15 December 2011

Obligations of the UK in respect of a Pakistani national detained by the US in Afghanistan

At Lawfare, Robert Chesney notes an decision of the UK Court of Appeals (Civil Division) of 14 December that raises interesting questions of shared responsibility. The case is Yunus Ramhmatullah v. Secretary of State for Foreign and Commonwealth Affairs et ano. The Court, by an opinion of the Master of the Rolls, held that a Pakistani man (Yunus Rahmatullah) held by the US military in Afghanistan may pursue a habeas corpus petition against the UK’s Secretary of State for Defence and for Foreign and Commonwealth Affairs.

Yunus Rahmatullah was captured in Iraq by British forces in 2004 and then transferred to US custody. In 2004 the US moved Yunus Rahmatullah from Iraq to Afghanistan. Despite the fact that a US Detainee Review Board determined in 2010 that the applicant was not an enduring security threat, he remains at Bagram, which, as noted by the lower court, was said to be ‘notorious for human rights abuses’. In May 2010, the applicant’s cousin learned that he was detained at Bagram, and filed the writ of habeas corpus that led to the present judgment.

The ‘SHARES’ aspect of the case is that under international law, the UK maintain obligations vis-à-vis Yunus Rahmatullah, even after he was handed over the US.

In case of Rahmatullah not being treated in conformity with the Geneva Conventions, both under the Third (Article 12) and the Fourth (Article 45) Geneva Convention, the UK had the obligation to take effective measures to correct the situation or request his return.

At the time, the UK certainly was aware of this obligation. To ensure US willingness to protect persons transferred by the UK to the US, and their return if so requested, in 2003 a Memorandum of Understanding was concluded between the UK and the US Governments. This provided that the transfer of persons will be implemented in accordance with the Geneva Conventions, that detainees transferred by the UK to the US would be returned to the UK without delay upon request by the latter, and that the rendition to territories outside Iraq of transferred detainees ‘will only be made upon the mutual arrangement of the Detaining Power and the Accepting Power.’

The combined effect of the Geneva Conventions and the MoU, thus, is that the UK retained obligations vis-à-vis Yunus Rahmatullah, even after he was handed over the US. The UK retained the obligation to secure his return and through this end any breach of his rights at the hands of the power to which he had been transferred. In other words, these provisions both form the basis of a possible shared responsibility of the UK and the US, and a procedural means for the UK to avoid breaching its own obligations.

Based on these provisions, Yunus Rahmatullah now applied for a writ of habeas corpus – in effect asking the UK to exercise its rights under the Geneva Conventions and the MoU. The Secretary of State argued that Yunus Rahmatullah was under the  control of the US Government and that the writ  should be rejected.

The Court found otherwise. It held that in the light of the Geneva Conventions and the MoU, there was ‘a substantial case for saying that the UK Government is under an international legal obligation to demand the return of the applicant, and the US Government is bound to accede to such a request.’ It found that the Government had provided insufficient evidence to conclude that such action could not be effective.

Interestingly, the Court found it unnecessary (and ‘inappropriate’) to address the question ‘whether, by not taking that course, it might, conceivably, be said that as a result of the combination of Section 1 of the 1957 Geneva Conventions Act and Article 130 of Geneva III, the UK Government could be aiding or abetting a “grave crime”’ (the Court here presumably referred to Geneva III). The question may indeed be premature, but the scenario is not entirely unrealistic and indeed may induce the negotiation of  agreements such as the MoU in question that enable states to exercise their responsibility vis-à-vis detained persons.

The case illustrated how states, through the Geneva Conventions and, as added security, the MoU, ex ante make sure that they retain the rights necessary to perform obligations incumbent on them. In addition it demonstrates how responsibility may continue, even after control is transferred.

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