A Libyan dissident has won the right to sue former foreign secretary Jack Straw, the government, and MI6 over their alleged role in helping to arrange the kidnapping and rendition of him and his then-pregnant wife to Muammar al-Qaddafi's Libya.
Abdul-Hakim Belhaj and his wife, Fatima Bouchar, claim they were kidnapped, forcibly removed from China in March 2004, and then abused and tortured by the Qaddafi regime. They claim MI6 helped to organise their rendition.
According to the human rights charity Reprieve, which is backing the legal challenge, the couple feared the Libyan authorities were watching them and sought asylum in the UK. But upon leaving China they were kidnapped and taken to Malaysia before eventually being sent to Libya without their knowledge or consent.
Belhaj was imprisoned and tortured for six years, while Bouchar was released after four months – just three weeks before giving birth.
Belhaj is a former fighter in the Libyan Islamic Fighting Group, an Islamist entity he founded to help topple Qaddafi after fighting alongside Osama bin Laden's Mujahideen in Afghanistan. He spent time in Qaddafi's prisons before the dictator's 2011 downfall and afterward sought to reinvent himself as a political leader.
Straw rejects the claim that he was aware of the rendition and said in a statement on Tuesday morning that he had acted lawfully.
The UK government had argued that the case should not be heard because it would be harmful to British interests. But a panel of seven judges at the UK's Supreme Court on Tuesday dismissed its claims.
In their ruling, the judges said: "Notwithstanding evidence from the Foreign and Commonwealth Office that there is a risk that damage will be done to the foreign relations and national security interests of the United Kingdom, we do not consider that this can outweigh the need for our courts to exercise jurisdiction in this case.
"Here, 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 justifiable claim."
Belhaj and Bouchar have offered to drop their lawsuit if the seven named defendants – including Sir Mark Allen, the former head of MI6's counterterrorism unit, and the Home Office – apologise and offer a token payment of £1 each.
Lawyers for Belhaj have long maintained that correspondence between Allen and Qaddafi's chief spy, discovered in Tripoli after the fall of the Libyan dictator's regime, proves that the UK was complicit in his rendition.
Cori Crider, a lawyer for the rendition victims from Reprieve, said the case had taken on a new urgency in the light of Donald Trump's presidential victory. The US president-elect has promised to restart the torture programme of the George W. Bush era, including practices such as waterboarding.
"We enter the Trump era with not a soul held to account for Britain’s past role in rendition," she said. "No official has condemned Trump’s torture boasts. Our intelligence agencies may well be pressured to help America torture again.
“The government bought years of delay by wasting hundreds of thousands of pounds on this appeal, when a simple apology would have closed the case. Theresa May should apologise to this family, draw a line in the sand against torture, and restore British honour once and for all."
In a statement issued through his lawyers, Kingsley Napier, Straw said: "This judgment is about some important points of law, related to how far it is possible to bring into a court process in the UK actions of sovereign states abroad.
"However, at no stage so far have the merits of the applicant’s case been tested before any court. That can only happen when the trial of the action itself takes place.
"I repeat what I said in the House of Commons in December 2013, that as Foreign Secretary I acted at all times in a manner which was fully consistent with my legal duties, and with national and international law. I was never in any way complicit in the unlawful rendition or detention of anyone by other states."