CURRENT DEVELOPMENTS
PUBLIC INTERNATIONAL LAW
Edited by Dominic McGoldrick and Sarah Williams
SELLING THE PASS: HABEAS CORPUS, DIPLOMATIC
RELATIONS AND THE PROTECTION OF LIBERTY AND
SECURITY OF PERSONS DETAINED ABROAD
Abstract On 31 October 2012 the Supreme Court of England and Wales handed down its judgment in Rahmatullah v Secretary of State for Foreign
Affairs and Secretary of State for Defence [2012] UKSC 48. The case concerns an application for habeas corpus brought by a citizen of Pakistan originally detained by the United Kingdom in Iraq before being transferred into the custody of the United States. Rahmatullah addresses important issues concerning the extraterritorial reach of habeas corpus under English law in respect of persons held in the custody of a foreign State, as well as the international rule of law. The case may be considered a legal victory for persons detained without trial by the US in facilities thought to be beyond the reach of the courts. However, in reality any strength in the arm of the law is drained by the priority given to the conduct of foreign affairs, ‘forbidden territory’ for the courts, over the Court’s ruling and the UK’s obligations under international law. The case is examined in the light of similar jurisprudence from US and Australian courts.
Keywords: diplomatic relations, foreign nationals, habeas corpus, international law.
I. INTRODUCTION

On 31 October 2012 the Supreme Court of England and Wales handed down its judgment in Rahmatullah v Secretary of State for Foreign Affairs and Secretary of State for Defence.1 The case concerns whether a writ of habeas corpus was properly issued against the Secretaries of State with regard to a non-British citizen detained by the
United States (US) authorities at Bagram airbase, Afghanistan.2 Mr Rahmatullah (R) had been arrested by the United Kingdom (UK) armed forces in Iraq in 2003 and was subsequently transferred to US custody pursuant to a Memorandum of Understanding
(MoU) between the UK and the US.3 The Court held unanimously that there was
1

Rahmatullah v Secretary of State for Foreign Affairs and Secretary of State for Defence
[2012] 3 WLR 1087 (SC(E)) (‘Rahmatullah’).
2
At the time of writing Mr Ramatullah remains in US detention.
3
Rahmatullah (n 1) para 3. The MoU is entitled, ‘An Arrangement for the Transfer of
Prisoners of War, Civilian Internees, and Civilian Detainees between the Forces of the United
States of America, the United Kingdom of Great Britain and Northern Ireland, and Australia,
23 March 2003.’ The original MoU is unavailable to the author.
[ICLQ vol 62, July 2013 pp 727–739]

doi:10.1017/S0020589313000225

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International and Comparative Law Quarterly

sufficient uncertainty as to whether the UK retained control over R’s detention for the court properly to issue the writ and that there was no reason to believe, at the time the writ was issued, that it would not be effective. However the majority4 held that the
Secretaries of State had fulfilled their duties pursuant to the writ by providing evidence of the US’s refusal to return R upon their request.
The writ of habeas corpus sits at the heart of constitutional law.5 It is fundamental to protect the liberty of the individual from the unlawful use of executive power.6 If the detention of a person cannot be legally justified, they have the right to be released. The court has no discretion to consider matters of public policy.7 In the words of Lord
Carnwath and Lady Hale in this case, ‘[t]he strength of habeas corpus is its simplicity’.8
As Lord Kerr explained in the leading judgment, it is a flexible remedy that has developed over the centuries so that it may be directed not only to the authority that has actual physical custody of the detainee but also to the person or authority that has a reasonable prospect of securing control over the detainee or his production to the court.9
This principle applies whether the detainee is within the jurisdiction of the court or has
been