Better than the Charter? The Great Writ is Great Again in the War on Terror

Since at least the advent of the Charter, the venerable writ of habeas corpus has been an afterthought in Canadian law.  Not so in other jurisdictions.  Because of differences in its legal system, habeas corpus animates the US jurisprudence concerning detentions at Guantanamo Bay.  It also figures centrally in the UK Supreme Court’s October decision in Secretary of State for Foreign and Commonwealth Affairs and another (Appellants) v Yunus Rahmatullah.  At issue in that case was the UK government’s obligations to a Pakistani man initially detained by UK armed forces in Iraq, transferred to the United States and then removed to Bagram airbase in Afghanistan.

It is true that the outcome in Rahmatullah will not produce the release of the detained respondent.  However, the majority’s construal of Great Writ makes it mightier vis-a-vis foreign held detainees than any equivalent constitutional remedy issued to date under Canada’s Charter.

The UK Supreme Court Decision in Rahmattullah

The UK Supreme Court’s decision is notable for two reasons.  First, it is one of those rare domestic cases addressing an important point of international humanitarian law.  Second, it is important for its discussion of the habeas corpus issue.

The Status of Prisoner Transfer Memoranda of Understanding

Being a Pakistani national, the respondent was not a national of any belligerent in the 2003 Iraq War.  He was detained by UK forces in Iraq, and then transferred to the United States pursuant to a memorandum of understanding (MOU) on such transfers.  The court held that this 2003 MOU was engineered by the British expressly to guarantee US compliance with international humanitarian law in the treatment of transferred detainees. 

This guarantee was required not least because of the controversies provoked by the Bush administration on the applicability of the Geneva Conventions to so-called “unlawful enemy combatants”.  If the UK could not guarantee treatment of transferees consistent with the applicable Geneva Conventions (GC), the transfer of detainees to the United States could place it in non-compliance with the UK’s own IHL obligations.

Thus, the MOU codified GC III and IV obligations, such as the power of the transferring state to demand the return of the transferee.  It also limited the removal of transferred detainees from Iraq without consent of the transferring state (in this case the UK).

While the MOU was not law itself – and more akin to a diplomatic assurance – the court held that such assurances are given great weight, given the implications of one state reneging on them.  For this reason, the court gave no credence to UK arguments urging the futility of requesting Rahmattullah’s return from US custody in Afghanistan.  This becomes important later in the decision in relation to the habeas writ.

Scope of GCIV in Relation to the Nationals of Neutral Nations

As a precursor to deciding whether the UK exercised sufficient control over the respondent to permit invocation of the habeas writ, the court examined the legality of respondent’s current detention.  Remarkably, in so doing, the court pronounced on US conduct.

The crux of the court’s holding turned on a construal of GC IV.  Article 4 of that instrument provides that “[para 1] persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.  … [para 2] Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are …”

Construing paragraph 2, the court concluded that neutral nationals on the territory of a belligerent nation (eg the United States) were not protected persons.  However, those in the conflict or occupied zone (eg Iraq) were.  It noted that this proposition was not without doubt, but was the only sensible construction of the provision.  (In fact, this construction is also consistent, at least in the result, with the ICRC commentaries on GC IV.)

In so far as the court was concerned, therefore, Rahmattullah is a protected person under GC IV.  As such, that convention bared his removal from the occupied territory.  The United States, by transporting the respondent to Afghanistan, had breached this obligation.  Moreover, the United States was also in breach of other provisions of GCIV by continuing to detain the respondent in circumstances where the US Detainee Review Board had concluded that detention was unnecessary to mitigate any threat he posed.

It followed that the UK, as the state that had originally transferred the respondent to the United States, was obliged by its own GC IV obligations to take effective measures to correct the US non-compliance or request the return of the respondent.

Given these unequivocal obligations, the government’s only defence to a lawsuit grounded in habeas corpus was that Rahmattullah was not in the government’s control and therefore, the writ did not apply.

