of our officers and to prevent the escape of the detainees.”

2007 Memo between UK and Libyan Governments re deportation (i.e. rendition):

(Note: this is a standard document, used by the UK Foreign Office in many instances with many countries – here’s a pdf re UK and Lebanon, with almost identical wording.)

Application and Scope:

A request for assurances under this Memorandum may be made by the sending state in respect of any citizen of the receiving state, any stateless person who was habitually resident in the receiving state, or any third-country national whom the receiving state is prepared to admit.

Such requests will be submitted in writing either by the British Embassy in Tripoli to the General People’s Committee for Foreign Liaison and International Co-operation or by the Bureau of the Great Socialist People’s Libyan Arab Jamahiriya in London to the Foreign and Commonwealth Office. The state to which the request is made will acknowledge receipt of the request within 5 working days.

A final response to such a request will be given promptly in writing by the Foreign Secretary in the case of a request made to the United Kingdom, or by the Secretary of The General People’s Committee for Foreign Liaison and International Co-operation in the case of a request made to Libya.

To assist a decision on whether to request assurances under this Memorandum, the receiving state will inform the sending state of any penalties outstanding against a person to be deported, and of any outstanding convictions or criminal charges pending against him and the penalties which could be imposed.

Requests under this Memorandum may include requests to the receiving state for further specific assurances. It will be for the receiving state to decide whether to give such further assurances.

The United Kingdom and the Great Socialist People’s Libyan Arab Jamahiriya will comply with their human rights obligations under international law regarding a person in respect of whom assurances are given under this Memorandum. The assurances set out in the following paragraphs (numbered 1-9) will apply to such a person, together with any further specific assurances provided by the receiving state.

An independent body (“the monitoring body”) will be nominated by both sides to monitor the implementation of the assurances given under this Memorandum, including any specific assurances, by the receiving state. The responsibilities of the monitoring body will include monitoring the return of, and any detention, trial or imprisonment of, the person. The monitoring body will report to both sides.

Assurances:

1. Where, before his deportation, a person has been tried and convicted of an offence in the receiving state in absentia, he will be entitled to a retrial for that offence on his return.

2. In cases where the person may face the death penalty in the receiving state, the receiving state will, if its laws allow, provide a specific assurance that the death penalty will not be carried out. In any case, where there are outstanding charges, or where charges are subsequently brought, against a person in respect of an offence allegedly committed before his deportation, the authorities will utilise all the powers available to them under their system for the administration of justice to ensure that, if the death penalty is imposed, the sentence will not be carried out.

3. If arrested, detained or imprisoned following his deportation, the deported person will be afforded adequate accommodation, nourishment and medical treatment, and will be treated in a humane and proper manner, in accordance with internationally accepted standards.

4. If the deported person is arrested or detained, he will be informed promptly by the authorities of the receiving state of the reasons for his arrest or detention, and of any charge against him. The person will be entitled to consult a lawyer promptly.

5. If the deported person is arrested or detained, he will be brought promptly before a civilian judge or other civilian official authorized by law to exercise judicial power in order to the lawfulness of his detention may be decided.

6. The deported person will have unimpeded access to the monitoring body unless he is arrested, detained or imprisoned. If the person is arrested, detained or imprisoned, he will be entitled to contact promptly a representative of the monitoring body and to meet a representative of the monitoring body within one week of his arrest, detention or imprisonment. Thereafter he will be entitled to regular visits from a representative of the monitoring body in coordination with the competent legal authorities. Such visits would include the opportunity for private interviews with the person and, during any period before trial, will be permitted at least once every three weeks. If the representative of the monitoring body considers a medical examination of the person is necessary, he will be entitled to arrange for one or to ask the authorities of the receiving state to do so.

7. The deported person will be allowed to follow his religious observance following his return, including while under arrest or while detained or imprisoned.

