United Kingdom Supreme Court in Important Judgment

Mr Rahmatullah, along with another Pakistan national Amantullah Ali, was detained by British SAS forces in Iraq in February 2004, a little over a year after United Kingdom, United States, Australia and other countries invaded and occupied Iraq. The invasion itself was in breach of international law.

The US, UK and Australia had signed a Memorandum of Understanding (MoU) on 23 March 2003. This Memorandum provided, inter alia, that persons captured by British or Australian forces would be handed over to the Americans. Importantly, the UK and Australia could demand the return of such captives if there was any violation of their rights under the Geneva Conventions. Geneva Convention 3 relates to the treatment of prisoners of war and Geneva Convention 4 to the protection of civilians in time of war.

The MoU also provided that persons could be transferred out of Iraq only upon the mutual agreement of the detaining (in this case UK) power and the accepting power (in this case the US). Mr Rahmatullah and Mr Ali were in fact transferred from Iraq to Afghanistan without the agreement of the British. Mr Rahmatullah was sent to the prison at Bagram Air Base in Afghanistan where he has remained ever since.

Mr Rahmatullah and Mr Ali were alleged by the Americans to be members of a Sunni extremist group Lashkar-e-Taiba. Mr Ali was in fact a Shia rice farmer and the allegation that he belonged to a Sunni extremist group was therefore preposterous. Mr Rahmatullah was also a Shia. He was taking advantage of the fact that following the downfall of Saddam Hussein’s Sunni government Shias were once again able to visit Shia holy sites in Iraq.

Not a shred of evidence has ever been produced to counter the claims of the two men that their visit to Iraq was other than for the reason they claimed.

The American position was, as Lord Kerr who wrote the major judgment found, that the Geneva Conventions did not apply to persons whom the Americans alone defined as “enemy combatants”, a term not known to international law. All seven Judges were unanimous in dismissing the Secretary’s appeal.

Article 47 of GC4 provides that unlawful deportation or transfer or the unlawful confinement of a protected person, that is, one covered by the terms of the Convention, constitutes grave breaches of the Convention. The United States signed the Convention on 12 August 1948.

Article 49 of GC4 forbids the forcible transfer of protected persons from the occupied territory, in this case Iraq. The prohibition applies irrespective of the motives of the transferor.

His Lordship concluded therefore that the transfer of Mr Rahmatullah to Afghanistan was at least prima facie unlawful. Article 132 also requires that every interned person be released by the detaining power as soon as the reasons which necessitated his internment no longer exist.

Even if it was accepted, in the complete absence of evidence, that the initial detention was lawful, the Americans themselves, through their own Defence Review Board procedures on 5 June 2010, concluded that Mr Rahmatullah’s continued detention was “not necessary to mitigate the threat he poses”. What that “threat” was has never been established.

Notwithstanding that finding, Mr Rahmatullah remains in custody where, according to Reprieve, the charity acting on his behalf, he is in a “catastrophic mental and physical shape.”

Mr Rahmatullah sought a remedy in the UK Courts by bringing a writ of habeas corpus. He failed at the first instance, but the Court of Appeal upheld his appeal (Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs) [2012] EWCA Civ. 182). It is that decision that the Supreme Court has unanimously upheld.

In accordance with the Court of Appeal’s decision the British government did request Mr Rahmatullah’s return. In short, the Americans refused and in doing so ignored the terms not only of the MoU, but also their obligations under the Geneva Conventions. The court identified this refusal as the first time in 150 years of international agreements between the US and the UK an agreement had been dishonoured.

Mr Rahmatullah cross-appealed the pusillanimous response of the UK government which upon receipt of the American refusal to return Mr Rahmatullah had elected to simply do nothing. Five of the seven Judges dismissed the cross-appeal, effectively acknowledging that the little done by the UK government (writing a letter) and the equally little done by the US government in response (also writing a letter) was all that could be achieved.

In dissenting on the cross-appeal Lord Carnworth and Lady Hale were strongly critical of both governments. It was unfortunate, they said, that neither the UK letter nor the US response began to address the real issue. The UK government’s letter missed the point they said. That letter should have made clear that the MoU governed the case; that the UK government had an unqualified right under the MoU to require the return of Mr Rahmatullah; and that it was irrelevant to that unqualified right whether or not the US government considered that they were entitled to retain the prisoner on their view of international law.

All seven Judges had made it abundantly clear that the US government’s view of international law did not accord with theirs. It might fairly be observed that the majority opinion on the cross-appeal reflected political realities. The minority judgment on the cross-appeal with respect, better reflected the law.

A number of lessons relevant to Australia might be drawn from this important decision.

The first is that it reinforces the view earlier expressed by legal commentators such as Marjorie Cohn that, legally speaking, the US was a “cowboy republic” (Cohn 2007) in that the United States government shows a contumelious disregard for its obligations under international law. As the Judges in Rahmatullah noted, this case was the first time in 150 years that the US had “dishonoured” an international agreement with the UK. If it is willing to ignore its obligations under international law to its strongest ally, then what credence can Australia or other nations allied to the US place on its signature to treaties or, as here, Memoranda of Understanding.

