Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs & Anor  EWCA Civ 1540 (14 December 2011) Summary
On 14 December 2011, the England and Wles Court of Appeal overturned a decision of the High Court and issued a writ of habeas corpus requiring the UK Secretary of State for Foreign and Commonwealth Affairs and the Secretary of State for Defence to make a request to the US Government for the release of Mr Yunus Rahmatullah from the Bagram Air Base in Afghanistan. The Court at first instance described Bagram as “a place said to be notorious for human rights abuses”. Mr Rahmatullah, a Pakistani national who had been captured by the British, had been held at Bagram since June 2004.
Mr Rahmatullah is a national of Pakistan and was captured by British forces in Iraq in February 2004. He was transferred to the custody of United States forces that moved him from Iraq to Bagram where he has remained without trial since June 2004. On 5 June 2010, a US Detainee Review Board determined that Mr Rahmatullah's continued confinement was “not necessary to mitigate the threat he poses” and held that he was “not an enduring security threat”. The Review Board concluded that he should be released to Pakistan, however he remains at Bagram.
At the time Mr Rahmatullah was captured, handed over to US forces and transferred to Bagram, an MOU for the transfer of prisoners of war, and civilian internees and detainees was in place between the United Kingdom and the US. Clause 1 of the first MOU provided that the transfer arrangement was to be implemented in accordance with Geneva Conventions III and IV and customary international law. It is also provided in clause 4 that:
Any prisoners of war, civilian internees, and civilian detainees transferred by a Detaining Power [in this case, the UK] will be returned by the Accepting Power [the US] to the Detaining Power without delay upon request by the Detaining Power.
Both the US and the UK are parties to the Geneva Conventions. On 7 February 2002, however, the US Government announced that in its view, Geneva III and Geneva IV did not apply to the conflict with Al-Qaeda. The first MOU was therefore necessary for the UK Government to comply with its obligations under Art 12 of Geneva III and Art 45 of Geneva IV, and satisfy itself of the willingness of the US to apply the Geneva Conventions to any prisoners of war or protected persons transferred by the UK to the US.
In October 2008 a second MOU was agreed, although it was not signed by the UK until 17 March 2009. Clause 4 of the second MOU required the US Forces to treat transferred detainees 'in accordance applicable principles of international law, including humanitarian law'.
Mr Rahmatullah argued that his detention was unlawful and although he was detained by the US, the UK Secretaries of State in fact enjoyed a sufficient degree of control over him to bring about his release or there must, at best, be doubt as to the extent, if any, of the control over Mr Rahmatullah enjoyed by the UK Secretaries of State. For these reasons, he argued the writ of habeas corpus should issue, as of right in the normal way, or so that the question of the control exercised by the Secretaries of State may be tested.
The UK Secretaries of State contended that the evidence established that they did not exercise control, or at any rate a sufficient degree of control, over Mr Rahmatullah to justify a writ of habeas corpus being issued; and that this argument was supported by the fact that the issue of the writ would involve the UK Government making a request of the US Government, which would involve stepping into the field of foreign relations.
At first instance, Laws LJ (with whom Silber J agreed) accepted that the Secretaries of State did not exercise sufficient control to justify the exercise of the writ. Mr Rahmatullah appealed.
Mr Rahmatullah was being unlawfully detained
The Master of the Rolls (Kay and Sullivan LJ agreeing) held that Mr Rahmatullah was being unlawfully detained on the basis that it was for the detainer to show that the detention is lawful, and the Secretaries of State had not challenged the issue.
The UK Government has a sufficient degree of control
The Court of Appeal found that there was sufficient uncertainty to justify the order for habeas corpus. The Court held that the UK Government was – at least – strongly arguably entitled to either demand Mr Rahmatullah's release or to demand his return to UK custody under Art 45 of the Fourth Geneva Convention, and that the first MOU (if it still applied to Mr Rahmatullah) reinforced that conclusion.
In response to the Secretaries of States' contention that the MOUs were not legally enforceable, the Court of Appeal, applying Barnardo  AC 326, held that it would be:
…very unattractive to conclude that a writ of habeas corpus cannot issue where uncertainty as to the respondent’s control over the applicant arises from the effectiveness and enforceability of certain agreements, even though such a writ can … issue where the uncertainty arises from a need to investigate the facts.
Issuing the writ will not trespass into the ‘forbidden area’ of diplomatic or foreign relations
The Master of the Rolls characterised the Secretaries of States' subtle argument that issuing the writ would trespass into the forbidden area of diplomatic affairs as being the main evidence supporting the UK Government not having a sufficient degree of control. Because the point was not advanced as a freestanding argument, the Court of Appeal held that it could not ‘stand in the way’ of Mr Rahmatullah’s appeal succeeding.
Lord Justice Kay’s comments were particularly forceful on this point (emphasis added):
On the face of it, the applicant is being unlawfully detained and the Secretaries of State have procedures at their disposal, whether arising solely from the Geneva Conventions or from a combination of the Conventions and the MOUs, to enable them to take steps which could bring the unlawful detention to an end. Beyond the unamplified invocation of ‘inappropriateness’ and ‘futility’, it is not explained why use of such procedures would or might damage the foreign relations of this country. In my judgement, the Court should be studious to avoid a refusal to protect personal liberty by withholding a writ of habeas corpus on such flimsy grounds. I do not say that it will never be lawful to refuse to act by reference to state interest but I do not accept that it has been demonstrated here that inhibitions about so doing negate the element of ‘control’.
Orders and update of events
The Court of Appeal ordered that the writ of habeas corpus be issued.
The British Government reported that on 16 December it asked the US Government for Mr Rahmatullah to be returned. The request had a return date of 21 December 2011. In the request, the British Government noted that it intended to appeal the decision of the Court of Appeal, but that such appeal would have no effect on Mr Rahmatullah's right to be discharged pursuant to the order under domestic UK law. The Court gave the British Government an extension until 18 January 2012 to secure his release. If the US fails to comply with the request, Britain risks being put in breach of the Geneva Conventions.
On 24 January, the Washington Post reported that the US Government was considering the repatriation of non-Afghan detainees held at Bagram. Mr Rahmatullah is among these detainees. The Washington Post notes that the Rahmatullah case is “another incentive to begin dealing with the non-Afghan population at the prison in Afghanistan”. However, the Washington Post also stated that administration officials said that although they are “willing to transfer Rahmatullah”, they “did not want the basis of such a move to be a foreign court decision”.
Relevance to the Victorian Charter
Sections 21 and 22 of the Victorian Charter of Human Rights relate to the right to liberty and security of person, and humane treatment while deprived of liberty, respectively. In particular, section 21(7) of the Charter states that a person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of his or her detention, and the court must make a decision without delay, and order the release of the person if it finds that the detention is unlawful. The Charter imposes an obligation on Victorian public authorities to act in a way that is compatible with human rights and requires all statutory provisions to be interpreted so far as is possible in a way that is compatible with human rights, among other things. The Charter does not extend to the Federal Government, therefore the Charter has no effect on the actions of the Australian Department of Defence. However, if a person was held in detention or under arrest by a Victorian public authority (for example the Victorian Police), that public authority would be under an obligation to act in a way that is compatible with human rights, including sections 21 and 22 referred to above.
The decision can be found online at: http://www.bailii.org/ew/cases/EWCA/Civ/2011/1540.html
Suzy Muller is a Lawyer at Allens Arthur Robinson