Rahmatullah (No 1) [England, Court of Appeal]
| Jurisdiction | England & Wales |
| Judge | Lord Neuberger MR,Maurice Kay,Sullivan LJJ |
| Judgment Date | 14 December 2011 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 December 2011 |
England, Court of Appeal
(Lord Neuberger MR; Maurice Kay and Sullivan LJJ)
War and armed conflict Detainees Protected persons Civilians Prisoners of war Transfer by Detaining Power to another State Conditions of transfer Geneva Conventions III and IV Memoranda of Understanding Whether Detaining Power entitled to require return of detainee Applicant captured in Iraq in 2004 by United Kingdom Transfer to United States custody Applicant taken to Afghanistan Whether sufficiently in control of United Kingdom authorities Habeas corpus
Relationship of international law and municipal law Conduct of foreign relations Justiciability Person detained by United States following transfer by United Kingdom Whether writ of habeas corpus could issue in United Kingdom
Treaties Memorandum of Understanding Whether binding Relationship with binding provisions in treaty The law of England
Summary:2The facts:The applicant was taken prisoner by British Armed Forces in Iraq in February 2004. He was handed over to United States forces and transferred by them to Afghanistan, since when he had been held at Bagram airbase in Afghanistan without trial. At the time that he was captured, a Memorandum of Understanding, entitled An Arrangement for the Transfer of Prisoners of War, Civilian Internees, and Civilian Detainees between the Forces of the US, the UK and Australia (the first MoU), was in force between the United Kingdom and the United States.3 It provided that, where a detainee had been transferred by the forces of the State who had captured him (the Detaining Power) to another State (the Accepting Power), the detainee
would be returned by the Accepting Power at the request of the Detaining Power. In 2009 the United Kingdom and the United States concluded a new Memorandum of Understanding (the second MoU).4 In February 2009 the Secretary of State for Defence admitted in the House of Commons that the applicant had been transferred to Afghanistan without the United Kingdom being consulted and in breach of the terms of the first MoU. In June 2010 a United States Detainee Review Board concluded that his continued internment was unnecessary and that he should be released to Pakistan. He continued, however, to be held at Bagram airbase. The applicant applied for habeas corpus on the ground that his detention was unlawful and that, although he was actually in United States custody, the Secretaries of State in fact enjoyed a sufficient degree of control over him for habeas corpus to issue as a matter of right or that there was sufficient doubt as to the extent of their control that habeas corpus should issue for the purpose of determining the extent of that control. The Divisional Court held that the Secretaries of State did not exercise a sufficient degree of control over the applicant. The applicant appealed to the Court of AppealHeld (unanimously):The appeal was allowed.
(1) Although the applicant was detained by the United States, it was well established that a writ of habeas corpus could issue where a person was detained outside the United Kingdom by a foreign authority if that person had been transferred by a United Kingdom authority which was entitled to require his return. It was likely that the applicant was a protected person under Geneva Convention IV relative to the Treatment of Civilian Persons, 1949, although the legal position was likely to be the same if he were in fact a prisoner of war under Geneva Convention III relative to the Treatment of Prisoners of War. In light of the end of the hostilities in Iraq and the determination of the Detainee Review Board, it was at least arguable that he should have been released pursuant to Articles 49, 132 and 133 of Geneva IV or the equivalent provisions of Geneva III. It was also at least strongly arguable that the United Kingdom was entitled to demand his release or return to the United Kingdom and that the United States was bound to accede to that request. The Court was entitled to take into account the provisions of the two MoUs and assume that they would be adhered to. Although it had been suggested that the United States would refuse to return the applicant to United Kingdom custody, that was not a sufficient basis for declining to issue the writ of habeas corpus. Even if the first MoU was no longer applicable, both the United Kingdom and the United States remained bound by the Geneva Conventions (paras. 3346).
(2) The fact that the issue of the writ of habeas corpus would require the respondents to make a request to the United States authorities did not mean that the Court was trespassing upon a forbidden area of international relations (paras. 4753 and 556).
The following is the text of the judgments delivered in the Court of Appeal:
1. This is an appeal against the refusal of the Divisional Court (Laws LJ and Silber J) to grant a writ of habeas corpus against the Secretary of State for Foreign and Commonwealth Affairs and the Secretary of State for Defence (severally the Secretaries of State). The application for the writ was brought on behalf of Yunus Rahmatullah, a Pakistani national, who is currently detained by United States forces at Bagram Airbase in Afghanistan (Bagram). He has been held there without trial for over seven years, and is still being held despite it having been determined by the responsible US authorities that his continuing internment is unnecessary.
