British troops handed a Pakistani man to US forces in “questionable circumstances” after the invasion of Iraq and appear, in the words of one of the UK’s most senior judges, to have “sold the pass” in other words, lost the possibility of influence, with regard to his future.
The appeal court in December ruled that Yunus Rahmatullah, 29, is being unlawfully detained in the notorious US jail at Bagram in Afghanistan. It ordered a writ of habeas corpus to be issued so he could be freed.
Rahmatullah was handed over by the SAS to American forces in Iraq in 2004, from where he was taken to Bagram. He has been there ever since.
However, the appeal court ruled on Thursday that it had no power, after all, to order the man’s release. “The melancholy truth is that the events since we handed down judgment appear to establish that when the UK defence forces handed over Rahmatullah to the US authorities in questionable circumstances in 2004 they most unfortunately appear to have sold the pass with regard to their ability to protect him in the future,” said Lord Neuberger, master of the rolls and the second most senior judge in England and Wales.
He said that the argument made by a senior Ministry of Defence official, Damian Parmenter, to the court that granting a writ for habeas corpus would be a “futile course of action” now “turns out to have been right”.
In response to the court’s December ruling, the US recently told the British government that Rahmatullah was, in Washington’s view, “properly detained by the United States consistent with the international law of armed conflict”.
Neuberger ruled on Thursday that the court could not reach “beyond its jurisdiction and that jurisdiction does not extend to the US military authorities in Afghanistan.” Lord Justice Maurice Kay and Lord Justice
Sullivan agreed.
The courts could not force the US to hand over or release prisoners despite “memorandums of understanding” Britain had agreed over the treatment of detainees, the judges made clear. This is despite their specific reference to the rights of prisoners of war and detained civilians enshrined in the Geneva conventions and international humanitarian law.
The claim against the government for habeas corpus – the ancient British legal right to be geither charged or released — was brought by legal charity Reprieve and solicitors Leigh Day. Reprieve director Clive Stafford Smith said: “Translated into plain English, what the judges are saying is that Britain committed what seems plainly to be a crime in 2004, but has now given up the power to release the victims from illegal detention”.