The Extraterritorial Application of the Writ

In turning to this next question, the Court did not dwell on the respondent’s nationality.  It was indifferent to extraterritoriality.  In both respects therefore, it sidestepped issues that have rendered Canada’s Charter anemic in dealing with overseas detentions.  Instead it simply scrutinized whether the UK could ask for and reasonably expect to receive the respondent from the United States.  In a statement by Lord Kerr that encapsulates a majority view on the court, the 2003 MOU  “provided more than sufficient reason to conclude that the UK government could expect that, if it asked for it, Mr Rahmatullah’s return by US forces would occur” (at para. 75)

The case only foundered on this question: following the Court of Appeal’s decision in this case (decided on this same issue), the UK had asked for the respondent’s re-transfer, and the US had said no.  A majority of the Court held that, having so satisfied their obligation to ask, there was nothing left for the UK government to do.

That ultimate outcome says very little about the utility of MOUs and diplomatic assurances.  Having waxed on about the diplomatic and political weight of these instruments and the resulting presumption by courts that they mean much, the Supreme Court’s final ruling amounts to this: the MOU was hardly worth the paper on which it was written.  This conclusion will likely empower those inclined to doubt assurances in future cases.

Implications for Afghan Detainee Transfers

More generally, the UK case may have ripples on this side of the Atlantic.  Not least, it suggests new avenues to explore if an Afghan detainee-analogous case were ever to arise in Canada.  With the combat mission in Afghanistan wound done, this possibility may be of mostly academic interest – until the next time the CF deploys with an allied military. 

Recall that in the Afghan detainee matter, the transfer of detainees by the Canadian Forces to Afghan agencies that engaged in torture was challenged on Charter grounds in Federal Court.  The case foundered on what I have previously described as a very problematic reading of the Supreme Court of Canada’s Hape and Khadr decisions, the net result of which is to make the Charter a strictly territorial instrument unless Canada is abusing the human rights of a Canadian.  Such an approach is both unpalatable and absolutely alien to Canada’s international obligations.

The habeas writ deployed by the UK Supreme Court is blind to nationality and to territory, making it a much less discriminatory instrument than the Charter as currently construed by the Federal Court of Appeal.  Everything instead hinges on control.  In the Afghan transfer context, there would have been control.  The detainee was captured before being transferred.  Having been captured, the detainee is then obviously in Canadian control.

Of course, habeas would be of little practical utility to challenge the initial detention by the CF.  The detention of an enemy combatant on the field of battle is surely a legal undertaking.  The subsequent torture of that person by Afghan authorities would not be.  At issue, therefore, is whether the habeas remedy would be available to oblige Canada to re-assert control over the detainee once transferred to Afghanistan.  And at this point everything would turn on whether control could be re-asserted by Canada per the equivalent of a UK/US 2003 MOU.

In the 2005 and 2007 detainee transfer arrangements concluded between Canada and Afghanistan, the conflict at issue was a noninternational armed conflict and Canada was not an occupying power.  The detainee transfer provisions of GCIV were, therefore, inapplicable.  The international law principles undergirding both the US/UK 2003 MOU and the Supreme Court’s decision in Rahmattullah were not in play.  And the arrangements contained no US/UK 2003 MOU like language on reasserted custody of transferred detainees.

Still, the arrangement contained all sorts of provisions giving Canada a watching brief over the treatment of transferred detainees.  What significance this might have turns on how broadly “control” is construed.  In truth, Canada purported to assert considerable influence over the treatment of detainees through the arrangements.  It is not implausible that a court would view this level of influence as constituting a level of control satisfying pre-requisites to the habeas corpus writ.  If so, then Canada might confront a court order requiring it to exercise the powers anticipated in the arrangements, failing which one can imagine all sorts of injunctive relief on further transfers.

It is also the case that should Canada deploy in an international conflict in the future, GCIV would apply in its full form, putting Canadian transfers (say by JTF2) to allies (say the United States) on exactly the same legal footing as was the case in Rahmattullah.

All this discussion is entirely speculative, of course, given the anemic jurisprudence on the habeas writ in modern Canadian law.   But one other thing to note: all this new thinking about the reach of Canadian courts to overseas military conduct would take place in provincial superior court, since the Federal Court has no jurisdiction over habeas matters (except in relation to CF members deployed overseas).  That fact would bring to the table a new player – a court whose pedigree might lead it to look at these matters through the less then deferential criminal law lens and not the often diffident administrative law lens.