The rendition of a Pakistani man by UK and US forces to Afghanistan, and his subsequent detention, has been described by Britain’s highest court as ‘unlawful’ and a possible war crime.
Yunus Rahmatullah, 29, was detained by British forces in Iraq in 2004, and rendered by the US to Bagram prison, Afghanistan, where he remains held without charge or trial to this day.
The Supreme Court on Wednesday unanimously dismissed the British government’s appeal to overturn the writ of habeas corpus issued in his case.
The court criticised the UK government for failing, on no less than three occasions, to request Mr Rahmatullah’s return.
It suggested that these failings may amount to a war crime, stating: ‘The, presumably forcible, transfer of Mr Rahmatullah from Iraq to Afghanistan is, at least prima facie, a breach of article 49 (of the Fourth Geneva Convention).
‘On that account alone, his continued detention post-transfer is unlawful.’
The UK government entered into a Memorandum of Understanding (MoU) with the US, which said the UK could seek his return if required, to justify his rendition.
The MoU invoked and reinforced the Geneva Conventions which the US has consistently breached when detaining prisoners of the War on Terror.
The Supreme Court therefore held that the British government should have demanded Mr Rahmatullah’s return when they found out he had been unlawfully transferred to Afghanistan, again when the Americans themselves had decided he no longer needed to be detained, and finally again when the war in Iraq ended.
The UK government have sought to argue that, despite the MoU with the US, any attempts to secure Mr Rahmatullah’s release would have been futile.
But the Court said that this argument was ‘unsupported by factual analysis’ and that ‘no evidence was proffered to sustain it’.
The Court identified this as the first time in 150 years when the US (‘a mature democracy’) has ‘dishonoured’ an extradition agreement (para. 14).
The writ of habeas corpus required the UK, as the ‘detaining authority’, to seek Mr Rahmatullah’s release from the United States authorities.
However, the United States failed to act on the writ and it was subsequently discharged.
Efforts to get the writ reinstated were lost in a majority decision in Wednesday’s judgment.
In December 2011, the Court of Appeal overturned the decision of the Divisional Court and agreed that the historic writ of habeas corpus should and can be issued in the case of Mr Rahmatullah.
British forces seized him in February 2004 during an operation against insurgents in Iraq.
The soldiers handed him over to their US counterparts under the Memorandum of Understanding covering how prisoners would be managed.
He was subsequently illegally rendered to Afghanistan.
Mr Rahmatullah was the subject of an embarrassing climbdown in 2009 by the then Defence Secretary John Hutton who had to admit that the government had previously misled the house when it said that it had not been involved in the US practice of Rendition.
In June 2010, a detention review board authorised his release, saying he posed ‘no enduring security threat’ – but he remains in detention.
Although in US custody, the UK is the ‘detaining authority’ pursuant to the 2003 Memorandum of Understanding struck between the UK and US during the invasion of Iraq and remains responsible for Mr Rahmatullah under the Geneva Conventions.
The ancient writ of habeas corpus is a right under English law that dates back to the Magna Carta.
It may be issued on behalf of any prisoner unlawfully detained so as to bring him (originally, his actual person; now more often just the facts of the case) before the High Court, and his release ordered.
Giving the lead judgment in the Supreme Court, Lord Kerr dismissed the government’s arguments that the 2003 MoU was no longer in force.
He also highlighted the contrary position taken by the government in seeking to down-play the import of the MoU in this case when in other cases it had sought to persuade to the Court to attach great weight to these inter-governmental agreements – notably in extradition cases where it has repeatedly relied upon MoUs to send individuals to countries that routinely use torture.
The Justices also debunked the government’s argument that Mr Rahmatullah was not being detained unlawfully.
‘There can be no plausible argument, therefore, against the proposition that there is clear prima facie evidence that Mr Rahmatullah is unlawfully detained and that the UK government was under an obligation to seek his return unless it could bring about effective measures to correct the breaches of the (Geneva Convention) that his continued detention constituted.’
Importantly, the Supreme Court also dismissed the government’s arguments that the Courts should not have issued the writ because it infringed on the ‘forbidden territory’ of foreign and diplomatic affairs.
In doing so, the Supreme Court has upheld the constitutional right of the individual to challenge the lawfulness of their detention through the writ of habeas corpus.
As Lady Hale and Lord Carnwath put it: ‘Where liberty is at stake, it is not the Court’s job to speculate as to the political sensitivities which may be in play.’
Reprieve’s Legal Director Kat Craig said: ‘The UK government has nowhere left to turn.
‘The highest court in the country has expressed serious concerns that grave war crimes may have been committed, as a result of which a police investigation must be initiated without delay.
‘The Court has also found that Yunus Rahmatullah’s detention is unlawful.
‘Mr Ramatullah, who has been imprisoned for over eight years despite being cleared for release by the US itself on the basis that he poses no threat, must now be released immediately.’
Reprieve’s Director Clive Stafford Smith said: ‘This powerful Supreme Court decision has huge ramifications. Clearly there will now have to be a full criminal investigation.
‘But if the US has “dishonoured” its commitment to the UK in this case for the first time in 150 years, and continues to violate law as basic as the Geneva Conventions, this also throws other extradition agreements with the UK into doubt.’
Jamie Beagent, the lawyer at Leigh Day & Co representing Mr Rahmatullah, said: ‘Today’s judgment is a resounding affirmation of the principles of habeas corpus and its importance in defending the liberty of the individual from unbridled executive power.
‘The government’s attempts to row-back on centuries of constitutional development and restrict the reach of habeas corpus has been rejected by the highest Court in the land.
‘Sadly, despite the fact that in international law Mr Rahmatullah remains a British detainee and the United States does not consider him a security threat, our client remains in detention at Bagram.
‘The writ of habeas corpus now upheld by the Supreme Court failed to secure his release as the US failed to act on the writ and it was subsequently discharged.
‘We will be drawing the Supreme Court’s findings to the attention of the Metropolitan Police who are currently investigating our client’s case in relation to offences under the Geneva Conventions Act 1957.
‘We call on the government to engage with the US to bring to an end the ongoing breaches of the Geneva Conventions in our client’s case for which they are responsible.’
Reprieve, the legal charity with whose assistance Leigh Day brought this action on Mr Rahmatullah’s behalf, will continue to campaign for his release and return to his family in Pakistan.
Leigh Day will continue to assist in any way it can to finally bring Mr Rahmatullah’s incarceration to an end.
