Striking a blow for the principle of liberty

A Supreme Court ruling this week that the handing over of a Pakistani national for rendition to the US by Britain was unlawful and potentially constitutes a war crime has widespread implications for both the government and British law.

Yunus Rahmatullah was detained along with another man, Amanatullah Ali, by British forces in Iraq in 2004.

They were subsequently handed over to the US and renditioned to Bagram airbase in Afghanistan where they have been held without charge or trial ever since.

By June 2004 Britain was aware that Rahmatullah and Ali had been removed from Iraq.

Yet on September 9 2004, the then minister for the armed forces Adam Ingram gave a written answer to a parliamentary question in which he stated that "all persons apprehended by the United Kingdom forces in Iraq and transferred to United States forces, and who are still in custody, remain in Iraq."

It was not until February 2009 that then defence secretary John Hutton admitted the two men had been handed over to the US and were in Bagram and that therefore the government had misled the house. However he declined to name the two men.

It was only through laborious investigation that legal action charity Reprieve managed to establish the identity of both men but was forced to sue the government to make it confirm their identities.

Lawyers representing Rahmatullah argue that under a memorandum of understanding (MOU) between the US, Britain and Australia drawn up in 2003 days after the Iraq invasion began, Britain as the detaining power retains responsibility for his well-being under the Geneva Conventions.

Yet the government refused to intervene in the case, claiming that it did not have "control" of Rahmatullah and in any case it would be pointless and politically embarrassing to request his release.

Last year legal action charity Reprieve and Leigh Day solicitors lodged an application for a writ of habeas corpus compelling the British government to request their client's release or show it had made its best efforts to do so.

The High Court rejected their application but they were successful on appeal when the court ordered the government to secure Rahmatullah's release, describing his rendition and detention as constituting a grave breach of the Geneva Conventions.

The government was forced to comply but announced it would challenge the granting of the writ at the Supreme Court.

However in February the Appeal Court judges cancelled the writ after the government said US authorities were not going to "play ball" and that British ministers had "reached the end of the road."

In a damning assessment of the government's failings, Master of the Rolls Lord Neuberger said: "The melancholy truth is that the events since we handed down judgement 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."

Rahmatullah's lawyers accused the government of failing to do all in its power to secure his release and said that this failure constituted a war crime.

As such Reprieve filed an official complaint with the Metropolitan Police against the government.

On Wednesday Reprieve and Leigh Day failed in their bid to have the writ reinstated, but in a hugely significant ruling the Supreme Court panel threw out the government's challenge to the imposition of the writ.

The government had claimed that the courts should not have issued the writ as it infringed on the "forbidden territory" of foreign and diplomatic affairs.

Rejecting the argument, two of the panel, Lady Hale and Lord Carnwath, stated: "Where liberty is at stake, it is not the court's job to speculate as to the political sensitivities which may be in play."

The court also rejected the government's claims that Rahmatullah had not been unlawfully detained.

The justices said there is clear prima facie evidence "that Mr Rahmatullah is unlawfully detained and that the UK government was under an obligation to seek his return unless it could bring about effective measures to correct the breaches of the [Geneva Convention] that his continued detention constituted."

Crucially this adds further weight to the claim that Britain is complicit in war crimes.

In a statement following the judgement, the Leigh Day lawyer representing Rahmatullah Jamie Beagent said: "The writ of habeas corpus now upheld by the Supreme Court failed to secure his release as the US failed to act on the writ and it was subsequently discharged.

"We will be drawing the Supreme Court's findings to the attention of the Metropolitan Police who are currently investigating our client's case in relation to offences under the Geneva Conventions Act 1957.

"We call on the government to engage with the US to bring to an end the ongoing breaches of the Geneva Conventions in our client's case for which they are responsible."

Reprieve director Clive Stafford Smith said: "This powerful Supreme Court decision has huge ramifications. Clearly there will now have to be a full criminal investigation.

"But 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."