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High Court allows torture trial to go ahead against MoD

High Court judgment finds that it would be failing in its duty if it did not hear claims of unlawful detention and torture made against UK forces

19 November 2014

The High Court in London has agreed that a claim for joint liability, with the United States, against the Ministry of Defence can proceed in the UK Courts for the alleged role of UK forces in the unlawful detention and torture of a Pakistani man detained for 10 years without charge or a trial.

The judgment handed down today (19th November 2014) by Mr Justice Leggatt found that the UK Courts would be failing in their duty if they did not deal with the claims even if that involved the court making findings that US officials acted unlawfully.

The MoD had argued that that they should not face the UK Courts as the alleged unlawful behaviour was also conducted by the US and that they should have either state immunity or that the Courts do not have jurisdiction over the acts of a foreign state, in this case the US.

However, lawyers acting for Mr Rahmatullah argued that the British Forces released him and others into US custody knowing that they were likely to be subject to unlawful detention and torture, and that they should share joint liability for the treatment of the men.

The judgment also concerns claims made by 3 Iraqi men of abuse by British soldiers at various detention facilities in Iraq prior to handover to US forces. This includes the claim of one man who alleges suffering severe sexual abuse at the notorious Abu Ghraib Prison, following his handover to the US. In all cases the MoD claimed that the doctrines of State Immunity and Foreign Act of State should prevent the English courts from dealing with the claims.

In his judgment Mr Justice Leggatt found that:

“… the [Defendants’] 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. There is nothing in the foreign act of state doctrine as so far discussed which would provide any support for such a contention.” [Para 115]

“… if it is necessary to adjudicate on whether acts of US personnel were lawful… in order to decide whether the defendants violated the claimant’s legal rights, then the court can and must do so.” [Para 142]

“…for the court to refuse to decide a case involving a matter of legal right on the ground that vindicating the right would be harmful to state interests would seem to me to be an abdication of its constitutional function.” [Para 169]

“..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.’ [Para 171]

“… If…such findings [about the conduct of US personnel] are indeed necessary in order to decide whether the claimants have a right to be compensated for wrongdoing by the defendants, the court would in my opinion be failing in its duty if it refused to adjudicate upon the allegations made.” [Para 175]

British forces in Iraq detained Yunus Rahmatullah in February 2004. Shortly afterwards he was transferred into the custody of US forces who rendered him to Bagram Airbase in Afghanistan.

He was detained there for the next 10 years without charge or trial. He was finally released from custody on 17 June 2014.

Mr Rahmatullah alleges that, while in detention, he was subjected to torture and other serious mistreatment including 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.

Speaking about the abuse allegations Mr Justice Leggatt said: 

"..the claims of Mr Rahmatullah and the three Iraqi civilian claimants involve allegations of human rights’ violations of the utmost gravity..” [Para 178]

Today's ruling comes in the wake of a recent Court of Appeal ruling that a separate rendition case – brought by Libyan politician, Abdul-Hakim Belhaj, and his wife Fatima Boudchar, against former Foreign Secretary, Jack Straw MP, and others – should be heard in the English courts, despite similar claims by the British Government that to do so would damage US-UK relations.

Today’s judgment means that the claims brought by the 4 men seeking accountability from the British Government for its role in their severe mistreatment while in US custody in Iraq and Afghanistan can be examined by the English courts.

Sapna Malik from Leigh Day who represents Mr Rahmatullah said: “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.”

Kat Craig, legal director at charity Reprieve, which is assisting Mr Rahmatullah, said: “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.”

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