Human rights campaigners have called for a full criminal investigation into the rendition of a Pakistani man by UK and US forces to Afghanistan, following a supreme court judgment describing his subsequent detention at the notorious US prison at Bagram as unlawful. Yunus Rahmatullah has been imprisoned ever since he was handed over by the SAS to American forces in Iraq in 2004, and has never been charged.
Lawyers for the man argued before the UK’s highest court that the government should apply pressure on the US to release him. The court of appeal had previously issued a writ of habeas corpus – an ancient law that demands a prisoner is released from unlawful detention – requiring the UK to seek Rahmatullah’s return or at least demonstrate why it could not. However, the US authorities refused to cooperate, arguing that they would discuss Rahmatullah’s situation with the Pakistani government.
Lawyers for William Hague and Philip Hammond, the foreign and defence secretaries, had argued that they had no power “to direct the US” to release him and that it would be inappropriate for the courts to instruct them to ask the US authorities to return Rahmatullah.
Rejecting this argument, a panel of seven supreme court judges ruled that the UK did not need to have actual custody to exercise control over his release. The UK’s most senior judges also declared that there was clear evidence that Rahmatullah’s rendition and detention was a breach of international human rights law, despite “memorandums of understanding” Britain had agreed with the US over treatment of detainees.
Lord Kerr said: “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.”
Kerr also said that he would have “little hesitation in dismissing” arguments from former US assistant attorney general Jack Goldsmith asserting that al-Qaida operatives found in occupied Iraq were excluded from protection under the Geneva Conventions during armed conflict.
Article 49 of Geneva IV deals with the status and treatment of civilians in occupied territories in times of war and states 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.”
This puts the UK’s conservative coalition government in quite a bind. There are potential consequences for ignoring the Supreme Court, up to and including charges of contempt against ministers or even the PM, but to act on this judgement would entail upsetting their US allies more than a little and perhaps even eventually entail having to arrest Tony Blair and other key government officials of the time for war crimes trials as well as issuing warrants for George W. Bush and others.
I’ve thought privately for quite some time that there were elements within the senior eschelons of the British judiciary who were more than a little peeved at Tony Blair’s lies for war in Iraq and his support of US excesses in the Great war On terror being given a free pass. Happily, many of Britain’s Law Lords, on a bipartisan basis, are more interested in the law applying equally to all than in laws only being for the little people. This may be an opening for them to do some actual justice. One can only wish.