2. The factual background is fully set out in the judgment of Laws LJ at [2011] EWHC 2008 (Admin), paras. 2 to 9, and in the next few paragraphs I shall attempt to summarise those facts.
3. Having been captured by British forces in Iraq in February 2004, Mr Rahmatullah (the applicant) was handed over to US forces and transferred by them to Afghanistan, where, since June 2004, he has been held in Bagram. At the time that the applicant was captured, handed over, and transferred to Afghanistan, a Memorandum of Understanding (a MoU) was effective between the United Kingdom and the US Governments.
4. This, the first MoU, was signed on 23 March 2003, three days after military operations in Iraq had begun. It was headed An Arrangement for the Transfer of Prisoners of War, Civilian Internees, and Civilian Detainees between the Forces of the US, the UK, and Australia, and it was signed on behalf of the three States.
5. Clauses 1, 4, 5, 6 and 9 of the first MoU provided that
7. From June 2004, there were negotiations to secure a fresh MoU, which achieved fruition in October 2008 (although it was not signed on behalf of the UK until 17 March 2009) in the form of the second MoU. The heading of the second MoU described it as an understanding between the UK and the US Governments concerning arrangements for the transfer of captured persons in Iraq.
8. Paragraph 4 of the second MoU provided that:
9. In February 2009, the Secretary of State for Defence admitted in the House of Commons that the applicant, whom he described as a member of a proscribed organisation with links to Al-Qaeda, had been moved from Iraq to Afghanistan by the Americans in 2004. He said that officials had been aware of the transfer in 2004, and in retrospect, it is clear to me that the transfer to Afghanistanshould have been questioned at the time. In breach of clause 5 of the first MoU, apparently owing to an oversight, the UK Government had not been formally consulted about the transfer.
10. On 5 June 2010, a US Detainee Review Board determined that the applicant was not an enduring security threat, that his continued internment was not necessary to mitigate the threat he poses, and that he should be released to Pakistan. However, he remains at Bagram, which Laws LJ observed in his judgment is a place said to be notorious for human rights abuses[2011] EWHC 2008 (Admin), para. 2.
11. Section 1(1) of the Geneva Conventions Act 1957 (the 1957 Act) renders it an offence if [a]ny person, whatever his nationality,whether in or outside the United Kingdomcommits, or aids, abets or procures the commission by any other person of a grave breach of any of the Geneva Conventions set out in the schedules to the 1957 Act. For present purposes, there are two potentially relevant Geneva Conventions (the two Conventions), those relating to the treatment of prisoners of war (Geneva III), and to the protection of civilian persons in time of war (Geneva IV). These two Conventions are respectively set out in the third and fourth schedules to the 1957 Act. They both impose on each high contracting party (defined therein as a Party) an obligation to enact legislation to provide effective penal sanctions for those who commit grave breaches of those Conventions. The UK and the US are high contracting parties to both Conventions.
12. Article 4 of Geneva III states that the Convention protects prisoners of war who are defined as members of the armed forces of a Party to the conflict and certain members of militias. Article 12 of Geneva III includes the following:
The Protecting Power is and was at all material times the International Committee of the Red Cross (the Red Cross).
13. Article 84 of Geneva III provides for trial by military or civil court, which must offer essential guarantees of independence and impartiality. Article 118 of Geneva III requires prisoners of war to be released and repatriated without delay after cessation of hostilities. Article 130 identifies grave breaches as involving certain acts including torture or inhuman treatmentor wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed by this Convention.
14. Turning to Geneva IV, Article 4 provides that it protects persons who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or...
To continue reading
Request your trial
-
Yunus Rahmatullah v The Ministry of Defence and Another
...present case, see below, p. 219 (Court of Appeal) and 366 and 576 (Supreme Court). For earlier proceedings brought by Mr Rahmatullah, see 150 ILR 819 and 836 (Court of Appeal) and 153 ILR 607 (Supreme 1 All the relevant events in the present cases occurred before the entry into force of the......
-
Serdar Mohammed & Others v Secretary of State for Defence
...the appeals in the present case, see below, pp. 366, 414 and 576 (Supreme Court). For earlier proceedings brought by Mr Rahmatullah, see 150 ILR 819 and 836 (Court of Appeal) and 153 ILR 607 (Supreme ...