A UK supreme court ruling on the unlawful detention of Yunus Rahmatullah exposes the weakness of the courts in the face of US human rights abuses

A number of things done routinely by the US Government, its law-enforcement agencies, its law courts and its armies lie outside international law and international norms.

That ought to be causing the US great difficulties in the world’s court rooms. Instead, judges around the world are working hard to incorporate US exceptionalism into their own legal systems. Sometimes their deference to the US is blatant; sometimes it is so subtle and intricate as to pass unnoticed. Either way, their decisions are replacing the rule of law by a pretty mask. Beneath the mask, justice rots.

No other country uses solitary confinement as massively and intensely as the US. Many human rights experts believe that Supermax prisons violate Article 5 of the Universal Declaration of Human Rights and the equivalent Article 3 of the European Convention on Human Rights.

The decision by the European Court of Human Rights in April 2012 to allow Babar Ahmad, Talha Ahsan and others to be extradited to solitary confinement in the US has insulated the US government from the international consequences of its abusive habits. But the judges stopped short, by a hairsbreadth, of giving their definitive approval to Supermax imprisonment.

They did this by drawing attention, in their judgment, to an odd but established strand of European human rights case-law. This means, they said, that:

“treatment which might violate Article 3 [of the European Convention on Human Rights] because of an act or omission of a Contracting State might not attain the minimum level of severity which is required for there to be a violation of Article 3 in an expulsion or extradition case.”

They do not say whether or not the bottom line of their judgment depends on this point. They just say that, in these extradition cases, “there would be no violation of Article 3 of the Convention as a result of conditions at ADX Florence” (ADX Florence is the US Federal Supermax prison where the appellants would be likely to be jailed if convicted).

If France, or Denmark or Poland were to build a replica of ADX Florence on their own soil and adopt US sentencing policies, would they be acting legally? No one knows. The judges didn’t address that question.

In other words, they have deferred to the US while preserving a little room for manoeuvre on the wider questions raised by their docility.

Judges on the eastern side of the Atlantic aren’t always so cautious about their respect for the US. When Babar Ahmad and Talha Ahsan asked the High Court of England and Wales to allow a judicial review of British prosecutors refusal to bring charges against them (prosecutors preferred to allow the men to be extradited to the US), judges said that it was “unreal” to expect the US to provide the necessary evidence, even though most of it had been obtained by the British police in the first place. Realism about US intentions was allowed to trump what many people – including MPs who debated the matter in December 2011 – saw as the requirements of natural justice.

More recently (31 October 2012), Britain’s Supreme Court delivered its judgment on the attempt by lawyers representing Yusuf Rahmatullah – a Pakistani man detained without charge at Bagram by the US – to push Britain into trying to secure his release. The Supreme Court judgment dealt with two issues at the same time. The first issue was an appeal by the Foreign Office asking the court to overturn an earlier decision by the Appeal Court to issue a habeas corpus writ for Yusuf Rahmatullah. The second issue was an appeal on behalf of Yusuf Rahmatullah asking the Supreme Court to rule that Foreign Office response to the writ – it had asked for his release without success – had been inadequate.

Habeas Corpus is a long-established mechanism allowing a court to insist that the authorities release a prisoner unless they can show legal grounds for the prisoner’s continued detention. Its application depends on whether the person served with writ – Britain’s Foreign Secretary, in this case – has control of the prisoner.

The Supreme Court judges upheld the habeas corpus writ for Yusuf Rahmatullah, but also upheld, by a 5:2 majority, an earlier ruling that the Foreign Secretary’s unsuccessful attempt to secure Yusuf Rahmatullah’s release was a sufficient response to the writ. In other words, they upheld the power and breadth of the legal principle of habeas corpus, upheld the power and power of the judiciary, and upheld the right of British Government to take cover when asked to challenge US law-breaking.

Yusuf Rahmatullah was taken into custody by British forces in Iraq in February 2004. He was then handed over to US forces, and subsequently rendered by them to the US base in Bagram, Afghanistan. The US says that he was a member of Lashkar-e-Taiba, regarded as an al Qaida affiliate. It has presented no evidence to support this claim, has brought no charges against him and in 2010 cleared him for release “under appropriate circumstances.”

The British government’s difficulty is that the US has unilaterally decided that the Geneva Conventions do not apply to al Qaida combatants. Britain, in common with most countries, recognises the Geneva Conventions as applicable to all combatants. Additionally, if Yusuf Rahmatullah were not a combatant, he would in any case be entitled to the protection of the Geneva Conventions.

Britain was therefore obliged to treat Yusuf Rahmatullah in accord with the Geneva Conventions while he was in British custody. Just as importantly, it was not allowed to aid or abet a breach of Geneva Conventions by anyone else, or to transfer Yusuf Rahmatullah to anyone not bound by the Geneva Conventions and willing to respect them. To do any of these things would be a “grave breach” of the conventions – a war crime.

In anticipation of this difficulty, Britain had agreed a Memorandum of Understanding (MoU) with the US in 2003, just after the outbreak of the Iraq war. The MoU required a power (the US, in this case) that has accepted the transfer of a prisoner to return the prisoner “without delay” if asked to do so by the “detaining power” (the UK in this case). It placed no qualifications or conditions on that requirement. It obliged the detaining power to make such a request, or to take other effective measures, if the accepting power failed to abide by the Geneva Conventions. It stipulated that a prisoner could only be transferred out of Iraq if both the detaining and accepting powers agreed to the transfer.

