Yunus Rahmatullah v (1) Secretary of State for Foreign and Commonwealth Affairs (2) Secretary of State for Defence
| Jurisdiction | England & Wales |
| Judge | The Master of the Roll,Lord Justice Maurice Kay,Lord Justice Sullivan |
| Judgment Date | 14 December 2011 |
| Neutral Citation | [2011] EWCA Civ 1540 |
| Docket Number | Case No: C1/2011/2210 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 December 2011 |
[2011] EWCA Civ 1540
The Master of the Rolls
Lord Justice Maurice Kay, Vice-president of the Court of Appeal
(Civil Division)
and
Lord Justice Sullivan
Case No: C1/2011/2210
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S DIVISION, DIVISIONAL COURT
Lord Justice Laws and Mr Justice Silber
Claim No CO/4247/2011
Royal Courts of Justice
Strand, London, WC2A 2LL
Nathalie Lieven QC, Ben Jaffey and Tristan Jones (instructed by Leigh Day) for the Appellant
James Eadie QC and Ben Watson (instructed by the Treasury Solicitor) for the Respondents
Hearing date: 23 November 2011
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.
The factual background in summary
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.
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.
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.
Clauses 1, 4, 5, 6 and 9 of the first MoU provided that
'1. 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.
……
4. Any prisoners of war, civilian internees, and civilian detainees transferred by a Detaining Power [the UK on the present facts] will be returned by the Accepting Power [the US on the present facts] to the Detaining Power without delay upon request by the Detaining Power
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.
6. The Detaining Power will retain full rights of access to any prisoners of war, civilian internees, and civilian detainees transferred from Detaining Power custody while such persons are in the custody of the Accepting Power.
….
9. The Detaining Power will be solely responsible for the classification under Articles 4 and 5 of the Geneva Convention Relative to the Treatment of Prisoners of War of potential prisoners of war captured by its forces. Prior to such a determination being made, such detainees will be treated as prisoners of war and afforded all rights and protections of the Convention even if transferred to the custody of an Accepting Power.'
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'.
Paragraph 4 of the second MoU provided that:
'At all times while transferred detainees are in the custody and control of US Forces, they will treat transferred detainees in accordance with applicable principles of international law, including humanitarian law. The transferred detainees will only be interrogated in accordance with US Department of Defense policies and procedures.'
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 Afghanistan…should 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.
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.
The Geneva Conventions
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 Kingdom' 'commits, 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.
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:
'Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention. When prisoners of war are transferred under such circumstances, responsibility for the application of the Convention rests on the Power accepting them while they are in its custody.
Nevertheless, if that Power fails to carry out the provisions of the Convention in any important respect, the Power by whom the prisoners of war were transferred shall, upon being notified by the Protecting Power, take effective measures to correct the situation or shall request the return of the prisoners of war. Such requests must be complied with.'
The 'Protecting Power' is and was at all material times the International Committee of the Red Cross ('the Red Cross').
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 treatment…. or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed by this Convention'.
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 Occupying Power of which they are not nationals'. Article 45 includes a provision in effectively identical terms to Article 12 of Geneva III, as quoted above.
Article 49 of Geneva IV forbids '[i]ndividual or mass transfers as well as deportations of protected persons from occupied territory', but it permits 'evacuations', but only on the basis that evacuees 'shall be transferred back to their homes as soon as hostilities in the area in question have ceased'. Article 132 of Geneva IV requires any internee held by a Detaining Power to be released 'as soon as the reasons which necessitate his internment no longer exist', and Article 133 requires internment to cease 'as soon as possible after the close of hostilities'. According to Article 146, 'grave breaches' of Geneva IV include 'unlawful deportation or transfer or unlawful confinement of a protected person'.
These proceedings
In May 2010, the applicant's cousin learned that he was detained at Bagram, and eventually spoke to him by telephone, through the agency of the Red Cross. The applicant then gave instructions that an application be made on his behalf, through the agency of his cousin,...
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