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SELLING THE PASS: HABEAS CORPUS, DIPLOMATIC RELATIONS AND THE PROTECTION OF LIBERTY AND SECURITY OF PERSONS DETAINED ABROAD

Published online by Cambridge University Press:  09 July 2013

Tatyana Eatwell
Tatyana Eatwell*
Affiliation:
PhD Candidate, University of Cambridge and Barrister, Doughty Street Chambers, [email protected].
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Abstract

On 31 October 2012 the Supreme Court of England and Wales handed down its judgment in Rahmatullah v Secretary of State for Foreign Affairs and Secretary of State for Defence [2012] UKSC 48. The case concerns an application for habeas corpus brought by a citizen of Pakistan originally detained by the United Kingdom in Iraq before being transferred into the custody of the United States. Rahmatullah addresses important issues concerning the extraterritorial reach of habeas corpus under English law in respect of persons held in the custody of a foreign State, as well as the international rule of law. The case may be considered a legal victory for persons detained without trial by the US in facilities thought to be beyond the reach of the courts. However, in reality any strength in the arm of the law is drained by the priority given to the conduct of foreign affairs, ‘forbidden territory’ for the courts, over the Court's ruling and the UK's obligations under international law. The case is examined in the light of similar jurisprudence from US and Australian courts.

Keywords

diplomatic relationsforeign nationalshabeas corpusinternational law
Type
Current Developments: Public International Law
Information
International & Comparative Law Quarterly , Volume 62 , Issue 3 , July 2013 , pp. 727 - 739
Copyright
Copyright © British Institute of International and Comparative Law 2013 

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References

1 Rahmatullah v Secretary of State for Foreign Affairs and Secretary of State for Defence [2012] 3 WLR 1087 (SC(E)) (‘Rahmatullah’).

2 At the time of writing Mr Ramatullah remains in US detention.

3 Rahmatullah (n 1) para 3. The MoU is entitled, ‘An Arrangement for the Transfer of Prisoners of War, Civilian Internees, and Civilian Detainees between the Forces of the United States of America, the United Kingdom of Great Britain and Northern Ireland, and Australia, 23 March 2003.’ The original MoU is unavailable to the author.

4 Lady Hale and Lord Carnwath dissenting.

5 Secretary of State v O'Brien [1923] AC 603, 609 (Earl of Birkenhead) (Ex parte O'Brien).

6 ibid.

7 Rahmatullah (n 1) paras 41 and 74 (Lord Kerr).

8 Rahmatullah (n 1) para 121.

9 ibid paras 42–43, 45 (Lord Kerr), paras 87–91 (Lord Phillips), R v Secretary of State for the Home Department, Ex parte Muboyayi [1992] QB 244, 269 (Taylor LJ); Ex parte O'Brien (n 5) 609 (Earl of Birkenhead); R v Earl of Crew, Ex parte Sekgome [1910] 2 KB 576, 592 (Vaughan Williams LJ); Barnardo v Ford [1892] AC 326.

10 Rahmatullah (n 1) para 92 (Lord Phillips); Ex parte O'Brien (n 5).

11 Ex parte O'Brien (n 5); Barnado v Ford (n 9).

12 Ex parte O'Brien (n 5). More recent cases concerning detainees at Guantánamo Bay have not been brought by writ of habeas corpus but by judicial review: see for example R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs and the Secretary of State for the Home Department [2002] EWCA Civ 1598; [2003] UKHRR 76.

13 The White House, ‘President Bush Announces Major Combat Operations in Iraq Have Ended’, 1 May 2003 <http://georgewbush-whitehouse.archives.gov/news/releases/2003/05/20030501-15.html> accessed 14 March 2013.

14 UNSC Res 1511 (16 October 2003), para 13, UN Doc S/RES/1511.

15 Entitled ‘An Arrangement for the Transfer of Prisoners of War, Civilian Internees, and Civilian Detainees between the Forces of the United States of America, the United Kingdom of Great Britain and Northern Ireland, and Australia’. The original document is not available to the author.

16 Geneva Convention Relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 972 (GC3).

17 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 973.

18 Clause 1 2003 MoU, Rahmatullah (n 1) para 7.

19 Rahmatullah (n 1) para 8. Clause 4 reflects the UK's obligations pursuant to art 45 GC4. Art 45 GC4 provides, so far as is relevant to this case, ‘Protected persons shall not be transferred to a Power which is not a party to the Convention … 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. 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. In no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs.’

20 ibid para 10.

21 ibid para 10 (Lord Kerr).

22 In 2010 the US military was accused of abusing prisoners detained in a secret detention site at Bagram air base. It is further alleged that in 2002 two prisoners died in custody at Bagram airbase after being beaten and suspended from the ceiling. H Anderson, BBC News, ‘Afghans “abused at secret prison” at Bagram airbase’, 15 April 2010 <http://news.bbc.co.uk/1/hi/world/south_asia/8621973.stm> accessed 14 March 2013.