The MoU was essential for any joint operations by British and US forces in Iraq, It made it possible for British forces to work alongside US forces – war criminals on every interpretation but the US one – without exposing themselves to war crimes charges.

The circumstances of Yusuf Rahmatullah’s detention were unusual. British Special Forces hunting people down in Iraq were usually accompanied by at least one US soldier. Prisoners passed immediately into the custody of the US representative – a legal fiction intended to allow British forces to evade their obligations under the Geneva Conventions. When Ben Griffin, a former officer in Britain’s SAS, attempted to speak publicly about SAS involvement in the abuse of prisoners by the joint US/UK Task Force, he was silenced by a court order.

Yusuf Rahmatullah’s detention remained secret for many years. He was identified by legal charity Reprieve, which then applied to the High Court for a habeas corpus writ. A writ was ultimately issued by the Court of Appeal in December 2011.

The British and US Governments responded to the writ with a charade. Britain wrote to the US to request Yusuf Rahmatullah’s return. It made no reference to the MoU.

The US replied by setting out the basis, in US law, for Yusuf Rahmatullah’s detention at Bagram. It did not refer to the Geneva Conventions. It did not explain that prisoners at Bagram have routinely been subjected to extreme ill-treatment. It explained US procedures for the release of prisoners from Bagram. It said that Pakistan had already requested his repatriation and that “it may be more appropriate to discuss the conditions of transfer directly with the Government of Pakistan .” It did not deny that Britain was entitled to require Yusuf Rahmatullah’s return under the terms of the 2003 MoU, or indeed make any reference at all to the MoU.

It said: “I look forward to discussing this matter further with you.”

The Foreign Office asserted that the measured language of the US letter and the offer of further discussion was the diplomatic equivalent of a flat refusal, and that it had therefore done all it could to obtain Yusuf Rahmatullah’s release. The Appeal Court accepted their assessment, prompting Yusuf Rahmatullah’s lawyers to take the case to Britain’s Supreme Court.

Five of the seven Supreme Court judges accepted that the Foreign Office had done all that it needed to do in response to the habeas corpus writ. It’s hard to see what reasoning – apart from political expediency – could have led them to that conclusion. The two dissenting judges, Lord Carnwath and Lady Hale, said bluntly:

“We do not understand either why the US government should have had any diplomatic problem in expressing its position clearly, or still less why the court should acquiesce in that position.”

They also remarked 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.”

The timidity of the judicial majority has protected the UK and the US from these difficulties, but has created other problems instead.

The ruling seems to mean that the US response to Britain’s request for the release of Yusuf Rahmatullah amounted to a refusal to honour the 2003 MoU. On any view, the combined effect of the US response, the British reaction to it and the Supreme Court ruling means that the MoU is dead in the water and cannot be relied upon by courts.

The 2003 MoU was an agreement of exceptional importance, crucial for cooperation between British and US forces in the Iraq war and the subsequent operation. If it can be ignored, what can’t be ignored? What about other MoUs that the British and US governments have agreed?

Extraditions from Britain to the US can only proceed on the understanding that US prosecutors will not seek the death penalty – a human rights violation in the eyes of Britain and other European countries. The recent extraditions of Babar Ahmad, Talha Ahsan, Abu Hamza, Adel Abdel Bary and Khaled al-Fawwaz required additional assurances that they would not be sent to Guantánamo Bay, in violation of international law as understood by almost every country except the USA.

Clive Stafford Smith, Legal Director of Reprieve, asks on the Guardian’s Comment is Free:

“Can Britain trust the US to honour its promise to comport with human rights law, and not apply the death penalty to prisoners sent there for trial? Will the five Muslim prisoners who were extradited four weeks ago end up in an execution chamber, notwithstanding US assurances to the contrary? Perhaps Richard O’Dwyer will end up in a Guantánamo cell for conspiracy to commit copyright infringement?”

If British and European judges wish to continue their policy of appeasement toward the US, they will need to use all of their legal creativity next time an extradition case comes before them.

And what of the more immediate questions?

The Supreme Court judgment relieves the Foreign Office of any further obligations to Yusuf Rahmatullah in relation to the habeas corpus writ. But it makes it quite clear that the British authorities committed war crimes in their earlier dealings with him. His lawyers say they have drawn this to the attention of the Metropolitan Police, who are investigating the case in relation to offences under the Geneva Conventions Act 1957.

There is nothing to prevent the Foreign Office continuing to press the US for the return of Yusuf Rahmatullah to British custody under the terms of the 2003 MoU. And there is nothing to prevent Britain from pressing the US to comply with its obligations under international law towards Yusuf Rahmatullah and other prisoners. But of course the Foreign Office won’t do any of this unless driven to do so by public outrage.

The fate of Yusuf Rahmatullah also raises immediate concerns for Babar Ahmad, Talha Ahsan and the other three prisoners extradited with them.

What if the pre-trial restrictions place on them turn out not to be determined by due process, despite the picture presented to the European Court of Human Rights? What if conditions in ADX Florence prison – where they are likely to be sent if eventually convicted – turn out to be even more cruel than the picture that the European Court was persuaded to accept? Is there any chance at all that the British government will then make effective representations on behalf of the men?

Meanwhile, Yusuf Rahmatullah remains in Bagram, going mad. Detained at the pleasure of the powerful, his predicament is a medieval one. But perhaps it is worse than that. The medieval remedy, habeas corpus, has failed him.

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