Foreign Secretary v Rahmatullah: Reprieve’s dodgy press release

by Carl Gardner on November 6, 2012

Last Wednesday the Supreme Court gave judgment in this case in which Yunus Rahmatullah, who’s being held by American forces in Afghanistan, applied for habeas corpus against the British government. Rosalind English wrote a helpful summary of the judgment at the UK Human Rights Blog.

Mr. Rahmatullah is believed by the Americans to be a member of a group linked to Al Qaeda, and to have travelled from his home in Pakistan to fight against western forces in Iraq. But even assuming that’s right, it’s difficult not to have some sympathy with his current plight. He was captured and detained by British forces in Iraq in 2004. He was quickly handed over to the Americans, who transferred him out of Iraq to Afghanistan about a month later, without telling the British. There he remains, in American custody, even though a US military review has decided his detention is no longer necessary, and that he’s not an “enduring security threat”. According to the US, it’s in discussions with Pakistan about letting him go there.

As far as the UK was concerned, Rahmatullah was a “protected person” under article 4 of the fourth Geneva Convention, on the protection of civilians in time of war:

Persons protected by the Convention are those 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.

That being so, he was protected (from the British point of view) by article 45 of the Convention, which says

Protected persons may be transferred by the Detaining Power only to a Power which is a party to the present Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the present Convention.

In principle, this permits the transfer of Mr. Rahmatullah to the Americans: the US is party to the fourth Geneva Convention, and there’s no reason for the UK to think it’s unwilling to apply it.

There is a wrinkle, though: the Americans don’t see Rahmatullah as a protected person – I think on the basis of an argument that he did not simply “find himself” in British hands. That American argument may not work (Lord Kerr seemed to think not – see para. 34), but that’s not really the point. The point is that the UK did see him as a protected person. The British view didn’t determine the legal question for the Americans, or (in my view at least) require the Americans to apply the Convention to Rahmatullah if they were correct that it did not; but it did follow that the UK itself had continuing obligations following the transfer.

Article 45 goes on:

If protected persons are transferred under such circumstances, responsibility for the application of the present 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 present Convention in any important respect, the Power by which the protected persons were transferred shall, upon being so notified by the Protecting Power, take effective measures to correct the situation or shall request the return of the protected persons. Such request must be complied with.

Rahmatullah was also (at least from the British point of view) protected by article 49 of the Convention, which says

Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.

So when the Americans flew him out of Iraq to Afghanistan, from the British point of view at least it seems article 49 had been breached. The US had failed to carry out the provisions of the Convention in an important respect, and so the British had under article 45 to

take effective measures to correct the situation

or

request the return

of Mr Rahmatullah. It failed to do either once it was aware of what the Americans had done, even though there was a Memorandum of Understanding between the two countries saying that

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.

Mr. Rahmatullah’s habeas corpus application was obviously an attempt to force the British to do what they could to enforce their rights and to secure his return under the MoU.

It succeeded up to a point. The government argued that it had no control over him, so no writ of habeas corpus could be issued against it. But the Supreme Court has ruled that it was right for the courts below to issue the writ. In effect this forced the government to ask the Americans for Mr Rahmatullah’s return, so as to establish to the courts’ satisfaction its control, or lack of it, over Mr. Rahmatullah. It did then ask; but the Americans did not, in their reply, agree to return him.

The clear majority of the Supreme Court ruled that this was the end of the case. It was clear from the American response that the UK does not have control of Mr Rahmatullah and cannot enforce the Memorandum of Understanding against the US. The government could not therefore in habeas corpus proceedings be required to justify his detention or to release him. Having now made the unsuccessful request for his handover, they’d made a sufficient return to the habeas corpus writ – and that’s that.

Before moving on it’s worth mentioning the significant division in the court between the majority of five who saw the exchange of letters between the UK and US authorities as satisfactorily clearing up the question of control, and the minority – Lady Hale and Lord Carnwath – who did not.

They saw the British request as not sufficiently forcefully making the point that the Americans had made a commitment to return Mr Rahmatullah, albeit a non-binding one, and were breaching that commitment; and they saw the American reply as evading that point entirely. They wanted the matter pressed in blunter correspondence until the Americans either agreed to return him or refused to do so. They have a point, certainly. Whether the law really requires the government in a case like this to go through a further, in practical terms pointless round of letter-writing is open to doubt. But governments may need to get used to the British courts becoming less willing to infer facts from the softnesses of diplomatic speak, and more likely to insist on clear documentary evidence in blunt language to support, for instance, any claim that a foreign government refuses to do something.

The story is somewhat depressing, and not just from the applicant’s point of view. It suggests little respect from the Americans for their commitments, even though not formally binding ones, to the British; and arguably little concern for the domestic legal position in which they’d left their allies. It also suggests that the British government accepts American wishes without any discussion, regardless of its own legal obligations and American commitments to the UK.

None of that, though, means it’s right to give an exaggerated or misleading impression of what the Supreme Court said. The charity Reprieve managed however to do just that in its press release about the case last week.

