Jurisdiction - Prisoner of war - Claimant Pakistani national being captured by British forces in Iraq

Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs and another: CA (Civ Div) (Master of the Rolls Lord Neuberger, Lord Justices Maurice Kay (vice-president) and Sullivan): 14 December 2011

The claimant was a national of Pakistan. In February 2004, he was captured by British forces in Iraq and handed over to US forces. From that time he was held at Bagram Airbase in Afghanistan (Bagram).

In June 2010, a US detainee review board determined that his continued internment was ‘not necessary to mitigate the threat he poses’ and that he was ‘not an enduring security threat’. It was decided that he would be released to Pakistan. However, as at July 2011, he was still held at Bagram.

The US Department of Defense had determined that the claimant was a person who was part of, or substantially supported, Taliban or Al-Qaida forces and so would remain under US control. The claimant applied for a writ of habeas corpus. He submitted, inter alia, that although he was detained by the Americans, the secretary of state for foreign and commonwealth affairs and the secretary of state for defence enjoyed a sufficient degree of control over him to bring about his release.

Further, it was contended that his circumstances were a proper occasion in which to issue a writ of habeas corpus in order to test the degree of control enjoyed by the secretaries of state over the claimant and to test the response of the US authorities to a request for his release. The High Court gave consideration to the Geneva Convention Relative to the Treatment of Prisoners of War (Geneva III) and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva IV). Additionally, evidence was produced as to two memoranda of understanding between, inter alia, the UK and the US which addressed the procedures to be followed in the event of a transfer of a prisoner of war from the custody of one power to the other. His application was dismissed.

The court held that it was impossible to say that the secretaries of state were in a position in effect to direct the claimant’s delivery as the claimant was not within their power or control. The arrangements between the UK and the US did not establish power and control in the hands of the secretaries of state such that the issue of the writ would be proper and efficient.

First, the secretaries of state had no legal power to direct the claimant’s release. The memoranda of understanding did not create legally binding rights or obligations, and even if they had, they would have sounded on the international plane only. Second, the scope of the first memorandum, both as to time and subject matter, was problematic. Third, the Geneva conventions did not support the application for the writ. Furthermore, it was very far from clear that the American authorities would accede to a request from the secretaries of state for the claimant’s release. No such likelihood was entailed by the Geneva conventions. The claimant appealed.

He submitted that: (i) he had established, for the purpose of the instant proceedings, that he had been unlawfully detained and so his application for the issue of a writ effectively succeeded by default; and (ii) in reliance on the Geneva conventions and the memoranda of understanding, he was sufficiently arguably in the control of the UK government to support the issue of a writ. In support of his first submission, the claimant contended that it was a fundamental principle of law that, where an individual was detained against his will, it was for the detainer to show that the detention was lawful and not for the detainee to show that his detention was unlawful. The appeal would be allowed.

(1) Applying established principles, it could not be concluded that a writ in habeas corpus could not issue where uncertainty as to the respondent’s control over the applicant arose from the effectiveness and enforceability of certain agreements, even though such a writ could, and absent any countervailing reasons normally should, issue where the uncertainty arose from a need to investigate the facts. Such a distinction did not work in theory as the effectiveness and enforceability in practice of an agreement was a matter of fact rather than of law (see [44], [55], [57] of the judgment).

In the instant case, putting to one side the issue of trespass into the diplomatic or foreign relations area, there was sufficient uncertainty to justify an order for habeas corpus. The US detainee review board had made its determination and, given the end of the war in Iraq, it was at least strongly arguable that the claimant should have been released by virtue of the provisions of Geneva IV. In the light of Geneva IV there was a substantial case for saying that the UK government was under an international obligation to demand the return of the claimant and the US government was bound to accede to such a request.

That conclusion was reinforced by the memoranda of understanding and the circumstances in which they had been signed. It would be wrong for the court, in the context of a habeas corpus application, simply to accept the secretaries of states’ indication that they had lost control over the claimant (see [33], [35]-[38], [41], [55], [57] of the ­judgment).

(2) The point, if correct, that the court would be wrongly trespassing into the area of foreign relations would not take the question of whether the secretaries of state had sufficient control over the claimant any further; it would simply serve to prevent the court from taking a course which it would otherwise take, namely the issue of a writ of habeas corpus. However, since the secretaries of state had not raised the issue of diplomatic and foreign relations as a free-standing issue, the point took matters no further (see [49] of the judgment). The claimant’s appeal would be allowed and a writ of habeas corpus would be issued (see [54]-[55], [57] of the judgment). Decision of Divisional Court [2011] 4 All ER 926 reversed.

Nathalie Lieven QC, Ben Jaffey and Tristan Jones (instructed by Leigh Day & Co) for the claimant; James Eadie QC and Ben Watson (instructed by the Treasury Solicitor) for the secretaries of s­tate.