Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs
| Jurisdiction | England & Wales |
| Judge | Lord Kerr,Lord Dyson,Lord Wilson,Lord Phillips,Lord Reed,Lord Carnwath,Lady Hale |
| Judgment Date | 31 October 2012 |
| Neutral Citation | [2012] UKSC 48 |
| Date | 31 October 2012 |
| Court | Supreme Court |
[2012] UKSC 48
Lord Phillips
Lady Hale
Lord Kerr
Lord Dyson
Lord Wilson
Lord Reed
Lord Carnwath
Appellant
James Eadie QC
Ben Watson
Dan Sarooshi
(Instructed by Treasury Solicitor)
Respondent
Nathalie Lieven QC
Ben Jaffey
Tristan Jones
(Instructed by Leigh Day & Co)
Intervener (JUSTICE)
Thomas de la Mare QC
Fraser Campbell
(Instructed by Allen & Overy LLP)
Heard on 2 and 3 July 2012
Lord Kerr (WITH WHOM Lord Dyson AND Lord Wilson AGREE)
On 20 March 2003 military operations involving armed forces of the United States of America and the United Kingdom began in Iraq. Exactly six weeks later, on 1 May 2003, major combat operations came formally to an end. The United Kingdom became one of two occupying powers. The other was the United States.
On 16 October 2003, the United Nations Security Council adopted Resolution 1511 (2003) which authorised, "a multinational force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq". From that date, UK Armed Forces deployed in Iraq formed part of that multinational force (MNF) and were responsible for security and stabilisation operations in south eastern Iraq as part of the Multi National Division (South East) (MND (SE)).
In February 2004 Yunus Rahmatullah, a citizen of Pakistan, was taken into custody by British forces. This took place outside MND (SE) and within an area of Iraq under US control. Mr Rahmatullah was transferred to US Forces in accordance with the terms of a Memorandum of Understanding which had been signed in Qatar on behalf of the armed forces of the US, UK, and Australia on 23 March 2003. That document was entitled, "An Arrangement for the Transfer of Prisoners of War, Civilian Internees, and Civilian Detainees between the Forces of the United States of America, the United Kingdom of Great Britain and Northern Ireland, and Australia" and I shall refer to it as "the 2003 MoU". It will be necessary to discuss its terms in a little detail later in this judgment. It is sufficient for present purposes to say that the 2003 MoU was to be implemented in accordance with the Geneva Convention Relative to the Treatment of Prisoners of War (GC3) and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (GC4), as well as customary international law. The 2003 MoU also provided that the removal of transferred prisoners of war to territories outside Iraq would only be made "upon the mutual arrangement of the Detaining Power and the Accepting Power". In the case of Mr Rahmatullah, the detaining power was the UK and the accepting power the US.
The UK authorities became aware, about a month after Mr Rahmatullah had been taken into custody, that US forces intended to transfer him out of Iraq. That transfer took place without the UK having been informed of it. By June 2004, however, UK officials knew that Mr Rahmatullah was no longer in Iraq. He had been taken to Afghanistan. At the time this information came to British officials, Mr Rahmatullah was being held in a detention facility in Bagram Air Field and there he has remained.
On 5 June 2010, the US military held a Detainee Review Board hearing at Bagram in relation to Mr Rahmatullah's detention. The Board concluded that his continued detention was "not necessary to mitigate the threat he poses"; that he should be transferred to Pakistan for release; and that he was not an "Enduring Security Threat". On 15 June 2010 the recommendation of the Board was approved by Brigadier General Mark S Martins of the US army but it has not been implemented. It has been explained that the recommendation is but one component of the transfer process. Before third-country nationals are transferred from US custody a determination is made (based on evidence which was before the Board but not necessarily exclusively so) whether any threat posed by the detainee can be adequately mitigated by the receiving country. "Appropriate security assurances" are sought. Generally, these assurances require the receiving country to take measures to ensure that the detainee will not pose a threat to the receiving country or to the United States.
The 2003 MoU was signed three days after military operations in Iraq had begun. In a statement made for the purpose of these proceedings, Mr Damian Parmenter, Head of Operating Policy in the Operations Directorate of the Ministry of Defence, explained that it was considered important to obtain the 2003 MoU because of "the known US position on the application of the Geneva Conventions". That position, succinctly stated, was that the conventions did not apply to Al-Qaeda combatants. Mr Rahmatullah is believed by the US to be a member of Lashkar-e-Taiba, a group affiliated to Al-Qaeda. To say that it was important to obtain the 2003 MoU certainly does not overstate the position, therefore. Section 1(1) of the Geneva Conventions Act 1957 makes it an offence for any person to commit, or aid, abet or procure the commission by any other person of a grave breach of any of the Geneva Conventions. Article 147 of GC4 provides that unlawful deportation or transfer or the unlawful confinement of a protected person constitute grave breaches of that convention. It might be considered in those circumstances to have been not only important but essential that the UK should obtain a commitment from the US that prisoners transferred by British forces to the US army would be treated in accordance with GC3 and GC4.