The press release is headed

Supreme Court: UK unlawful rendition may have been war crime

but the Supreme Court did not say the UK was involved in Mr. Rahmatullah’s rendition – indeed the judgment makes clear the British didn’t know about it at the time* – or that the UK may have committed any “war crime” – a phrase not used in the judgment. [*Update: I've now crossed some words out in this paragraph for the reasons I explain here —Carl]

The first paragraph of the press release reads:

The rendition of a Pakistani man by UK and US forces to Afghanistan, and his subsequent detention, has been described as “unlawful” and a possible war crime by Britain’s highest court.

The Supreme Court, though, did not suggest he was taken to Afghanistan “by UK and US forces”. Nor, as I’ve said, did it describe his rendition or detention as “a possible war crime”.

According to Reprieve,

The court criticised the UK government for failing, on no less than three occasions, to request Mr Rahmatullah’s return. It has 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 first sentence of this is true: the Supreme Court did indeed criticise the government for failing to ask for Mr. Rahmatullah’s return, and it suggested a number of occasions on which it could and should have done so (para. 39). What it did not do, though, is suggest that this failure may amount to a war crime. The words quoted by Reprieve are from paragraph 36 of the judgment, and plainly refer to the conduct of the US in taking Rahmatullah to Afghanistan – not Britain’s in failing, once they realised that had happened, to ask for his return.

Reprieve says

The Court identified this as the first time in 150 years when the US (“a mature democracy”) has “dishonoured” an extradition agreement. (para. 14)

but this case did not involve an extradition agreement at all, and the Court did not “identify” this case as the first breach of one. What it did, at paragraph 14, was discuss a 2007 case in which a court stated that the US had not breached its extradition agreements with the UK for 150 years.

The Reprieve press release continues:

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.

But the Supreme Court did not suggest at any point that there needed to be any police investigation. That’s Kat Craig’s view, legitimately held (presumably she thinks UK forces aided or abetted unlawful rendition contrary to section 1 of the Geneva Conventions Act 1957), but it’s not one the Supreme Court expressed, although you might easily think from this press release, that it did. As I’ve already said, the Court did not use the phrase “war crime” or “grave war crime”.

There’s even doubt about whether the Court “found unlawful” Mr. Rahmatullah’s detention by the US in Afghanistan. It’s quite true that the majority agreed with Lord Kerr who (para. 25) “addressed the issue”, saying (para. 36)

The, presumably forcible, transfer of Mr Rahmatullah from Iraq to Afghanistan is, at least prima facie, a breach of article 49. On that account alone, his continued detention post-transfer is unlawful

and (para. 39)

there is clear prima facie evidence that Mr Rahmatullah is unlawfully detained

and (para. 53)

there is clear prima facie evidence in the present case that Mr Rahmatullah is unlawfully detained

It’s also true that the minority spoke (para. 127) of

the illegality of the detention

But saying there’s prima facie evidence of something isn’t quite the same as finding it to be the case – and I’m not sure there really was, quite, a finding that the detention was unlawful. It’s important to remember that no party to the case tried to persuade the Court that the detention was lawful (the British government having focused on the point that it had no control and therefore could not answer for Mr. Rahmatullah’s detention); the point was not fully argued. And at paragraph 70 Lord Kerr makes clear that

For the reasons that I have given at paras 38-40 and 53, the legality of the US’s detention of Mr Rahmatullah is not under scrutiny here. It is the lawfulness of the UK’s inaction in seeking his return that is in issue.

And the dissenting minority at para. 117 avoid making any ruling on the legality of the detention:

We agree in particular that the crucial issue is that of control in the context of the law of habeas corpus, rather than legality as such. Legality is not an issue to be considered in the abstract. It arises as between the applicant and the respondent, and then only if the respondent has “control”. We do not need therefore to consider whether the detention is legal in any broader sense, in particular whether it is lawful from the perspective of the United States government.

This is the most pedantic of my points: it’s pretty clear the justices thought the detention of Mr. Rahmatullah by the US is probably unlawful – and they may be right to think so. Nonetheless, where the justices themselves both in the majority and the minority have made clear that the lawfulness of the detention was not the legal point at issue, and where the point was not argued, it seems a step too far to claim confidently that the Court made a finding on it. The Court itself in its press summary explained its reasoning on this point in the following way –

Although the legality of Mr Rahmatullah’s detention did not need to be determined for the purposes of this appeal, there was clear prima facie evidence that he is detained unlawfully under the G[eneva] C[onvention]

which seems more consistent with my reading of the case than with Reprieve’s claim that the Court made a finding that detention is unlawful.

This was an important case. It’s good that the conduct of the British authorities has been scrutinised, and appropriate criticisms made. It looks as though the government breached its obligations under the fourth Geneva Convention by not asking earlier for the Americans to return Mr. Rahmatullah.

But the Supreme Court did not find that the UK took part in unlawful rendition in this case, or describe anything the UK did as a possible war crime. It helps no one for Reprieve to spin the judgment as though it did.

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