8. If the deported person is charged with an offence he will receive a fair and public hearing without undue delay by a competent, independent and impartial civilian court established by the law. The person will be allowed adequate time and facilities to prepare his defence, and will be permitted to examine or have examined the witnesses against him and to call and have examined witnesses on his behalf. He will be allowed to defend himself in person or through legal assistance of his own choosing, or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.

9. Any judgment against the deported person will be pronounced publicly, but the press and public may be excluded from all or parts of the trial in the interests of morals, public order or national security in a democratic society, where the interests of justice or the protection of the private life of the parties and require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

Withdrawal:

Either participant may withdraw from this Memorandum by giving 6 months notice in writing to the diplomatic mission of the other.

Where one or other participant withdraws from the Memorandum any assurances given under it in respect of a person will continue to apply in accordance with its provisions.

Signature: This Memorandum of Understanding represents the understandings reached upon the matters referred to therein between the Great Socialist People’s Libyan Arab Jamahiriya and the United Kingdom of Great Britain and Northern Ireland.

Signed in duplicate at Tripoli on 18 October 2005 in the English and Arabic languages, both texts having equal validity.

Anthony Layden
HM Ambassador
British Embassy, Tripoli
For the United Kingdom of Great Britain and Northern Ireland

Abdulati Ibrahim al-Obidi
Acting Secretary for European Affairs
Secretariat for Foreign Liaison and International Cooperation
For the Great Socialist People’s Libyan Arab Jamahiriya

(Note: further details, including more information about the torture of Belhadj, can be found in two excellent articles by Ian Cobain: click here and here.)

See also:

Delivered Into Enemy Hand: US-Led Abuse and Rendition of Opponents to Gaddafi’s Libya

The UK’s dangerous reliance on Diplomatic Assurances, by Human Rights Watch

Appendix – use of Diego Garcia for rendition:

According to Guardian journalist Ian Cobain, at a NATO meeting in October 2001 the British government agreed to provide logistical support to the CIA’s extraordinary rendition program, resulting in CIA flights en route to ‘black centres’ and with stopovers in British airports. In a 2007 European Parliament report it was stated that there was “serious concern about the 170 stopovers made by CIA-operated aircraft at UK airports, which on many occasions came from or were bound for countries linked with extraordinary rendition circuits and the transfer of detainees.” Glasgow’s Prestwick airport was, according to the report, a “crucial staging point”. For a complete list of flights where the UK Government has been alerted to concerns regarding rendition through the UK, its Overseas Territories or the Crown Dependencies, click here.

Not only was Diego Garcia used by the CIA as part of its rendition programme, but also another British Overseas Territory – Turks and Caicos. In February 2008, Foreign Secretary David Miliband admitted that in 2002 two rendition flights, each carrying a detainee, stopped over in Diego Garcia. Reprieve documented 23 suspicious stops between 2001 and 2005 in the Turks and Caicos by aircraft that had been associated with extraordinary renditions – these include aircraft N379P (also known as N8068V), N313P, N85VM, and N829MG.

One of the flights to and from Diego Garcia is believed to have seen the rendition of either Muhammad Saad Iqbal Madni, a dual Egyptian-Pakistani national who was seized in Jakarta on 9 January 2002 after arriving from Pakistan, put into a coffin, then renditioned via Diego Garcia on Flight N379P and taken to Egypt, where he was made to stand for 92 days and tortured with electric cattle prods.

A second N379P flight is believed to have renditioned either Sheikh Al-Libi (who in September 2002 was taken via Diego Garcia to Egypt, where he was tortured into “admitting” that Al Qaida was in league with Saddam Hussein in the development of weapons of mass destruction) or Ramzi Bin Al-Shibh (who was taken into custody in Pakistan, then via Diego Garcia to Guantanamo Bay).

Manfred Novak, the United Nations’ special rapporteur on torture, said he had received credible evidence that detainees were held on Diego Garcia between 2002 and 2003

Another detainee suspected of being renditioned on one of the flights to/from Diego Garcia is Binyam Mohamed, who was renditioned to Morocco, where he was subsequently tortured (a razor blade taken to his genitals).