Case Preview: Rahmatullah v MoD and FCO

Nabbed by British forces in Iraq – where he was seeking work – in 2004 only to be handed over to the Americans and rendered to Bagram Airbase, Yunus Rahmatullah, a Pakistani national who grew up in the Gulf, was detained for a decade without charge until his release on 17 June 2014. He now lives in Quetta, once an idyllic colonial town that gained strategic importance during the Afghan war and thereafter quickly morphed into a hotbed of Islamic extremism. He is claiming damages in tort and under the Human Rights Act 1998 from the Ministry of Defence (MoD) and the Foreign and Commonwealth Office (FCO). In Rahmatullah (Respondent) v Ministry of Defence and another (Appellants) UKSC 2015/0002, the issue for Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson and Lord Sumption is whether Rahmatullah’s claims in tort against the appellants in respect of alleged acts or omissions of US personnel while he was in US custody in Iraq and/or Afghanistan are barred by operation of either the foreign act of state doctrine or doctrine of state immunity. The justices heard the appeal in the second week of November 2015.

The MoD and the FCO appealed Leggatt J’s judgment, reported at [2014] EWHC 3846 (QB), and a raft of related litigation has entered the apex court. Together with Belhaj v Straw, the Supreme Court’s justices wrestled with the hard issues thrown up by this case for almost four days (9-12 November 2015). “Yunus Rahmatullah has been through 10 years of unimaginable horror. Now that he has finally been able to speak freely to his lawyers, there is no longer any doubt that the British government bears responsibility for his torture and illegal rendition to Bagram,” explains Kat Craig, legal director at Reprieve. Conversely, US authorities considered Rahmatullah to be a member of the al-Qaida affiliate Lashkar-e-Taiba and contended he travelled from Pakistan to Iraq “for the express purpose of engaging United States and coalition forces in hostilities”. Indeed, as the government was at pains to point out at the opening of the hearing, Rahmatullah was in the custody of UK forces “very very briefly for less than a day and was then transferred into US detention.”

Background

More than 1.5 million Pakistanis send remittances home from Saudi Arabia and another 1.5 million do the same from the Gulf StatesRahmatullah was like one of these migrants who had instead gone to the newly “liberated” post-Saddam Iraq for work only to be damned. Speaking of which, in move to protect the honour and dignity of the British armed forces, David Cameron has damned members of the legal profession by declaring war on “witch-hunt lawyers” and has promised to bring an end to “brave British soldiers” being brought to justice for their misconduct. Leigh Day, the firm which represents Rahmatullah in the instant proceedings, has been referred to the Solicitors Disciplinary Tribunal and it is reported that in the event the tribunal finds against the firm:

Michael Fallon will be tasked with seeking to recover as much of the £31 million of taxpayers’ money spent on the Al-Sweady inquiry as possible, including the millions pocketed by Leigh Day.

In a heated environment where nationalism is gripping the British masses, daily columns are written to celebrate the armed forces and to excoriate “ambulance-chasing lawyers” who are accused of making a mockery of human rights law and the civil justice system by tormenting upright soldiers who were just “doing their jobs”.

Hundreds of claims have been brought in tort and under the Human Rights Act by Iraqi civilians against the MoD (known as the Iraqi Civilian Litigation) owing to the illegal invasion of Iraq which was justified at the time on the basis of lies told in Parliament about Saddam’s weapons of mass destruction, and of course no such weapons were found. Indeed, some of these claims have been brought by civilians detained in Iraq by HM armed forces who were transferred to US custody and allege that whilst in US custody in Iraq they were subjected to torture or inhuman and degrading treatment. (Saddam may have been a brutal dictator but his Iraq was more secular, more progressive and less sectarian in comparison to the present apocalypse.)

Because the preliminary issues thrown up by Yunus Rahmatullah’s claim were identical to issues that were raised in the Iraqi Civilian Litigation in relation to persons who had been arrested by HM armed forces and transferred to US custody, it was decided that three test cases would be heard at the same time on those preliminary issues. These claimants had been anonymised as XYZ, ZMS and HTF and were referred to as the Iraqi civilian claimants.

Of course, the final solution for the Tory leadership, which even accuses Labour leaders of receiving illicit kickbacks from Leigh Day out of this and related litigation, is to end the “farce” of the Human Rights Act because Hounding brave soldiers is wrong. (Over the past two years the Iraq Historic Allegations Team has investigated 280 former soldiers.) Yet Rahmatullah claimed that he was blindfolded by valiant British soldiers, punched and kicked, and hit with rifle butts. He also said that he was tied to a moving vehicle and dragged across the ground, waterboarded, and beaten unconscious.