23 Rahmatullah (n 1) para 4.

24 ibid. Statement of Mr John Hutton MP, the Secretary of State for Defence, Hansard (HC) Debates, 26 February 2009, cols 395–396.

25 ibid [6]. Statement of Mr Damien Parmenter, Head of Operating Policy in the Operations Directorate of the Ministry of Defence.

26 ibid.

27 ibid.

28 See Report by Intelligence and Security Committee on The Handling of Detainees by UK Intelligence Personnel in Afghanistan, Guantanamo Bay and Iraq: (2005) Cm 6469, para 8.

29 ibid para 18. See also para 17 (Lord Kerr).

30 ibid para 18 (Lord Kerr). The Court did not decide whether this continuing obligation was sufficient to establish control over the detainee on the part of the UK and focused on the application of the 2003 MoU.

31 ibid para 17 (Lord Kerr).

32 Detainee Review Boards were set up by the US military in Afghanistan 2001 and designed to ensure the due process rights of detainees. The Boards review and determine the status of detainees, whether they are ‘enemy combatants’, whether the detainee fulfilled the criteria for transfer to Guantánamo Bay, whether the detention is lawful and whether the detainee continues to pose a risk to security. See further Bovarnick, J, ‘Detainee Review Boards in Afghanistan: From Strategic Liability to Legitimacy’ (2010) Army Law 9, 15–20Google Scholar. The Boards have been criticized by human rights organizations for failing to inform detainees of the reasons for their detention, denying them access to a lawyer, and denying the detainee the opportunity to call witnesses to speak on their behalf. See for example Human Rights First, ‘Undue Process: An Examination of Detention and Trials of Bagram Detainees in April 2009’, November 2009 <http://www.humanrightsfirst.org/wp-content/uploads/pdf/HRF-Undue-Process-Afghanistan-web.pdf> accessed 14 March 2013.

33 Ramatullah (n 1) para 5.

34 Rahmatullah v Secretary of State for Defence and another [2011] 4 All ER 926 (HC) paras 28–35 (Laws LJ).

35 Rahmatullah v Secretary of State for Defence and Another [2012] 1 WLR 1462 (CA) (Rahmatullah (CA)).

36 ibid para 39 (Lord Neuberger MR).

37 ibid para 34 (Lord Neuberger MR).

38 Letter from the US Office of the Under Secretary of Defense to the Ministry of Defence and the Foreign & Commonwealth Office, Exhibit TD/4 <http://www.reprieve.org.uk/static/downloads/2012_02_20_PUB_Yunus_Rahmatullah_UK-US_correspondence.pdf> accessed 7 November 2012.

39 Rahmatullah (CA) (n 35), judgment of 23 February 2012, para 17 (Lord Neuberger).

40 ibid para 16 (Lord Neuberger), para 20 (Maurice Kay LJ).

41 Rahmatullah (n 1) para 67 (Lord Kerr).

42 ibid paras 42–44 (Lord Kerr).

43 ibid paras 46–48, 64 (Lord Kerr), Ex parte O'Brien (n 5) applied.

44 Per Lord Kerr at para 41, applying Lord Scarman in R v Secretary of State for the Home Department, ex parte Khawaja [1984] AC 74 at 111.

45 ibid.

46 This was consistent with the Secretaries of State's case that they did not have sufficient control over R's detention and therefore the legality of his detention by the US was not a matter for them.

47 Rahmatullah (CA) (n 35) para 61.

48 Lord Phillips.

49 Rahmatullah (n 1) para 33.

50 Rahmatullah (n 1) para 53 (Lord Kerr).

51 ibid para 28 (Lord Kerr). It was therefore not necessary to resolve the contentious issue of whether R has prisoner of war status under GC3. This would involve an examination of whether R fulfilled the criteria that would afford him ‘combatant status’ under the rules of international humanitarian law or whether his was an unprivileged combatant with no right to prisoner of war status. For further discussion of combatant status see Ipsen, K, ‘Combatants and Non-Combatants’ in Fleck, D, The Handbook of International Humanitarian Law (2nd edn, OUP 2009)Google Scholar.

52 Report by Intelligence and Security Committee on The Handling of Detainees by UK Intelligence Personnel in Afghanistan, Guantanamo Bay and Iraq: (2005) Cm 6469, para 8.

53 Rahmatullah (n 1) para 34 (Lord Kerr) referring to para 8 of the report: (2005) Cm 6469.

54 ibid paras 34 and 40 (Lord Kerr).

55 Art 49 GC4 provides that ‘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.’

56 Rahmatullah (n 1) para 36 (Lord Kerr). Art 132 provides that ‘Each interned person shall be released by the Detaining Power as soon as the reasons which necessitated his internment no longer exist.’ Art 133 provides that ‘Internment shall cease as soon as possible after the close of hostilities.’

57 Rahmatullah (n 1) paras 37–40 (Lord Kerr). Art 45 GC4 provides that the transferring state is required to take available steps to ensure that the detainee is treated in accordance with the requirements of the convention and, if necessary, demand his return.

