Please return my prisoner – Habeas corpus and unlawful transfer

Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah [2012] UKSC 48 (31 October 2012) Summary

The Supreme Court of the United Kingdom found that the continued detention of a civilian combatant was prima facie unlawful under the Geneva Conventions. The prisoner was initially captured by British forces before being handed over to the US, which transferred him from Iraq to Afghanistan. The habeas corpus application failed because the UK showed that it had no control over the prisoner’s detention.

Facts

Yunus Rahmatullah is a Pakistani national who was captured by UK forces in Iraq in February 2004 as a member of Lashkar-e-Taiba, a terrorist organisation linked to Al-Qaeda. Mr Rahmatullah was later handed over to US forces, who transported him to a detention facility in Afghanistan. On 5 June 2010, a US Detainee Review Board hearing concluded that his continued detention was “not necessary to mitigate the threat he poses”. However, Mr Rahmatullah remains in US custody pending, according to the US, “appropriate security assurances” being obtained from Pakistan.

From 2003, a Memorandum of Understanding (MoU) was in effect between the US, the UK and Australia, which stated that any internees transferred by a Detaining Power will be returned by the Accepting Power to the Detaining Power without delay upon request. The MoU was not legally binding, but was considered to be a solemn undertaking between responsible governments.

On Mr Rahmatullah’s behalf, a writ of habeas corpus was sought in UK courts. After Mr Rahmatullah succeeded in the Court of Appeal, the UK Government sent a letter to the US requesting his release. The US replied by explaining why they considered his continuing detention to be lawful from a US perspective. The Secretary of State appealed the Court of Appeal decision to the UK Supreme Court, and Mr Rahmatullah cross-appealed, claiming that the UK Government should take further steps to seek his release from the US.

Decision

Lord Kerr delivered the primary judgment with which Lords Phillips, Dyson, Wilson and Reed agreed. Lord Carnwath and Lady Hale dissented on the cross-appeal.

In a habeas corpus application, the burden is on the detainer to prove that the detention is lawful. Although the Secretary of State did not contest this point, there was a clear prima facie case that Mr Rahmatullah was unlawfully detained. Section 1(1) of the UK Geneva Conventions Act 1957 makes it an offence to commit, or aid, abet or procure a grave breach of the Geneva Conventions. Mr Rahmatullah was a protected person under article 4 of the Geneva Convention IV, as he found himself in the hands of an occupying power (the UK and then the US). As such, he was protected by article 49 of the Convention, which prohibits deportations of protected persons from occupied territory to the territory of another country (here, Afghanistan). Article 45 of the Convention provides that a state that transfers a protected person to the custody of another state must request the return of the person if the accepting state fails to apply the Convention. Article 132 provides that every interned person must be released by the detaining power as soon as the reasons which necessitated his internment no longer exist (evidenced by the Detainee Review Board findings), or, per article 133, on the conclusion of hostilities (which has passed).

Lord Kerr then considered whether, before the UK requested Mr Rahmatullah’s release from the US, was there a reasonable prospect that the UK could exert control over his custody. If so, the UK had to either deliver the prisoner to the Court, or show why it was not possible for the UK to do so.

The obligation in the MoU that the US would return the prisoner to the UK on request provided the UK with a reasonable prospect of reacquiring custody of the prisoner as a matter of fact, given that the UK and the US were allies. The threshold of the test is low, and the inquiry factual in nature. Importantly, the Court could not order the Secretary of State to demand Mr Rahmatullah’s release from the US (even though that is what the UK did), as that would intrude upon the executive power over foreign affairs. What the Court required of the Government was rather that they show, by whatever means they could, whether or not control existed in fact.

The cross-appeal concerned whether the letter from the US was insufficient to prove that the UK could not secure the prisoner’s release from the US. If so, the UK had to take further steps to ascertain whether it had control over the prisoner.

Lord Kerr accepted the Government’s submission that the US had, in suitably diplomatic language, effectively declined, even though neither the letter, nor the UK’s initial request, mentioned the MoU. However, Lord Carnwath and Lady Hale dissented on the cross-appeal, finding that the UK and US letters had missed the point, and the Court should require the resubmission of the request specifically relying on the UK’s continuing rights under the MoU.

Commentary

David Hicks found himself in a similar position to Mr Rahmatullah. Mr Hicks was a civilian combatant who was captured in Afghanistan by the US and deported to Guantanamo Bay in Cuba. Persons acting on Mr Hicks’ behalf brought habeas corpus in the Federal Court of Australia to compel the Australian Government to request his release from the US. In Hicks v Ruddock (2007) 156 FCR 574, the Federal Court considered an application by the Australian Government to summarily dismiss the habeas corpus suit, on the basis that it was without reasonable prospects of success. The Federal Court held that there were no clear authorities that would justify summary judgment against Mr Hicks. However, he was returned to Australia in 2007 before the case could go to trial.

Section 21(7) of the Victorian Charter provides that any person deprived of liberty is entitled to apply to a court for a declaration regarding the lawfulness of their detention. This essentially enshrines the common law writ of habeas corpus into the Victorian Charter. An application for habeas corpus in Victoria would be made under Order 57 of the Supreme Court (General Civil Procedure) Rules 2005.

The decision is available online at http://www.bailii.org/uk/cases/UKSC/2012/48.html

Sylvester Urban, Solicitor, King & Wood Mallesons Human Rights Law Group