Britain Shouldn’t Aid a Lawless America

The British government will be held in contempt of court later this week if it does not physically produce a prisoner of war whom its special forces captured in 2004 and then handed over to American soldiers.

The current legal drama began in February 2004, when two Pakistani rice merchants, Yunus Rahmatullah and Amanatullah Ali, disappeared on a business trip to Iran. They were held incommunicado for nearly a year before their families learned that they had been captured by British forces in Iraq and then turned over to American soldiers.

The two men were transferred in accordance with an American-British-Australian agreement mandating observance of the Geneva Conventions and stipulating that all prisoners must be returned, if requested, to the country that originally transferred them.

Several weeks later, American forces put both men on a plane and sent them to Bagram Air Base in Afghanistan, where they have been held for the past seven years in conditions far worse than those at Guantánamo Bay. During those seven years, no charges have been filed against them, and both the British and American governments have refused to provide any hearing or account for their continued detention.

A British human rights organization, Reprieve, sought a writ of habeas corpus in the British courts on behalf of Mr. Rahmatullah. An American human rights organization, the International Justice Network, on whose board of directors I serve, sought a writ of habeas corpus on behalf of Mr. Ali in the United States courts. A bulwark against arbitrary or incommunicado detention since the 14th century, habeas corpus requires that the jailer produce the prisoner in court and provide the court with a legal justification for his continued custody.

In the sort of Catch-22 that happens daily in the world of detainee litigation, the British argued that habeas corpus did not apply because the government no longer held the prisoner and did not know whether it could get him back, despite its treaty rights. The American government claimed that habeas corpus did not apply because American courts had no authority over the Bagram base, as it was in a war zone, despite the fact that Mr. Ali had been flown into that war zone.

The English Court of Appeal has now ordered that the writ be granted and that the British foreign and defense secretaries produce Mr. Rahmatullah at the Royal Courts of Justice in London by Feb. 14 or be held in contempt. The order informs the cabinet secretaries that if they fail to produce him, the court will “be moved to commit you to prison for your contempt in not obeying the said writ.” (The American courts have not yet issued a decision in Mr. Ali’s case, and those of us representing him may file suit in Britain.)

The English court’s decision is a brave and serious attempt to halt America’s and Britain’s dangerous legal minuet. “Depriving a prisoner of war of the rights of fair and regular trial,” the court held, is a grave breach of the Geneva Conventions.

The Third Geneva Convention requires that prisoners of war be “released and repatriated, without delay after cessation of active hostilities.” As the Obama administration proudly announced in December, the war in Iraq is over. And that means all prisoners taken there must now be released.

The Fourth Geneva Convention prohibits prisoners from being shuttled around like cattle into and out of occupied territories and zones of active combat. “Unlawful deportation or transfer” or “unlawful confinement” of a protected person violates the Convention — so does rendition of detainees into a zone of active combat.

These men were transferred from one war zone to another, yet the United States has cynically pointed to the fact that they are being held in a war zone to preclude any oversight by courts into the detention of these, and hundreds of other, prisoners. America’s treatment of these men violated the Geneva Conventions, and Britain has aided and abetted those violations.

Responsibility for human beings cannot be shifted around like a game of diplomatic three-card monte. When Britain rendered these men to the Americans, it did not abdicate responsibility for their fates and it is therefore liable for aiding and abetting breaches of the Geneva Conventions. And the American government, which moved these men out of one theater of war and into another, cannot use that as an excuse to evade accountability.

America’s relations with Pakistan are on a knife’s edge these days. Sending these Pakistani men home would make clear that America respects the dignity of the individual, is committed to its treaty obligations and the rule of law, and expects other nations to do the same.

Britain has asked for the United States to return Mr. Rahmatullah to British custody pursuant to the terms of the treaty. The Obama administration has signaled that it wants to release detainees. However, Washington does not want to be seen as capitulating to a foreign court ruling.

But this is not a question of national pride or partisan posturing; it is long past time for Washington to respect the rule of law. The ball is in our court.

Eric L. Lewis, an international litigator.

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