58 ibid para 75 (Lord Kerr).

59 ibid para 15 (Lord Kerr).

60 Othman v United Kingdom (Application No 8139/09) (2012) 55 EHRR 1 (Othman).

61 Ahmad v Government of the United States of America [2007] HRLR 157.

62 Or the equivalent ‘diplomatic assurances’.

63 Rahmatullah (n 1) paras 11–15 (Lord Kerr).

64 ibid paras 8–11 (Lord Kerr).

65 ibid para 6 (Lord Kerr).

66 ibid para 11 (Lord Kerr).

67 ibid para 15 (Lord Kerr).

68 Othman (n 60) para 164.

69 ibid.

70 This is particularly so with regard to applications for habeas corpus to which public policy is not a relevant consideration. It is submitted that a judicial review of a failure to enforce a MoU may, however, be subject to considerations of foreign policy that may influence the government's decision to challenge another government's failure to uphold the MoUs terms. In the latter case a demand by the court that the government take steps to enforce the MoU could be considered to stray into the forbidden territory of foreign affairs.

71 Rahmatullah (n 1) paras 100–107 (Lord Phillips) and para 115 (Lord Reed).

72 ibid paras 98 and 107 (Lord Phillips).

73 Unlike Ex parte O'Brien (n 5) where the actions of the respondent Secretary of State were held to be unlawful.

74 Rahmatullah (n 1) para 123.

75 ibid paras 68–70 (Lord Kerr).

76 ibid.

77 ibid para 60 (Lord Kerr).

78 R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2003] UKHRR 76, [106(iii)] (Lord Phillips MR).

79 ibid. See also R (Al Rawi) v Secretary of State for Foreign and Commonwealth Affairs [2008] QB 289.

80 Rahmatullah (n 1) para 68 (Lord Kerr).

81 ibid.

82 ibid paras 68–70 (Lord Kerr). See McGoldrick, D, ‘The Boundaries of Justiciability’ (2010) 59 ICLQ 981CrossRefGoogle Scholar; O'Keefe, R, ‘Decisions of the British Courts during 2002 Involving Questions of Public or Private Law: A Public International Law’ (2002) 73(1) BYBIL 414–28Google Scholar.

83 Rahmatullah (n 1) paras 68–70 (Lord Kerr)

84 ibid para 70 (Lord Kerr).

85 ibid para 83 (Lord Kerr).

86 Rahmatullah (CA) (n 35) Judgment of 23 February 2012, para 11.

87 ibid para 83 (Lord Kerr) (emphasis added).

88 ibid paras 125–127 (Lord Carnwath and Lady Hale).

89 ibid para 129 (Lord Carnwath and Lady Hale).

90 ibid para 131. Lady Hale and Lord Carnwath further observed that, ‘it may be that both the UK and the US would prefer to leave the problem with the US authorities, rather than face up to what the UK would do with the applicant if he were to be transferred to them. That again is not a factor which should impress the court.’ (at para 130)

91 Farbey, J, Sharpe, RJ and Atrill, S, The Law of Habeas Corpus (3rd edn, OUP 2011) 90CrossRefGoogle Scholar.

92 President George W Bush, ‘Address to a Joint Session of Congress and the American People’, 20 September 2001, United States Capitol, Washington DC <http://georgewbush-whitehouse.archives.gov/news/releases/2001/09/20010920-8.html> accessed 12 November 2012.

93 Rasul v Bush 542 US 466 (2004) (Rasul).

94 Military Commissions Act of 2006, Pub.L. 109-366, 120 Stat. 2600, 2608-09.

95 Boumediene v Bush 553 US 723, 128 S Ct 2229 (2008) (Boumediene). On the ‘functional approach’ adopted by the US Supreme Court and the questions left open by Boumediene see A Colangelo, ‘“De facto Sovereignty”: Boumediene and Beyond’ (2009) 77 GWashLRev 623.

96 Munaf v Geren 128 S Ct 2207 (Munaf), decided on the same day as Boumediene, 12 June 2008.

97 Unlike Boumediene that focused on the constitutional right to habeas corpus, the Supreme Court in Munaf relied on the statutory power to grant habeas corpus that provides for jurisdiction where the detainee ‘is in the custody under or by the color of the authority of the United States or is committed for trial before some court thereof’. [28 USCA section 2241].

98 Munaf (n 96) 2217.

99 See Cohen, HG, ‘Munaf v Geren’, (2008) 102(4) AJIL 854CrossRefGoogle Scholar, 858.

100 Al Maqaleh v Gates 605 F.3d 84 (DC Cir 2010).

101 Boumediene (n 95) 2261–2 (emphasis added).

102 Al Maqaleh (n 100) 366.

103 Rahmatullah (n 1) para 18 (Lord Kerr).

104 Rahmatullah (n 1) [72] (Lord Kerr).

105 Hicks v Ruddock [2007] FCA 299 (8 March 2007).

106 Rahmatullah (n 1) para 105 (Lord Phillips).

107 Rahmatullah (CA) (n 35) para 109.