The importance of the need to obtain that commitment is reflected in the terms of the very first clause of the 2003 MoU which provides:
"This arrangement will be implemented in accordance with the Geneva Convention Relative to the Treatment of Prisoners of War and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, as well as customary international law."
As Ms Lieven QC, who appeared for Mr Rahmatullah, pointed out, clause 4 of the 2003 MoU, which provides for the return of transferred prisoners, is in unqualified terms. This was no doubt necessary because of the unambiguous requirements of article 45 of GC4. It will be necessary to look more closely at that article presently but, among its material provisions, is the stipulation that if the power to whom the detainee is transferred (in this instance the US) fails to fulfil GC4, the detaining power (here the UK) must take effective measures to correct the situation or request the return of the transferred person. Clause 4 of the 2003 MoU therefore provides:
"4. Any prisoners of war, civilian internees, and civilian detainees transferred by a Detaining Power [the UK] will be returned by the Accepting Power [the US] to the Detaining Power without delay upon request by the Detaining Power."
Ms Lieven argued – and I am inclined to accept – that the unvarnished and blunt terms of clauses 1 and 4 were designed to avoid disagreements as to the applicability of GC3 and GC4; to eliminate disputes as to whether particular actions of the accepting power might have breached the conventions; and to remove from the potentially controversial and delicate area of inter-state diplomacy debates about how prisoners should be treated.
Clause 5 of the memorandum deals with the situation where it is proposed that prisoners who had been transferred would be released or removed to territories outside Iraq. It seems likely that at least one of the reasons for including this provision was to cater for the requirement in article 45 of GC4 that protected persons may only be transferred to a power which is a party to the convention and after the detaining power has satisfied itself of the willingness and ability of the transferee power to apply GC4. Clause 5 of the 2003 MoU provides:
"5. The release or repatriation or removal to territories outside Iraq of transferred prisoners of war, civilian internees, and civilian detainees will only be made upon the mutual arrangement of the Detaining Power and the Accepting Power."
It is common case that the 2003 MoU is not legally binding. It was, said Mr Eadie QC, who appeared for the Secretaries of State, merely a "political" arrangement. But its significance in legal terms should not be underestimated. That significance does not depend on whether the agreement that it embodies was legally binding as between the parties to it. As Lord Neuberger of Abbotsbury MR said at [2012] 1 WLR 1492, para 37 of his judgment in this case, the 2003 MoU was needed by the UK in order to meet its legal obligations under article 12 of GC3 and article 45 of GC4. (Such parts of these as are relevant to the present appeal are in broadly similar terms). Put plainly, the UK needed to have in place an agreement which it could point to as showing that it had effectively ensured that the Geneva Conventions would be complied with in relation to those prisoners that it had handed over to the US. The 2003 MoU was the means of meeting those obligations. It provided the essential basis of control for the UK authorities over prisoners who had been handed over to the US.
In other contexts the UK Government has deployed the fact that it has made arrangements with foreign powers in order to persuade courts that a certain course should be followed. Thus, in MT (Algeria) v Secretary of State for the Home Department [2010] 2 AC 110 at para 192, Lord Hoffmann, referring to assurances which the Algerian and Jordanian Governments had...
To continue reading
Request your trial
-
Yunus Rahmatullah v Amanatullah Ali
...carried out. 31 In identifying the contents and status of the MoU, I gratefully adopt the analysis of Lord Kerr in Rahmatullah (No.1) [2013] 1 A.C. 614: “6. The 2003 MoU was signed three days after military operations in Iraq had begun. In a statement made for the purpose of these proceedin......
- Lei Meng v Inspektor Wayandiana Abdullah and Others and Other Appeals
-
Al-Saadoon v Defence Secretary
...to make no further order on the writ were upheld on an appeal to the Supreme Court: see Rahmatullah v. Secretary of State for Defence[2013] 1 AC 614. Mr Rahmatullah was not released from custody until June 2014. Mr Ali remains imprisoned. 133. As already mentioned, the Secretary of State ha......
-
Al-Waheed v Ministry of Defence; Mohammed v Ministry of Defence (No 2)
...was an undertaking by the United States to return him on demand: Rahmatullah v Secretary of State for Defence (JUSTICE intervening) [2013] 1 AC 614. 102 There was no reason in principle why SM should not have been entitled to apply for habeas corpus while he was detained by British forces i......
-
DOES LIM TRULY HAVE 'NOTHING TO SAY' ABOUT THE COMMONWEALTH'S REGIONAL PROCESSING ARRANGEMENTS? HABEAS CORPUS AS A VEHICLE FOR TESTING THE CONSTITUTIONAL VALIDITY OF OFFSHORE DETENTION.
...(Laws LJ) ('Rahmatullah (Divisional Court)'). See also at 1489 [52] (Lord Neuberger MR) ('Rahmatullah (Court of Appeal)'), affd [2013] 1 AC 614, 645 [76], 649 [85] (Lord Kerr JSC for Lords Dyson MR, Kerr and Wilson JJSC, Lord Phillips agreeing at 653 [107], Lord Reed JSC agreeing at 653 [10......