Detention: Non-Guantanamo Habeas Litigation

The Rahmatullah Saga Goes On

By Sean Mirski
Saturday, November 29, 2014, 8:56 AM

Last week, a British court allowed civil tort claims against the British government to proceed. In Rahmatullah v. Ministry of Defence, the High Court (Queen’s Bench Division) held that a former Pakistani detainee—captured by the United Kingdom but then transferred to American custody—was not barred from suing by either the state immunity or the foreign act of state doctrines. While this decision represents only the latest twist in an ongoing litigation battle between Rahmatullah and the United Kingdom, it removes a significant obstacle to Rahmatullah’s claims and promises to have wider consequences.

The Rahmatullah Saga

Readers might remember Rahmatullah’s saga, but for those who don’t, here’s the Cliffnotes version. In February 2004, Yunus Rahmatullah was detained by British forces in Iraq. Shortly thereafter, he was transferred to American custody, and he wound up in Bagram Airbase in Afghanistan by the end of the following month. He was detained for the next ten years, and alleges that he suffered numerous forms of torture during the course of his imprisonment.

While still being held in Bagram, Rahmatullah filed a writ of habeas corpus through a relative in May 2011. But rather than seek relief in American courts, Rahmatullah filed in the British court system---even though the United Kingdom had not been involved in his detention for seven years. While his application was initially rejected, the Court of Appeal (Civil Division) eventually allowed Rahmatullah to pursue his habeas application against the Secretary of States for Defence and for Foreign and Commonwealth Affairs. The Court issued a writ compelling Her Majesty’s Government to try to recover Rahmatullah from the United States pursuant to a memorandum of understanding that allowed a detaining power (in this case, the United Kingdom) to take back custody of a detainee from the “accepting power” (the United States).

However, Washington did not take kindly to the request---which, in any case, London was not making with any real enthusiasm, but only on pain of being held in contempt---and the United States refused to hand Rahmatullah back to the United Kingdom so that he could be freed. Instead, in a bit of what Ben described as “Kabuki” theater, the United States made clear that “it may be more appropriate to discuss the conditions of transfer directly with the Government of Pakistan.” Hat in hand, the British government returned to the courts and stated that it had tried its best; the British courts agreed, and that seemed to be the end of the matter.

The Latest Bout of Litigation

But Rahmatullah wasn’t done yet. On June 17, 2014, he was freed in Pakistan, and he has continued pursuing a civil suit against the Ministry of Defence and the Foreign and Commonwealth Office since then. He asserts two sets of claims, one under tort law and one under the Human Rights Act of 1998. In response, the government tried to argue that the High Court lacked jurisdiction over the tort claims thanks to the doctrines of (1) state immunity; (2) foreign act of state; or (3) Crown act of state.

On November 19, 2014, the High Court sided with Rahmatullah with respect to the first two issues. As to the state immunity defense, the High Court acknowledged that the United States is immune from the jurisdiction of British courts under the State Immunity Act of 1978. But in this case, Rahmatullah is suing the British government---not a foreign sovereign---and so the government argued that insofar “as the claims against [it] in tort require proof of unlawful acts allegedly committed by agents of the US, the immunity of the US from the jurisdiction of the English courts also applies to these proceedings.” The High Court did not buy this argument, and it held that the government had not overcome a “short and simple objection”: “It is not at first sight obvious how an immunity conferred on a foreign state can render the UK government immune from the jurisdiction of the English courts in relation to claims seeking compensation for alleged wrongdoing of UK officials, particularly when the 1978 Act expressly provides that the states to which it applies exclude the United Kingdom.”

Next, the High Court struggled with the foreign act of state defense. It tried to disentangle three possible versions of the defense: one in which the defense overlaps completely with the state immunity doctrine; one in which British courts have to assume the validity of foreign laws---and possibly acts---insofar as they have effect in that sovereign’s territory; and one in which British courts cannot adjudicate “the lawfulness, validity, effectiveness or wrongfulness of a foreign state’s acts.” However, without deciding between them, the High Court was not persuaded by any of these three accounts. It had already dealt with the first foreign-act-of-state-as-immunity defense, and it also rejected the second because the laws of the United States were not at issue. Instead, “the contention is that the English courts should not judge whether acts done by agents of the US on the territory of third party states were lawful under the laws of those states,” and the foreign act of state defense had no applicability to that question. Finally, with respect to the third account, the High Court found that it prescribed a rule of abstention that did not apply in this case: instead, “the court can and indeed must decide whether agents of a foreign state acted unlawfully when to do so is within the court's competence and necessary as a preliminary to the determination of the claimant’s domestic legal rights.”

Finally, the High Court accepted the government’s Crown act of state defense with respect to certain tort claims. It concluded that “if the defendant shows that the arrest and detention of the claimant by UK armed forces was authorised pursuant to a lawful policy of the defendant, then any claim in tort in respect of such arrest and detention will be barred by the doctrine of Crown act of state.” Similarly, if the government could show that its transfers of detainees into American custody were authorized by a policy, then the government could preclude those tort claims as well. But Rahmatullah has brought a number of other tort claims, so this victory is likely to provide only partial comfort to the British government.


Compared to even a month ago, the British government’s chances of success have shrunk considerably. In the first instance, the High Court is unlikely to be overruled by the Court of Appeal: as it so happens, Rahmatullah was arguing these issues at the same time that similar legal issues was pending before the Court of Appeal in Belhaj v. Straw, and like Rahmatullah, the Belhaj Court found in favor of the claimant on the state immunity and foreign act of state defenses. (Belhaj did not implicate a Crown act of state defense.) Just Security has a quick summary here.

But while the government has lost at two levels of the British judicial system, the battle is not over yet: the defendants have indicated that they intend to appeal all the way to the Supreme Court if they can.

It will be worth keeping an eye on the case as it proceeds, in no small part because it may be a harbinger of litigation to come. In deciding these issues in Rahmatullah’s case, the High Court was also deciding the same issues for three “test cases” brought on behalf of a number of Iraqi citizens who claim that they too were detained by the United Kingdom and then transferred to American custody. If Rahmatullah and his fellow claimants prevail, they will likely usher in a wave of similar civil suits against Her Majesty’s Government.