ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S DIVISION, DIVISIONAL COURT
Lord Justice Laws and Mr Justice Silber
Claim No CO/4247/2011
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MAURICE KAY,
VICE-PRESIDENT OF THE COURT OF APPEAL (CIVIL DIVISION)
LORD JUSTICE SULLIVAN
| YUNUS RAHMATULLAH
|- and -
|(1) SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS
(2) SECRETARY OF STATE FOR DEFENCE
James Eadie QC and Ben Watson (instructed by the Treasury Solicitor) for the Respondents
Hearing date: 23 November 2011
Crown Copyright ©
The Master of the Rolls :
The factual background in summary
'1. This arrangement will be implemented in accordance with the Geneva Convention Relative to the Treatment of Prisoners of War and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, as well as customary international law.
4. Any prisoners of war, civilian internees, and civilian detainees transferred by a Detaining Power [the UK on the present facts] will be returned by the Accepting Power [the US on the present facts] to the Detaining Power without delay upon request by the Detaining Power
5. The release or repatriation or removal to territories outside Iraq of transferred prisoners of war, civilian internees, and civilian detainees will only be made upon the mutual arrangement of the Detaining Power and the Accepting Power.
6. The Detaining Power will retain full rights of access to any prisoners of war, civilian internees, and civilian detainees transferred from Detaining Power custody while such persons are in the custody of the Accepting Power.
9. The Detaining Power will be solely responsible for the classification under Articles 4 and 5 of the Geneva Convention Relative to the Treatment of Prisoners of War of potential prisoners of war captured by its forces. Prior to such a determination being made, such detainees will be treated as prisoners of war and afforded all rights and protections of the Convention even if transferred to the custody of an Accepting Power.'
'At all times while transferred detainees are in the custody and control of US Forces, they will treat transferred detainees in accordance with applicable principles of international law, including humanitarian law. The transferred detainees will only be interrogated in accordance with US Department of Defense policies and procedures.'
The Geneva Conventions
'Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention. When prisoners of war are transferred under such circumstances, responsibility for the application of the Convention rests on the Power accepting them while they are in its custody.
Nevertheless, if that Power fails to carry out the provisions of the Convention in any important respect, the Power by whom the prisoners of war were transferred shall, upon being notified by the Protecting Power, take effective measures to correct the situation or shall request the return of the prisoners of war. Such requests must be complied with.'
The 'Protecting Power' is and was at all material times the International Committee of the Red Cross ('the Red Cross').
Discussion: the issues before us
The habeas corpus cases on control
Discussion: 'control', subject to the diplomatic issue
Discussion: the diplomatic or foreign relations aspect
Lord Justice Maurice Kay:
Lord Justice Sullivan: