Secret Justice

Britain’s highest court brands US rendition ‘unlawful’

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Yunus Rahmatullah

Britain’s highest court has described the rendition of a Pakistani man, first arrested by UK forces in Iraq and now being held by US forces in Afghanistan’s notorious Bagram detention facility, as ‘unlawful’ and a possible war crime.

Yunus Rahmatullah, a Pakistani citizen, was handed to the US authorities by the SAS in February 2004, although the British government denied any involvement in rendition operations at the time.

In 2009, Defence Secretary John Hutton confirmed to Parliament that British forces had captured two men in Iraq, one of whom turned out to be Mr Rahmatullah, and passed them to the US.

Without the knowledge of the British authorities, the Pakistani national was then transferred to the Bagram dentition facility, an American airbase in Afghanistan that has been heavily criticized for alleged torture and prisoner abuse.

Today, the Supreme Court ruled that ‘the, presumably forcible, transfer of Mr Rahmatullah from Iraq to Afghanistan is, at least prima facie, a breach of article 49 [of the fourth Geneva Convention].  On that account alone, his continued detention post-transfer is unlawful.’

However, the court also decided that the British government does not need to take further action at present to secure Mr Rahmatullah’s release.

The Court of Appeal had previously ordered a writ of habeas corpus – the ancient British legal right to be charged or released from arbitrary detention – to be issued in order to secure his release.

However, the US authorities responded to request for with a letter stating that it considered the Pakistani government to be a more suitable interlocutor on the matter. The court decided that this was a sufficient response to the writ of habeas corpus and that was the end of the matter.

Today’s case involved legal challenges to the judgment from both sides. Home Secretary Theresa May was appealing the decision compelling the British authorities to request Mr Rahmatullah’s release, while the detainee’s legal team challenged the decision that the American response was sufficient to demonstrate that the UK could not secure his freedom. Both appeals were dismissed.

The ruling was described as having ‘huge ramifications’ by Clive Stafford Smith, Director of Reprieve.

‘If the US has ‘dishonoured’ its commitment to the UK in this case for the first time in 150 years, and continues to violate law as basic as the Geneva Conventions, this also throws other extradition agreements with the UK into doubt,’ he said.

The British and American authorities are signatories to a diplomatic agreement known as a Memorandum of Understanding (MOU) that sets the terms for the transfer of prisoners from Iraq. Although the accord is not legally  binding, it states that this can only occur with US and UK agreement.

As a joint investigation by The Bureau and New Statesman revealed last year, the existence of an MOU can mean little in practice.

UN Special Rapporteur on Torture Juan Méndez agrees. ‘Diplomatic assurances do not relieve the sending countries of their state responsibility for having committed a serious breach of an international obligation. [MOUs] are utterly meaningless if the receiving country is known to engage in a pattern and practice of torture’.

However, Lord Kerr reaffirmed in today’s ruling that the British courts consider MOUs as promises to be taken seriously: ‘the fact that [this] MOU was not legally binding does not reduce its significance. It provided the essential basis of control for the UK authorities over prisoners who had been handed over to the US.’