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CIA Black Sites and the UK Courts: Torture and Terrorism in Six Countries

Introduction

The UK Supreme Court’s decision in Zubaydah v. Foreign, Commonwealth and Development Office and Others addresses fundamental questions of jurisdiction, state responsibility, and the intersection of national security with human rights. The case concerns claims by Abu Zubaydah, a detainee held by the U.S. Central Intelligence Agency (CIA), against UK government agencies for their alleged complicity in his mistreatment. The key legal issue was whether English law or the laws of the six countries where Zubaydah was detained applied to his claims.

Background of the Case

1. The War on Terror and Al-Qaeda

The detention of Abu Zubaydah occurred in the context of the War on Terror, launched by the United States following the September 11, 2001 attacks. The CIA’s interest in Zubaydah was based on allegations that he was a high-ranking member of al-Qaeda and a key facilitator for jihadist training camps in Afghanistan. After 9/11, the U.S. and its allies initiated military operations against the Taliban and al-Qaeda in Afghanistan (Operation Enduring Freedom, 2001). The CIA developed a global network of black sites—secret detention and interrogation facilities—where suspected terrorists were held and subjected to enhanced interrogation techniques (widely considered torture).

Zubaydah was captured in March 2002 in Pakistan during a joint operation by the CIA and Pakistani forces. The U.S. government initially believed he was a senior al-Qaeda figure, but later intelligence suggested he was more of a facilitator for jihadist movements rather than a core member of al-Qaeda.

2. Legal Proceedings Across Multiple Jurisdictions

Zubaydah alleges that the UK’s security services (Security Service and Secret Intelligence Service, collectively “UK Services”) were complicit in his torture and mistreatment by knowingly supplying the CIA with questions to be used during his interrogations at secret detention facilities across six countries: Thailand, Poland, Morocco, Lithuania, Afghanistan, and Guantánamo Bay.

Legal cases related to his detention have also been heard in Poland, Lithuania, and the United States:

  • European Court of Human Rights (ECHR) ruled against Poland (2014) and Lithuania (2018) for allowing CIA black sites to operate on their soil, violating the European Convention on Human Rights.
  • U.S. Supreme Court (2022) denied Zubaydah’s request to depose CIA contractors, citing state secrets privilege.
  • International Criminal Court (ICC) has investigated U.S. forces for war crimes in Afghanistan, including CIA black site operations.

Zubaydah brought claims in England against the Foreign, Commonwealth and Development Office, the Home Office, and the Attorney General, alleging multiple torts, including misfeasance in public office, conspiracy to injure, trespass to the person, false imprisonment, and negligence. The core legal dispute revolved around which country’s law should govern the claims.

Key Legal Issues

1. Applicable Law under the Private International Law (Miscellaneous Provisions) Act 1995 (PILA)

The Private International Law (Miscellaneous Provisions) Act 1995 (PILA) establishes the default rule that the governing law for tort claims is the law of the country where the alleged harm occurred (lex loci delicti). However, Section 12 of PILA allows courts to displace this general rule if another jurisdiction’s law is substantially more appropriate.

Court Proceedings and Rulings

1. High Court Decision ([2021] EWHC 331 (QB))

  • The High Court ruled in favor of the UK government, applying the default rule under Section 11(2)(a) of PILA, concluding that the laws of the six countries where Zubaydah was allegedly tortured governed the claims.
  • The court found that Zubaydah sustained injuries in those countries and that CIA operatives, not UK personnel, directly inflicted the harm.

2. Court of Appeal Decision ([2022] EWCA Civ 334)

  • The Court of Appeal reversed the High Court’s ruling, holding that English law should apply under Section 12 of PILA.
  • It emphasized that:
    • The alleged wrongful conduct (sending interrogation questions to the CIA) occurred in England.
    • The UK Services were acting as agents of the UK state, making English law the more appropriate governing law.

3. UK Supreme Court Decision ([2023] UKSC 50)

  • The Supreme Court reversed the Court of Appeal, reinstating the High Court’s ruling that the laws of the six countries applied.
  • It held that:
    • The Court of Appeal had unduly narrowed its analysis by focusing only on the UK’s conduct and disregarding the role of the CIA and the location of harm.
    • While UK officials acted from England, the actual harm (torture and mistreatment) occurred abroad, making those countries’ laws the appropriate choice under PILA.
    • Section 12’s displacement test requires a “substantial” justification for departing from the general rule, which was not met in this case.

Key Legal Principles and Takeaways

1. Choice of Law in Tort Cases (PILA 1995)

  • Section 11(2)(a) of PILA sets the default rule: the governing law is that of the place where the injury occurred.
  • Section 12 permits deviation only if another jurisdiction is “substantially more appropriate”, requiring a high threshold.

2. Public Policy and Jurisdiction

  • The Supreme Court left open whether Section 14 of PILA (public policy exception) could apply in later proceedings.
  • This case underscores the limits of extraterritorial claims against UK authorities when alleged harms occur abroad.

3. State Accountability and Human Rights Litigation

  • The ruling illustrates the challenges of holding UK agencies accountable for complicity in foreign human rights abuses.
  • It highlights the practical barriers faced by detainees like Zubaydah, who lack direct evidence due to state secrecy and national security claims.

Implications and Recommendations

For Legal Practitioners

  • Carefully assess jurisdiction and choice-of-law arguments in transnational human rights litigation.
  • Consider public policy arguments under Section 14 of PILA for future challenges.

For Government and Intelligence Agencies

  • Establish clearer oversight and accountability mechanisms to prevent complicity in torture or unlawful detention.
  • Strengthen legal safeguards for intelligence-sharing with foreign partners.

For Human Rights Organizations

  • Advocate for stronger legislative and judicial oversight of UK intelligence operations abroad.
  • Push for greater transparency on intelligence-sharing policies.

Conclusion

The UK Supreme Court’s decision in Zubaydah v. FCDO reinforces the primacy of territorial jurisdiction in tort claims while setting a high threshold for displacing the default choice of law under PILA. The ruling underscores the difficulties in seeking redress for state complicity in human rights abuses abroad, but also leaves open future arguments based on public policy. This case will likely serve as a key precedent in transnational accountability litigation involving national security agencies.

Case:Zubaydah v. Foreign, Commonwealth and Development Office and Others [2023] UKSC 50 Zubaydah (Respondent) v Foreign, Commonwealth and Development Office and others (Appellants)

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