Yunus Rahmatullah v The Secretary of State for Foreign and Commonwealth Affairs and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Mr Justice Silber |
| Judgment Date | 29 July 2011 |
| Neutral Citation | [2011] EWHC 2008 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4247/2011 |
| Date | 29 July 2011 |
[2011] EWHC 2008 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISIONAL COURT
IN THE MATTER OF AN APPLICATION FOR A WRIT OF HABEAS CORPUS
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
and
Mr Justice Silber
Case No: CO/4247/2011
Ms Nathalie Lieven QC, Mr Ben Jaffey and Mr Tristan Jones (instructed by Leigh Day) for the Claimant
Mr James Eadie QC and Mr Ben Watson (instructed by The Treasury Solicitor) for the Secretaries of State
Hearing date: 23 June 2011
INTRODUCTION
This is an application for a writ of habeas corpus. The claimant is a national of Pakistan, currently detained by United States forces at Bagram Airbase in Afghanistan. The Secretary of State for Foreign and Commonwealth Affairs and the Secretary of State for Defence are both named as defendants, but I shall refer compendiously to the Secretary of State in the singular.
The claimant has been incarcerated without trial for over seven years. He was captured by British forces in Iraq in February 2004. He was handed over to United States forces and transferred by them to Afghanistan. Since June 2004 he has been held by the Americans in Bagram Airbase. He has been assigned a Bagram "internment serial number": 1433. On 5 June 2010 a US Detainee Review Board determined that the claimant's continued internment was "not necessary to mitigate the threat he poses". They held that he was "not an enduring security threat". They decided that he should be released to Pakistan. But he remains at Bagram, a place said to be notorious for human rights abuses.
It was not until May 2010 that Mounir Ahmed, the claimant's cousin, learned beyond doubt that the claimant was detained at Bagram. After considerable efforts spent seeking to discover his whereabouts, he was at length able to speak to the claimant by telephone on 29 May 2010, through the agency of the International Red Cross. The claimant is not able to instruct his lawyers directly. His case is being conducted with his consent on the instructions of Mounir Ahmed. Its essence is that (a) his detention is unlawful and (b) although he is detained by the Americans, the Secretary of State in fact enjoys a sufficient degree of control over him to bring about his release: in those circumstances, on authority a writ of habeas corpus should go to secure his production. At the very least, if there is doubt as to the Secretary of State's power of control, the writ should issue so that the question may be tested.
OUTLINE OF THE FACTS
At the heart of the claimant's case on the facts is a Memorandum of Understanding ("the first MoU") headed "An Arrangement for the Transfer of Prisoners of War, Civilian Internees, and Civilian Detainees between the Forces of the United States of America and the United Kingdom of Great Britain and Northern Ireland, and Australia". It was signed on behalf of the three States on 23 March 2003, three days after military operations in Iraq had commenced. As its opening words indicate, it establishes "procedures in the event of the transfer" from the custody of any one of the three Powers to any of the others of any person belonging to any of the classes named in the document's heading. The document then sets out a series of numbered undertakings entered into by the three Powers. I will set out undertakings 1, 4, 5, 6 and 9. I should say that for the purposes of the facts of this case "the Accepting Power" is the USA and "the Detaining Power" is the UK.
"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 will be returned by the Accepting Power 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."
It is common ground that this document was effective between the UK and the USA when the claimant was first captured and detained in February 2004. Mr Damian Parmenter, Head of Operational Policy within the Operations Directorate in the Ministry of Defence, states (first witness statement paragraph 22) that there are "indications that it may have been initially envisaged that it would only apply during the war fighting and occupation period" in Iraq, which ended on 28 June 2004. There are important features of the background to the first MoU. First, Mr Parmenter makes it plain (first witness statement, paragraphs 17 – 18) that it was not intended to have, and did not have, binding legal force. Secondly, Mr Parmenter also states (first witness statement paragraphs 19 – 20) that the first MoU was never intended to do more than regulate transfers between the three States' armed forces during operations in Iraq. Next, the claimant's solicitor, Mr Beagent, refers in his second witness statement (paragraph 10) to the announcement on 7 February 2002 by the President of the United States of the US government's then view that the Geneva Conventions did not apply to the conflict with Al-Qaeda. As is well known, concerns were expressed in this country about the transfer of detainees to Guantanamo Bay. Cases of mistreatment of detainees in Afghanistan came to light in 2002. In paragraph 11 Mr Beagent says that the first MoU must be understood in this context; and "the true purpose appears to have been to ensure that the US government would comply with the Geneva Conventions in respect of UK captured detainees".
Though Mr Parmenter (second witness statement paragraph 23) does not accept this latter statement, he also says this (paragraph 14):
"In light of the known US position on the application of the Geneva Conventions, it was considered politically important if possible to seek a commitment from the US about adherence to the Geneva Conventions' standards (whilst recognising that they had taken a public position on the application of the Geneva Conventions in this context). It was therefore decided that [a MoU] should be drawn up between the UK and the US."
Mr Parmenter describes (paragraph 22) further "key features" of the first MoU. One was that "[i]t allowed for the UK to retain full rights of access to any UK-detained [prisoners of war] transferred to the custody of the Accepting Power, and that the UK could request their return at any point". Mr Parmenter adds (paragraph 23):
"The MOD did indeed wish to seek to retain some measure of influence over what happened to persons detained by UK forces and then transferred to the US."
After June 2004 protracted negotiations were undertaken in order to secure a fresh MoU. That was not however achieved until October 2008, when a second MoU was concluded (but not signed by the British Secretary of State until 17 March 2009; it was not entered into by Australia). It is convenient at this stage (though there is more of the history to recite) to set out paragraph 4 of the second MoU. It differs from paragraph 4 of the first MoU, and the latter is not replicated in the second:
"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."
There are important issues in the case as to the true legal and practical effect of the first MoU and the impact of the second. Mr Parmenter states (first witness statement paragraph 28) that the intention was that the second would replace and supersede the first.
Now I must return to 2004, when the claimant's incarceration began. It was not at first appreciated by the British authorities that the US authorities had transferred the claimant to Afghanistan. On 9 September 2004 the then Minister for the Armed Forces gave a written answer to a Parliamentary Question which was (though not of course to his knowledge) untrue: he said that all persons apprehended in Iraq by UK forces and transferred to US forces remained in Iraq. This inaccuracy was at length corrected in a statement to the House of Commons made on 26 February 2009 by the Secretary of State for Defence. He acknowledged that two individuals (one of whom was the claimant), said to be members of a proscribed organisation with links to Al-Qaeda, had been moved to Iraq by the Americans in 2004. He said that officials had been aware of the transfer in 2004 and "in retrospect, it is clear to...
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