High Court Judge Rules UK Government Not Entitled to Immunity from Claims Brought by Torture & Rendition Victim
A high court judge in the United Kingdom has ruled that a Pakistani detained by British forces in Iraq in February 2004 may proceed with claims against the UK government related to his rendition, torture and detention.
Yunus Rahmatullah, a Pakistani, is not barred by the doctrine of state immunity or the doctrine of foreign act of state, Justice George Leggatt ruled. The government had argued that the foreign act of state doctrine precluded an English court “from making findings that agents of a friendly foreign state”—the United States—had “committed acts which were unlawful.”
The same decision also cleared the way for three Iraqi civilians to bring claims against the UK government as well.
When Rahmatullah was captured, according to the human rights organization, Reprieve, which is representing him, he was “beaten unconscious by British special forces in Iraq.” Soldiers stripped him naked and one soldier poured water on his face after placing a cloth on his mouth and nose, which created a “sensation of drowning.”
The Guardian further reported that Rahmatullah was “shackled and hooded and lapsed in and out of consciousness as he was beaten and thrown against a wall.” He was also “suspended upside down and ‘repeatedly dunked into a tank of water.'”
At one point, he was taken to a room “where he was horrified to see six or seven naked detainees piled on top of each other”, according to the court statement. He was thrown on top of the detainees and kept in the room for more than two days.
Rahmatullah was transferred into the custody of US forces and taken to Bagram Airbase in Afghanistan before March 2004 was over. There Rahmatullah was imprisoned for 10 years without charge or trial and allegedly subjected to “torture” and other abuse.
Altogether, he claims he endured “severe assaults, incommunicado detention, exposure to extremes of temperature and sound, tear gas and long periods of darkness, being placed in a tiny ‘air lock’ cell, being kept naked with other detainees, being beaten on the soles of his feet with rubber flex, and being immersed upside down into tanks of water.”
In May 2014, Rahmatullah was transferred from Bagram Air Base to Pakistan. He was released from custody in Pakistan a couple months later on June 17.
The main basis of Rahmatullah’s case against the UK government is that the UK had a Memorandum of Understanding (MOU) with the US established days after the invasion of Iraq on March 25, 2003. It set parameters for the transfer of prisoners of war, civilian internees and civilian detainees between armed forces.
“Any prisoners of war, civilian internees and civilian detainees transferred by a detaining power will be returned by the accepting power to the detaining power without delay upon request by the detaining power,” according to the MOU.
The judge’s decision indicates, “When a request to return Mr. Rahmatullah was made to the US authorities, they did not return him to the UK, and in these circumstances no further order was made on the writ of habeas corpus.” A Court of Appeal and the Supreme Court made no further order to force compliance with the MOU.
Remarkably, part of what influenced the judge’s decision was that even if the UK government was entitled to state immunity from Rahmatullah’s claims it would mean that there would be nowhere for Rahmatullah to go to make his claims that his rights were violated.
As Leggatt explains:
…Where state immunity applies, the aim is not, in principle at least, to prevent a claim from being made at all, but is to allocate the claim to the jurisdiction of another state. The claims against UK officials based on their alleged complicity in wrongdoing, however, could not be brought in the US (or in any other foreign state), as the claims would there be barred by the state immunity of the UK. If immunity were afforded to these claims in the UK, therefore, the result would be that there is no state in the world with jurisdiction over the claims. It does not seem to me that a restriction which had that result could be regarded as proportionate…
Sapna Malik, who is a partner at Leigh Day and assisting Rahmatullah, reacted, “The High Court has rightly stated that it would be failing in its duty if it refused to adjudicate upon the allegations made in these claims just because it may be required to make findings about the conduct of US personnel. It is now high time for the British government to abandon its attempts to evade judicial scrutiny of its conduct in operations involving the US in Iraq and Afghanistan, so that justice may finally be served for what has passed and lessons learned for the future.”
“Yunus Rahmatullah suffered some of the most shocking abuses of the ‘war on terror’ – now we know the government’s attempt to avoid accountability for his ordeal is without merit. The fact is that victims of British rendition and torture, like Yunus, deserve their day in court – the government must accept this, and be prepared to answer for its past actions,” Reprieve legal director Kat Craig stated.
Rahmatullah still has to prove that UK officials were “complicit in unlawful detention and ill treatment” committed by agents of the US. However, the important outcome of the decision is that it clearly shows that victims of torture and rendition are entitled to have a judge hear their allegations in a court of law without being silenced by the government.
Photo from Reprieve