Proceedings Below

In a long and complicated judgment, Rahmatullah v MoD [2014] EWHC 3846 (QB) one that is definitely not for the fainthearted, Leggatt J made wide-ranging findings and the overall gist of his rationale may be summarised as follows. Addressing preliminary issues for damages in tort concerning his arrest, detention and ill-treatment in Afghanistan by British and US officials, Leggatt J examined in-depth the doctrines of state immunity, foreign act of state and Crown act of state. The court held that the state immunity, foreign act of state did not operate to bar the claims and Crown act of state would bar a claim relating to the claimant’s arrest and detention in the event it could be proved that the UK had operated lawful policy.

Leggatt J held that damages could be recovered in tort under the laws of the state where the wrongful acts occurred. But he also found that arguments based on the doctrines of state immunity and foreign acts of state involved claims of UK complicity, which raised the question whether a party could be liable in tort for another’s acts. According to Leggatt J, the facts were unlikely to satisfy the English law principle of common design, and there was no evidence that Iraqi or Afghan law had adopted that doctrine.

Reasoning

For the purposes of the preliminary issues, the court found it sufficient to assume that the cases were dependent on proving knowing participation or assistance by UK officials. Holding that the claims were not barred by the doctrine of state immunity, the court took the view the defendants failed in their assertion that allegations of the UK’s complicity in torts committed in the US “indirectly impleaded” the US because they impugned acts of its officials and adversely affected its interests. As Leggatt J held:

63. … The defendants are not agents of the US but of a different sovereign state, the UK. It is therefore nothing to the point that the immunity of the US would apply to an action brought against any of its own officials.

It was clear to the court from the line of authority cited that the concept of indirect impleading was limited to proceedings relating to property and in light of the case of Jones v Saudi Arabia [2007] UKHL 26 there was nothing to justify a wider application of the doctrine. The court further found that the principles of state immunity recognised in public international law did not support an interpretation of the State Immunity Act 1978 that granted immunity to the defendants and applying the case of Holland v Lampen-Wolfe [2000] UKHL 40 any grant of immunity by the UK would be a self-imposed restriction on access to its courts requiring justification under article 6 ECHR.

The court followed Khaira v Shergill [2014] UKSC and considered many other cases such as Underhill v Hernandez 168 US 250, Oetjen v Central Leather Co, Kuwait Airways Corp v Iraqi Airways Co (No 6) [2002] UKHL 19, Yukos Capital Sarl v OJSC Rosneft Oil Co [2012] EWCA Civ 855 and R (Noor Khan) v Secretary of State for Foreign and Commonwealth Affairs [2014] EWCA Civ 24. As far as Leggatt J could see, neither the doctrine of foreign act of state nor the principle of judicial abstention recognised in Buttes Gas & Oil Co v Hammer (No 3) [1982] AC 888 could bar the claims brought against the defendants. Although the claims turned on private legal rights and were subject to judicial scrutiny, in light of R (Campaign for Nuclear Disarmament) v Prime Minister [2002] EWHC 2777 (Admin) the English courts needed to exercise caution when considering allegations of unlawful acts. Moreover the claims were not rendered unsuitable for judicial determination because the defendants faced practical difficulties in disputing the claimants’ accounts and applying Belhaj v Straw [2014] EWCA Civ 1394, proceedings would not infringe the sovereign equality of states, or the concept of comity, or cause political embarrassment in foreign relations.

As Leggatt J said:

177. The judgment which has now been given by the Court of Appeal in the Belhaj case supports, and indeed compels, the result that I have reached.

178. What is critical is that the decision of the Court of Appeal in the Belhaj case confirms my conclusion that none of the claims is barred by the foreign act of state doctrine.

Leggatt J recalled that he himself considered the nature and scope of the Crown act of state doctrine in Serdar Mohammed v MoD [2014] EWHC 1369 (QB) – which the court applied – where it was alleged that Serdar Mohammed’s detention by British forces in Afghanistan for a period of 110 days was unlawful. Notably, that aspect of this winding litigation is to be heard next month as UKSC 2015/0218 together with the case of Al-Waheed (Appellant) v MoD (Respondent) UKSC 2014/0219, on appeal from [2014] EWHC 2714 (QB). In Serdar Mohammed, Leggatt J noted it was common ground that Afghan law governed the claim in tort. The court found that his detention after 72 hours was a civil wrong for which he was entitled to compensation. However, it was held that his claim to enforce that right in England was barred by the Crown act of state doctrine.

The Court of Appeal partially reversed Legatt J’s ruling in Mohammed & Ors v Secretary of State for Defence [2015] EWCA Civ 843, proceedings where Lord Thomas LCJ, Lloyd Jones and Beatson LJJ dealt with appeals arising out of the [2014] EWHC 1369 (QB) and [2014] EWHC 3846 (QB) proceedings. For example, their Lordships disagreed with the judge that an insurgent ceases to be an imminent threat after he has been detained. They also disagreed that that the terms of UN Security Council Resolution 1890 (2009) precluded detention for a greater period than 96 hours.

Leggatt J found that modern authority on the doctrine of Crown act of state was sparse and he therefore examined it in-depth, especially its relationship with the rule of justiciability. The court considered many cases including Attorney General v Nissan [1970] AC 179, Al-Jedda v Secretary of State for Defence [2010] EWCA Civ 758 and R (Al-Jedda) v Secretary of State for Defence [2007] UKHL 58. Leggatt J ultimately thought that the proposition that Crown act of state was distinct from principles of justiciability was sound. He held that section 2(1) of the Crown Proceedings Act 1947 had not abolished the defence which was compatible with article 6 ECHR because it served the legitimate aim of protecting the nation’s interests abroad. Therefore, the court held that if the UK could prove that its actions complied with lawful policy, a claim in tort relating to the arrest and detention of Rahmatullah and Amanullah Ali (the Pakistani co-claimant) by the UK armed forces would be barred by the doctrine of Crown act of state.

Comment

As noted, the British handed Rahmatullah over to the Americans who secretly took him to Afghanistan. Court documents say his whole body, including his eyes and mouth, were “taped tightly with duct tape” and that he was locked in solitary confinement with rats and cockroaches. Like others detained in Bagram, he was deprived of daylight for years and years. Gandhi-style hunger strikes to resist his ordeal led to him being painfully force-fed half-a-dozen times. “Yunus was robbed of 10 years in the prime of his life; a time when he wanted to find a career, choose a partner and build a family,” explained Kat Craig as she invited the government to “come clean” about the degree of British-American cooperation of this sinister nature.

In Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah [2012] UKSC 48 (31 October 2012), proceedings which originated as an application for the writ of habeas corpus, initially refused at [2011] EWHC 2008 (Admin) but granted at [2011] EWCA Civ 1540, despite dismissing Rahmatullah’s cross-appeal (against the finding the the response by the US was sufficient to demonstrate that the UK could not secure his release) by a majority of 5-2 the UK Supreme Court held:

36. The, presumably forcible, transfer of Mr Rahmatullah from Iraq to Afghanistan is, at least prima facie, a breach of article 49 [of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, article 49 deals with deportations, transfers, evacuations]. On that account alone, his continued detention post-transfer is unlawful.

However, in a joint dissenting judgment Lady Hale and Lord Carnwath were convinced that “where liberty is at stake, it is not the court’s job to speculate as to the political sensitivities which may be in play” (see here and here). Amid strong suggestions that Rahmatullah’s rendition had been a war crime, influential legal commentator Joshua Rozenberg strongly agreed with the dissenting justices and stressed the need for the UK to have tried harder to secure Yunus Rahmatullah’s release.

“The result of the appeal will have satisfied neither side; both sides losing their appeal and cross-appeal,” is how Sam Knights summed up the outcome of those historic proceedings.

Ultimately, it would also make more sense for the west to make more of a fuss over the fact that the persecution of minorities and radicalisation of Muslims is directly fuelled/funded by Saudi Arabia all over the world, a cruel and disgraceful western client which mass executes people without due process but is nevertheless applauded by the likes of David Cameron, Michael Fallon and Philip Hammond as the leader of “our allies” fighting to restore peace and security to the Middle East. Veteran journalist Ian Black notes in his recent Saudi Arabian trilogy that team leader Riyadh is spending US$6 billion a month on its war in Yemen, using British supplied military hardware, against Iranian backed Shia Houthis and the MoD’s Strategic Defence and Security Review 2015 ranks the Saudis as having incurred the world’s third largest defence expenditure in 2014 ($80 billion) after the Americans and Chinese.

Of course the Saudis consider Yemen to be their “backyard” and dismiss claims of civilian deaths in airstrikes, spearheaded by their air force, as “hearsay”. However, a UN panel has found otherwise and it is reported that British arms sales to Saudi Arabia totalled £3 billion in the first nine months of 2015 and £7 billion since Cameron entered 10 Downing Street.

About mkp

Advocate High Courts of Pakistan
This entry was posted in Article 6, ECHR, FCO, Human Rights Act, Iraq, Muslims, Pakistan, Politics, Terrorism, UKSC and tagged , , , , , , . Bookmark the permalink.

One Response to Case Preview: Rahmatullah v MoD and FCO

  1. mkp says:

    https://www.leighday.co.uk/News/News-2016/January-2016/Letter-before-action-sent-as-threat-of-legal-actio

    Letter before action sent as threat of legal action over arms export licences to Saudi Arabia increases

    Judicial review launched over Government’s decision to export arms to Saudi Arabia

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