Secondly, the signal importance of habeas corpus to the common law world has been damaged. As Lord Kerr said, citing Lord Scarman in R v Secretary of State for the Home Department ex parte Khawaja [1984] AC 74 at 111, “the writ of habeas corpus issues as of right”. Lord Kerr went on to say, “it is not a discretionary remedy. Thus, if detention cannot be legally justified, entitlement to release cannot be denied by public policy considerations, however important they may appear to be.” (op cit at paragraph 41).

It is not widely known in this country, but the right to habeas corpus was effectively abolished in the United States under the terms of the National Defence Authorisation Act signed into law by President Obama in December 2011. No habeas corpus petition on behalf of the Guantanamo Bay inmates, imprisoned without charge or trial for up to ten years, has succeeded in the last two and a half years.

In one recent case the earlier successful petition of Uthman Abdul Rahim Mohammed Uthman (2011) was reversed on the government’s appeal even thought the only evidence against him had been obtained from prisoners held in black sites such as that occupied by Mr Rahmatullah, and subjected to torture.

Even being cleared for release is insufficient. As noted, Mr Rahmatullah was declared not to be a threat more than two years ago. He remains in custody as do 86 of the 166 remaining detainees in Guantanamo, similarly cleared for release, but languishing in a legal limbo.

With no recourse to habeas corpus and no political will to effect their release, the condition of these men should be of grave concern to the Australian government. The current government, like its predecessor, is conspicuously silent on the lawlessness of its closest ally.

Thirdly, there have been at least two Australian citizens caught up in this system. David Hicks is the better known. He also tried to use habeas corpus to obtain his release from Guantanamo where he had been held without charge for a number of years. He was also tortured.

His application for habeas corpus in the Australian courts was challenged by the then Howard government who sought summary judgment against his claim on the grounds, inter alia, that an Australian court cannot enter into consideration of a case which might result in a finding that an action of a foreign state (here the US) was unlawful: Hicks v Ruddock [2007] FCA 299; (2000) 239 ALR 344.

The UK government in Rahmatullah (op cit) had advanced exactly the same argument and it was unequivocally rejected by all seven Justices. They made a clear finding that the US government was in breach of international law (GC4). One would hope that in any future case where an Australian citizen finds him/herself seized on foreign soil and rendered to American custody, the government of the day would have regard to the Rahmatullah decision.

The court in Hicks refused the government’s application, but he was released before the matter could be argued further. To obtain his release Mr Hicks entered a plea bargain, admitting to a charge that the United States Court of Appeal DC circuit has recently ruled (Hamdan v US No 11–1257 decision 16 October 2012) had no foundation in law. The court said that Mr Hamdan’s conviction could not stand because the purported offence did not exist in international law at the time of its purported commission. Mr Hicks’ conviction should be similarly quashed.

The more important case in this context however may be that of Mamdouh Habib. Mr Habib, an Australian citizen, was detained in Pakistan and handed over to the Americans.

He was then rendered to Egypt where he was tortured and then further rendered to Guantanamo where he was held without charge or trial for a number of years. He was eventually released without ever being charged.

Mr Habib has fought a number of battles in the Australian courts against the government or one or more of its various agencies, with mixed success. He was eventually paid compensation by the Australian government although the terms of the settlement remain confidential.

The Australian government has always denied being involved in Mr Habib’s rendition to Egypt and later to Guantanamo. The facts of the matter should be in the public realm.

There is a Memorandum of Understanding (MoU) between Australia and the US arising out of the invasion and occupation of Afghanistan in 2001. That invasion was itself illegal under international law. That Memorandum required, as in Mr Rahmatullah’s case, the agreement of the parties to the proposed removal of an individual to a third country.

The Australian government pleaded that it did not agree with Mr Habib’s rendition to Egypt: Habib v Commonwealth of Australia [2008] FCA 1494. That objection, if true, was in any case ignored by the Americans. Mr Habib always maintained that the torture he was subjected to in Egypt was with the full knowledge of the Australian government. As the matter never went to trial, that and related contentions have never been tested.

The Americans made a number of allegations against Mr Habib accusing him of various terrorism related activities. He was never charged in connection with any of these allegations. No evidence has ever been adduced in support of the American’s claims. He was imprisoned from October 2001 to January 2005 when he was released and flown home in an Australian government chartered plane.

The Australian authorities now acknowledge that Mr Habib “knew nothing about terrorism” (Jane Mayer The Dark Side 2008 at 125.) The adverse ASIO rating of Mr Habib has now been withdrawn and his passport returned. Compensation was paid to Mr Habib in December 2010 on the basis that the Australian government was absolved of any liability for his torture, the facts of which are now established.

The Rahmatullah case (as with both Hicks and Habib) highlight the perilous state of international rights law. Both the UK and the Australian governments have been shown to be less than diligent in their duty to protect persons to whom they owe a duty of care, either because they are the detaining powers as in the case of Rahmatullah or the detainees are their own citizens as with Hicks and Habib.

Above all it raises a caveat about the credence that can be placed on inter-party agreements signed between Australia and the US and about the worth of a signature to an international treaty such as the Geneva Conventions. Perhaps above all we need to bear in mind the lessons to be drawn from the cases cited above when entering any further agreements with an ally whom successive Australian governments seem only too willing to oblige.

James O’Neill