Rahmatullah (No 2) [England, Court of Appeal]
| Jurisdiction | England & Wales |
| Judge | Lord Neuberger MR,Maurice Kay,Sullivan LJJ |
| Judgment Date | 23 February 2012 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 February 2012 |
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 United States authorities refusing to return applicant to United Kingdom
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 Whether refusal of United States to return applicant making further proceedings futile The law of England
Summary:2The facts:The facts are set out in the earlier judgment of the Court of Appeal delivered on 14 December 2011 ([2011] EWCA Civ 1540; above, p. 819). In the judgment, the Court directed the issue of a writ of habeas corpus against the Secretaries of State. Following the issue of the writ, the Secretary of State for Defence wrote to the Government of the United States requesting the return of the applicant from United States custody. The United States Government replied that the applicant was properly detained by the United States consistent with the international law of armed conflict and declined the request. In evidence a senior official of the United Kingdom
Government stated that the letter amounted to a complete refusal rendering any further request futile. The Secretaries of State maintained that they had therefore made a sufficient return to the writ and applied to be discharged from all further liability thereunderHeld (unanimously):The Secretaries of State had made a sufficient return to the writ. The United Kingdom Government had made a bona fide request for the return of the applicant which the United States had denied. It was not open to the Court to go behind the language of the United States' letter or to require the Secretaries of State to make further representations to the United States, since to do so would involve the Court trespassing upon the forbidden area of foreign relations. Whatever legal obligations the United States might have under the Geneva Conventions or the MoUs with the United Kingdom, it seemed that the United States authorities were unwilling to return the applicant. It appeared that when the United Kingdom had transferred him to United States custody in 2004, it had surrendered the practical ability to protect him in the future. The jurisdiction of the Court did not extend to the United States military authorities in Afghanistan (paras. 820).
The following is the text of the judgments delivered in the Court of Appeal:
1. On 14 December we handed down judgments in which we directed the issue of a writ of habeas corpus against the Secretary of State for Foreign Affairs and the Secretary of State for Defence (the Secretaries of State) in respect of Yunus Rahmatullah (the applicant). The circumstances and reasons giving rise to the decision to issue the writ are, I hope, clear...
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